Fairchild v. Workman

FILED
United States Court of Appeals
Tenth Circuit

August 31, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD FAIRCHILD,

Petitioner-Appellant,

v.
No. 06-6327
RANDALL G. WORKMAN, Warden, *
Oklahoma State Penitentiary,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-01-1550-T)

Randy A. Bauman, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General, Criminal Division (W.A. Drew
Edmondson, Attorney General of Oklahoma, with him on the brief), State of
Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before HARTZ, McCONNELL, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

*
Pursuant to Fed. R. App. P. 43(c)(2), Randall G. Workman is
substituted as Warden for Marty Sirmons.
 Petitioner-Appellant Richard S. Fairchild, currently on death row in the

State of Oklahoma, appeals from the District Court for the Western District of

Oklahoma’s denial of his petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. Mr. Fairchild was convicted in an Oklahoma state court of child

abuse murder and sentenced to death. For the reasons stated below, we hold that

Mr. Fairchild’s ineffective assistance of counsel claim is unexhausted and that the

district court should determine in the first instance whether it is appropriate to

stay and abate the action on the petition in order to give Mr. Fairchild an

opportunity to exhaust this claim. Accordingly, we VACATE the district court’s

judgment and REMAND to the district court to make the stay-and-abeyance

determination and to conduct further proceedings consistent with this opinion.

We do not reach the merits of Mr. Fairchild’s other appellate claims.

I. BACKGROUND

We presume that the factual findings of the state court are correct. 28

U.S.C. § 2254(e)(1). Thus, we recite the facts developed by the Oklahoma Court

of Criminal Appeals (“OCCA”) and present additional facts as they become

pertinent. See generally Fairchild v. State (Fairchild I), 998 P.2d 611 (Okla.

Crim. App. 1999).

In November 1993, Mr. Fairchild was living with Stacy Broomhall and her

three children in Midwest City, Oklahoma. Id. at 615. On November 13, 1993,

Mr. Fairchild and Ms. Broomhall drank beer most of the afternoon and evening.

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Mr. Fairchild consumed approximately twelve beers between 2:00 p.m. and 9:00

p.m. Id. That evening, they drove to Ms. Broomhall’s mother’s house in north

Oklahoma City and continued to drink. Id. By the time they were ready to leave,

Mr. Fairchild and Ms. Broomhall were too intoxicated to drive, so Ms.

Broomhall’s seventeen-year-old sister, Charity Wade drove them home. Id. Ms.

Wade had intended to spend the night at Ms. Broomhall’s house. But she decided

not to do so after Mr. Fairchild made a sexual advance toward her. Instead, Ms.

Wade put Ms. Broomhall’s three children to bed and called a taxi to take her

home. Id. While Ms. Wade waited outside for the cab, Mr. Fairchild retrieved a

baseball bat and told her that, “if someone other than a cab driver came to pick

her up, he was going to beat him to death.” Id. When Ms. Wade left in the cab,

some time before 10:30 p.m., Ms. Broomhall’s three-year-old son Adam was

asleep in his own bed. Id. at 615-16.

Roughly three hours later, Adam woke up crying and got out of bed. Id.

His mother was asleep, and Mr. Fairchild told Adam to “hush it up.” Id. at 616.

When Adam persisted, Mr. Fairchild hit him several times, rupturing the inside of

his upper lip and his left eardrum, and he held Adam’s chest and then buttocks

against a hot wall heater causing severe second-degree grid-patterned burns. Id.

Mr. Fairchild told a detective several days later, “I think I pushed him up against

the heater and held him up there,” and, “The more he screamed, the more I just

kept on hitting him.” Id. When Mr. Fairchild threw Adam against the drop-leaf

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dining table, he stopped breathing. Id.

Mr. Fairchild woke Ms. Broomhall and called 911. Id. Adam was rushed

to the hospital, but the head injury had caused severe hemorrhaging and swelling,

and he died later that morning, never having regained consciousness. Id.

Examination indicated that Adam had sustained approximately twenty-six blows

to his body, including several to his head. Id. In a written statement to the

police, Mr. Fairchild claimed that Adam was running in the house and “ran right

into the table.” Id.

Mr. Fairchild was convicted by an Oklahoma County jury of one count of

first degree murder pursuant to Okla. Stat. tit. 21, § 701.7(C) (1991), 1 and the trial

court entered judgment on February 2, 1996. At the sentencing phase of the trial,

the jury found that the murder was especially heinous, atrocious, or cruel and

recommended imposition of the death penalty. Mr. Fairchild appealed his

conviction and sentence to the OCCA, which, in 1998, affirmed, “[f]inding no

error warranting reversal or modification.” Fairchild v. State, No. F-96-121, slip

1
Okla. Stat. tit. 21, § 701.7(C) (1991) provides:

A person commits murder in the first degree when the death of
a child results from the willful or malicious injuring, torturing,
maiming or using of unreasonable force by said person or who
shall willfully cause, procure or permit any of said acts to be
done upon the child pursuant to Section 843 of this title.

