Britt v. Newton-Embry

FILED
United States Court of Appeals
Tenth Circuit

December 9, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

TYALEA CHANTRICE BRITT,

Petitioner-Appellant,
No. 07-6058
v. (D.C. No. 5:06-CV-00701-W)
(W.D. Okla.)
MILLICENT NEWTON EMBRY,

Respondent-Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.

Petitioner-Appellant Tyalea Britt, an Oklahoma state prisoner appearing

pro se, seeks a certificate of appealability (“COA”) under 28 U.S.C. §

2253(c)(1)(A) to challenge the federal district court’s denial of her habeas corpus

petition. Since the federal district court issued an order denying a COA, our

jurisdiction arises under both 28 U.S.C. §§ 1291 and 2253(a). Reviewing Ms.

*
This Order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After
examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Britt’s pro se filings liberally, 1 we hold that no reasonable jurist could conclude

that the federal district court’s denial was incorrect. See Slack v. McDaniel, 529

U.S. 473, 484 (2000). Accordingly, we DENY Ms. Britt’s application for a COA

and DISMISS the appeal.

I. BACKGROUND

Ms. Britt was charged and convicted of First Degree Murder for the

shooting and subsequent death of sixteen-year-old Thomas Morgan. On the night

of the incident, Ms. Britt heard a group of males having a discussion outside of

her home. Ms. Britt interjected into the conversation and, as a result, became

engaged in a heated, intense argument, involving yelling and exchanges of

obscenities with Mr. Morgan. At one point in the argument, a bystander, Freddie

Leake, tried to stop the argument but had difficulty restraining Mr. Morgan. Mr.

Leake ultimately was unsuccessful, and the argument continued.

Ms. Britt testified that she was afraid of Mr. Morgan during the argument.

She did not have a weapon on her person during the argument until another

bystander, Jerry Hawkins, approached and handed a gun to her. Ms. Britt shot

Mr. Morgan in the head at point-blank range and subsequently fled from the

1
Because Ms. Britt is proceeding pro se, we review her pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

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scene. Six days after the shooting, Mr. Morgan died at a hospital from the

gunshot wound to his head.

Ms. Britt was tried and convicted by a jury and sentenced to serve life

imprisonment without the possibility of parole. Ms. Britt filed a direct appeal

with the Oklahoma Court of Criminal Appeals (“OCCA”), which affirmed her

conviction. Ms. Britt then filed an application for postconviction relief in the

District Court of Oklahoma County, which was later denied. Ms. Britt appealed

this decision to the OCCA, which declined jurisdiction and dismissed the appeal

as untimely. Ms. Britt filed a Petition for Habeas Corpus in federal district court.

The district court denied her petition, adopting the thorough 34-page Report and

Recommendation prepared by a magistrate judge. The district court also denied a

COA, and Ms. Britt is appealing this denial.

II. DISCUSSION

Appellant raises nine issues as potential grounds for habeas relief. These

issues are as follows: (1) whether the trial court erred in admitting four

photographs of the victim; (2) whether the trial court failed to conduct an

adequate post-treatment competency hearing; (3) whether the trial court erred in

failing to instruct the jury on the lesser included offense of manslaughter; (4)

whether the prosecutor committed reversible misconduct; (5) whether Ms. Britt

was deprived of a fair trial when the prosecutor asked her about her previous

criminal acts as a juvenile; (6) whether the State’s failure to reveal to defense

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counsel that it intended to introduce a radio interview of her at trial is reversible

error; (7) whether Ms. Britt’s trial counsel was ineffective for failing to raise

insanity as a defense and for failing to adequately cross-examine Officer Randy

Scott regarding her competency to waive her Miranda rights; (8) whether the

sentence Ms. Britt received was excessive because the jury’s questions about

parole were not answered; and (9) whether cumulative error occurred.

Federal law requires a petitioner to first obtain a COA before appealing the

denial of a motion for habeas corpus relief under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1). This mandate is jurisdictional. See Miller-El v. Cockrell,

537 U.S. 322, 336 (2003) (noting COA review is distinct from a merits review of

petition). In order to obtain a COA, Ms. Britt must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

If a claim already has been adjudicated on the merits in state court

proceedings, a petitioner is entitled to federal habeas relief only if he or she can

establish that the state court’s adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). “Subsection (d)(1) governs claims of legal error

while subsection (d)(2) governs claims of factual error.” House v. Hatch, 527

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F.3d 1010, 1015 (10th Cir. 2008). Pursuant to 28 U.S.C. § 2254(e)(1), factual

findings of a state court are presumed correct unless the petitioner rebuts the

presumption by a showing of clear and convincing evidence. Id. at 1019.

