Wilson v. Workman

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH
August 27, 2009
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

TENTH CIRCUIT

M ICHAEL LEE W ILSON,
Petitioner - Appellant,
v. No. 06-5179
RANDALL G. W ORKM AN, W arden,
Oklahoma State Penitentiary,
Respondent - Appellee.
_______________________________

DONALD W ACKERLY II,
Petitioner - Appellant,
v. Nos. 07-7034 and 07-7056
RANDALL G. W ORKM AN, W arden,
Oklahoma State Penitentiary,
Respondent - Appellee.

APPEALS FRO M TH E UNITED STATES DISTRICT CO URTS
FOR THE NO RTH ERN AND EASTERN DISTRICTS O F O K LAH OM A
(D.C. Nos. 00-CV-147-CVE and CIV-01-567-FH S-KEW )

Howard A. Pincus, Assistant Federal Public Defender, Denver, Colorado
(Raymond P. M oore, Federal Public Defender, and Lanita B. Henricksen,
Henricksen & Henricksen, Oklahoma City, Oklahoma, with him on the briefs), for
Petitioners M r. W ilson and M r. W ackerly.
Seth S. Branham, Assistant Attorney General, Oklahoma City, Oklahoma (W .A.
Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, Oklahoma,
with him on the briefs), for Respondent M r. W orkman.

Before H ENRY, Chief Judge, TACH A, K ELLY, BRISCO E, LUCERO ,
M URPH Y, H ARTZ, O ’BRIEN, M cCO NNELL, TYM K O VICH , G O RSUCH ,
and H O LM ES, Circuit Judges.

M cCO NNELL, Circuit Judge, joined by H ENRY, Chief Judge, and K ELLY,
LUCERO , M URPHY, H ARTZ, and H O LM ES, Circuit Judges.

This court granted rehearing en banc to determine whether to accord

deference to decisions of the Oklahoma state courts on claims of ineffective

assistance of counsel under 28 U.S.C. § 2254 where those claims are based on

evidence that was not part of the original trial court record and where the state

court declined to supplement the record with the proffered evidence, based on

Oklahoma Appellate Rule 3.11(B)(3)(b). Under Oklahoma procedure, appellate

review of a criminal conviction is confined to the original trial record unless that

record has been supplemented through an evidentiary hearing. Rule 3.11(B)(3)(b)

allows a defendant, on direct appeal, to offer non-record evidence in support of an

ineffective assistance of trial counsel claim. If the court finds, “by clear and

convincing evidence there is a strong possibility trial counsel was ineffective for

failing to utilize or identify the complained-of evidence,” the Oklahoma Court of

Criminal Appeals (“OCCA”) will remand to the trial court for an evidentiary

hearing based on the claims raised in the application. Okla. Stat. tit. 22, ch. 18,

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App. Rule 3.11(B)(3)(b) [hereinafter “Rule 3.11”]; Dewberry v. State, 954 P.2d

774, 775–76 (Okla. Crim. App. 1998). Following the evidentiary hearing, the

trial court makes written findings of fact and conclusions of law. “It is the record

from this evidentiary hearing which . . . supplements the trial court record on

appeal.” Dewberry, 954 P.2d at 776. Any affidavits or other evidence supplied in

support of the evidentiary hearing are not considered part of the record on which

the OCCA bases its Strickland ruling unless they are properly introduced at the

evidentiary hearing. Id. (“The record on appeal must remain as only that which

has been presented through the trial court.”) (emphasis added).

In Wilson v. Sirmons, 536 F.3d 1064 (10th Cir. 2008), a divided panel held

that where the Oklahoma Court of Criminal Appeals rejects an ineffective

assistance of counsel claim in a capital case predicated on non-record evidence

without ordering an evidentiary hearing to supplement the record and without

otherwise considering that evidence under the standards set forth in Strickland,

the decision of the OCCA on that claim is not entitled to deference under

Antiterrorism and Effective Death Penalty Act (“AEDPA.”) Id. at 1079–1083. In

Wackerly v. Workman, No. 07-7034 & 07-7056, the panel faced a similar

question. Recognizing that our circuit’s precedents have not been consistent on

this point, the full court voted to grant rehearing en banc in Wilson, and initial en

banc review in Wackerly, on the following issues:

(1) W hen a defendant bases his claim of ineffective assistance of
counsel in part on non-record evidence proffered under Oklahoma
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 Rule 3.11, and the OCCA denies the motion for an evidentiary
hearing and also denies the ineffective assistance of counsel claim
without reference to the proffered non-record evidence, is the
OCCA’s decision on the defendant’s ineffective assistance claim an
“adjudication on the merits” warranting deference under § 2254(d)?

(2) W hat effect, if any, does the extent of the OCCA’s discussion of
the Rule 3.11 motion, and the proffered non-record evidence, have on
whether the OCCA’s decision on the petitioner’s ineffective
assistance of counsel claim is entitled to deference under § 2254(d)?
The briefs should consider circumstances where the OCCA denial, (a)
is made summarily without reasoning or discussion of the Rule 3.11
materials, or otherwise lacks substantive reasoning, (b) cites to Rule
3.11 but does not discuss proffered evidence, or (c) cites to Rule 3.11
and discusses proffered evidence.

Wilson v. Sirmons, 549 F.3d 1267, 1268–69 (10th Cir. 2008).

Having received supplemental briefs and heard oral argument in these

cases, we conclude that the panel in Wilson was correct in its holding that

AEDPA deference does not apply when, pursuant to Rule 3.11, the OCCA decides

an ineffective assistance of counsel claim without consideration of non-record

evidence that, “if true and not contravened by the existing factual record, would

entitle the petitioner to habeas relief” under Strickland. M iller v. Champion, 161

F.3d 1249, 1253 (10th Cir. 1998). W e therefore reinstate the panel decision in

Wilson, and remand to the panel in Wackerly for disposition consistent with this

decision.

I. BACKG RO UND

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 M ichael Lee W ilson and Donald W ackerly II were convicted of first degree

murder in unrelated cases and both were sentenced to death. Both defendants

raised claims of ineffective assistance of counsel on appeal, and in support of

those claims, proffered affidavits and other non-record evidence purporting to

show that their trial counsel’s performance fell below constitutional standards of

effectiveness under Strickland v. Washington, 466 U.S. 668, 687 (1984).

Pursuant to Oklahoma Appellate Rule 3.11(B)(3)(b), they requested an

evidentiary hearing to submit non-record evidence on their ineffective assistance

claims. The OCCA denied this request in both cases.

M r. W ilson’s primary claim was that his trial counsel was constitutionally

deficient with respect to mental health mitigation at the sentencing phase. He

proffered five affidavits in support of this claim. Three of these affidavits were

from family members and one was from his former girlfriend, who is also the

mother of his child. All described different mental health problems M r. W ilson

had, along with other struggles he experienced throughout his youth. The fifth

was from the trial expert, Dr. Eugene Reynolds, who had been engaged by trial

counsel only three weeks prior to the trial. In his affidavit, Dr. Reynolds

explained that he had not had time prior to trial to properly examine M r. W ilson.

In particular, although one of the tests he administered prior to trial indicated the

possibility of schizophrenia, the test was invalid; but Dr. Reynolds did not have

time to readminister the test. Nor did he have the benefit of information from the

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family prior to making his pre-trial diagnoses. Dr. Reynolds then set forth the

diagnoses that he reached after trial with the benefit of the additional affidavits

from M r. W ilson’s family, provided by appellate counsel, as well as the retesting

and further examination. These diagnoses showed, among other things, that M r.

W ilson suffered from schizophrenia and hallucinations. He also outlined the

diagnoses he was able to make prior to the sentencing phase but which were

nonetheless never presented to the jury, and recounted his interactions with the

defendant. Wilson, 536 F.3d at 1075, 1077. All of these affidavits were prepared

after judgment had been rendered at trial, and thus were not part of the trial

record.

In denying M r. W ilson’s claim, the OCCA explained that “[M r.] W ilson has

filed . . . an application for an evidentiary hearing regarding ineffective assistance

of counsel in an attempt to supplement the record with materials not found in the

record.” Wilson v. State, 983 P.2d 448, 472 (Okla. Crim. App. 1998). The court

then dealt with the issue in a single paragraph, beginning with the words: “A

review of the trial record shows . . .” and containing a summary of Dr. Reynolds’s

trial testimony, with no mention of his post-trial affidavit. Id. The court then

concluded:

The mere fact more evidence could have been presented is not, in
itself, sufficient to show counsel was deficient. Reynold’s [sic]
testimony was credible and well developed. W e find [M r. W ilson]
has failed to carry his burden to show either deficient performance by
counsel, or prejudice from the omission of this specific evidence.

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Id. (citation omitted). In an accompanying footnote, it denied M r. W ilson’s

motion for an evidentiary hearing, without reference either to the Strickland

standard or to the Rule 3.11(B)(3)(b) standard. Id. at n. 8. The court did not

quote, summarize, or analyze the substance of the non-record evidence.

On habeas review, the federal district court applied AEDPA deference to

the issue of whether counsel was ineffective at the sentencing phase and found

that the OCCA’s denial of the claim was not an unreasonable application of

Supreme Court precedent. Wilson v. Sirmons, 2006 W L 2289777, at *43 (N.D.

Okla. Aug. 8, 2006). It denied both his habeas petition and his request for an

evidentiary hearing.

M r. W ackerly also proffered non-record evidence that he argued trial

counsel should have submitted as mitigating evidence at the penalty stage. This

included records of longstanding health problems and cognitive disorders,

including suicide attempts and drug addiction. It also included the medical

opinion of Dr. M icki Ozolins, a neuropsychologist, who diagnosed M r. W ackerly

with “longstanding dependent personality disorder” and opined that the parenting

M r. W ackerly had received and his cognitive limitations likely contributed to his

poor adjustment throughout life. Dr. Ozolins testified that M r. W ackerly had a

dependent relationship with his girlfriend and accomplice M ichelle, that he would

be easily influenced by her, and that M r. W ackerly would be devastated by the

loss of a close relationship, such as the one he had with his terminally ill mother.

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The OCCA rejected M r. W ackerly’s ineffectiveness claim as it had M r. W ilson’s,

but was even more explicit in its rejection of the proffered evidence under Rule

3.11. Wackerly v. State, 12 P.3d 1, 14 (Okla. Crim. App. 2000). It cited the rule

and then found that while M r. W ackerly “has shown this Court that trial counsel

could perhaps have accessed other information in preparing for trial,” he “has not

shown by clear and convincing evidence a strong possibility that defense counsel

was ineffective for failing to utilize or identify the complained of evidence.” Id.

Accordingly, it denied his application for an evidentiary hearing. On habeas

review, the district court acknowledged that the OCCA had analyzed M r.

W ackerly’s ineffectiveness claim under Rule 3.11’s standard, but it nonetheless

applied AEDPA deference. Wackerly v. Sirmons, 2007 W L 963210, at *8 (E.D.

Okla. M ar. 27, 2007). It found that the OCCA’s determination that M r. W ackerly

had not established deficient performance was contrary to clearly established

federal law, id., but denied his petition on the ground that he could not show

prejudice. Id. at *16.

The Panel Decision in W ilson

In reviewing M r. W ilson’s case, a panel of this court held that his

ineffectiveness claim deserved de novo review rather than AEDPA deference. In

Part III(c) of the lead opinion, joined by Judge Hartz, who concurred separately in

other respects, the panel noted first of all that the state court’s decision on the

ineffectiveness claim was based upon an incomplete factual record— i.e., the

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OCCA did not consider the non-record evidence— and that “when a state court’s

disposition of a mixed question of law and fact, including a claim of ineffective

assistance, is based on an incomplete factual record, through no fault of the

defendant, and the complete factual record has since been developed and is before

this Court, we apply de novo review to our evaluation of the underlying claim.”

Wilson, 536 F.3d at 1079 (citing Bryan v. M ullin, 335 F.3d 1207, 1215 (10th Cir.

2003) (en banc)). The panel emphasized that this “does not mean that we apply

de novo review every time the state court declines to hold a hearing on a

defendant’s evidentiary proffer,” id., but that in this case the OCCA had not

considered the non-record evidence when it denied the ineffectiveness claim.

This was not a case where “the state court examined the claim on the merits,

including the proffered non-record evidence, but decided that even if that new

evidence were fully developed, the defendants could not meet their burdens under

Strickland.” Id. Instead, this was a case where the OCCA relied solely on the

trial record when it denied the claim and the evidentiary hearing, as provided by

Rule 3.11. See id. at 1080 (“Any affidavits or other evidence supplied in support

of the evidentiary hearing are not considered part of the record on which the

OCCA bases its Strickland ruling unless they are properly introduced at the

evidentiary hearing.”); Dewberry, 954 P.2d at 775 (“The record on appeal must

remain as only that which has been presented through the trial court.”) (emphasis

added).

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 Judge Tymkovich dissented. W hile the majority held that the OCCA

decision could be considered an “adjudication on the merits” only if the court

considered both the record and non-record evidence, Judge Tymkovich argued

that “[a]n adjudication on the merits occurs when the state court resolves the case

on substantive grounds, rather than procedural grounds.” Wilson, 536 F.3d at

1128 (Tymkovich, J., dissenting) (quoting Valdez v. Cockrell, 274 F.3d 941,

946–67 (5th Cir. 2001)). Because the OCCA’s rejection of M r. W ilson’s

ineffectiveness claim was based on substantive rather than procedural grounds,

Judge Tymkovich found it irrelevant that the state court had not considered all the

evidence that the defendant presented. To the degree that our precedents held

otherwise, he argued that they had been overruled by Schriro v. Landrigan, 550

U.S. 465, 474 (2007) (“Because the deferential standards prescribed by § 2254

control whether to grant habeas relief, a federal court must take into account

those standards in deciding whether an evidentiary hearing is appropriate.”).

Judge Tymkovich further argued that “[b]ecause the standard for obtaining

an evidentiary hearing under Rule 3.11 is lower than the standard set forth in

Strickland— petitioner need only show a ‘strong possibility’ of ineffective

assistance— when the OCCA denies an evidentiary hearing under Rule 3.11, it

necessarily makes a merits determination petitioner cannot meet the substantive

Strickland standard.” Wilson, 536 F.3d at 1129 (Tymkovich, J., dissenting). The

panel majority rejected Judge Tymkovich’s argument that the OCCA’s denial of

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an evidentiary hearing under Rule 3.11 could substitute as an adjudication on the

merits of a defendant’s Strickland claim because it rejected Judge Tymkovich’s

position that Rule 3.11 laid out a lower standard. “Although Rule 3.11 uses a

lower substantive standard (‘strong possibility’) it erects a much higher

evidentiary hurdle for meeting that standard: to obtain an evidentiary hearing

under Rule 3.11, the movant must provide ‘clear and convincing evidence’ of this

‘strong possibility.’” Id. at 1081. The panel stated that “the interplay of these two

standards— one more demanding, one less demanding, than the federal— is not

clear,” but that “we cannot conclude that when the state court denies an

evidentiary hearing under Rule 3.11 it has necessarily decided that the federal

standard was not satisfied.” Id. It therefore concluded that there had been no

adjudication on the merits and reviewed M r. W ilson’s claim de novo, ultimately

remanding to the district court to hold an evidentiary hearing for consideration of

the proffered evidence.

II. DISCUSSION

A. W hether an O CCA Ruling is an Adjudication on the M erits W hen It Does
Not Consider M aterial Non-Record Evidence

1. The Text, Structure, and Purpose of AEDPA

Under AEDPA, federal courts must defer to the state court’s resolution of a

claim when the state court has adjudicated the petitioner’s claim “on the merits.”