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op. at 26 (Okla. Crim. App. Aug. 20, 1998). In 1999, the OCCA issued a

superseding opinion reaching the same conclusion with somewhat different

reasoning. Fairchild I, 998 P.2d at 615. In 2000, the OCCA denied Mr.

Fairchild’s application for postconviction relief. Fairchild v. State (Fairchild II),

No. PC-98-31, slip op. at 17 (Okla. Crim. App. Oct. 25, 2000).

On May 16, 2002, Mr. Fairchild sought habeas relief pursuant to 28 U.S.C.

§ 2254. The district court denied the petition on all grounds on September 26,

2006. Mr. Fairchild timely filed a notice of appeal. The district court granted a

certificate of appealability (“COA”) with respect to five issues: (1) whether the

jury instructions failed to adequately explain the possible sentence of life without

possibility of parole; (2) whether application of Oklahoma court decisions

regarding the applicable mens rea for child abuse murder violates the Fourteenth

Amendment; (3) whether Oklahoma’s mens rea requirement for child abuse

murder violates the Eighth Amendment; (4) whether the exclusion of lesser

included or lesser related offense instructions violated federal rights; and (5)

whether trial or appellate counsel provided ineffective assistance of counsel. Mr.

Fairchild also seeks a COA for his claim of cumulative error. For the reasons

noted below, we address only Mr. Fairchild’s last issue, which is predicated upon

the alleged ineffectiveness of his trial counsel, and we deny his request for a COA

concerning alleged cumulative error as moot.

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 II. DISCUSSION

A. Standard of Review

Our review of a petition for writ of habeas corpus is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). House v.

Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008), cert. denied, 129 S. Ct. 1345

(2009). If the state court adjudicated the claim on the merits, a petitioner is

entitled to habeas relief only if he can establish that the decision was “contrary to,

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

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

or was “based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Id. § 2254(d)(2); see, e.g.,

Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir. 2000).

In ascertaining whether the law is clearly established, we review Supreme

Court holdings extant when the state court conviction became final. House, 527

F.3d at 1015 (quoting Williams v. Taylor (Terry Williams), 529 U.S. 362, 380

(2000)). If a law “announces a rule that breaks new ground or imposes a new

obligation on the States of [sic] the Federal Government,” it is not clearly

established. Id. (alterations and internal quotation marks omitted) (quoting Terry

Williams, 529 U.S. at 381). “[F]ederal courts may no longer extract clearly

established law from the general legal principles developed in factually distinct

contexts.” Id. at 1017 n.5. Finally, whether the law is clearly established is

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“dispositive” of the § 2254(d)(1) analysis. Id. at 1017. Specifically, only if we

determine that the law is clearly established do we inquire whether the state court

decision is either contrary to or an unreasonable application of that law. Id. at

1018.

“A state-court decision is contrary to clearly established federal law if: (a)

‘the state court applies a rule that contradicts the governing law set forth in

Supreme Court cases’; or (b) ‘the state court confronts a set of facts that are

materially indistinguishable from a decision of the Supreme Court and

nevertheless arrives at a result different from [that] precedent.’” Id. (alteration in

original) (quoting Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006)). “A

decision is an ‘unreasonable application’ of clearly established federal law only if

the state court identifies the correct governing legal principle from the Supreme

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

prisoner’s case.” Young v. Sirmons, 486 F.3d 655, 663 (10th Cir. 2007) (internal

quotation marks omitted). We presume the factual findings of the state courts to

be correct, and petitioner bears the burden of rebutting this presumption by clear

and convincing evidence. 28 U.S.C. § 2254(e)(1). We review the district court’s

legal analysis of the state court decision de novo. Young, 486 F.3d at 663.

When the state court did not determine the issue on its merits, and the

district court decided the issue in the first instance, we review de novo the district

court’s conclusions of law. We review its findings of facts for clear error.

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Cummings v. Sirmons, 506 F.3d 1211, 1221-22 (10th Cir. 2007), cert. denied, 128

S. Ct. 2943 (2008); see also Cargle v. Mullin, 317 F.3d 1196, 1212 (10th Cir.

2003) (noting that in such circumstances, we are “not constrained by the

deference principles in § 2254(d)”). We undertake this review cognizant that

“our duty to search for constitutional error with painstaking care is never more

exacting than it is in a capital case.” Mitchell v. Gibson, 262 F.3d 1036, 1063

(10th Cir. 2001) (alterations and internal quotation marks omitted) (quoting Kyles

v. Whitley, 514 U.S. 419, 422 (1995)).

B. Ineffective Assistance of Counsel

Mr. Fairchild argues that he was denied effective assistance of counsel in

violation of the Sixth Amendment by trial counsel’s “failure to investigate and

develop for the jury the defense that Mr. Fairchild was impaired not only by

alcohol but by organic brain damage.” Aplt. Opening Br. at 12. He argues that

trial counsel prematurely chose and presented the simplistic case that Mr.

Fairchild was a “mean drunk” when he should have developed the significance of

“organic frontal lobe brain injury.” Id. at 16, 20. Mr. Fairchild contends that, in

light of the facts at his disposal, counsel instead should have requested testing by

a neuropsychologist and then made his brain injuries the “centerpiece of the

mitigation case.” Id. at 20. He argues that, at the very least, he is entitled to an

evidentiary hearing to more fully develop his claim.