Regarding claims of legal error, a state court’s determination is “contrary

to” clearly established federal law if it applies a rule that contradicts the

governing law set forth in Supreme Court cases or confronts a set of facts that are

materially indistinguishable from a decision of the Supreme Court but arrives at a

different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court’s

determination constitutes “an unreasonable application” of Supreme Court

precedent if it identifies the correct governing legal principle from the Supreme

Court’s decisions but unreasonably applies that principle to the facts of the case.

Id. at 413; see also Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). As to this

latter inquiry, the focus is on “whether the state court’s application of the clearly

established federal law is objectively unreasonable,” i.e., “only the most serious

misapplications of Supreme Court precedent will be a basis for relief under §

2254.” House, 527 F.3d at 1019 (internal quotation marks omitted).

A. Admission of Photographs

As Ms. Britt’s first ground for relief, she contends that the trial court erred

in admitting four photographs of the victim. Because the photographs were

gruesome and Ms. Britt had admitted to shooting the victim, she argues that

admission of the photographs was unnecessary and that their probative value was

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outweighed by their prejudicial impact on the jury. Ms. Britt relies on the

Fourteenth Amendment to argue that the admission of the photographs denied her

a fair trial and due process.

For purposes of this habeas action, the admission of the photographs is

reviewed only to determine whether Ms. Britt’s trial proceedings were rendered

fundamentally unfair. Spears v. Mullin, 343 F.3d 1215, 1225-26 (10th Cir. 2003)

(when reviewing habeas petitioner’s challenge to admission of photographic

evidence, court considers whether the admission of evidence so infected

proceedings with unfairness as to render jury’s verdict a denial of due process);

Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999) (“The essence of our

inquiry [on federal habeas review] under the Fifth, Sixth, and Eighth

Amendments, as applied to the states under the Fourteenth Amendment, is

whether the admission of the photographs rendered the proceedings fundamentally

unfair.”). The fundamental fairness analysis is approached “with ‘considerable

self-restraint.’” Smallwood, 191 F.3d at 1275 (quoting Jackson v. Shanks, 143

F.3d 1313, 1322 (10th Cir. 1998)). “Federal habeas review is not available to

correct state law evidentiary errors; rather it is limited to violations of

constitutional rights.” Id.

On habeas review, however, we must give proper deference to the state

court’s determinations. 28 U.S.C. § 2254(d)(1). Although the photographs at

issue were graphic in that they depicted a young man with a gunshot wound to the

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head post-surgery, on direct appeal the OCCA found that they were probative in

that they established corpus delicti and corroborated the medical examiner’s

testimony. Given the probative nature of the photographs, the gruesome character

of the crime itself, and the wealth of additional evidence supporting Ms. Britt’s

conviction, the OCCA’s rejection of this claim was not unreasonable. The

admission of the photographs was not so unduly prejudicial as to render the

proceedings against her fundamentally unfair. See Smallwood, 191 F.3d at 1275.

B. Post-Treatment Competency Hearing

Ms. Britt raises a federal due process claim by arguing that she did not

receive a full and fair competency hearing. Despite her stipulation to competency

and the trial court’s finding of competency, she contends that her “obvious mental

issues” make the procedures that were employed inadequate. Aplt. Opening Br. at

9. We review Ms. Britt’s due process claim on both procedural and substantive

grounds. Allen v. Mullin, 368 F.3d 1220, 1239 (10th Cir. 2004). The criminal

trial of an incompetent defendant violates due process. Id. at 1238.

“A procedural competency claim is based upon a trial court’s alleged

failure to hold a competency hearing, or an adequate competency hearing, while a

substantive competency claim is founded on the allegation that an individual was

tried and convicted while, in fact, incompetent.” Id. at 1239 (internal quotation

marks omitted). The test for determining competency to stand trial is “‘whether

[defendant] has sufficient present ability to consult with [her] lawyer with a

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reasonable degree of rational understanding—and whether [she] has a rational as

well as factual understanding of the proceedings against [her].’” Id. at 1238-39

(first alteration in original) (quoting Dusky v. United States, 362 U.S. 402, 402

(1960)).