28 U.S.C. § 2254(d). If there has been no adjudication on the merits, we review

the claim de novo. In the cases before us, the state court disposed of mixed
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questions of law and fact, but did so on a factual record that was, solely as a

result of the state procedural rule, incomplete. W e hold that when the state court

makes such findings on an incomplete record, it has not made an adjudication on

the merits to which we owe any deference.

The merits question presented is whether, in light of non-record evidence,

trial counsel’s performance satisfied constitutional standards. If, because of

procedural obstacles to supplementing the record, the state court does not

consider the material, non-record evidence that has been diligently placed before

it, it perforce does not provide an answer to that question. Ineffective assistance

claims based on a failure to investigate will almost always involve evidence not

contained within the record, as the defendant will have to point to what trial

counsel would have uncovered had he diligently performed his duties. By

definition such evidence is not already in the trial record. Nor was the evidence

produced by these defendants so slight or inconsequential that it could not be

considered material to the constitutional claims. If the state court fails to

consider the very evidence that the claim is based upon, then the state court has

not adjudicated the merits of the claim.

A claim is more than a mere theory on which a court could grant relief; a

claim must have a factual basis, and an adjudication of that claim requires an

evaluation of that factual basis. Black’s Law Dictionary defines a “claim” as

“[t]he aggregate of operative facts giving rise to a right enforceable by a court.”

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Black’s Law Dictionary (8th ed. 2004); see also United States v. Ripa, 323 F.3d

73, 83 n.10 (2d Cir. 2003); Wyandotte Nation v. Nat’l Indian Gaming Comm’n,

437 F. Supp.2d 1193, 1208 (D. Kan. 2006). Indeed, when a civil complaint states

only “a formulaic recitation of the elements of a cause of action” without

“[f]actual allegations [that are] enough to raise a right to relief above the

speculative level,” we dismiss the complaint for failure to state a claim. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). This is no different in the habeas

context, where the Supreme Court has said that “a claim for relief in habeas

corpus must include reference to a specific federal constitutional guarantee, as

well as a statement of the facts that entitle the petitioner to relief.” Gray v.

Netherland, 518 U.S. 152, 162–63 (1996) (emphasis added). And AEDPA tells us

that for deference to apply the state court not only must dispose of a claim, but

must do so “on the merits.” Black’s Law Dictionary defines “on the merits” as a

judgment “delivered after the court has heard and evaluated the evidence and the

parties’ substantive arguments.” Black’s Law Dictionary (8th ed. 2004). W hen

the state court has not considered the material evidence that a defendant

submitted to support the substance of his arguments, it has not adjudicated that

claim on the merits.1 See Barkell v. Crouse, 468 F.3d 684, 697 (10th Cir. 2006)

1
This does not mean, as a dissent suggests (Tymkovich Diss., at 11), that
the addition of any “new evidence” necessarily makes the petitioner’s case a “new
claim,” any more than that a slight change in legal theory does. As the Supreme
Court has explained, “Obviously there are instances in which ‘the ultimate
(continued...)
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(Holmes, J.) (where state court rejected an ineffective assistance of counsel claim

without considering the petitioner’s proffered evidence, the court “was deciding a

different issue from what is before us”); Torres v. Lytle, 461 F.3d 1303, 1312

(10th Cir. 2006) (Hartz, J.) (“Although ordinarily we would review M r. Torres’s

habeas claim on that same record and give the state court’s ruling the usual

AEDPA deference, we are now considering the trial transcript, which was not

presented to the [state court]. Accordingly, we may not be deciding the same

legal issue decided by the [state court], at least if the trial transcript provides

substantial evidence not in M r. Torres’s pleadings with the [state court].”).

As the panel noted, Wilson, 536 F.3d at 1079, this does not mean that the

state court fails to reach the merits in every case in which it denies the

defendant’s motion for an evidentiary hearing under Rule 3.11(B)(3)(b). In some

cases, the OCCA first analyzes the proffered non-record evidence against the

Strickland standard, concludes that even if admitted the evidence would not

entitle the petitioner to habeas relief, and then denies the motion for an

evidentiary hearing. See, e.g. Welch v. State, 2 P.3d 356, 376–77 (Okla. Crim.

1
(...continued)
question for disposition’ will be the same despite variations in the legal theory or
factual allegations urged in its support.” Picard v. Connor, 404 U.S. 270, 277
(1971) (quoting United States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (7th Cir.
1966)) (emphasis added). The question is a practical one, here as in other
contexts where it matters whether a particular “claim” has been adjudicated: was
“the substance of [the] federal habeas corpus claim . . . presented to the state
courts”? Id. at 278. See Demarest v. Price, 130 F.3d 922, 938–39 (10th Cir.
1997).
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App. 2000); Bland v. State, 4 P.3d 702, 732–34 (Okla. Crim. App. 2000)

(analyzing proffered evidence in detail, finding that it did not amount to evidence

of ineffectiveness because it would not have “impacted the outcome of the trial,”

and then additionally denying the evidentiary hearing). The decisions in these

cases are treated as decisions on the merits for purposes of AEDPA deference.

See Welch v. Sirmons, 451 F.3d 675, 704, 708–09 (10th Cir. 2006) (OCCA

referred to the proffered affidavits in the course of denying the ineffectiveness

claim); Bland v. Sirmons, 459 F.3d 999, 1030 (10th Cir. 2006) (the OCCA

“[e]xamin[ed] the affidavits that would be proffered at such a[n] [evidentiary]

hearing.”). The reason they constitute decisions on the merits is that the OCCA

in these cases applies the Strickland standard to the evidence, without regard to

the additional “clear and convincing evidence” hurdle of Rule 3.11(B)(3)(b). In

the cases now under review, however, the OCCA denied relief solely by reference

to the record evidence. In these cases, unlike Welch and Bland, the OCCA did

not render an alternative holding that the petitioners would not be entitled to

relief even if the proffered evidence were admitted and considered.

W hen the state court relies solely upon the record evidence, and denies

both the claim itself and an evidentiary hearing on the proffered non-record

evidence without any alternative holding based upon the proffered evidence, there

is no adjudication on the merits that would warrant deferential review. A merits

adjudication requires the court to consider the “substance” of the defendant’s

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claim, Gray, 518 U.S. at 163, citing Picard v. Connor, 404 U.S. 270, 278 (1971),

and when the claim involves a mixed question of law and fact but a procedural

rule prevents the state court from even considering the factual grounds, the court

has failed to do so.

In this respect, the “exhaustion” and “adjudicated on the merits” elements

of federal habeas practice are mirror images. To satisfy the exhaustion

requirement, a prisoner must afford the state court the “opportunity to apply

controlling legal principles to the facts bearing upon [his] constitutional claim,”

Picard, 404 U.S. at 277 (quotation omitted; brackets in original), which entails

presentation both of the facts on which he bases his claim and the constitutional

claim itself. Hawkins v. M ullins, 291 F.3d 658, 669–70 (10th Cir. 2002); see also

Gray, 518 U.S. at 162–63; Demarest, 130 F.3d at 938–39. To be entitled to

deference under AEDPA, the state court must similarly decide the “substance” of

the claim, which means to “apply controlling legal principles to the facts bearing

upon [his] constitutional claim.” Picard, 404 U.S. at 277. To dispose of a claim

without considering the facts supporting it is not a decision on the merits.

Our interpretation comports with the general purposes and structure of

AEDPA as well as its language. W hile that statute vindicates goals such as

federalism and comity by affording great deference to state court decisions, it

prescribes deference only for decisions the state court has actually made. These

purposes are not served when the state court has never considered the substance

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of the claim in the first place. No court will have yet evaluated the evidence

(evidence which, in the Strickland context, often comprises the entirety of the

claim, as the evidence of ineffectiveness based on the failure to investigate

usually comes to light only after the trial) and thus there is no prior evaluation of

the claim that would deserve the kind of deference AEDPA provides. As the

federal court would be the first court “to apply controlling legal principles to the

facts bearing upon [his] constitutional claim,” Picard, 404 U.S. at 277 (quotation

omitted; brackets in original), its ruling would show no disrespect to any contrary

dispensation from the state court. AEDPA entitles a defendant to receive de novo

review of his federal claim from some court, so long as he is diligent and timely

in presenting his claim. If the state court does not perform this review because it

has limited its review to the trial record, and the federal court does not perform

this review because it nonetheless defers to the state court’s judgment, then de

novo review will never be performed.

In sum, AEDPA requires us to defer to the state court “with respect to any

claim that was adjudicated on the merits,” but an ineffectiveness claim has not

been adjudicated on the merits when the state court failed to consider the

evidence on which the defendant based his claim. So long as that defendant was

diligent in presenting his evidence to the state court and otherwise satisfies

AEDPA’s requirements, the federal court will review the claim de novo.

2. Arguments in the Dissents

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 The dissents urge us to regard the OCCA’s decisions in these cases as “on

the merits.” They offer two versions of the argument. First, when the OCCA

denied M r. W ilson’s and M r. W ackerly’s claims of ineffective assistance of

counsel, this was “on the merits” even if the court did not consider the evidence

the petitioners put forward. Such an adjudication might be wrong, they seem to

argue, but it was nonetheless “on the merits.” Second, when the OCCA decided

not to grant these petitioners an evidentiary hearing under Rule 3.11, the court

necessarily determined that the proffered affidavits were not clear and convincing

of a strong possibility that counsel was ineffective. This, too, the dissenters

regard as an adjudication on the merits of the petitioners’ Strickland claims.

W e have already explained why this court has traditionally refused to

regard a decision as “on the merits” when it fails to consider the substance of the

claim. But even if we were to agree, arguendo, that the OCCA’s decisions in

these cases were on the merits, it would necessarily follow that each would be

reversed on the ground that it “was contrary to . . . clearly established Federal

law.” 28 U.S.C. § 2254(d)(1). To decide a legal claim without regard to the

evidence is surely unreasonable. See Williams v. Taylor, 529 U.S. 362, 416

(2000) (O’Connor, J., concurring) (“The [state court’s] decision reveals an

obvious failure to consider the totality of the omitted mitigation evidence” and

therefore “involved an unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United States.” (citations

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omitted)). To decide the claim by reference to a higher standard of proof than is

imposed by federal law is no less erroneous. Strickland requires a petitioner to

“show, by a preponderance of the evidence, that (1) counsel’s performance fell

below an objective standard of reasonableness, and (2) prejudice, such that there

is a reasonable probability that but for counsel’s errors, the outcome of the trial

would have been different.” Young v. Sirmons, 486 F.3d 655, 680 (10th Cir.

2007). As we elaborate in the next section of this opinion, Rule 3.11’s “clear and

convincing evidence” standard is more demanding than Strickland’s

“preponderance of the evidence” standard; therefore, any decision based on the

former standard would be contrary to clearly established federal law. See id.

(“[I]f the OCCA used the wrong standard in evaluating Young’s claim, the district

court owed the OCCA no deference and properly conducted an evidentiary

hearing on this matter.”); Cargle v. M ullin, 317 F.3d 1196, 1202 (10th Cir. 2003)

(“[AEDPA deference] does not apply if the state court employed the wrong legal

standard in deciding the merits of the federal issue.” (citing Revilla v. Gibson,

283 F.3d 1203, 1220 n.14 (10th Cir. 2002)). Thus, the dissenters’ interpretation

of “on the merits” would lead to the same outcome, by a more circuitous course.

The dissents express concern that our approach will allow habeas

petitioners to circumvent state remedies and improperly obtain de novo review in

federal court by the expedient of holding back evidence from the state court and

then presenting it in federal court. See Tymkovich dissent at 11 (“[T]he majority

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suggests that every time a habeas petitioner submits new evidence in federal

court, the evidence amounts to a new constitutional ‘claim’ that has never been

adjudicated.”).

W e believe these concerns are greatly exaggerated. AEDPA itself contains

safeguards against the dissenters’ feared strategy. First, a petitioner must

diligently develop the factual basis of his claim in state court before he is

permitted to receive an evidentiary hearing before the federal court. M ichael

Williams v. Taylor, 529 U.S. 420, 437 (2000). If a petitioner could have produced

certain evidence with due diligence, but did not do so, the state is entitled to

oppose presentation of new evidence in federal court on that ground. Relatedly, a

state prisoner generally must exhaust available state-court remedies before a

federal court can consider a habeas corpus petition. See 28 U.S.C. §

2254(b)(1)(A); Hawkins v. M ullin, 291 F.3d 658, 668 (10th Cir. 2002). A claim

has been exhausted when it has been “fairly presented” to the state court. Picard,

404 U.S. at 275. “Fair presentation” means that the substance of the claim must

be raised in state court. The allegations and supporting evidence must offer the

state courts “a ‘fair opportunity’ to apply controlling legal principles to the facts

bearing upon his constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982)

(citing Picard, 404 U.S. at 276–77). Thus, although a habeas petitioner will be

allowed to present “‘bits of evidence’” to a federal court that were not presented

to the state court that first considered his claim, evidence that places the claims in

-20-
a significantly different legal posture must first be presented to the state courts.

Hawkins, 291 F.3d at 670 (quoting Demarest,130 F.3d at 932 (further quotations

omitted)). These provisions of AEDPA are designed to “give the state courts a

full and fair opportunity to resolve federal constitutional claims before those

claims are presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999). In light of these safeguards, we see little risk that habeas petitioners

will misapply the majority’s holding to obtain unwarranted de novo review in the

federal courts. The dissents’ worry that our holding contradicts the structure of §

2254, Gorsuch diss. at 9, is without foundation.

3. Arguments based on the decisions of this and other courts

The State points out that another circuit has expressly rejected our approach

in M iller and accorded AEDPA deference to a state court’s ineffectiveness

determination even when that court had not considered the non-record evidence.

Valdez v. Cockrell, 274 F.3d 941, 953–54 (5th Cir. 2001). 2 The Supreme Court

2
The State also cites M atheney v. Anderson, 377 F.3d 740, 747 (7th Cir.
2004) as evidence that the Seventh Circuit has joined the other side of this circuit
split. Aple. 50, 51. In doing so, the State reads M atheney too broadly. First of
all, M atheney was a strange case with a complicated procedural posture in which
the court had erroneously ordered a federal evidentiary hearing in an earlier
iteration. Second, it was not a case where the state court had failed to consider
material non-record evidence; it was a case where there were dueling evidentiary
hearings, one from the state court and one from the district court. The Seventh
Circuit held that Ҥ 2254(d) is applicable even though the district judge held an
evidentiary hearing,” noting that although “[t]he evidence obtained in such a
hearing is quite likely to bear on the reasonableness of the state courts’
adjudication . . . [there is no reason] why it should alter the standard of federal
(continued...)
-21-
recently granted certiorari to resolve this split, Bell v. Kelly, --- U.S. ----, 128

S.Ct. 2108 (2008), although it later concluded that the writ had been

improvidently granted. Bell v. Kelly, 129 S.Ct. 393 (2008). The State urges us to

mend the split by adopting the Fifth Circuit’s position.