Ineffective assistance of counsel claims are reviewed under the two-part

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test of Strickland v. Washington, 466 U.S. 668 (1984), whereby the defendant

must show that: (1) “counsel’s representation fell below an objective standard of

reasonableness,” and (2) “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Id. at 688, 694. We approach these issues with “a strong presumption that

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

assistance,” and that “the challenged action might be considered sound trial

strategy.” Id. at 689 (internal quotation marks omitted). Nevertheless, “we are

also conscious of the overwhelming importance of the role mitigation evidence

plays in the just imposition of the death penalty.” Mayes v. Gibson, 210 F.3d

1284, 1288 (10th Cir. 2000). In order to “insure the sentencing jury makes an

individualized decision while equipped with the ‘fullest information possible

concerning the defendant’s life and characteristics,’ [we] must scrutinize carefully

any decision by counsel which deprives a capital defendant of all mitigation

evidence.” Id. (quoting Lockett v. Ohio, 438 U.S. 586, 603 (1978)).

Before we reach the merits of Mr. Fairchild’s ineffective assistance claim,

however, he must clear several procedural obstacles. First, the OCCA gave two

reasons for rejecting Mr. Fairchild’s claim. It determined that Mr. Fairchild

“[did] not establish deficient performance of counsel.” Fairchild II, No. PC-98-

31, slip op. at 10. But it also concluded that, as a procedural matter, he had

waived the issue by failing to raise it on direct appeal. Id. Therefore, we must

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consider whether the issue is procedurally defaulted. Second, we must determine

whether Mr. Fairchild properly requested an evidentiary hearing before the

district court. Third, under AEDPA, with very stringent exceptions not relevant

here, a state prisoner will not be entitled to an evidentiary hearing if he failed to

exercise due diligence in developing the factual basis for his claim in the state

courts. 28 U.S.C. § 2254(e)(2). Only after deciding whether Mr. Fairchild can

surmount these obstacles, may we consider whether trial counsel was deficient.

1. Procedural Default

“Claims that are defaulted in state court on adequate and independent state

procedural grounds will not be considered by a habeas court, unless the petitioner

can demonstrate cause and prejudice or a fundamental miscarriage of justice.”

Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008), petition for cert. filed,

__ U.S.L.W. __ (U.S. July 9, 2009) (No. 09-5266); see also Smallwood v. Gibson,

191 F.3d 1257, 1268 (10th Cir. 1999). “A state procedural default is

‘independent’ if it relies on state law, rather than federal law.” Smith, 550 F.3d at

1274. “A state ground will be considered adequate only if it is ‘strictly or

regularly followed’ and applied ‘evenhandedly to all similar claims.’”

Smallwood, 191 F.3d at 1268 (quoting Duvall v. Reynolds, 139 F.3d 768, 797

(10th Cir. 1998)). The state bears the burden of proving the adequacy of a

procedural bar as it is “undoubtedly in a better position to establish the regularity,

consistency and efficiency with which it has applied [its own rules] in the past.”

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Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir. 1999).

In denying Mr. Fairchild’s application for post-conviction relief, the OCCA

concluded that he had waived his claim of ineffective assistance of trial counsel

by failing to raise it on direct appeal. Fairchild II, No. PC-98-31, slip op. at 8.

Under Oklahoma law, “[t]he only issues that may be raised in an application for

post-conviction relief are those that . . . [w]ere not and could not have been raised

in a direct appeal.” Okla. Stat. tit. 22, § 1089(C). Although Mr. Fairchild

produced numerous medical records, the OCCA found that the evidence did not

establish “that these matters were not investigated by trial counsel or direct

appeal counsel.” Fairchild II, No. PC-98-31, slip op. at 8 (emphasis omitted). It

concluded that Mr. Fairchild had failed to explain why he did not pursue an

ineffective assistance claim on appeal. Therefore, the claims were deemed

waived.

“We have . . . repeatedly questioned whether this Oklahoma procedural

rule, requiring ineffective assistance of counsel claims to generally be brought on

direct appeal, ‘can be deemed adequate and independent to bar habeas review.’” 2

2
Mr. Fairchild did not argue the adequacy of Oklahoma’s procedural
rule in his initial petition before the district court. Instead, he argued that
appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness
on direct appeal. He claimed that appellate counsel’s ineffectiveness constituted
sufficient cause and prejudice to excuse his procedural default. However, he did
raise the question of adequacy in his reply brief. See R., Vol. I, Doc. 30, at 25-28
(Reply to Resp’t’s Resp., filed Sept. 4, 2002). Generally, the failure to raise an
(continued...)

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Young v. Sirmons, 551 F.3d 942, 956 (10th Cir. 2008) (quoting Cummings, 506

F.3d at 1224), petition for cert. filed, __ U.S.L.W. __ (U.S. July 23, 2009) (No.