To make out a procedural competency claim, a defendant must
raise a bona fide doubt regarding [her] competency to stand
trial[.] This requires a demonstration that a reasonable judge
should have doubted the defendant’s competency. It does not
require proof of actual incompetency. A substantive
competency claim, on the other hand, requires the higher
standard of proof of incompetency by a preponderance of the
evidence.

Id. at 1239 (citations and internal quotation marks omitted) (citing Cooper v.

Oklahoma, 517 U.S. 348, 368-69 (1996)).

Under Oklahoma law, upon the filing of an application for determination of

competency, the trial court holds a hearing to examine the application and to

determine if sufficient facts are alleged to create a doubt as to the competency of

the defendant. Okla. Stat. tit. 22, § 1175.3 (2003); Allen, 368 F.3d at 1224. If the

court finds a doubt as to the competency of the defendant at this hearing, the

defendant is ordered to undergo an examination by doctors or appropriate

technicians. Okla. Stat. tit. 22, § 1175.3; Allen, 368 F.3d at 1224. The Oklahoma

statutes further prescribe that within thirty days after the required § 1175.3

determination is made by the examiner(s), a post-examination hearing shall be

held to determine the defendant’s competency. Okla. Stat. tit. 22, § 1175.4.

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 The trial court initially ordered the examiner to make the following

determinations: (1) is Ms. Britt able to appreciate the nature of the charges filed

against her? (2) is Ms. Britt able to consult with her lawyer and rationally assist

in the preparation of her defense? (3) if the answer to question 1 or 2 is no, can

Ms. Britt attain competency within a reasonable time if provided with a course of

treatment, therapy, or training? (4) is Ms. Britt a mentally ill person or a person

requiring treatment as defined by statute? and (5) if Ms. Britt were released

without treatment, therapy, or training, would she probably pose a significant

threat to the life or safety of herself or others?

On April 17, 2002, after the examiner found Ms. Britt incompetent to stand

trial, Ms. Britt received a competency evaluation and hearing. The trial court

reviewed the mental health records from the examination, determined that Ms.

Britt was incompetent to stand trial, and ordered that she be committed to a

mental health institution. After three months of treatment, a post-treatment report

of Ms. Britt’s mental health indicated that Ms. Britt no longer suffered “from a

mental disorder or deficit which would render her incapable of understanding the

proceedings against her, assisting legal counsel in her defense, or cooperating

with the Court in her own best interest.” R., OCCA Vol. I, at 98 (Evaluation by

Dr. Roberson, dated July 12, 2002).

Subsequently, the trial court held a post-treatment competency hearing for

Ms. Britt on February 24, 2003. On direct appeal, the OCCA found that at this

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hearing, Ms. Britt, in the presence of her counsel, was afforded an opportunity to

offer evidence to the court but instead stipulated to the medical report finding her

competent to stand trial. Accordingly, the court ordered the trial proceedings to

resume. These findings are entitled to a presumption of correctness under 28

U.S.C. § 2254(e)(1) and we do not discern anything that would cause us to

question that presumption. Further, the OCCA’s determination that the procedure

used by the trial court in this case was sufficient to comply with the requirements

of § 1175.4 was not unreasonable.

Based upon the totality of the evidence, we conclude that Ms. Britt has not

made a substantial showing that the state court rulings relating to the competency

question resulted in a violation of her federal due process rights. In particular,

Ms. Britt has not demonstrated that the trial court ought to have entertained a

bona fide doubt as to her competency to stand trial. And it follows with even

greater force that she has not cleared the higher, substantive hurdle of

establishing proof of incompetency by a preponderance of the evidence.

C. Manslaughter Instruction

Ms. Britt claims that the trial court erred in failing to instruct the jury on

the lesser included offense of manslaughter. In Beck v. Alabama, 447 U.S. 625

(1980), the Supreme Court concluded that lesser-included offense instructions are

required only in capital cases when supported by the evidence. The Supreme

Court has expressly declined to extend this ruling to noncapital cases such as Ms.

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Britt’s, stating that “[w]e need not and do not decide whether the Due Process

Clause would require the giving of such instructions in a noncapital case.” Id. at

638 n.14. We have previously held that “a petitioner in a non-capital case is not

entitled to habeas relief for the failure to give a lesser-included offense

instruction, even if in our view there was sufficient evidence to warrant the giving

of an instruction on a lesser included offense.” Lujan v. Tansy, 2 F.3d 1031, 1036

(10th Cir. 1993) (internal quotation marks omitted). Ms. Britt has not provided

clear and convincing evidence sufficient to overcome the presumption of

correctness afforded to the trial court’s and the OCCA’s findings that the

evidence did not support giving such an instruction. Nor has she shown that their

determinations were unreasonable. Accordingly, habeas relief is not warranted.