W e recognize that Valdez explicitly takes issue with our decision in M iller,

but pause to note that the Valdez decision is not necessarily in conflict with our

holding today. In Valdez, the state court misplaced certain exhibits offered by the

petitioner in support of his habeas claim, and the court stated that it had not read

the transcripts of the trial in their entirety. No party in the case questioned that

the state court had adjudicated the petitioner’s claim “on the merits”; the question

before the Fifth Circuit was whether these flaws in the state court process had

denied the petitioner a “full and fair hearing.” The Fifth Circuit held that AEDPA

does not require that the state accord the petitioner a full and fair hearing as a

prerequisite for AEDPA deference. Thus, the Fifth Circuit did not hold that the

state court decision was not “on the merits.” M oreover, the Fifth Circuit noted

2
(...continued)
review.” Id. (quotations omitted). Thus, M atheney seems to say only that the
existence of an independent federal evidentiary hearing does not in itself
necessitate de novo review of the state court’s conclusions. It does not speak to
the situation where the state court failed to fully consider the material evidence.
Similarly, the Second Circuit case of Wilson v. M azzuca, 570 F.3d 490, 499–500
(2d Cir. 2009), cited by the dissent, does not consider whether or not the state
court made an adjudication on the merits, but instead asks how new evidence
brought at habeas should affect the federal court’s evaluation of the state court’s
decision given that there was an adjudication on the merits.
-22-
that “the state habeas record below contained sufficient descriptions of the

remaining missing exhibits to inform the district court of their probative value,”

id. at 957, and the state court judge was apprised of the relevant portions of the

trial transcript because they were quoted “at length” in the habeas petition, id. at

960 (Dennis, J., dissenting). Based on the court’s description of the record in that

case, it thus appears that the state court reached the substance of the petitioner’s

claims notwithstanding the loss of the exhibits and the failure of the judge to read

the entire transcript. It is therefore not clear that Valdez would be resolved

differently based on our holding today. To the extent that our reasoning differs

from that of the Fifth Circuit, we adhere to our view for the reasons already

stated.

The State also argues that, whatever logic our position might have held

when we first announced it in M iller, the Supreme Court’s subsequent decision in

Schriro v. Landrigan, 550 U.S. 465 (2007), somehow overruled it. W e do not

agree. W hile Schriro emphasizes the importance of following AEDPA’s

deferential standards when reviewing a state court decision, in that case the state

court had actually considered the relevant evidence when making its decision.

M r. Landrigan claimed that his trial counsel had failed to investigate mitigating

evidence, but the factual dispute in that case concerned whether or not he had

instructed his counsel not to investigate such evidence in the first place. The

state appellate court reviewed the relevant evidence and found that M r. Landrigan

-23-
had indeed informed his counsel not to investigate; the federal court reviewed the

same evidence and disagreed. Id. at 469–73. W hile “AEDPA . . . requires federal

habeas courts to presume the correctness of state courts’ factual findings unless

applicants rebut this presumption with ‘clear and convincing evidence,’” at

473–74, that principle does not necessarily require us to apply the same deference

when the state court has failed even to consider the evidence. W hile Schriro

continues to emphasize the importance of deference when deference is due, it

does not suggest that such deference is applicable when the state court has failed

to consider the full merits of the claim.

The holding we announce today is not new. It reaffirms what has been this

circuit’s position for some time. See Bryan v. M ullin, 335 F.3d 1207, 1215–16

(10th Cir. 2003) (en banc); M iller 161 F.3d at 1254. Bryan was an en banc

decision of this court. The en banc court explicitly held that because the state

court record lacked material evidence bearing on the deficiency of counsel’s

performance, despite the petitioner’s diligence in putting that evidence before the

court, review of the claim would be de novo. 335 F.3d at 1215-16. In reaching

that holding, the court acknowledged the contrary decision of the Fifth Circuit in

Valdez. Although there was a vigorous dissent as to the result in Bryan, the

dissenters joined this part of the Bryan majority, making its holding on this point

unanimous. Id. at 1228 (Henry, J., dissenting in part). Nothing has changed in the

six years since Bryan to call that unanimous holding into question.

-24-
 Although the principal dissent tries to characterize M iller and Bryan as

faulty applications of pre-AEDPA law, the opinions in both cases state that they

were interpreting AEDPA and, for the reasons discussed above, both comport

with the language and goals of that statute. Though M iller was decided close in

time to the passage of AEDPA, it remains the law of this circuit; the Supreme

Court later upheld M iller’s principal holding: that the restrictions in § 2254(e) are

inapplicable when the petitioner requested and the state court denied an

evidentiary hearing. See Williams, 529 U.S. at 432 (“Under the opening clause of

§ 2254(e)(2), a failure to develop the factual basis of a claim is not established

unless there is lack of diligence, or some greater fault, attributable to the prisoner

or the prisoner’s counsel. In this we agree with the Court of Appeals and with all

other courts of appeals which have addressed the issue.” (collecting cases and

citing M iller, 161 F.3d at 1253)). In any event, we adopt our holding today based

on the language, structure, and purposes of AEDPA; thus, the precedential

backdrop of M iller and Bryan is now beside the point.

B. Is Rule 3.11’s Standard H igher Than the Constitutional Standard?

W hile the OCCA’s actual Strickland determination is not an adjudication

on the merits when Rule 3.11 has barred consideration of material evidence, there

is still the possibility that that denial of the evidentiary hearing itself constitutes

an adjudication on the merits. The denial of an evidentiary hearing under Rule

3.11, after all, requires the OCCA to consider the non-record evidence that the

-25-
defendant has proffered. If the standard that Rule 3.11 establishes for granting an

evidentiary hearing either replicates or is lower than the constitutional standard,

then the OCCA’s denial of an evidentiary hearing would constitute an

adjudication on the merits to which the federal courts owe deference.

To succeed on a Strickland claim, the federal standard requires a petitioner

“show, by a preponderance of the evidence, that (1) counsel’s performance fell

bellow an objective standard of reasonableness, and (2) prejudice, such that there

is a reasonable probability that but for counsel’s errors, the outcome of the trial

would have been different.” Young v. Sirmons, 486 F.3d 655, 680 (10th Cir.

2007). Rule 3.11, in contrast, grants an evidentiary hearing if the defendant

shows “by clear and convincing evidence there is a strong possibility trial counsel

was ineffective for failing to utilize or identify the complained-of evidence.”

Thus Rule 3.11’s standard poses a lower substantive standard (the defendant need

show only a “strong possibility” of ineffectiveness) but a higher evidentiary

standard (the evidence must be “clear and convincing” rather than simply a

“preponderance”). “Although the interplay of these two standards— one more

demanding, one less demanding than the federal— is not clear, we cannot

conclude that when the state court denies an evidentiary hearing under Rule 3.11

it has necessarily decided that the federal standard was not satisfied.” Wilson,

536 F.3d at 1081.

-26-
 Evidentiary burdens are hardly meaningless and could easily be decisive in

determining whether a defendant receives an evidentiary hearing. Suppose a

defendant alleges that his lawyer failed to investigate an avenue of defense

suggested by the defendants. If true, that would entitle him to habeas relief. But

further suppose the lawyer denies that this defendant had made any such

suggestion, and that the evidence as to who is telling the truth is merely in

equipoise. In such a case, the proffered evidence could very well suggest that the

lawyer’s performance had indeed been deficient, but it might do so only by a

preponderance. W hile such evidence would entitle the defendant to an

evidentiary hearing under the federal standard, it would not meet the “clear and

convincing” threshold that Rule 3.11 prescribes. Evidentiary burdens are not

independent from substantive standards; the two interact. W hen that interaction

could result in the denial of a hearing under the state standard, even though the

federal standard would have granted a hearing in the very same case, we cannot

say that the state court necessarily determined that the federal standard could not

be met.

The State has tried to dispute that Rule 3.11’s “clear and convincing”

standard actually creates a higher evidentiary burden, arguing that “the ‘clear and

convincing’ component of the Rule 3.11 standard is reasonably read as being akin

to the general burden of proof required to prove up factual contentions in state

capital post-conviction proceedings.” Aple. 35. It argues that “clear and

-27-
convincing” simply goes to the quality of the evidence, requiring more than

“speculation, second guesses or innuendo,” Jones v. State, 201 P.3d 869, 890

(Okla. Crim. App. 2009), and does not go to the weight of that evidence. In other

words, despite the “clear and convincing” standard’s long history as an

intermediate burden of proof somewhere between “preponderance of the

evidence” and “beyond a reasonable doubt,” see Addington v. Texas, 441 U.S.

418, 424–25 (1979) (discussing the prevalence of this “intermediate standard”), as

Rule 3.11 uses it “clear and convincing” is no more burdensome than the simple

preponderance standard used by the federal courts.

W e see no reason to think that the “clear and convincing” standard operates

any differently in the Rule 3.11 context than anywhere else in the law. The

OCCA has acknowledged the difference between “clear and convincing” and a

mere preponderance outside of the Rule 3.11 context, see, e.g. Horn v. State, 204

P.3d 777, 786 n.3 (Okla. Crim. App. 2009) (distinguishing between an Oklahoma

evidentiary rule, which requires sexual propensity evidence be established by

“clear and convincing evidence” before it can be admitted, and the federal rule,

which requires only a preponderance of the evidence), as has the Supreme Court,

see Cooper v. Oklahoma, 517 U.S. 348 (1996) (finding Oklahoma statute that

required defendant to prove incompetence by “clear and convincing” rather than a

“more likely than not” preponderance standard was too demanding and therefore

unconstitutional). In fact, the standard is often required by due process in cases

-28-
where “the individual interests at stake . . . are both particularly important and

more substantial than mere loss of money.” Id. (quotations omitted); see, e.g.

Santosky v. Kramer, 455 U.S. 745, 756 (1982) (termination of parental rights);

Addington, 441 U.S. at 427 (involuntary civil commitment); Woodby v. INS, 385

U.S. 276, 286 (1966) (deportation); Gonzales v. Landon, 350 U.S. 920 (1955)

(expatriation); Schneiderman v. United States, 320 U.S. 118, 123 (1943)

(denaturalization); United States v. M axwell Land-Grant Co., 121 U.S. 325, 381

(1887) (land grant). AEDPA itself imposes a “clear and convincing” standard for

certain evidentiary claims, 28 U.S.C. § 2254(e)(1). This shows that the two

standards are different, and meaningfully so.

To verify that the Oklahoma standard is more difficult to satisfy, one need

only look to empirical evidence where the state and federal courts have resolved

identical requests for an evidentiary hearing. See Bryan v. M ullin, 335 F.3d 1207,

1215; M ayes v. Gibson, 210 F.3d 1284, 1289 (10th Cir. 2000); M iller, 161 F.3d at

1253-54, 1259; see also (Kevin) Young v. Sirmons, 486 F.3d 655, 679 (10th Cir.

2007). In each of these cases, the OCCA denied a request for an evidentiary

hearing. W hen the federal court heard the identical request under the federal

standard, the federal court granted a hearing. The Rule 3.11 standard is contrary

to the federal one.

The State has pointed to no case in which the OCCA has equated the “clear

and convincing” standard of Rule 3.11 with the preponderance standard of

-29-
Strickland. To be sure, the OCCA has sometimes rejected evidentiary hearings on

the ground that the evidence presented is mere “speculation.” See, e.g., Jones,

201 P.3d at 890. But this does not mean that Rule 3.11’s evidentiary burden will

automatically be met so long as the evidence is more than speculative.

“[A]dopting a standard of proof is more than an empty semantic exercise,”

Addington, 441 U.S. at 425 (quotations omitted), and we will not take the State’s

habeas counsel’s word for it that an evidentiary standard as well-established as

“clear and convincing” stands for a burden far less demanding here than it does

anywhere else in the law.

Judge Gorsuch’s dissent suggests that we certify this question to the

Oklahoma court, but we cannot accept that suggestion. Even aside from the fact

that no party has suggested that we certify, 3 we do not consider it appropriate in

these circumstances. Federal courts may ask a state court to explain the meaning

of a state law for the purpose of deciding a case in which we are required to apply

that law. See, e.g., Pino v. United States, 507 F.3d 1233 (10th Cir. 2007)

(explaining the purposes of certification). The question in this case, however, is

not how we should interpret and apply the “clear and convincing” standard (which

we would never have occasion to do) but what past decisions of the OCCA meant

when they employed that standard. That is not what certification is for.

3
W hen asked during oral argument if we should certify, counsel for the
state responded that we “can,” but “I don’t think you need to.”
-30-
 Because Rule 3.11 creates a higher evidentiary burden than the federal

standard, we cannot say that the OCCA’s failure to grant an evidentiary hearing

under this standard necessarily constitutes a determination that the defendant

could not satisfy the federal standard.

C. Application to M r. W ilson and M r. W ackerly

Having identified when AEDPA deference is warranted and when it is not,

it remains to be seen how these principles apply to the specific cases of M r.

W ilson and M r. W ackerly. The crucial question for both is whether the state

court considered the non-record evidence when it rendered its decision.

On direct appeal of his conviction and sentence to the OCCA, M r. W ilson

filed an application for an evidentiary hearing under Rule 3.11, seeking admission

into the record of the affidavits he produced in support of his ineffective

assistance of counsel claim. The State relied on the Rule to oppose

supplementing the record. The State explained in its brief that “the information

contained with the affidavits . . . are [sic] not being referred to in this brief as

such affidavits are not part of the record on appeal.” Wilson, 536 F.3d at 1081

(citing Brief of Respondent-Appellee at 70 n. 40, Wilson v. State, 983 P.2d 448

(Okla. Crim. App. 1998)). The OCCA ultimately agreed with the State. It

rejected M r. W ilson’s ineffective assistance claim based on its “review of the trial

record,” Wilson, 983 P.2d at 472, and in a footnote denied M r. W ilson’s Rule 3.11

application to supplement the record, without comment. Id. at 472 n. 8. Unless

-31-
the court says otherwise, we presume the OCCA followed its own rule and made

its ineffectiveness determination solely upon the record evidence. See Dewberry,

954 P.2d at 776 (“The record on appeal must remain as only that which has been

presented through the trial court.”) (emphasis added). In contrast with other

OCCA decisions, e.g. Welch, 2 P.3d at 376–77; Bland, 4 P.3d at 732–34, the

court made no reference to the substance of the non-record evidence in the course

of its explanation for rejecting the motion for an evidentiary hearing. Counsel for

the State conceded at oral argument before the panel that the affidavits were not

part of the OCCA’s Strickland determination. Id. The panel therefore found that

“[t]he entirety of the OCCA’s analysis of the Strickland issue was based on the

court’s review of the trial record.” Id.

Before this en banc court, and despite its earlier concessions, the State for

the first time contends that the OCCA did in fact refer to and consider the non-

record evidence when it denied M r. W ilson’s Strickland claim. Although the

OCCA’s analysis of the claim was expressly based on “[a] review of the trial

record,” Wilson, 983 P.2d at 472, and the court made no reference to the proffered

non-record evidence, the State points to these lines in the OCCA opinion:

The mere fact more evidence could have been presented is not, in
itself, sufficient to show counsel was deficient. Reynold’s [sic]
testimony was credible and well developed. W e find [M r. W ilson]
has failed to carry his burden to show either deficient performance by
counsel, or prejudice from the omission of this specific evidence.

-32-
Id. (citations omitted). The State asks us to conclude that the words “specific

evidence” in the final line were a reference to M r. W ilson’s proffered non-record

evidence rather than to his general claim that more evidence should have been

introduced. W e regard this as less than obvious, especially in light of the State’s

contrary position both in state court and in oral argument before the panel. But in

any event, in the current posture of this case we will not entertain the State’s

newly minted interpretation of the OCCA opinion. W e granted en banc on the

limited issue of how Rule 3.11 affects our standard of review on habeas. The

State did not request and we did not grant review on the additional issue of

whether the OCCA did, despite the proscriptions of Rule 3.11 and the State’s

characterization of the issues up until this point, consider the non-record evidence

when it made its Strickland determination. W e will not disturb the panel’s ruling

on this point.

The OCCA was more explicit in its use of Rule 3.11 when deciding M r.