09-5483). A state law requiring ineffective assistance claims to be brought on

direct appeal can potentially infringe on a defendant’s Sixth Amendment right to

counsel. Kimmelman v. Morrison, 477 U.S. 365, 378 (1986) (“Because collateral

review will frequently be the only means through which an accused can effectuate

the right to counsel, restricting the litigation of some Sixth Amendment claims to

trial and direct review would seriously interfere with an accused’s right to

effective representation.”). However, there is no “rigid constitutional rule”

requiring states to allow ineffective assistance of counsel claims to be raised for

the first time in a post-conviction proceeding. English v. Cody, 146 F.3d 1257,

1262-63 (10th Cir. 1998). Rather, if a state requires an ineffective assistance

claim to be brought on direct appeal, the state’s procedures must satisfy the so-

called “Kimmelman imperatives.” Id. at 1263. First, the state must “allow[]

2
(...continued)
argument in one’s initial filing will cause it to be waived. Cf. Becker v. Kroll,
494 F.3d 904, 913 n.6 (10th Cir. 2007) (“Federal Rule of Appellate Procedure
28(a)(9)(A) requires appellants to sufficiently raise all issues and arguments on
which they desire appellate review in their opening brief. An issue or argument
insufficiently raised in the opening brief is deemed waived.”). But procedural
default is an affirmative defense that must be raised by the state. Hooks, 184 F.3d
at 1216-17. Therefore, Mr. Fairchild was under no obligation to address the
default until the State raised the issue in its response. Mr. Fairchild’s argument in
his reply was sufficient to place the question of the adequacy of the state rule
before the district court and to preserve the issue for our review.

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petitioner an opportunity to consult with separate counsel on appeal in order to

obtain an objective assessment of trial counsel’s performance.” Id. (citing

Kimmelman, 477 U.S. at 378 & n.3). Second, the state must “provid[e] a

procedural mechanism whereby a petitioner can adequately develop the factual

basis of his claims of ineffectiveness.” Id.

In limited circumstances, the OCCA can remand a case on appeal for an

evidentiary hearing to allow the defendant to introduce evidence of counsel’s

deficient performance. Under OCCA Rule 3.11, a defendant may request an

evidentiary hearing “[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.” Okla. Stat. tit. 22,

ch. 18, app., Rule 3.11(B)(3)(b). However, we have been skeptical of whether

Rule 3.11 is sufficient to satisfy the second Kimmelman imperative. “Oklahoma

rarely, if ever, remands cases for such a hearing.” Snow v. Sirmons, 474 F.3d

693, 726 n.35 (10th Cir. 2007) (upholding the procedural default despite our

“continuing concerns regarding Oklahoma’s procedural bar to claims regarding

the ineffectiveness of counsel”). Therefore, we have held that

the Oklahoma bar will apply in those limited cases meeting the
following two conditions: trial and appellate counsel differ;
and the ineffectiveness claim can be resolved upon the trial
record alone. All other ineffectiveness claims are procedurally
barred only if Oklahoma’s special appellate remand rule for

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 ineffectiveness claims is adequately and evenhandedly applied.

English, 146 F.3d at 1264; see also DeLozier v. Sirmons, 531 F.3d 1306, 1330

(10th Cir. 2008), cert. denied, 129 S. Ct. 2058 (2009).

Here, Mr. Fairchild did have a new attorney on appeal. However, his

claim—that counsel failed to investigate and present potentially mitigating

evidence—is one that usually will require an evidentiary hearing. A court cannot

reliably determine whether counsel’s investigation was deficient without knowing

what was investigated, and the scope of the investigation can rarely be discerned

from the trial record. Nor is it possible to determine from the bare trial record

whether counsel’s choice of mitigation evidence was the result of a conscious,

strategic decision. See Mayes, 210 F.3d at 1289 (“In the absence of an

evidentiary hearing we can only speculate as to counsel’s motivations.”). In this

case, these considerations are fully applicable. We conclude that Mr. Fairchild’s

ineffective assistance claim could not be resolved on the trial record alone.

Significantly, the State has failed to carry its burden of proving that Rule

3.11 is adequately and evenhandedly applied. The state bears the initial burden of

pleading the procedural bar as an affirmative defense. Hooks, 184 F.3d at 1217.

Once it has done so,

the burden to place that defense in issue shifts to the
petitioner. This must be done, at a minimum, by specific
allegations by the petitioner as to the inadequacy of the state
procedure. The scope of the state’s burden of proof thereafter
will be measured by the specific claims of inadequacy put

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 forth by the petitioner.

Id. Mr. Fairchild has raised several specific challenges to Rule 3.11. In

particular, he claims that the rule is inadequate because it “requires an appellant

[to] show more than would be required to prevail under Strickland,” in that it

requires ineffectiveness to be proven by clear and convincing evidence. Aplt.

Opening Br. at 38. He also claims that the rule places defendants “in an

extraordinarily difficult if not impossible situation” by requiring counsel to

conduct an extra-record investigation without “provid[ing] any additional time for

fact development.” Id. at 37-38.