D. Prosecutorial Misconduct

Ms. Britt contends that the prosecutor committed misconduct by engaging

in the following: emphasizing the victim’s age and the tragedy “which had struck

the family of the victim” during closing argument to evoke sympathy from the

jury; casting aspersions on the defense, thereby distracting the jury away from the

evidence; and asking inappropriate questions during the examination of Officer

Scott directed at eliciting his beliefs about Ms. Britt’s guilt. Ms. Britt contends

that this misconduct violated her Sixth Amendment right to an impartial jury and

deprived her of a fair trial and due process of law.

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 Prosecutorial misconduct gives rise to federal habeas corpus relief only

when such misconduct either violated a specific constitutional right or “so

infected the trial with unfairness as to make the resulting conviction a denial of

due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see

Hamilton v. Mullin, 436 F.3d 1181, 1187 (10th Cir. 2006). To determine whether

a trial is rendered fundamentally unfair, the court examines the entire proceeding,

“including the strength of the evidence against the petitioner . . . as well as [a]ny

cautionary steps–such as instructions to the jury–offered by the court to

counteract improper remarks.” Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir.

2006) (alteration in original) (internal quotation marks omitted). “‘[I]t is not

enough that the prosecutors’ remarks were undesirable or even universally

condemned.’” Id. (alteration in original) (quoting Darden v. Wainwright, 477

U.S. 168, 181 (1986)). “The ultimate question is whether the jury was able to

fairly judge the evidence in light of the prosecutors’ conduct.” Id.

Ms. Britt raised these same points on direct appeal, and having reviewed

the instances of alleged prosecutorial misconduct, we hold for substantially the

same reasons as those given by the district court that the OCCA’s denial of this

claim was not contrary to or an unreasonable application of clearly established

federal law. 28 U.S.C. § 2254(d)(1). Ms. Britt has not established that her trial

was rendered fundamentally unfair or that her constitutional rights were otherwise

infringed. We note first that with respect to Ms. Britt’s claim regarding the

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prosecutor’s comments about age and tragedy to the family that no

contemporaneous objections were made. We agree with the district court that the

comments were within the wide range of argument permitted on closing argument

as they were based on the evidence and not merely appeals for sympathy.

Second, after the prosecutor made belittling comments about the defense’s

strategy, the trial judge did remind the jury that the burden was on the State to

prove whether the defendant was guilty or not. Third, with respect to the last

claim, we note that the judge instructed the prosecutor to rephrase her question to

avoid discussing Officer Scott’s beliefs about Ms. Britt’s guilt. In addition to our

reasons for dismissing each of Ms. Britt’s individual complaints, we find that in

the context of the whole trial, these comments would have had little impact. Ms.

Britt, along with other witnesses, testified that she shot the victim. Accordingly,

in the context of this case, we find that these statements by the prosecutor do not

provide a basis for habeas relief.

E. Cross-Examination Regarding Juvenile Conviction

Ms. Britt asserts that she was deprived of a fair trial when the prosecutor

asked her on cross-examination, “You weren’t arrested when you were 13 years

old for assault and battery upon a police officer and put on probation as a

juvenile?” Aplt. Opening Br. at 14-15; R., Okla. County Dist. Ct. Vol. III, Tr. at

213 (Jury Trial, dated Oct. 8, 2003). Without any objection to the question, Ms.

Britt answered, “Oh, yes.” R., Okla. County Dist. Ct. Vol. III, Tr. at 213.

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 As with other state law issues, on habeas review, this Court can only

review state court evidentiary rulings “to determine whether the error was so

grossly prejudicial that it fatally infected the trial and denied the fundamental

fairness that is the essence of due process.” Hooker v. Mullin, 293 F.3d 1232,

1238 (10th Cir. 2002) (internal quotation marks omitted). Generally, Oklahoma

state law prohibits the admission of a defendant’s juvenile convictions. Okla.

Stat. tit. 12, § 2609(D) (1993 & Supp. 2004). In order to impeach a defendant’s

prior statement, “the State . . . may ask a defendant about [her] prior conduct, but

not about the juvenile proceeding that followed.” Douglas v. State, 951 P.2d 651,

665 (Okla. Crim. App. 1997).