W ackerly’s claim. It cited the rule and then found that, while M r. W ackerly had

shown the court that “trial counsel could perhaps have accessed other information

in preparing for trial,” he “has not shown by clear and convincing evidence a

strong possibility that defense counsel was ineffective for failing to utilize or

identify the complained-of evidence.” Wackerly, 12 P.3d at 14. It then declined

his application for an evidentiary hearing. Id. This is an explicit application of

the Rule 3.11 standard which, as discussed above, does not replicate the federal

-33-
standard and therefore does not constitute an adjudication on the merits as to

whether M r. W ackerly’s non-record evidence could support his Strickland claim.

A federal court therefore does not owe deference to the OCCA’s rejection of M r.

W ackerly’s ineffectiveness claim. W e offer no opinion as to whether M r.

W ackerly’s evidence does indeed support such a claim; that is an issue for the

panel to resolve.

III. CO NCLUSIO N

W hen the OCCA, pursuant to Rule 3.11, refuses to grant an evidentiary

hearing to consider material, non-record evidence of ineffective assistance of

counsel that the defendant has diligently sought to develop, and then rules on the

ineffectiveness claim without consideration of this evidence, the OCCA’s denial

of the claim is not an adjudication on the merits to which the federal courts owe

AEDPA deference. W e therefore REINSTATE the panel decision in Wilson v.

Sirmons and we REM AND M r. W ackerly’s case to the panel for consideration in

a manner consistent with this decision.

-34-
W ilson v. W orkman, No. 06-5179; W ackerly v. W orkman, Nos. 07-7034 & 07-7056

BRISCO E, J., dissenting.

I join Part II.B of Judge Gorsuch’s dissenting opinion and all but Part II.D

of Judge Tymkovich’s dissenting opinion.

I agree with Judge Gorsuch, as set forth in Part II.B of his dissenting

opinion, that the best method of resolving the en banc questions now before us

would be to certify to the Oklahoma Court of Criminal Appeals the question of

what the phrase “clear and convincing evidence” means in the context of Rule

3.11. Short of that, however, I agree with the analysis of Rule 3.11 that is set

forth in Part I of Judge Tymkovich’s dissenting opinion.

I also agree with Judge Tymkovich that the majority is applying an unduly

narrow definition to the phrase “adjudicated on the merits,” as employed in 28

U.S.C. § 2254(d), and thus join Parts II.A, II.B, and II.C of his dissenting

opinion. Contrary to the views expressed throughout Judge M cConnell’s opinion,

I read the OCCA’s rulings in both W ilson and W ackerly as indicating that it did

consider the evidence proffered in support of each application for an evidentiary

hearing. Further, it is erroneous to conclude that Rule 3.11 prohibits the OCCA

from considering this proffered “non-record” evidence when the very language of

Rule 3.11(B)(3)(b) requires, rather than forbids, its consideration:

W hen an allegation of the ineffective assistance of trial counsel is
predicated upon an allegation of failure of trial counsel to properly
utilize available evidence or adequately investigate to identify
 evidence which could have been made available during the course of
the trial, and a proposition of error alleging ineffective assistance of
trial counsel is raised in the brief-in-chief of Appellant, appellate
counsel may submit an application for an evidentiary hearing,
together with affidavits setting out those items alleged to constitute
ineffective assistance of trial counsel. This Court will utilize the
following procedure in adjudicating applications regarding the
ineffective assistance of trial counsel based on evidence not in the
record:

(I) In order to rebut the strong presumptions of regularity of
trial proceedings and competency of trial counsel, the
application and affidavits must contain sufficient information
to show this Court by clear and convincing evidence there is a
strong possibility trial counsel was ineffective for failing to
utilize or identify the complained-of evidence.

Rule of the Oklahoma Court of Criminal Appeals 3.11(B)(3)(b), Okla. Stat. Ann.,

tit. 22, ch. 18, app. (1999) (emphasis added).

M y only disagreement with Judge Tymkovich concerns the analysis of our

decision in Bryan v. M ullin, 335 F.3d 1207 (10th Cir. 2003 (en banc) set forth in

Part II.D of his dissenting opinion. W hile I firmly agree that Bryan does not

support the majority’s position, I disagree, for the reasons outlined below, that

Bryan was wrongly decided.

From arraignment through trial, petitioner Bryan was represented by four

different attorneys, the first and last of whom were retained. The first attorney

immediately expressed doubt as to Bryan’s competency, and sought and was

granted a jury trial on the issue of competency. Bryan’s family, however, could

not afford to hire any medical experts, and the jury concluded that Bryan had

failed to demonstrate that he was incompetent. The first attorney subsequently
-2-
withdrew and the trial court appointed an attorney from OIDS, W esley Gibson, to

represent Bryan. Gibson hired a psychiatrist to evaluate Bryan, and the

psychiatrist seriously questioned Bryan’s competence to stand trial. Gibson

suffered a stroke and was replaced by another OIDS attorney, Steven Hess. Hess

hired Dr. Philip M urphy to conduct another examination of Bryan. M urphy

concluded that Bryan suffered from a serious mental disorder and, like the

psychiatrist, questioned Bryan’s competency to stand trial. Based upon the

opinions rendered by the psychiatrist and Dr. M urphy, Hess planned to mount an

insanity defense. But, when Hess informed Bryan and his parents of this

strategy, Bryan and his parents chose to replace Hess with a privately retained

attorney, Jack Freeman. Although Freeman was provided with all of the medical

reports prepared by the psychiatrist and Dr. M urphy, he ultimately did not

present any mental health evidence during either phase of the trial.

On direct appeal, Bryan argued that Freeman was ineffective for failing to

utilize the available mental health evidence during both the guilt and penalty

phases of trial. In connection with this claim, Bryan filed an application for

evidentiary hearing (presumably pursuant to Rule 3.11). Although Bryan

submitted affidavits in support of his application, he did not, apparently, include

an affidavit from Freeman. 1 The OCCA denied Bryan’s ineffective assistance

1
Our decision in Bryan does not identify the affiants; perhaps they were
Bryan’s appellate counsel.
-3-
claim on the merits and, in doing so, implicitly denied his application for an

evidentiary hearing. In denying Bryan’s ineffective assistance claim, the OCCA

presumed that Freeman had made a strategic decision not to present any mental

health evidence during the first stage proceedings. Bryan v. State, 935 P.2d 338,

362 (Okla. Crim. App. 1997). The OCCA also concluded that Freeman had

legitimate “strategic reasons to avoid evidence of [Bryan’s] psychological

problems” during the second-stage proceedings. Id. at 363. Notably, however,

the OCCA reached these conclusions without evidence from Freeman himself.

Bryan reasserted his ineffective assistance claim in his federal habeas

proceedings and sought a federal evidentiary hearing. The district court granted

him an evidentiary hearing on a different ineffective assistance issue (i.e.,

whether Freeman was operating under a conflict of interest because he had been

retained by Bryan’s parents and promised them he would not present any mental

health evidence), and decided, in its discretion, to allow Bryan to also present

evidence at the hearing concerning Freeman’s strategy, or lack thereof, for

failing to present mental health evidence at trial. At the evidentiary hearing,

Freeman testified and explained his familiarity with the mental health evidence

and his reasons for not presenting any of it at trial. According to Freeman, he

chose to pursue a guilt phase defense of actual innocence because he believed the

mental health evidence was insufficient to present a viable insanity defense.

Further, Freeman testified that he chose not to present any mental health

-4-
evidence during the penalty phase because Bryan was vehemently opposed to the

use of such evidence, Freeman thought such evidence would be ineffective

following a guilt phase defense of actual innocence, and Freeman was concerned

that such evidence would increase the likelihood of the jury finding, as alleged

by the State, that Bryan was a continuing threat.

This court affirmed the district court’s decision to afford Bryan an

evidentiary hearing, concluding that Bryan had diligently sought to develop the

factual basis of his ineffective assistance claim in state court by filing an

application for an evidentiary hearing with the OCCA. 335 F.3d at 1215. In

turn, because the resolution of Bryan’s ineffective assistance claim hinged on

evidence presented during the federal evidentiary hearing regarding Freeman’s

trial strategy, the court applied a de novo standard of review in analyzing that

claim. Id. at 1216.

Bryan thus differs from W ilson and W ackerly in at least one critical

respect: Bryan’s Rule 3.11 application for an evidentiary hearing did not include

all of the necessary evidence for resolution of his ineffective assistance claim.

M ore specifically, Bryan apparently did not submit with his application an

affidavit from Freeman “regarding what he [Freeman] knew and understood

about Bryan’s mental health history and, most importantly, why he [Freeman]

decided not to utilize that evidence.” 335 F.3d at 1215. Thus, the OCCA, in

reviewing Bryan’s Rule 3.11 application, was not privy to all of the evidence

-5-
necessary to resolve Bryan’s ineffective assistance claim, and it ultimately made

unsubstantiated assumptions regarding Freeman’s knowledge and motives. In

other words, the OCCA’s decision was based on an “unreasonable determination

of the facts in light of the evidence presented,” 28 U.S.C. § 2254(d)(2), thus

making it necessary for us to review Bryan’s ineffective assistance claim de

novo. See Brown v. Uphoff, 381 F.3d 1219, 1225 (10th Cir. 2004) (applying de

novo review to petitioner’s claim after first determining that W yoming Supreme

Court’s reasoning was contrary to clearly established federal law).

In contrast, the petitioners in W ilson and W ackerly submitted in

connection with their Rule 3.11 applications all of the mitigating evidence they

asserted their respective trial attorneys should have investigated and introduced

at trial. Thus, the OCCA, in reviewing the applications in W ilson and W ackerly,

was privy to all of the non-record evidence relevant to resolution of the

ineffective assistance claims at issue. As a result, the OCCA’s decision was not,

as it was in Bryan, “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)(2). In turn, there is no basis for us to apply a de novo standard of

review to the ineffective assistance claims raised by these two petitioners.

-6-
Wilson v. Workman, No. 06-5179; Wackerly v. Workman, Nos. 07-7034 & 07-7056
TYM K O VICH , J., dissenting; TACH A, J., and O ’BRIEN, J., joining;
BRISCO E, J., joining except for Part II.D; and G O RSUCH , J., joining Parts II
and IV.

The majority makes two serious missteps in addressing the questions posed

in this en banc matter. First, it erroneously construes Oklahoma Court of

Criminal Appeals Rule 3.11 as imposing a more onerous burden on a criminal

defendant than the standard for ineffective assistance of counsel outlined by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Second, in

assessing the OCCA’s application of Rule 3.11 in these two cases, the majority

crafts an unduly narrow definition of “adjudication on the merits” that

contravenes Supreme Court and other circuit precedent and sidelines the

deferential standards of review outlined in the Antiterrorism and Effective Death

Penalty Act (AEDPA).

As explained below, the OCCA, in the course of denying the petitioners’

applications for evidentiary hearings pursuant to Rule 3.11, adjudicated the

merits of the petitioners’ ineffective assistance of counsel claims. Those

adjudications are entitled to deference under AEDPA. Accordingly, I would

affirm the district court’s denial of M r. W ilson’s petition for habeas relief and

remand M r. W ackerly’s appeal to the panel for consideration in light of

AEDPA’s deferential standard of review.
 I. O klahoma Rule 3.11

According to the majority, “Rule 3.11 creates a higher evidentiary burden

than the federal standard” and for that reason, the OCCA’s Rule 3.11

determinations are not adjudications on the merits that warrant AEDPA

deference.1 M aj. Op. at 32; see also Harris v. Poppell, 411 F.3d 1189, 1196

(10th Cir. 2005) (granting deference to a state court decision because the state

standard was “at least as favorable” to the petitioner as the federal standard).

This reading of Rule 3.11 is erroneous. W hen properly read in context, the Rule

does not supplant Strickland. Instead, it implements the Strickland standard in a

framework designed to adjudicate Oklahoma criminal defendants’ constitutional

claims fairly and efficiently on direct appeal.

As a matter of policy, Rule 3.11 requires criminal defendants to bring their

Strickland claims on direct appeal rather than in post-conviction proceedings and

1
The relevant portions of Rule 3.11 in effect at the time of petitioners’
direct appeals to the OCCA are set forth in an appendix attached to this opinion.
The substantive standard in Rule 3.11, which I believe the majority misconstrues,
is as follows:

In order to rebut the strong presumptions of regularity of trial
proceedings and competency of trial counsel, the application and
affidavits must contain sufficient information to show this Court by
clear and convincing evidence there is a strong possibility trial counsel
w as ineffective for failing to utilize or identify the complained-of
evidence.

Rule of the Oklahoma Court of Criminal Appeals 3.11(B)(3)(b)(i), Okla. Stat.
Ann., tit. 22, ch. 18, app. (1999) (emphasis added).
-2-
to lay their evidentiary cards on the table before the OCCA. This avoids the

inefficiency of multiple proceedings and ensures Strickland claims in Oklahoma

are evaluated when evidence is fresh and more reliable. See M urray v. Carrier,

477 U.S. 478, 520 (1986) (“Each State’s complement of procedural rules . . .

channel[s], to the extent possible, the resolution of various types of questions to

the stage of the judicial process at which they can be resolved most fairly and

efficiently.” (quoting Reed v. Ross, 468 U.S. 1, 10 (1984))); cf. Woodford v.

Garceau, 538 U.S. 202, 206 (2003) (AEDPA’s purpose was to “reduce delays in

the execution of state and federal criminal sentences, particularly in capital

cases”). Nothing is suspect about this procedure. The Constitution does not

even require states to provide post-conviction review. See Pennsylvania v.

Finley, 481 U.S. 551, 557 (1987).

The Rule also serves a simple gate-keeping role. If a defendant’s proffer

under Rule 3.11 is so weak that it does not merit an evidentiary hearing, the

request for a hearing will be denied, along with the defendant’s Strickland claim.

In denying the claim, the Oklahoma court will necessarily examine the evidence

submitted and consider its probative value.2 Thus, construing Rule 3.11 as

2
The OCCA’s denial of a Rule 3.11 application is analogous to a grant of
summary judgment for the state. Under Rule 3.11, the defendant must argue there
is an issue of fact that deserves a state court evidentiary hearing, which pursuant
to the Rule is similar to a full trial. See Rule 3.11(B)(3)(b)(ii)–(iii); cf. Berry v.
T-M obile USA, Inc., 490 F.3d 1211, 1216 (10th Cir. 2007) (“The purpose of a
summary judgment motion is to assess whether a trial is necessary.”). If— in light
(continued...)
-3-
somehow operating outside the Strickland framework defies logic: a

conscientious appellate judge reviewing a Rule 3.11 motion would evaluate the

motion, and the evidence submitted with it, in light of the pending Strickland

claim. 3 Indeed, the Rule echoes the Strickland standard and even borrows

language from Supreme Court precedent regarding ineffective assistance.

Compare Rule 3.11(B)(3)(b)(i) (requiring a defendant to rebut “the strong

presumptions of regularity of trial proceedings and competency of trial counsel”)

with Strickland v. Washington, 466 U.S. 668, 689 (1984) (“[A] court must

indulge a strong presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.”).