However, we need not decide whether Mr. Fairchild’s challenges to the

procedure are well-taken or, if they are, whether they would render Rule 3.11

inadequate to satisfy the second Kimmelman imperative. 3 The State has failed to

offer any meaningful arguments or evidence in response to Mr. Fairchild’s claims.

Although its brief gives abbreviated treatment to the procedural bar question, the

3
We recently addressed the relationship between the Strickland
standard and the Rule 3.11 standard. Wilson v. Workman (Wilson II), No. 06-
5179, 2009 WL 2623336, at *11 (10th Cir. Aug. 27, 2009) (en banc) (“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 . . . .”).
We concluded that the denial of a Rule 3.11 motion does not necessarily
constitute a determination on the merits of the defendant’s ineffectiveness claim.
Id. at *11. Here, however, because we conclude that the State has failed to carry
its burden regarding the procedural bar, we do not address the merits of Mr.
Fairchild’s Rule 3.11 allegations. Consequently, our decision is unaffected by
Wilson II, which was decided while this case was pending.

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State seems to rely on only the initial two conditions of the English test (i.e.,

relating to the presence of different counsel on appeal and a claim resolvable on

the trial record). 4 See Aplee. Br. at 27. Since it is undisputed that Mr. Fairchild

4
In asserting the procedural bar, the State cites to English and offers a
quotation. That quotation only addresses the initial two conditions of the English
test and does not speak to English’s alternative option of demonstrating that the
appellate remand rule is adequately and evenhandedly applied. See Aplee. Br. at
27. We recognize that one possibly could read the State as arguing that
Oklahoma’s direct-appeal requirement is an adequate and independent state
ground because Mr. Fairchild did not try to introduce on direct appeal the extra-
record evidence underlying his ineffective assistance claim. See id. (“[T]he
factual basis of [Mr. Fairchild’s] claims that trial counsel was ineffective relies on
evidence available to appellate counsel and that could have been introduced into
the appeal record.” (emphasis added)). However, even if we adopted that
interpretation, we would be hard-pressed to conclude that the State had carried its
burden to establish that Mr. Fairchild’s claim was procedurally barred. As noted,
Mr. Fairchild has challenged whether the avenue for introducing the extra-record
evidence—Rule 3.11—has been adequately and evenhandedly applied. In
particular, he claims that the rule places defendants “in an extraordinarily
difficult if not impossible situation” by requiring counsel to conduct an extra-
record investigation without “provid[ing] any additional time for fact
development.” Aplt. Opening Br. at 37-38. Indeed, in this case, Mr. Fairchild’s
direct appeal counsel filed a disclaimer in which she explicitly disavowed any
intention of conducting an extra-record investigation because of her perceived
inability to do so competently in the allotted time. See R., Vol. I, Doc. 15, App.
K, at 2 (Disclaimer By Direct Appeal Counsel, filed June 6, 1997) (“Appellant’s
counsel has not conducted and cannot conduct a full investigation of Appellant’s
case.”). Therefore, the fact that Mr. Fairchild’s counsel did not attempt to
introduce extra-record evidence on direct appeal and filed such a disclaimer
actually is at least relevant to, and consistent with, Mr. Fairchild’s contentions
concerning the inadequacy of Rule 3.11. However, as noted above, the State has
not offered any meaningful arguments to establish the adequacy and
evenhandedness of Rule 3.11’s application. Its conclusory assertion that Mr.
Fairchild’s evidence “could have been introduced into the appeal record” does not
appreciably advance the State’s cause. In other words, it is not good enough to
put at issue Mr. Fairchild’s Rule 3.11 concern; the State must respond to his
(continued...)

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had a different attorney on appeal, we must assume that the State’s particular

focus is on the requirement that the claim be resolvable based upon the trial

record alone. We have already concluded, however, that the trial record is

insufficient in this case. Therefore, the State has not carried its burden of

establishing that its procedural bar—relating to the presentation of ineffective

assistance claims on direct appeal—is an adequate and independent ground

precluding habeas relief. 5

2. Preservation of the Request for an Evidentiary Hearing

Mr. Fairchild is required to properly request an evidentiary hearing in the

district court, because we ordinarily do not decide issues raised for the first time

on appeal. See McLuckie v. Abbott, 337 F.3d 1193, 1200 n.3 (10th Cir. 2003).

The district court rejected the request for an evidentiary hearing that appeared in

Mr. Fairchild’s habeas petition, which generically sought a hearing “as to the

Petition as a whole and particularly as to any issues which involve facts not

apparent from the existing record and to any issues which involve facts disputed

by the state.” R., Vol. I, Doc. 15, at 104 (Pet. for Writ of Habeas Corpus, filed

4
(...continued)
specific allegations.
5
Because we find that the State did not demonstrate the adequacy of
Oklahoma’s procedural rule, such that it could serve as a bar to Mr. Fairchild’s
claim of ineffective assistance of trial counsel, we need not address his alternative
argument that appellate counsel’s ineffectiveness was sufficient cause and
prejudice to excuse his failure to raise the issue on direct appeal. See supra note
2.