Here, as authorized by Oklahoma law, the prosecutor principally focused its

questions on Ms. Britt’s juvenile conduct to impeach Ms. Britt’s prior testimony

that she “had never experienced anything like this” and “had never been in

trouble before.” R., Okla. County Dist. Ct. Vol. III, Tr. at 211, 212. Even if

some part of the prosecutor’s inquiry could be said to have crossed the

permissible line drawn by Oklahoma law, we would be hard-pressed to conclude

that the trial court’s allowance of the questioning infected the proceedings to a

sufficient degree to give rise to a due process violation.

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F. Admission of Radio Interview

Ms. Britt claims that her due process rights under the Fifth, Sixth, Eighth,

and Fourteenth Amendments were violated because the State failed to reveal to

defense counsel that it intended to introduce a radio interview of her at trial. Ms.

Britt does not, however, explain how her constitutional rights were violated.

The State questioned Ms. Britt about a radio interview she conducted a

month prior to the jury trial from jail. Upon the defense counsel’s objection to

the questioning about the radio interview, the trial court found that since Ms. Britt

had conducted the interview and it was broadcast, the interview was therefore

available for public use. The Oklahoma Criminal Discovery Code requires that,

upon the request of the defense, the State shall disclose any “recorded statements

and the substance of any oral statements made by the accused.” Okla. Stat. tit.

22, § 2002(A) (2003). It is fundamental that the courts do not grant habeas relief

for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Accordingly,

we cannot grant habeas relief simply based upon a violation of Oklahoma law.

Furthermore, we perceive no due process violation since the radio interview was

public.

G. Ineffective Assistance of Counsel

Ms. Britt asserts that her trial counsel was ineffective for failing to raise

insanity as a defense and for failing to question Officer Randy Scott regarding her

competency to waive her Miranda rights. An ineffective assistance of counsel

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claim has two components: A petitioner must show that counsel’s performance

was deficient and that the deficiency prejudiced the defense. Strickland v.

Washington, 466 U.S. 668 (1984).

Under the performance prong of the Strickland test, “the proper standard

for attorney performance is that of reasonably effective assistance.” Id. at 687.

Our “scrutiny of counsel’s performance must be highly deferential” and avoid

“the distorting effects of hindsight.” Id. at 689. Under the prejudice prong of the

Strickland test, “a defendant must establish that there is a reasonable probability

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

have been different.” United States v. Harfst, 168 F.3d 398, 402 (10th Cir. 1999)

(internal quotation marks omitted).

We need not address both components of the Strickland inquiry.

Strickland, 466 U.S. at 697 (“Although we have discussed the performance

component of an ineffectiveness claim prior to the prejudice component, there is

no reason for a court deciding an ineffective assistance claim to approach the

inquiry in the same order or even to address both components of the inquiry if the

defendant makes an insufficient showing on one.”). The Supreme Court has

declined to articulate specific guidelines for appropriate attorney conduct and

instead has emphasized that “[t]he proper measure of attorney performance

remains simply reasonableness under prevailing professional norms.” Wiggins,

539 U.S. at 521 (alteration in original) (internal quotation marks omitted).

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 To assert an insanity defense, Oklahoma requires “the defendant to show

that at the time of the crime [s]he suffered from a mental disease or defect

rendering [her] unable to differentiate between right and wrong, or unable to

understand the nature and consequences of [her] actions.” James v. Gibson, 211

F.3d 543, 553 (10th Cir. 2000) (internal quotation marks omitted). Prior to trial,

defense counsel indicated its intent to raise Ms. Britt’s mental competency as a

defense. In a written notice, defense counsel stated that Ms. Britt’s mental illness

at the time of the offense would be a significant factor in her defense at trial and

should be considered by the jury. Counsel, therefore, clearly considered a

defense of insanity. Counsel’s rejection of that defense for one of self-defense

appears to have been a strategic decision. “Whether to raise a particular defense

is one aspect of trial strategy, and informed strategic or tactical decisions on the

part of counsel are presumed correct, unless they were completely unreasonable,

not merely wrong.” Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 859 (10th

Cir. 2005) (internal quotation marks omitted). We agree with the district court

that counsel’s performance did not fall below the standard of reasonableness.

Accordingly, we perceive no reversible error on Ms. Britt’s ineffective assistance

claims. 2

2
In her COA application, Ms. Britt also seems to be endeavoring to
assert a sentencing-related ineffective assistance of counsel claim involving jury
instructions. Specifically, Ms. Britt asserts that her trial counsel was ineffective
(continued...)