Critical to our resolution of these en banc proceedings are the standards set

forth in Rule 3.11(B)(3)(b)(i), which provide that an “application [for evidentiary

2
(...continued)
of the relevant facts— the OCCA determines that no hearing is necessary because
the state prevails as a matter of law, the OCCA will deny the Rule 3.11
application and thereby deny the defendant relief for ineffective assistance of
counsel. Cf. Berry, 490 F.3d at 1223 (“[T]he evidence offered by [plaintiff] is
insufficient to warrant submission of the issue to a jury. . . . As a result, the
district court properly awarded summary judgment to [defendant] on this claim.”).
3
In fact, Rule 3.11 requires the OCCA to make the same evaluation a
federal court would make in deciding whether a habeas petitioner’s proffer of
non-record evidence merits an evidentiary hearing to flesh it out. Cf. Hammon v.
Ward, 466 F.3d 919, 927 (10th Cir. 2006). W eak or speculative allegations, or
those contravened by the trial record, will not lead to a hearing in federal court.
See Schriro v. Landrigan, 550 U.S. 465, 474–75 (2007). Thus, nothing is
inherently wrong in looking at the weight of such evidence in evaluating the
worthiness of the allegation.
-4-
hearing] and [supporting] affidavits must contain sufficient information to show

[the OCCA] by clear and convincing evidence there is a strong possibility trial

counsel was ineffective for failing to utilize or identify the complained-of

evidence.” Obviously, this language includes a substantive standard that a

criminal defendant must meet in order to obtain an evidentiary hearing, i.e., the

establishment of “a strong possibility trial counsel was ineffective.”

Viewed by itself, the Rule 3.11 standard is undoubtedly lower than the

standard set forth in Strickland. Rule 3.11 requires a defendant to demonstrate

only “a strong possibility” of ineffective assistance, rather than actual ineffective

assistance. Something less than absolute certainty suffices under the Rule’s

plain language. See generally Webster’s Third New International Dictionary

1771 (2002) (defining “possibility” as “the character, condition, or fact of being

possible whether theoretically, in general, or under a specified set of

conditions”). The phrase “strong possibility” thus echoes Rule 3.11’s purpose:

providing for summary review of Strickland claims before restarting the

cumbersome fact-finding machinery of the trial court. Cf. Schriro v. Landrigan,

550 U.S. 465, 475 (2007) (holding that AEDPA does not allow “federal habeas

applicants to develop even the most insubstantial factual allegations in

evidentiary hearings,” and noting that AEDPA was meant to “prevent ‘retrials’

on federal habeas” (quoting (Terry) Williams v. Taylor, 529 U.S. 362, 386

(2000))).

-5-
 The Rule also, however, employs the phrase “clear and convincing

evidence.” The majority seizes upon this language, relying on it to conclude

Rule 3.11 is incompatible with Strickland. Read in context, the phrase should

not be interpreted this way.

The phrase “clear and convincing,” like the phrase “preponderance of the

evidence,” when applied by courts “is customarily used to prescribe one possible

burden or standard of proof before a trier of fact in the first instance.” Concrete

Pipe and Prods. of Cal., Inc. v. Constr. Laborers Pension Trust, 508 U.S. 602,

622 (1993); see also Black’s Law Dictionary 596 (8th ed. 2004). But “[b]efore

any such burden can be satisfied in the first instance, the factfinder must evaluate

the raw evidence, finding it to be sufficiently reliable and sufficiently probative

to demonstrate the truth of the asserted proposition with the requisite degree of

certainty.” Concrete Pipe, 508 U.S. at 622. In other words, “clear and

convincing evidence” simply establishes how certain the OCCA must be that the

substantive standard (i.e., a strong possibility of ineffective assistance) has been

met. See S. Childress & M . Davis, 1-3 Federal Standards of Review § 3.06

(2008).

It is unreasonable to conclude that the “clear and convincing” language

heightens the substantive standard employed in Rule 3.11. The only reasonable

conclusion to be drawn from the Rule’s language is that the “clear and

convincing evidence” standard was intended by the OCCA simply to characterize

-6-
the type of evidence required, i.e., evidence that is highly reliable and of

significant probative value. Indeed, a close examination of Oklahoma law

confirms this view. The OCCA teaches that “to meet the ‘clear and convincing’

standard . . . [an] Appellant must present this Court with evidence, not

speculation, second guesses or innuendo.” Jones v. State, 201 P.3d 869, 890

(Okla. Crim. App. 2009). The Rule simply forces defendants to lay out the

evidence supporting their Strickland claims and, in turn, prevents litigants from

wasting the OCCA’s time with mere speculation or lawyer argument.

The combination of Rule 3.11’s two standards— “strong possibility” and

“clear and convincing”— may result from “the hybrid nature of the . . .

proceeding in which [they are] supposed to be applied.” Concrete Pipe, 508 U.S.

at 623. Ordinarily, the OCCA functions as a reviewing body, assessing the

soundness of factual and legal determinations made in the first instance by

Oklahoma state trial courts. But when assessing an application for an

evidentiary hearing under Rule 3.11, the OCCA is the first court to examine the

extra-record evidence presented by the defendant/applicant and to determine the

reliability and probative value of that evidence. Presumably, the OCCA, in

formulating Rule 3.11, intended for the “clear and convincing evidence” standard

to simply add a degree of reliability to the determination of whether the

-7-
substantive standard (i.e., “strong possibility” of ineffectiveness) has been

satisfied. 4

M oreover, in light of the purpose and structure of Rule 3.11, it is

reasonable to conclude that the standard set forth in the Rule was intended to be,

and must be construed as, less demanding than the Strickland standard itself. If

the Rule 3.11 standard were more stringent than (or even equivalent to)

Strickland, there would be no need for an evidentiary hearing in the state trial

court after the OCCA granted a defendant’s Rule 3.11 application. The trial

court would merely be analyzing the same allegations under the less-onerous

Strickland standard. But the Rule requires the OCCA to remand the case to the

state trial court for an evidentiary hearing if a defendant satisfies the standard set

forth in Rule 3.11(B)(3)(b)(i). After the hearing, the case is returned to the

OCCA for final adjudication, where the factual and legal findings of the trial

court “shall be given strong deference.” Rule 3.11(B)(3)(b)(iv). The majority’s

interpretation of Rule 3.11’s substantive standard renders this entire procedure a

nullity.

4
It is worth noting that the Supreme Court has been able to reconcile
competing substantive standards in the context of habeas review. See Sawyer v.
Whitley, 505 U.S. 333, 348 (1992) (“Therefore, we must determine if petitioner
has shown by clear and convincing evidence that but for constitutional error, no
reasonable juror would find him eligible for the death penalty under Louisiana
law.”). Thus, the only reasonable conclusion to be drawn in this case is that the
two standards employed in Rule 3.11(B)(3)(b)(i)— “clear and convincing
evidence” and a “strong possibility” of ineffective assistance— are compatible
with each other and are capable of being applied as intended by the OCCA.
-8-
 To shore up its claim that the “Rule 3.11 standard is contrary to the federal

one,” the majority points to several cases where the OCCA denied evidentiary

hearings and we did not. M aj. Op. at 30–31. Putting aside the questionable

empirical accuracy of this approach, it proves nothing. AEDPA does not require

a correct decision by a state court— it merely requires an adjudication on the

merits.

In any event, the tension between the “clear and convincing” and “strong

possibility” language in Rule 3.11 should be resolved by invoking considerations

of comity— not by viewing Oklahoma law with skepticism. See Holland v.

Jackson, 542 U.S. 649, 655 (2004) (per curiam) (requiring habeas courts to give

state court decisions “the benefit of the doubt,” and noting the “presumption that

state courts know and follow the law” (quoting Woodford v. Visciotti, 537 U.S.

19, 24 (2002) (per curiam))). Rule 3.11 is a “good-faith attempt[]” by Oklahoma

“to honor [a criminal defendant’s] constitutional rights,” not a mechanism to

unfairly marginalize legitimate ineffectiveness claims. Coleman v. Thompson,

501 U.S. 722, 748 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982)).

* * *

In sum, two conclusions follow from this analysis.

First, in denying an application for an evidentiary hearing under Rule

3.11(B)(3)(b), the OCCA applies the standards outlined in Rule 3.11(B)(3)(b)(i)

to the non-record evidence submitted by a defendant in connection with the

-9-
application. Its denial should be deemed an “adjudication on the merits” for

purposes of 28 U.S.C. § 2254(d)(1). In determining whether a

defendant/applicant has established “a strong possibility trial counsel was

ineffective,” the OCCA must necessarily consider and apply the Strickland test

to the non-record evidence submitted by the defendant/applicant. And because

the substantive standard utilized by Rule 3.11 is less demanding than the

Strickland test itself— i.e., because it merely requires a “strong possibility,”

rather than the actual establishment, of ineffective assistance— a determination

by the OCCA that the applicant has failed to satisfy the Rule 3.11 standard

necessarily means that the OCCA has concluded that the defendant/applicant

could not ultimately prevail on the merits of his ineffective assistance claim.

Thus, any such determination should be entitled to deference by a federal habeas

court under § 2254(d)(1).

Second, the OCCA’s failure in a given case to specifically cite or analyze

the defendant’s proffered non-record evidence should have no impact on the

conclusion reached above, i.e., that the OCCA’s decision to deny an evidentiary

hearing under Rule 3.11 should be entitled to deference by a federal habeas

court. Supreme Court and Tenth Circuit precedent we discuss below from

related habeas contexts holds that a state court makes a “determination on the

merits” for purposes of § 2254(d)(1) even if the state court’s decision is

summary in nature and does not reveal the court’s reasoning. See Early v.

-10-
Packer, 537 U.S. 3, 9 (2002) (indicating that if the “fair import” of a state

court’s decision is that it considered and applied the controlling standards, then

its decision is subject to deference under § 2254(d)(1)); Paine v. M assie, 339

F.3d 1194, 1198 (10th Cir. 2003) (“Even if a state court resolves a claim in a

summary fashion with little or no reasoning, we owe deference to the state

court’s result.”).

In our order granting en banc review, we asked petitioners “[w]hat effect,

if any, does the extent of the OCCA’s discussion of the Rule 3.11 motion, and

the proffered non-record evidence, have on whether the OCCA’s decision on the

petitioner’s ineffective assistance of counsel claim is entitled to deference under

§ 2254(d)(1)?” For the reasons discussed above, the simple answer to this

question is “none.”

II. Adjudication on the M erits

In addition to its cramped reading of Rule 3.11, the majority also

disregards well-established precedent outlining when a state court decision is to

be considered an “adjudication on the merits.” In so doing, the majority suggests

that every time a habeas petitioner submits new evidence in federal court, the

evidence amounts to a new constitutional “claim” that has never been

adjudicated. This interpretation of key language from AEDPA is erroneous and

contrary to our precedent.

-11-
 Under a proper reading of AEDPA, a state court adjudication of a claim

occurs when the court decides a case on substantive rather than procedural

grounds, such that the decision would have preclusive effect in later litigation. 5

This is how the OCCA resolved petitioners’ claims here. The Oklahoma court

did not avoid the merits of petitioners’ ineffective assistance claims, but instead

ruled that the claims lacked legal merit. Accordingly, the OCCA’s decisions

were adjudications on the merits and should be given AEDPA deference.

A.

Section 2254(d) generally requires a federal court to defer to “any claim

that was adjudicated on the merits in State court proceedings.” 28 U.S.C.

§ 2254(d) (emphasis added). “‘Adjudicated on the merits’ has a well settled

meaning: a decision finally resolving the parties’ claims, with res judicata effect,

that is based on the substance of the claim advanced, rather than on a procedural,

or other ground.” Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). As a

result, Ҥ 2254(d) applies regardless of the procedures employed or the decision

reached by the state court, as long as a substantive decision was reached; the

5
Although there is a procedural component to an OCCA Rule 3.11 ruling,
in that the OCCA thus denies the defendant’s application for evidentiary hearing
and no further proceedings are conducted on the issue, the ruling is not, for the
reasons discussed above, strictly procedural. A Rule 3.11 decision involves a
substantive examination of the defendant/applicant’s ineffective assistance claim.
It would not make sense to shield that substantive examination from AEDPA
deference on the grounds that the state court was simply issuing a procedural
ruling.
-12-
adequacy of the procedures and of the decision are addressed through the lens of

§ 2254(d), not as a threshold matter.” Teti v. Bender, 507 F.3d 50, 57 (1st Cir.

2007), cert. denied, 128 S. Ct. 1719 (2008) (emphasis in original).

Importantly, “[n]othing in the phrase ‘adjudicated on the merits’ requires

the state court to have explained its reasoning process.” Sellan, 261 F.3d at 311.

Even a “summary decision” lacking “cursory reasoning . . . constitute[s] an

‘adjudication on the merits’.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.

1999). W e simply “look to the state court’s result and defer to it . . . where

analysis is lacking.” Id.

In turn, what constitutes a “claim” is also well settled. In the context of

preclusion, a claim consists of a legal theory that justifies judgment in a party’s

favor. W hile a party must usually submit evidence to support a claim, the claim

exists apart from this evidence. See, e.g., 18 Charles Alan W right et al., Federal

Practice & Procedure § 4408 (2d ed. 2009) (“Simply offering to provide new

evidence does not establish a new claim, even if the evidence could not have

been produced at the time of the first trial.”); see also Saylor v. United States,

315 F.3d 664, 668 (6th Cir. 2003) (“The fact that appellants’ new evidence might

change the outcome of the case does not affect application of [the] claim

preclusion doctrine.”).

This standard definition pertains to the habeas context. The Supreme

Court has stated that “a ‘claim’ . . . is an asserted federal basis for relief from a

-13-
state court’s judgment of conviction.” Gonzales v. Crosby, 545 U.S. 524, 530

(2005). A petitioner “might seek leave to present ‘newly discovered evidence’ in

support of a claim previously denied.” Id. at 531 (emphasis added; citation

omitted). But nothing suggests the new evidence would somehow create a new

claim.

Additionally, in Schriro v. Landrigan, the Supreme Court held that a

federal district court must accord deference to a state adjudication denying a

Strickland claim even when the district court “expand[s] the record to include

additional evidence offered by [the habeas petitioner].” 550 U.S. 465, 468–69

(2007) (emphasis added). Schriro further underscores that new evidence

presented to a federal court in a habeas proceeding does not create a new

constitutional claim out of whole cloth.

In short, as a textual matter and pursuant to Supreme Court precedent, the

OCCA’s resolution on direct appeal of an ineffective assistance of counsel claim

is an adjudication on the merits under AEDPA.

B.

Other circuits have addressed this question and have reached a conclusion

contrary to the majority’s. For example, the Fifth Circuit in Valdez v. Cockrell,

274 F.3d 941, 950 (5th Cir. 2001), rejected the approach advocated by the

majority, concluding that a “new evidence” rule “would have the untenable result

of rendering the amendments enacted by Congress a nullity.” Rather, the term

-14-
“‘adjudication on the merits’ . . . refers solely to whether the state court reached

a conclusion as to the substantive matter of a claim, as opposed to disposing of

the matter for procedural reasons. . . . This mandatory and all-encompassing

language . . . leaves no room for judicial imposition of a full and fair hearing

prerequisite.” Id. at 950 (citations omitted). The majority’s approach imposes

just such a prerequisite— in future cases, if a federal court in this circuit

determines that a state court failed to examine enough relevant evidence

proffered by a petitioner to support a pending ineffectiveness claim, the state

court’s judgments are ineligible for deference under AEDPA. 6

The First Circuit also disagrees with the majority approach, holding that

AEDPA deference applies “regardless of the procedures employed or the

decision reached by the state court, as long as a substantive decision was

reached.” Teti, 507 F.3d at 57 (emphasis in original). Likewise, the Seventh

Circuit adheres to the proposition— later adopted by the Supreme Court in

Schriro— that new evidence presented to the federal court merely bears on the

reasonableness of the state court’s decision, not whether AEDPA deference

applies in the first place. See M atheney v. Anderson, 377 F.3d 740, 747 (7th Cir.