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May 16, 2002). The district court held that Mr. Fairchild’s petition failed to

present the specific allegations necessary to determine whether a hearing could

substantiate Mr. Fairchild’s ineffective assistance claims and merit habeas relief.

However, by the time the district court ruled on the habeas petition, Mr. Fairchild

also had submitted a more specific motion for an evidentiary hearing on the

ineffective assistance of counsel claims. See R., Vol. I, Doc. 20, at 1-2 (Renewed

Mot. for Evidentiary Hr’g and Br. in Supp., filed June 8, 2002) (noting that

“[t]here is substantial evidence, not presented at trial, that indicates that Mr.

Fairchild has suffered repeated head injuries” and that “a hearing would further

show[] there was no informed tactical or strategic reason not to investigate,

develop, and present this evidence”). Yet the district court had denied it

“[b]ecause the parties have not completed their briefing of the legal issues and the

record is not complete at this time, [so] the court cannot yet determine if an

evidentiary hearing will be required.” R., Vol. I, Doc. 21 (Dist. Ct. Order, filed

July 11, 2002). We conclude that the combination of this motion and the request

for an evidentiary hearing in the habeas petition was sufficient to alert the district

court with adequate specificity to Mr. Fairchild’s grounds for seeking an

evidentiary hearing concerning ineffective assistance. Accordingly, in our view,

Mr. Fairchild preserved his contention of error concerning the district court’s

denial of an evidentiary hearing and it is properly before us.

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 3. AEDPA Standard for an Evidentiary Hearing

Under AEDPA, a federal habeas court may not grant an evidentiary hearing

to a defendant who failed to develop his claim in state court, except in a few,

narrowly defined circumstances that are not at issue here. See 28 U.S.C. §

2254(e)(2); Young, 486 F.3d at 679. But “if the petitioner did not fail to develop

the factual basis of his claim in State court, . . . a federal habeas court should

proceed to analyze whether a hearing is appropriate or required under pre-AEDPA

standards.” Young, 486 F.3d at 679 (alterations and internal quotation marks

omitted). Failure to develop the claim means a “lack of diligence, or some

greater fault” on the petitioner’s part. Williams v. Taylor (Michael Williams), 529

U.S. 420, 432 (2000). “Diligence . . . depends upon whether the prisoner made a

reasonable attempt, in light of the information at the time, to investigate and

pursue claims in state court.” Id. at 435; cf. Allen v. Zavaras, 568 F.3d 1197,

1202-03 (10th Cir. 2009) (holding that a federal habeas petitioner who filed his

state petition in the state Supreme Court, where review is discretionary, rather

than the district court, where review is mandatory, had failed to exhaust all

available state remedies).

Although not an absolute prerequisite, a petitioner typically must request an

evidentiary hearing in state court. Michael Williams, 529 U.S. at 437 (“Diligence

will require in the usual case that the prisoner, at a minimum, seek an evidentiary

hearing in state court in the manner prescribed by state law.”). We have

-19-
sometimes found such a request, by itself, to be sufficient proof of diligence.

See Cannon v. Mullin, 383 F.3d 1152, 1176 (10th Cir. 2004) (citing examples).

But requesting an evidentiary hearing does not “ipso facto satisf[y] the diligence

requirement.” Id. To determine diligence, we look to a petitioner’s efforts to

develop facts in compliance with state law. See Barkell v. Crouse, 468 F.3d 684,

694 (10th Cir. 2006) (holding that if petitioner “complied with what reasonably

appeared to be the established state-law requirements, he cannot be said to have

failed to develop the factual basis of his claim, even if his reasonable

interpretation of state law turned out to be wrong” (alterations, citations and

internal quotation marks omitted)). “But whether a habeas petitioner has shown

‘a lack of diligence’ . . . is a question of federal law decided by the federal habeas

courts.” Boyle v. McKune, 544 F.3d 1132, 1136 (10th Cir. 2008), cert. denied,

129 S. Ct. 1630 (2009).

There is a strong argument that Mr. Fairchild was not diligent. He did not

present his ineffective assistance claim on direct appeal, as Oklahoma law

generally requires. In his state post-conviction proceeding, he presented the

claim and supported it with documentary evidence, including medical records.

But as explained more fully below, the evidence he presented at this stage was far

less specific and probative than evidence he later sought to present in federal

court. He has not explained why he did not submit to the state court the best

evidence which presumably would have been available to him—affidavits from a

-20-
psychiatrist and psychologist who personally examined him.

However, the State has not argued that Mr. Fairchild was less than diligent.

See Wilson v. Sirmons (Wilson I), 536 F.3d 1064, 1079 (10th Cir. 2008) (citing

the State’s failure to claim a lack of diligence as a relevant factor), aff’d, Wilson

II, 2009 WL 2623336, at *14. The State did challenge Mr. Fairchild’s diligence

in its response to the district court. R., Vol. I, Doc. 27, at 102-04 (Resp. to Pet.

for Writ of Habeas Corpus, filed Aug. 5, 2002). But it has effectively abandoned

the argument by failing to make it in its appellate brief. See Allen, 568 F.3d at

1199 n.3 (“We do not consider the issues raised by Allen in his original filing.