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H. Information for Jury About Sentencing

Ms. Britt claims that the sentence she received was excessive because the

jury did not receive the information it needed to make a full and fair

determination as to sentencing. Ms. Britt claims that while deliberating, the jury

asked the trial court two questions regarding sentencing. First, the jury asked,

2
(...continued)
for failing to request a jury instruction concerning Oklahoma’s 85% Rule,
pursuant to Anderson v. State, 130 P.3d 273 (Okla. Crim. App. 2006). COA
Application at 1. In homicide cases like this one, that rule provides that a
“defendant will not be eligible to be considered for parole until he has actually
served at least eighty-five percent (85%) of the sentence imposed.” Anderson,
130 P.3d at 282. On several fronts, this ineffective assistance of counsel claim is
problematic and, ultimately, unavailing. Ms. Britt did not raise the claim in her
habeas petition; consequently, it is not properly before us. See Brewer v.
Reynolds, 51 F.3d 1519, 1528 n.17 (10th Cir. 1995). Indeed, Ms. Britt does not
even appear to have carried the claim over to the arguments of her appellate brief.
Furthermore, Anderson was not decided until after Ms. Britt’s trial and after her
conviction became final; it expressly stated that “[a] trial court’s failure to
instruct on the 85% Rule in cases before this decision will not be grounds for
reversal,” 130 P.3d at 283; and it did not purport to predicate its holding on the
United States Constitution. Under these circumstances, we would be unable to
conclude that Ms. Britt’s counsel was constitutionally ineffective in failing to
request an 85% Rule instruction. Haney v. Addison, 275 F. App’x 802, 806 (10th
Cir. 2008) (“[T]he failure of Mr. Haney’s lawyer to request an instruction on the
85% Rule did not constitute ineffective assistance of counsel because Anderson
was not decided until four months after his trial.”), petition for cert. filed, (U.S.
July 24, 2008) (No. 08-6757); see Cheadle v. Dinwiddie, 278 F. App’x 820, 823
(10th Cir. 2008) (“Although the OCCA recently changed its position with regard
to whether the jury can be instructed on how much time a defendant must serve
before parole eligibility, that court did not base its change on anything in the
United States Constitution, nor did it apply the new rule retroactively. In sum,
Cheadle has not shown appellate counsel was constitutionally ineffective for
failing to critique the work of trial counsel.” (citing Anderson, 130 P.3d at 283)),
petition for cert. filed, (U.S. Oct. 21, 2008) (No. 08-6972).

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“With a life sentence, when is the earliest she will be eligible for parole?” Aplt.

Opening Br. at 23. The trial judge responded, “That is not for your

consideration.” Id. Next, the jury inquired, “Does her current 2 years served

count towards her prison time, if given life?” Id. The trial judge answered, “That

decision is made by the Judge at the time of formal sentencing.” Id.

Generally, habeas review of a sentence “ends once [the court determines

that] the sentence is within the limitation set by statute.” Dennis v. Poppel, 222

F.3d 1245, 1258 (10th Cir. 2000). Under Oklahoma law, murder in the first

degree is punishable by life imprisonment, life imprisonment without the

possibility of parole, or death. Okla. Stat. tit. 21, § 701.9(A) (2002). Ms. Britt

was sentenced to life imprisonment without the possibility of parole; her sentence

is thus within the statutory range. The OCCA’s determination that the sentence

was permissible did not result in a decision that was contrary to or an

unreasonable application of federal law. 28 U.S.C. § 2254(d)(1). Furthermore,

we have previously held that in noncapital cases the meaning of life without

parole need not be further defined for a jury, and, therefore, failure to give such

an instruction does not constitute a violation of federal constitutional rights.

Sallahdin v. Gibson, 275 F.3d 1211, 1229 (10th Cir. 2002). Thus, we perceive no

constitutional violation.

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I. Cumulative Error

Ms. Britt argues that the cumulative effect of the above alleged errors

deprived her of a fair trial. “A cumulative-error analysis aggregates all the errors

that individually have been found to be harmless and analyzes whether their

cumulative effect on the outcome of the trial is such that collectively they are not

harmless.” Van Woudenberg ex rel. Foor v. Gibson, 211 F.3d 560, 571 (10th Cir.

2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955

(10th Cir. 2001). Cumulative-error analysis does not apply to the cumulative

effect of non-errors. Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998).

Because we have determined that no individual errors have occurred, we find no

cumulative error.

III. CONCLUSION

For the foregoing reasons, we DENY Ms. Britt’s application for a COA and

DISMISS the appeal.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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