6
Indeed, as Judge Gorsuch points out, Congress has set forth the sole
consequence of a state’s failure to provide adequate procedures: a habeas
petitioner need not exhaust the state procedures and may proceed directly to
federal habeas review. See § 2254(b)(1)(B) (a habeas petitioner need not exhaust
his constitutional claim in state court where state corrective process is unavailable
or is “ineffective to protect the rights of the applicant”). Notably, petitioners in
this case do not allege the OCCA’s procedures run afoul of § 2254(b)(1)(B).
-15-
2004); see also Pecoraro v. Walls, 286 F.3d 439, 443 (7th Cir. 2002)

(“[E]vidence obtained in [a federal evidentiary hearing] is quite likely to bear on

the reasonableness of the state courts’ adjudication; that is true, but we do not

see why it should alter the standard of federal review.” (emphasis in original)).

Recently, the Second Circuit joined the ranks, holding that if a federal

district court conducts an evidentiary hearing to evaluate new evidence of

ineffective assistance of counsel, AEDPA deference still pertains to the

ineffectiveness claim. Wilson v. M azucca, 570 F.3d 490, 500 (2d Cir. 2009). In

M azucca, the district court held an evidentiary hearing to allow the petitioner’s

trial lawyer to explain whether his decisions during trial were the product of a

legitimate strategy, or were merely ill-conceived mistakes in judgment. Id. at

497. The threshold question for the Second Circuit was whether de novo review

still applied, now that the new evidence of ineffectiveness had emerged. The

Second Circuit noted that AEDPA deference is “not conditional,” but rather is

“stated in mandatory terms” in the statute. Id. at 500. Based on AEDPA’s clear

mandate, the court concluded that “[a]ny new evidence uncovered in the federal

proceeding is relevant only insofar as it assists the habeas court in determining

whether the state court reached an unreasonable application of the law.” Id.

These cases demonstrate that in theory and in practice, courts are able to

apply AEDPA’s review standards to cases involving proffers of new evidence.

The new evidence does not create a new claim, and new evidence does not

-16-
nullify the application of AEDPA. The majority’s approach, however,

significantly undermines the statutory scheme, and I fear will lead to a cottage

industry of repackaging routine trial errors into newly-discovered ineffective

assistance claims. In my view, once a state court has made a substantive

judgment on a habeas petitioner’s ineffectiveness claim, as here, we must apply

AEDPA deference to that judgment.

C.

In an attempt to square its holding with the text of AEDPA and case law

from other circuits, the majority adopts a strained definition of the term

“adjudicated on the merits.” Under the majority’s approach, future panels of this

court will be required to determine whether a state court considered enough

“material evidence” of a petitioner’s claim; only then will the court have

adjudicated the claim on the merits. See M aj. Op. at 14. This approach is

problematic for at least two reasons.

First, the majority’s approach defies AEDPA’s plain language. Under

§ 2254(d), we defer to a state adjudication regardless of the evidence presented

in the state court. If a habeas petitioner believes the state’s factual

determinations were unreasonable, our review of the petition is still constrained

by an analysis of the “evidence presented in the State court proceeding.”

§ 2254(d)(2). And if the state court denies a petitioner effective procedures for

vindicating constitutional rights, as the majority implies the OCCA did here, the

-17-
petitioner may make this argument as well, under § 2254(b)(1)(B)(ii). But

nowhere does AEDPA suggest we should conduct a de novo review merely

because we believe the state court’s record was inadequate.

Second, the majority relies heavily on cases that analyze whether a

petitioner has “fairly presented” a claim to the state court for purposes of the

habeas exhaustion requirement. The majority reads these cases as equating a

“claim” with the evidence that undergirds it. Thus, only when the state court

considers the proper amount of evidence, including newly proffered evidence,

has the claim been adjudicated on the merits. But our case law on exhaustion

draws a distinction between claims and evidence. See Bland v. Sirmons, 459

F.3d 999, 1011 (10th Cir. 2006) (“Fair presentation requires more than

presenting all the facts necessary to support the federal claim to the state court or

articulating a somewhat similar state-law claim. Fair presentation means that the

petitioner has raised the substance of the federal claim in state court.” (internal

quotation marks and citations omitted)).

As the majority points out, a petitioner does not “fairly present” a claim to

state court when he withholds vital allegations or evidence. See Demarest v.

Price, 130 F.3d 922, 935–36 (10th Cir. 1997). Indeed, to allow a petitioner to

game the system in that way would violate federalism and comity. But

ultimately, it is the petitioner’s arguments and overall rationale for obtaining

relief that determine what a claim is. The idea of exhaustion is to give a state

-18-
“the opportunity to pass upon and correct alleged violations of its prisoners’

federal rights.” Duncan v. Henry, 513 U.S. 364, 888 (1995) (internal quotation

marks omitted) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). The OCCA

is given this opportunity when it is apprised of a petitioner’s arguments and

either accepts or rejects them. W hatever the OCCA decides, AEDPA commands

us to defer to the decision through the lens of subsection (d).

M oreover, the majority fails to recognize that the doctrine of exhaustion

imposes requirements on habeas petitioners, not on state courts. See Smallwood

v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999) (“Indeed, petitioner has not

properly raised before the state courts any of the bases upon which his current

ineffective assistance of counsel claims rely. Thus, petitioner has failed to

exhaust his ineffective assistance of counsel claims.” (emphasis added)). These

requirements further the interests of comity: “it would be unseemly in our dual

system of government for a federal district court to upset a state court conviction

without an opportunity to the state courts to correct a constitutional violation.”

Picard, 404 U.S. at 275 (internal quotation marks omitted) (quoting Darr v.

Burford, 339 U.S. 200, 204 (1950)).

Once the petitioner satisfies the exhaustion requirement by fairly

presenting a claim, the interests of comity are again implicated, and the state

court may adjudicate the claim as it sees fit. Indeed, the petitioner is not entitled

to a correct answer from the state court, or even one that is particularly

-19-
fulsome— the petitioner is only entitled to an answer. See Parker v. Scott, 394

F.3d 1302, 1308 (10th Cir. 2005) (“[E]ven an incorrect application of federal law

can be ‘reasonable’ under [AEDPA].”); see also M uth v. Frank, 412 F.3d 808,

815 (7th Cir. 2005) (“AEDPA’s requirement that a petitioner’s claim be

adjudicated on the merits by a state court is not an entitlement to a

well-articulated or even a correct decision by a state court.”). AEDPA

commands that we defer to the state court’s decision, not to its reasoning. The

exhaustion doctrine does not qualify or otherwise condition this deference.

D.

Finally, the majority claims its narrow view of an “adjudication on the

merits” is merely an application of long-standing Tenth Circuit case law, namely

Bryan v. M ullin, 335 F.3d 1207 (10th Cir. 2003) (en banc), and M iller v.

Champion, 161 F.3d 1249 (10th Cir. 1998). However, both Bryan and M iller are,

regrettably, based upon legal principles that predate AEDPA and are no longer

persuasive.

M iller, without much explanation, applied de novo review to an ineffective

assistance of counsel claim merely because such claims are “mixed question[s] of

law and fact.” 161 F.3d at 1254. Bryan repeated this mistake, citing M iller for

the same proposition. 335 F.3d at 1215–16.

Underpinning M iller’s application of the de novo standard was Parker v.

Champion, 148 F.3d 1219 (10th Cir. 1998). See M iller, 161 F.3d at 1254. But

-20-
the Parker opinion does not even mention AEDPA, and the case Parker cites in

support of its application of the de novo standard of review, Williamson v. Ward,

110 F.3d 1508 (10th Cir. 1997), explicitly stated that AEDPA did not apply

because the habeas petition at issue was filed before AEDPA’s effective date.

See id. at 1513 (“[T]he new law [AEDPA] does not apply under these

circumstances.”). After Congress passed AEDPA and thereby “place[d] a new

constraint on the power of a federal habeas court to grant a state prisoner’s

application for a writ of habeas corpus,” our case law interpreting earlier

versions of § 2254 became obsolete. (Terry) Williams v. Taylor, 529 U.S. 362,

412 (2000). Thus, M iller— and consequently Bryan— should not have relied

upon Parker to erroneously conclude that the de novo standard of review applies

to Strickland claims, even in cases when AEDPA’s deferential standard of review

should clearly apply.

The Fifth Circuit has exposed an additional flaw in M iller. In Valdez, the

Fifth Circuit noted that M iller relied upon yet another pre-AEDPA case for the

proposition that “because the state court did not hold any evidentiary hearing . . .

we need not afford [the state court’s findings] any deference.” See M iller, 161

F.3d at 1254. As the Fifth Circuit observed, M iller’s reliance on outdated case

law places the holding in M iller on “rather tenuous footing.” Valdez, 274 F.3d at

-21-
953. Bryan too stands on a tenuous foundation because it relies on M iller for the

same erroneous proposition. Bryan, 335 F.3d at 1216. 7

Thus, contrary to the majority’s holding, the OCCA’s resolution of

petitioners’ Strickland claims must be given AEDPA deference, notwithstanding

the holdings of Bryan and M iller.

III. Application to Petitioners’ Claims

Applying the above principles to the cases at hand, both W ilson’s and

W ackerly’s ineffectiveness claims were adjudicated on the merits by the OCCA.

In W ilson’s case, the OCCA expressly found he “failed to carry his burden

to show either deficient performance by counsel, or prejudice from the omission

of this specific evidence,” i.e., the evidence contained in the Rule 3.11 proffer.

Wilson v. State, 983 P.2d 448, 472 (Okla. Crim. App. 1998). Though it was

summary in nature, this disposition was unquestionably substantive. The OCCA

7
The legal error undergirding Bryan and M iller can be traced back to
Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir. 1997). In that case, we held the
presumption of correctness federal courts must accord state court factual findings
does not apply “if the habeas petitioner did not receive a full, fair, and adequate
hearing in the state court proceeding on the matter sought to be raised in the
habeas petition.” Id. at 1359. As Judge Gorsuch notes in his dissent, there is no
longer a “full and fair hearing” requirement in federal habeas law. Our later
citations to Nguyen are therefore erroneous. It is a pre-AEDPA case that
ultimately relies on Townsend v. Sain, 372 U.S. 293, 312 (1963), to establish the
pre-AEDPA standard for the grant of an evidentiary hearing. See Nguyen, 131
F.3d at 1359 (citing Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1535 (10th
Cir. 1994)); see also Dever, 36 F.3d at 1535 (citing Townsend, 372 U.S. at 312).
In our post-AEDPA world, these precedents lack persuasive authority. See
Schriro, 550 U.S. at 474.
-22-
evaluated the proffered evidence in light of Strickland and found it wanting.

This is all AEDPA requires.

Secondly, though the majority holds otherwise, we should not presume the

OCCA failed to consider the “non-record” evidence in W ilson’s Rule 3.11

proffer. After pointing out the proffered evidence would not demonstrate

deficiency or prejudice under Strickland, the OCCA went on to conclude, “[W ]e

further find that W ilson’s application for an evidentiary hearing on this claim

should be denied.” Wilson, 983 P.2d at 472 n.8. Rule 3.11 requires the OCCA

to consider such proffered evidence when denying a Rule 3.11 application, and

we must presume the court followed its own law. See Bell v. Cone, 543 U.S.

447, 455 (2005) (“W e do not think that a federal court can presume so lightly

that a state court failed to apply its own law.”); Lopez v. Schriro, 491 F.3d 1029,

1043 (9th Cir. 2007) (“[S]tate courts are presumed to know and correctly apply

state law.”). Thus, we must assume the OCCA examined the Rule 3.11

application and supporting materials and concluded an evidentiary hearing would

not advance W ilson’s ineffectiveness claim. 8

8
The majority tries to have it both ways. It first concludes that the OCCA
cannot consider Rule 3.11 proffers because they are not part of the “trial record.”
M aj. Op. at 2, 12. But if the OCCA goes on to consider the proffer, as it did in
Bland v. State, 4 P.3d 702, 732–34 (Okla. Crim. App. 2000), and Welch v. State, 2
P.3d 356, 376–77 (Okla. Crim. App. 2000), the majority will grant the
determination AEDPA deference. M aj. Op. at 15. Either the proffer is or is not
part of the record. It cannot be both.
-23-
 As for W ackerly, the OCCA confined its decision to the Rule 3.11 context,

stating, “Upon review of the [Rule 3.11] application and supporting exhibits, we

find [W ackerly] has shown this Court that trial counsel could perhaps have

accessed other information in preparing for trial. However, [W ackerly] has not

shown by clear and convincing evidence a strong possibility that defense counsel

was ineffective.” Wackerly v. State, 12 P.3d 1, 14 (Okla. Crim. App. 2000).

This again was a summary adjudication on the merits, and we must presume the

OCCA understood the twin requirements of deficient performance and prejudice

required by Strickland. If the OCCA believed W ackerly’s claim was so weak

that it did not even deserve an evidentiary hearing, the OCCA necessarily

concluded the claim failed to satisfy Strickland.

For the reasons set forth in my dissent in Wilson v. Sirmons, 536 F.3d

1064, 1130–47 (2008), I would hold that the OCCA did not unreasonably apply

Supreme Court precedent in denying W ilson’s ineffective assistance of counsel

claim, and would affirm the district court’s denial of his petition for habeas

corpus. Because this court has not yet addressed the substance of W ackerly’s

ineffectiveness claim, I would remand to the panel for consideration under the

deferential AEDPA standard of review.

IV. O CCA Interpretation of Rule 3.11

As a final matter, I note that the OCCA can escape the consequences of the

majority opinion. By rulemaking or interpretation, it need only clarify that the

-24-
Rule 3.11 standard is less onerous than Strickland or at least “mirrors” it. See

Upchurch v. Bruce, 333 F.3d 1158, 1164 n.4 (10th Cir. 2003).

If the OCCA chooses to explicitly contradict the majority’s reading of

Rule 3.11, we must subsequently defer to the OCCA’s Rule 3.11 determinations

as adjudications on the merits, even if they are summary adjudications. 9 See

Aycox v. Lytle, 196 F.3d 1174, 1177–78 (10th Cir. 1999). W e must also presume

the OCCA will, in accordance with Rule 3.11, examine the affidavits submitted

with a defendant’s Rule 3.11 application and conclude they do not alter the

Strickland analysis. See Bell v. Cone, 543 U.S. 447, 455 (2005) (articulating the

presumption that state courts know and apply their own law); Lopez v. Schriro,

491 F.3d 1029, 1043 (9th Cir. 2007) (same). Thus, the majority’s concern that

Rule 3.11 somehow forecloses substantive review of materials outside the trial

record will be obviated.

V. Conclusion

For the foregoing reasons, I respectfully DISSENT.

9
For this reason, I agree with Judge Gorsuch that certification to the
OCCA is appropriate here. Though, in my view, Rule 3.11 sets forth a
substantive standard more favorable to defendants than the Strickland standard,
certification would resolve the matter with certainty.
-25-
 Appendix

Oklahoma Rule 3.11

OCCA Rule 3.11 is entitled “Supplementation of Record.” Subsection (B)

thereof provides, in pertinent part:

B. Supplementation of the record upon request of a party will be
allowed only in the following instances:

* * *

(3) The Record on appeal is form ulated only by matters which have
been admitted during proceedings in the district court. A request to
supplement the record on appeal with matters not presented to and
included as part of the district court record is only available under the
following . . . circumstances:

* * *

(b) W hen an allegation of the ineffective assistance of trial counsel is
predicated upon an allegation of failure of trial counsel to properly
utilize available evidence or adequately investigate to identify
evidence which could have been made available during the course of
the trial, and a proposition of error alleging ineffective assistance of
trial counsel is raised in the brief-in-chief of Appellant, appellate
counsel may submit an application for an evidentiary hearing, together
with affidavits setting out those items alleged to constitute ineffective
assistance of trial counsel. This Court will utilize the following
procedure in adjudicating applications regarding the ineffective
assistance of trial counsel based on evidence not in the record:

(i) In order to rebut the strong presumptions of regularity of trial
proceedings and competency of trial counsel, the application and
affidavits must contain sufficient information to show this Court
by clear and convincing evidence there is a strong possibility
trial counsel was ineffective for failing to utilize or identify the
complained-of evidence.