By not including those issues in his supplemental brief, Allen has abandoned

them.”); see also Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)

(“[W]e routinely have declined to consider arguments that are not raised, or are

inadequately presented, in an appellant's opening brief.”); Artes-Roy v. City of

Aspen, 31 F.3d 958, 960 n.1 (10th Cir. 1994) (holding that claims and arguments

that are not “specifically address[ed]” on appeal are deemed to be abandoned).

Therefore, we find that the State has forfeited reliance on Mr. Fairchild’s neglect

in not submitting the doctors’ affidavits and will proceed as if Mr. Fairchild had

been diligent in the presentation of his ineffective assistance claim.

4. Trial Counsel’s Ineffectiveness

We finally reach the merits of Mr. Fairchild’s claim. We have

“consistently held [that] in a capital case the attorney’s duty to investigate all

-21-
possible lines of defense is strictly observed.” Mayes, 210 F.3d at 1289 (internal

quotation marks omitted); see Wilson I, 536 F.3d at 1084 (“[T]he question is not

whether counsel did something; counsel must conduct a full investigation and

pursue reasonable leads when they become evident.”). According to Strickland,

“strategic choices made after thorough investigation of law and facts . . . are

virtually unchallengeable.” 466 U.S. at 690. However, “strategic choices made

after less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.” Id.

at 690-91. We noted in Smith v. Mullin, 379 F.3d 919 (10th Cir. 2004), that the

ABA standards consider mental health evidence “of vital importance to the jury’s

decision at the punishment phase,” holding that it was “patently unreasonable for

[trial counsel] to omit this evidence from his case for mitigation.” 379 F.3d at

942 (internal quotation marks omitted) (addressing evidence of mental

retardation, brain damage, and troubled background); see also Terry Williams,

529 U.S. at 396 (citing the ABA Standards for Criminal Justice as a guide to what

constitutes adequate performance); Strickland, 466 U.S. at 688-89 (same).

This is not a case where counsel completely failed to put on a mitigation

case. Counsel developed two major themes during the second stage of trial: (1)

Mr. Fairchild loses control of himself when he is drunk, and (2) the jury should

be merciful because Mr. Fairchild’s life still has value. But counsel never

suggested that Mr. Fairchild’s loss of control could be the result of organic brain

-22-
damage. The list of mitigating factors presented to the jury said nothing about

brain damage, referencing only drug and alcohol problems. See Trial R., Vol. IV

at 613, 756 (stating that Mr. Fairchild “had serious drug and alcohol addictions,”

that “absent such addictions, this never would have happened,” and that he

“knows he is responsible for Adam Broomhall’s death, but does not remember the

act itself due to an alcoholic blackout”). Mr. Fairchild argues that the

information available to trial counsel contained numerous indicators pointing to

physical brain damage that would have provided a better explanation of his

behavior. He contends that the failure to even investigate this possibility

constitutes ineffective assistance of counsel.

As already mentioned, before we can determine whether counsel’s

investigation was deficient, we must first know what he investigated. Neither the

district court nor the state courts have conducted an evidentiary hearing, and Mr.

Fairchild has not submitted an affidavit by trial counsel. Only in the most

exceptional circumstances will we issue the writ without allowing counsel an

opportunity to explain his conduct. Nothing in this case would justify such an

extraordinary step. Therefore, the pertinent question is whether to remand the

case to the district court for an evidentiary hearing. We review a district court’s

denial of a motion for an evidentiary hearing for abuse of discretion. Coronado v.

Ward, 517 F.3d 1212, 1217 (10th Cir.), cert. denied, 129 S. Ct. 134 (2008).

In determining whether to grant Mr. Fairchild’s request for an evidentiary

-23-
hearing, it is necessary to distinguish between the ineffectiveness claim that he

raised in his state application and the claim he raised in his federal habeas

petition. While Mr. Fairchild has consistently argued that counsel’s failure to

investigate was constitutionally deficient performance, we conclude that the

substance of the claim he presented in federal court differs materially from that

which he presented in state court. Before the OCCA, Mr. Fairchild argued that

trial counsel was ineffective in failing to investigate his history of drug use, head

injuries, and amateur boxing. Although Mr. Fairchild claimed that he was

“cognitively impaired” in ways that “affected his judgment and reduced his

culpability,” he did not allege any particular impairments. R., Application for

Post-Conviction Relief, at 17-18, 21 (Okla. Crim. App., filed Mar. 16, 1998). In

his federal habeas petition, however, Mr. Fairchild presents a very different, far

more specific, claim. He argues that counsel failed to appreciate the significance

of Dr. Smith’s diagnosis that Mr. Fairchild suffered from an acute brain syndrome

and he failed to order additional neuropsychological testing. See R., Vol. I, Doc.

15 at 71 (“The report [of Dr. Smith] included something that counsel was not

looking for: Mr. Fairchild suffered a severe chronic organic impairment.