(ii) If this Court determines such a strong possibility exists, it
shall remand the m atter to the trial court for an evidentiary
hearing, utilizing the adversarial process, and direct the trial
 court to make findings of fact and conclusions of law solely on
the issues and evidence raised in the application.

(iii) Upon rem and, the trial court shall conduct an evidentiary
hearing within thirty (30) days from the date of remand. In that
hearing, the trial court shall make written findings of fact and
conclusions of law to be submitted to this court within thirty
(30) days of the evidentiary hearing. The findings of fact and
conclusions of law shall determine the availability of the
evidence or witness, the effect of the evidence or witness on the
trial court proceedings; whether the failure to use a witness or
item of evidence was trial strategy, and if the evidence or
w itness was cumulative or would have impacted the verdict
rendered.

(iv) The findings of fact and conclusions of law of the trial court
shall be given strong deference by this Court in determining the
proposition raised by appellate counsel; however, this Court
shall determine the ultimate issue whether trial counsel was
ineffective.

Okla. Stat. tit. 22, ch. 18, app. Rule 3.11(B)(3)(b) (1999).
Wilson v. Workman, No. 06-5179; Wackerly v. Workman, Nos. 07-7034 & 07-7056

G O RSUCH , J., dissenting, TACH A, J., O’BRIEN, J., and TYM K O VICH , J.,
joining; and BRISCO E, J., joining Part II.B.

This case requires us to interpret the words of a federal statute. That

statute says writs of habeas corpus “shall not be granted with respect to any claim

that was adjudicated on the merits in State court proceedings” unless the state

court’s decision is contrary to a Supreme Court precedent, or unless it rests on an

unreasonable application of the Court’s cases or an unreasonable reading of the

facts before it. 28 U.S.C. § 2254(d). This language seemingly brooks no

exception. Yet, rather than applying AEDPA’s deferential standard to the claims

before us, the court today finds itself applying de novo review. How can this be?

The majority tells us this is because a state court does not adjudicate a

claim on the merits unless its opinion adequately reflects that the court

“consider[ed]” all the evidence we later deem to be “material.” M aj. Op. at 12.

Under this view, the fact that the state court says it is adjudicating a claim on the

merits is beside the point. If the state court, in the course of purporting to

adjudicate the merits, employs evidentiary rules to exclude evidence we think

“material,” it somehow cannot adjudicate the claim at all. The state court’s

opinion might look like, talk like, walk like an adjudication on the merits, but it’s

not the real thing.

I have substantive and procedural difficulties with this view.

Substantively, it is inconsistent with AEDPA’s plain terms and structure,

contradicts the decisions of several other circuits, and effectively frustrates
AEDPA’s central purpose by getting us back in the business of grading state court

procedures rather than focusing on the reasonableness of the results they reach.

That isn’t to say state procedures don’t matter: when a state court renders a

decision on the merits of a federal claim without considering all material

evidence, it is surely more likely that its decision will be an unreasonable

application of federal law, and thus reversible under § 2254(d). But the fact that

a petitioner is more likely to satisfy AEDPA’s standard of review isn’t a reason to

ignore that standard of review, or to disregard a state court’s decision by

suggesting its adjudication of the merits is really no such thing.

Procedurally, there’s no need for any of this. Every member of this court

agrees that, if the evidentiary standard embodied in the OCCA’s Rule 3.11 is no

more onerous than the federal evidentiary standard for deciding ineffective

assistance claims, then the OCCA’s denial of a Rule 3.11 motion amounts to an

“adjudication on the merits” of a federal ineffective assistance claim. The

majority and Judge Tymkovich just disagree on the state law question how best to

read Rule 3.11. As the majority reads the Rule, it imposes an evidentiary

standard higher than federal law; as Judge Tymkovich reads it, the Rule parallels

federal law. W e could and should have just asked the OCCA what its Rule

means. After all, the OCCA, not this court, is the authoritative expositor of its

own rules. By the simple expedient of certifying a question of state law to the

OCCA, we likely could have produced a unanimous or near unanimous result in

-2-
this case and avoided both a controversial interpretation of AEDPA and a circuit

split on an important question of federal law.

I

At least in M r. W ilson’s case, it is clear that the OCCA did adjudicate the

merits of his claim. As the majority formulates his claim, M r. W ilson alleged he

received constitutionally ineffective assistance of counsel “with respect to [the

presentation of] mental health mitigation [evidence] at the sentencing phase.”

M aj. Op. at 5. The OCCA spoke to this claim unambiguously:

¶ 108 W ilson first asserts that his attorney failed to fully investigate his
mental health background or effectively assist Dr. Reynolds in
preparation for his second stage testimony. W ilson has filed,
contemporaneously with this issue, an application for an evidentiary
hearing regarding ineffective assistance of counsel in an attempt to
supplement the record with material not found in the record.

¶ 109 A review of the trial record shows trial counsel did put forth a
mental health expert to rebut the State’s continuing threat contention
and to mitigate punishment. At trial, Dr. Reynolds testified that he
examined W ilson on three separate occasions. H e also met with
W ilson’s mother and was provided with W ilson’s medical records,
school records and statements from people who knew W ilson.
Reynolds testified that W ilson had a severe personality disturbance.
Reynolds explained that W ilson had som e unusual, bizarre types of
thinking that would suggest that he is not in touch with reality at times.
Reynolds [sic] testimony indicated that W ilson committed this crime as
an intelligent but immature person, and that, because of his family
support and his intelligence, he had the capability of being
rehabilitated. The mere fact more evidence could have been presented
is not, in itself, sufficient to show counsel was deficient. Douglas, 951
P.2d at 680. Reynold’s [sic] testimony was credible and well developed.
W e find Appellant has failed to carry his burden to show either
deficient performance by counsel, or prejudice from the omission
of this specific evidence.[FN8]

-3-
 FN8. Accordingly, we further find that W ilson’s application for an
evidentiary hearing on this claim should be denied.

Wilson v. State, 983 P.2d 448, 471-72 & n.8 (Okla. Crim. App. 1998) (emphasis

added).

W hat else could be required for a court to adjudicate the merits of a claim?

To be sure, in its footnote 8, the OCCA denied M r. W ilson’s request for an

evidentiary hearing to pursue collaterally developed evidence. One might read

this as excluding collateral evidence from the OCCA’s consideration by dint of a

state evidentiary rule (as the majority does), or as passing on the collateral

evidence and finding it insufficient (as Judge Briscoe does). But either way, the

OCCA went on to hold (at the least) that the trial record showed counsel’s

performance in connection with the presentation of mitigating mental health

evidence was neither deficient nor prejudicial, the two essential elements of any

Sixth Amendment ineffective assistance claim under Strickland. The result the

OCCA reached on either Strickland element might well be held unreasonable

under § 2254(d) for any number of reasons, perhaps including in light of evidence

it failed to consider. But none of this diminishes the fact that, wrongly or rightly,

the OCCA’s opinion adjudicated the merits of M r. W ilson’s claim.

W hen federal courts deny Strickland claims, we do exactly the same thing

that the majority contends the OCCA did here: apply rules of procedure and

evidence, admit what’s allowed, exclude what’s not, and then say, as the OCCA

did, “W e find Appellant has failed to carry his burden to show either deficient

performance by counsel or prejudice.” The only apparent difference is that the
-4-
OCCA is not a federal court, and therefore does not use our wise and sensible

procedural and evidentiary rules. Instead, as the majority would have it, the

OCCA applies unwise and parochial state rules. As a result, a state court’s

attempts to adjudicate the claims committed to its jurisdiction can unknowingly

fail. Though the OCCA thinks it’s adjudicating the merits of a Sixth Amendment

claim— and says what we say in an attempt to accomplish the feat— the majority

treats the OCCA’s holding as no more than an ineffectual incantation.

Today’s result is not only inconsistent with the plain language of the

OCCA’s decision, it is also inconsistent with the plain language of § 2254. In

§ 2254(e), Congress expressly anticipated that federal courts sometimes will have

material new evidence or facts before them that the state court didn’t have the

chance to consider. Yet, Congress did not provide for de novo review. Even in

these circumstances, the plain language of the statute indicates that § 2254(d)’s

deferential standard continues to apply. As Judge Cabranes has observed for the

Second Circuit, this statutory feature forecloses the notion that material new

evidence uncovered in federal habeas proceedings “has any impact whatsoever on

the standard of review governing habeas claims.” Wilson v. M azzuca, 570 F.3d

490, 500 (2d Cir. 2009).

The majority’s contrary holding today cements a circuit split. The Second,

Fifth, and Seventh Circuits have each held, as Judge Tymkovich and I would, that

AEDPA’s mandates in subsection (d) regarding our standard of review “do not

lose their force because an intervening evidentiary hearing is held in federal

-5-
court” even if material new evidence emerges. Id. at 500; accord Pecoraro v.

Walls, 286 F.3d 439, 443 (7th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941, 952

(5th Cir. 2001). 1 To be sure, additional “evidence obtained in such a [federal

court] hearing is quite likely to bear on the reasonableness of the state courts’

adjudication,” but that fact alone supplies no reason “why it should alter the

standard of federal review.” Pecoraro, 286 F.3d at 443 (emphasis in original).

Instead, where (as here) the petitioner’s claim is governed by subsection (d)(1),

“[a]ny new evidence uncovered in the federal proceeding is relevant only insofar

as it assists the habeas court in determining whether the state court reached an

unreasonable application of law.” M azzuca, 570 F.3d at 500. In other words,

federal courts “are directed to apply the same AEDPA standard that would

otherwise be in force, now in light of the new information that has been obtained

through” federal court proceedings. Id. at 501-02. If that new evidence renders

the state court’s result deficient under § 2254(d) (as of course it may well), relief

can then be granted. 2

1
Last year, the Supreme Court granted certiorari to resolve the dispute
between the circuits on this score, Bell v. Kelly, 128 S. Ct. 2108 (2008) (mem.),
but later dismissed the writ as improvidently granted, 129 S. Ct. 393 (2008)
(mem.).
2
The majority seeks to distinguish M azzuca on the basis of its procedural
posture. The majority emphasizes that M azzuca “does not consider whether or
not the state court made an adjudication on the merits, but instead asks how new
evidence brought at habeas should affect the federal court’s evaluation of the state
court’s decision given that there was an adjudication on the merits.” M aj. Op. at
23, n.2. This distinction fails for the simple reason that the federal evidentiary
hearing in M azzuca occurred precisely because the state court record lacked
(continued...)
-6-
 By defining “on the merits” to mean, effectively, after giving adequate

consideration to material evidence, the majority returns us to a bygone era.

Before AEDPA, § 2254 allowed us to review a state court’s findings de novo

whenever we found the state procedures inadequate. See 28 U.S.C. § 2254(d)(2)

& (6) (1994) (repealed 1996) (providing for de novo review when “the factfinding

procedure employed by the State court was not adequate to afford a full and fair

hearing,” or when “the applicant did not receive a full, fair, and adequate hearing

in the State court proceeding”). W ith AEDPA, Congress expressly abolished this

approach. It told us to ask whether the substantive decisions made by state courts

are reasonable, rather than critique the processes by which they reach those

decisions. Today’s majority opinion does much to restore the ancien régime: its

rule that a state court cannot really adjudicate a claim on the merits unless it

adjudicates it well— by considering the “right” evidence— is immediately

recognizable as a species of the full and fair hearing requirement Congress

rejected. Cf. Valdez, 274 F.3d at 950 (rejecting a similar view to the majority’s

because “[t]his mandatory and all-encompassing language [of AEDPA] . . . leaves

2
(...continued)
relevant material evidence. See Wilson v. M azzuca, 2005 W L 27543, at *1 (2d
Cir. 2005) (unpub.) (“[W ]ith the record before us, we are unable to assess with
confidence whether strategic considerations accounted for certain acts or
omissions by defense counsel . . . . W e therefore remand to the District Court to
afford W ilson’s trial counsel the opportunity to explain his actions.” (quotation
marks omitted)). This finding carries the necessary implication that the state
court in M azzuca failed to consider that material non-record evidence— exactly
what the majority says happened here. Yet, the Second Circuit accepted the state
court’s decision as an adjudication on the merits and applied AEDPA
deference— exactly what the majority does not do here.
-7-
no room for judicial imposition of a full and fair hearing prerequisite” formerly

permitted by § 2254). In this way, the majority’s definition is at odds with the

central purpose of the statute it is interpreting.

In fact, the majority’s interpretation of § 2254(d) winds up treating state

courts less like instruments of sovereign governments and more like federal

agencies whose decisions Congress has instructed us to review by asking whether

they were “within the scope of its lawful authority, [and also whether] the process

by which it reaches that result [was] logical and rational” with an “explication

[that] is not inadequate.” Allentown M ack Sales & Service, Inc. v. NLRB, 522

U.S. 359, 364, 374 (1998) (citation omitted). The problem is that AEDPA is not

the APA. In AEDPA, Congress sought to give meaning to principles of

federalism and comity and afford the judgments of state court respect and

deference without regard to the length of their explications, directing us instead to

extend “deference to the state court’s result, even if its reasoning is not expressly

stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). As the Supreme

Court has emphasized, Congress instructed that a state court’s decision “does not

even require awareness of [the Supreme Court’s] cases” to warrant deference

under AEDPA, “so long as neither the reasoning nor the result of the state-court

decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis in

original). Under the majority’s interpretation, however, it is impossible to defer

to a state court’s result without first examining its reasoning— precisely what

AEDPA and Early say the law is not.

-8-
 In splitting with other circuits and holding that an “adjudication on the

merits” under § 2254(d) requires a state court to give sufficient consideration to

evidence we think material, the majority’s interpretation does not rely on

AEDPA’s plain language, structure, or purpose. Instead, it defines the words

“adjudicated on the merits” by reference to Black’s Law Dictionary. M aj. Op. at

14. But as the Supreme Court has recognized, “[t]he term ‘on the merits’ has

multiple usages.” Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (2005); see also

Semtek Int’l, Inc. v. Lockheed M artin Corp., 531 U.S. 497, 501-03 (2001)

(describing ambiguity of the term). Thus, the task before us is to ascertain its

meaning in this statutory context. One handpicked citation to a single authority

using an ambiguous term in a friendly way, and without any reference to the

statutory regime before us, does not persuade. 3

3
The majority takes a similar approach to its definition of the word
“claim,” relying on carefully chosen authorities from other contexts rather than
examining the statutory context in which the word is found. See M aj. Op. at 13.
For example, the majority lifts one definition of “claim” from Black’s Law
Dictionary (which contains six entries for the word), cites authority that itself
describes the term as ambiguous, see United States v. Ripa, 323 F.3d 73, 82-83 &
n.10 (2d Cir. 2003), and relies on an analogy to Fed. R. Civ. P. 12(b)(6). W ith
respect to Rule 12(b)(6), moreover, the majority suggests that a plaintiff whose
complaint contains insufficient factual averments has no claim at all because his
suit will be dismissed “for failure to state a claim.” M aj. Op. at 13. But the
phrase “failure to state a claim,” like “AEDPA deference,” is just shorthand for
the text of the actual rule, which allows dismissal “for failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6) (emphasis added). In
a case dismissed under Rule 12(b)(6), the plaintiff surely advanced a claim, but
relief could not be granted for that claim because the facts he averred in support
of it were not sufficient to warrant relief under law. The majority occasionally
(continued...)
-9-
 One may well complain that the OCCA’s adjudicative procedures are

unjust, and argue that ineffective assistance claims cannot be fairly decided

without reference to evidence outside the trial court record. See M aj. Op. at 19.

But even assuming this is true, Congress supplied a solution for the problem in

AEDPA’s text. In subsection (b), Congress indicated that a petitioner need not

exhaust any state procedure that is “ineffective to protect the rights of the

applicant.” 28 U.S.C. § 2254(b)(1)(B); see also Kimmelman v. M orrison, 477

U.S. 365 (1986). It is an open and interesting question whether the OCCA’s Rule

3.11, by limiting extra-record evidence in the consideration of Sixth Amendment

claims, meets this threshold. The trouble in this particular case is that M essrs.

W ilson and W ackerly have not invoked the protections of subsection (b) or

advanced any challenge to Rule 3.11 on that basis, so it can do them no good. In

the majority’s view, this seems to be reason enough to create another remedy,

redressing § 2254(b)’s concern within § 2254(d) by refashioning what it means to

adjudicate a claim. Doing so, however, generates a statutory anomaly. Under the

3
(...continued)
even goes so far as to suggest that a “claim” consists not only of facts supporting
a legal theory, but also all the evidence that in turn proves those facts. See M aj.
Op. at 12 (“The merits question presented is whether, in light of non-record
evidence, trial counsel’s performance satisfied constitutional standards.”)
(emphasis added). As Judge Tymkovich well explains, this false equivalence
between a claim and all the evidence supporting it also undergirds the majority’s
flawed analogy to the requirement that habeas petitioners exhaust their state
remedies. See Tymkovich Dissent at 17-18. The point is that, when interpreting
an ambiguous term, context matters.
-10-
majority’s view, not only is seeking a ruling from a state court using inadequate

evidentiary procedures unnecessary (under subsection (b)), it is now

metaphysically impossible (under subsection (d)). If we do not like the state

court’s evidentiary procedures, then we will say not that the state adjudicated the

petitioner’s claim unfairly, but that the state failed to adjudicate the petitioner’s

claim at all. So it is that, under the reading of the statute the court adopts today,

§ 2254(b)(1)(B) seems to have little meaningful role left to play, another clue

suggesting a problem with the interpretive path the majority has taken. 4

4
The court does not mention one of the chief arguments for de
novo review advanced by the parties in this case, one based on Rompilla v. Beard,
545 U.S. 374 (2005), and Wiggins v. Smith, 539 U.S. 510 (2003). In those cases,
a state court rejected a petitioner’s claim of ineffective assistance of counsel by
finding that he had not satisfied the deficient performance element of Strickland,
without reaching Strickland’s remaining prejudice element. In each case, the
Supreme Court held that the state court’s deficient performance decision was an
unreasonable application of Strickland under § 2254(d)(1). Rompilla, 545 U.S. at
389; Wiggins, 539 U.S. at 534. Because the state courts in Rompilla and Wiggins
had not issued any decision on the question of prejudice, the Supreme Court
proceeded to review that question de novo. The petitioners suggest these cases
allow us to apply de novo review to issues not addressed by the state courts. But
the majority abandons this argument for good reason: in each case, issuance of
the writ was consistent with § 2254(d)(1) because the state court’s result on the
deficient performance question was an unreasonable application of Strickland.
Nothing in Rompilla and Wiggins suggests we may avoid our obligation to find
something unreasonably wrong with a state court’s decision under (d)(1) or (d)(2)
before issuing a writ of habeas corpus.

Separately, the majority suggests we dissenters are “concerned” that
lawyers will sandbag us by withholding evidence in state court and then
producing it in federal court to obtain de novo review. M aj. Op. at 20. Our
concern, however, is instead with arriving at the most likely reading of a law
Congress passed, using conventional tools of statutory interpretation. As the
(continued...)
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 II

The course we chart today is not only erroneous, it is unnecessary— and

unnecessary in two distinct ways. First, the majority itself identifies a narrower

basis supporting its result that does not depend on a controversial reading of

AEDPA’s text; yet, without explanation, the majority then declines to rest on it.

Second, simply certifying our dispute over what Oklahoma’s Rule 3.11 means to

the institution able to interpret it authoritatively— the OCCA— could have entirely

obviated the need for us to interpret § 2254(d)’s terms; yet, the majority eschews

that course, too.

A

In the first place, after exerting so much effort to explain why § 2254(d)

deference doesn’t apply, the majority tells us it makes no difference. Even if the

OCCA’s decisions were adjudications on the merits and so entitled to AEDPA

deference, the majority says, it would still reverse them under § 2254(d)(1). M aj.

Op. at 19. In other words, we learn that the entire dispute about what it takes to

adjudicate a claim on the merits under § 2254(d) is unnecessary to the majority’s

resolution of these appeals. Our usual course in such circumstances is to assume

without deciding that AEDPA deference is due and then reverse because, even

4
(...continued)
above statutory analysis reflects, an assumption that lawyers will behave
unethically does not inform my (or anyone’s) conclusions about what Congress
meant by the phrase “adjudicated on the merits.”
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affording such deference, the state court’s decision could not stand. The

majority, however, declines to follow this more restrained path and never tells us

why it prefers a broader holding that, in its own view, isn’t needed.

I confess that I find even the majority’s narrower course unpersuasive on

its own terms. The Supreme Court has cautioned that § 2254(d)(1)’s “‘contrary

to’ and ‘unreasonable application’ clauses [have] independent meaning.” Terry

Williams v. Taylor, 529 U.S. 362, 405 (2000). Yet, the majority’s opinion isn’t

clear about which clause the OCCA has violated. It first tells us that the OCCA’s

decisions should be reversed as “contrary to . . . clearly established Federal law.”

M aj. Op. at 19 (quoting § 2254(d)(1)). In order for this to be true, the state court

must have either applied a rule that contradicts a Supreme Court decision, or else

confronted a set of facts materially identical to a relevant Supreme Court

precedent and reached a different result. Terry Williams, 529 U.S. at 405-06.

Still, the majority’s opinion does not tell us what Supreme Court holding the

OCCA misstated or what result runs contrary to a decision of the Supreme Court.

Instead, in the very next sentence, the majority switches to the “unreasonable

application” theory, asserting that “[t]o decide a legal claim without regard to the

evidence is surely unreasonable.” M aj. Op. at 19 (emphasis added). But this also

misstates the applicable statutory test: we do not sit to decide whether state

courts behave unreasonably; the question we may ask is only whether their

applications of federal law, as embodied in Supreme Court precedents, are

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unreasonable. See Carey v. M usladin, 549 U.S. 70 (2006). And the majority

identifies no Supreme Court holding the OCCA has contradicted or unreasonably

applied. It does supply a quote from Terry Williams, but the quoted passage is

from Part III of Justice O’Connor’s separate concurrence, which did not speak for

the Court. M aj. Op. at 19. Then the majority cites a list of our own precedents

supporting its conclusion that we do not owe deference to adjudications under

Rule 3.11. Id. at 19-20. There is, of course, a similar list of Tenth Circuit cases

supporting just the opposite rule, and this intra-circuit split of panel authority is

precisely why we granted en banc rehearing in the first place. See M aj. Op. at 3.

So even if we could somehow leave aside the difficulty that we are not the

Supreme Court, our inconsistent panel precedents on this point have certainly not

clearly established the state of the law.

Having said all this, the majority does not share my concerns with its

alternative holding. Given its apparent confidence in its alternative and narrower

holding that reversal is required even if AEDPA applies, there is no need for the

court to pursue its primary and broader holding that AEDPA does not apply.

Restraint would normally caution against a broader course when the narrower will

do. W hy issue a sweeping and controversial legal holding about AEDPA’s

meaning when a fact-bound holding about the statute’s application is so readily at

hand?

B

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 The majority’s principal holding is needless in a second and even more

fundamental way. The question whether the OCCA’s passage in Wilson quoted

above constitutes an “adjudication on the merits” must be resolved only if the

OCCA’s denial of the Rule 3.11 motion in its footnote 8 is not itself an

adjudication on the merits. M r. W ackerly’s case turns even more heavily on Rule

3.11’s meaning because there the OCCA dealt with his present claim only by

denying his Rule 3.11 motion. 5

5
The discussion in the OCCA’s opinion in Wackerly makes this clear:

¶ 37 In addition to the ineffective assistance of counsel claims raised by
Appellant in his Brief-in-Chief, he filed an A pplication for an
Evidentiary Hearing asserting three additional claims which he contends
are supported by evidence not in the record but which was available to
defense counsel at the time of trial. In this application, Appellant
requests an evidentiary hearing on: 1) the failure of defense counsel to
impeach M ichelle W ackerly; 2) the failure of defense counsel to
produce evidence during the Franks hearing to establish that Agent
Franchini misrepresented information regarding M ichelle W ackerly’s
recollection of the location of the gun; and 3) counsel’s failure to
investigate and present available evidence which would have warranted
different verdicts and sentences in the first and second stages of trial.

¶ 38 Appellant requests this evidentiary hearing based upon Rule
3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals, Title
22, Ch. 18, App. (1999). This rule allows an appellant to request an
evidentiary hearing when it is alleged on appeal that trial counsel was
ineffective for failing to “utilize available evidence or adequately
investigate to identify evidence which could have been made available
during the course of trial . . . .” Once an application has been properly
submitted along with supporting affidavits, this Court reviews the
application to see if it contains “sufficient evidence to show this Court
by clear and convincing evidence there is a strong possibility trial
counsel was ineffective for failing to utilize or identify the
(continued...)
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 It is accepted by everyone on this court that if, in the course of denying an

evidentiary hearing under Rule 3.11, the OCCA reviews a petitioner’s proffered

evidence under standards as favorable to the petitioner as Strickland’s, we owe

that denial deference under AEDPA without respect to what else the OCCA does

or does not say. Harris v. Poppell, 411 F.3d 1189, 1196 (10th Cir. 2005) (“[I]f

the OCCA rejected M r. Harris’s claim under a standard that is equally or more

favorable to him relative to the federal standard, the state court’s decision

constitutes an adjudication of the federal claim despite citing no federal

decisions.”); see also Romano v. Gibson, 239 F.3d 1156, 1164 (10th Cir. 2001).

M y colleagues just disagree about whether Rule 3.11 imposes on petitioners a

standard more or less onerous than Strickland because it requires petitioner to

present “clear and convincing evidence [of] a strong possibility” of ineffective

assistance. On the one hand, Judge M cConnell says “clear and convincing

evidence” requires more than federal law, which requires a petitioner to show a

5
(...continued)
complained-of evidence.” Rule 3.11(B)(3)(b)(i).

¶ 39 Upon review of the application and supporting exhibits, we find
Appellant has shown this Court that trial counsel could perhaps have
accessed other information in preparing for trial. However, Appellant
has not shown by clear and convincing evidence a strong possibility that
defense counsel was ineffective for failing to utilize or identify the
complained-of evidence. Accordingly, we decline to grant Appellant’s
application for an evidentiary hearing.

Wackerly v. State, 12 P.3d 1, 13-14 (Okla. Crim. App. 2000) (footnote omitted).
-16-
Strickland violation by a mere preponderance of the evidence. On the other hand,

Judge Tymkovich argues that Rule 3.11 requires less of petitioners than

Strickland because a petitioner need only show “a strong possibility” of

ineffective assistance by clear and convincing evidence.

It seems to me that, given the absence of any Oklahoma decision on point,

we can do no better than guess at which interpretation of Rule 3.11 (if either) is

right. But, more importantly, there is no reason for us to guess. The OCCA has

authority to decide definitively what the phrase “clear and convincing evidence”

means in the context of its own rule. W e should have just asked. If the OCCA

had agreed with the majority’s interpretation of its Rule, a very large majority (if

not all) of us would have agreed that no deference would be owed to the OCCA’s

decision in Wackerly, and we would have had to proceed to confront the

§ 2254(d) question in M r. W ilson’s case. But if the OCCA interpreted Rule 3.11

in the manner Judge Tymkovich does, as imposing a lesser burden on petitioners

than Strickland, everyone on this court would have treated the denial of Rule 3.11

applications as implicit adjudications of ineffective assistance claims and applied

AEDPA deference to the OCCA’s decisions in both Wilson and Wackerly — and

done so without needing to address whether the OCCA’s additional language in

M r. W ilson’s case amounted to an adjudication of the merits of his claim under

§ 2254(d). Asking the OCCA to interpret its own rule rather than venture a guess

ourselves would have had the benefit, as well, of “‘help[ing] build a cooperative

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federalism’” by “giv[ing] meaning and respect to the federal character of our

judicial system, recognizing that the judicial policy of a state should be decided

when possible by state, not federal, courts.” Pino v. United States, 507 F.3d

1233, 1236 (10th Cir. 2007) (quoting Lehman Bros. v. Schein, 416 U.S. 386, 391

(1974)). 6

Instead of asking the OCCA, the majority ventures a guess about the

meaning of state law. Yet, the OCCA can simply tell us tomorrow what Rule

6
The majority emphasizes that the State didn’t move for (even though it
expressed openness to) certification. M aj. Op. at 32. But, as the majority also
acknowledges, we surely have the power to certify questions on our own motion,
see, e.g., Elkins v. M oreno, 435 U.S. 647, 662 (1978); Kansas Judicial Review v.
Stout, 519 F.3d 1107, 1120 (10th Cir. 2008), and, as it happens, sua sponte
certification is the norm, see 17A Charles Alan W right et al., Fed. Prac. & Proc.
§ 4248, at 509 (3d ed. 2007) (“[o]rdinarily a court will order certification on its
own motion”). The majority suggests certification isn’t warranted because the
question in this case “is not how we should interpret and apply the ‘clear and
convincing’ standard (which we would never have occasion to do) but what past
decisions of the OCCA meant when they employed that standard.” M aj. Op. at
32. But no one has suggested that we are in the business of applying a state
evidentiary rule to parties in a federal habeas proceeding. Instead, the
unavoidable fact is that, for us to determine which federal standard of review
pertains to M essrs. W ilson’s and W ackerly’s federal habeas petitions, we need to
know the meaning of a state evidentiary rule. The applicability of AEDPA turns
on the meaning of OCCA Rule 3.11. W e routinely ask states to interpret their
own rules and statutes when doing so will aid in the disposition of federal claims
and lawsuits, and we should do the same here. To the extent that the majority
seems concerned that the OCCA could somehow tell us what Rule 3.11 means
only prospectively, and not what it meant at the time it adjudicated Wilson and
Wackerly, this concern is also misplaced. W e could have simply asked the OCCA
what its Rule 3.11 meant at the time it issued Wilson and Wackerly, without
regard to any later amendments or legal developments (if any happen to exist).
Notably, this is exactly the course we took in the case the majority relies upon,
Pino, 507 F.3d at 1236-38, asking the state court there the meaning of a state
statute as of 2003, before certain later statutory amendments.
-18-
3.11 means (or revise it, or repeal it), and we will then be obliged to follow its

understanding, regardless of our court’s interpretation today. Future panels of

this court likewise remain free to certify the question of Rule 3.11’s meaning to

the OCCA. Given all this, the shelf life of the majority’s construction of state

law could be short indeed. Precisely because of this fact, and in recognition of

certification’s useful role in promoting a cooperative federalism, federal courts of

appeals do not often (ever?) devote such substantial en banc efforts to the

adjudication of state law questions. The majority’s refusal to certify is made

more puzzling when doing so might well have allowed us to avoid issuing a

divided opinion, offering a questionable interpretation of an important federal

statute, and cementing a split among the federal circuits. Our first interpretive

imperative should be to do no harm, and I do not see why we should be so

anxious to charge into such a breach when it might be well and honorably

avoided.

I respectfully dissent.

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