Counsel spent little or no time with Dr. Smith and did not discuss his finding of

chronic organic damage.” (citation omitted)); id. at 80 (noting that “a lawyer

cognizant of the available evidence of organic brain damage, including that

reflected in Dr. Smith’s report, would have been in a strong position to refute the

-24-
prosecution’s implications that Mr. Fairchild did not have anything organically

wrong with him, that Mr. Fairchild simply chose to drink”). We conclude that

Mr. Fairchild has failed to exhaust this far more specific and powerful claim

because he never presented it to the OCCA.

As to the claim Mr. Fairchild raised in state court, the OCCA determined

that Mr. Fairchild had failed to present sufficient evidence to prove that trial

counsel had not investigated the potentially mitigating evidence. Mr. Fairchild

submitted seventeen exhibits in support of his application for post-conviction

relief, approximately ten of which directly related to his claim of ineffective

assistance of counsel. According to Mr. Fairchild, the medical records he

submitted establish a history of drug (especially alcohol) use, head injuries, and

amateur boxing that could have caused serious neurological damage. The OCCA

did not dispute that the drug use, injuries, and boxing occurred. Rather, it

concluded that the evidence presented was silent on the key question of whether

trial counsel conducted a reasonably thorough investigation. According to the

OCCA,

[Mr. Fairchild] claims trial counsel did not investigate [his]
prior drug use, serious head injuries, and boxing activities. He
presents no affidavit or statement from any witness, but only
speculation, to support his claim that these matters were not
investigated by trial counsel or direct appeal counsel. It is just
as likely that the drug use, head injuries, and boxing activities
were investigated by trial counsel and direct appeal counsel,
and that trial counsel discussed them with Fairchild at the time
of trial and rejected them as defense strategies.

-25-
Fairchild II, No. PC-98-31, slip op. at 8.

The OCCA also concluded that “none of [Mr. Fairchild’s] Exhibits . . .

support his suggestion that his drug use, head injuries, or boxing activities have

had a lasting effect on his mental abilities.” Id. at 9. The court noted that,

although Mr. Fairchild submitted three articles explaining the long-term effects of

professional boxing, those same articles concluded that there was little evidence of

similar effects among amateur boxers (like Mr. Fairchild). The OCCA also cited

Mr. Fairchild’s psychiatric evaluation that depicts him as a normal, healthy

individual. It is clear that the OCCA carefully considered the evidence presented

by Mr. Fairchild before denying his claim of ineffective assistance of counsel on

the merits. 6 At least arguably, on the basis of this evidence, the OCCA did not

unreasonably apply Strickland (nor otherwise commit error in light of AEDPA’s

deferential standards) in concluding that trial counsel’s conduct was “consistent

6
Not every substantive (i.e., non-procedural) decision is made “on the
merits.” See Wilson II, 2009 WL 2623336, at *7 (“To dispose of a claim without
considering the facts supporting it is not a decision on the merits.”). In Wilson II,
we held that when a state court’s decision regarding deficient attorney
performance is based “on an incomplete record, it has not made an adjudication
on the merits to which we owe any deference.” Id. at *5. But we also cautioned
that “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.” Id. at *6.
Rather, if the state court “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,” the court has made a determination on the merits that is
entitled to AEDPA deference. Id. The OCCA has done everything contemplated
by Wilson II to effect a merits determination here.

-26-
with reasonable trial strategy of competent counsel.” Fairchild II, No. PC-98-31,

slip op. at 8. However, we need not (and do not) definitively opine on this point.

For present purposes, it is enough to note and underscore that the ineffectiveness

claim in Mr. Fairchild’s habeas petition is of a substantially different nature, based

on evidence and arguments that were not previously considered by the OCCA, and

that this claim is of sufficient weight that (if factually established) it might well

support a conclusion of ineffective assistance under Strickland.

To be sure, not every new piece of evidence makes a claim a new one. 7 See,

e.g., Gardner v. Galetka, 568 F.3d 862, 881, 882 (10th Cir. 2009) (applying

AEDPA deference to a state court determination on an ineffective assistance of

counsel claim where new evidence submitted in federal court “would likely only

have added color” to the claim presented in state court, and the difference between

the new evidence and that presented in state court was “purely a matter of

7
Mr. Fairchild has not argued that his federal ineffective assistance
claim is, in substance, a new one. However, in order to determine the propriety
of granting relief on a claim, we perforce must come to a reasoned and informed
conclusion concerning its true nature. See Wilson II, 2009 WL 2623336, at *6
(“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.” (emphasis added)). Furthermore, the State also
has not explicitly argued exhaustion but that fact does not remove the issue from
consideration. See Allen, 568 F.3d at 1201-02 (“[N]otably, 28 U.S.C. §
2254(b)(3) establishes a statutory presumption that a state has not and will not
waive the exhaustion requirement in the habeas context: ‘A State shall not be
deemed to have waived the exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through counsel, expressly waives the
requirement.’”).

-27-
degree”). In Hawkins v. Mullin, 291 F.3d 658 (10th Cir. 2002), we noted that 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, without

converting the claim into a new one. 291 F.3d at 670 (quoting Demarest v. Price,

130 F.3d 922, 932 (10th Cir. 1997)); Jones v. Hess, 681 F.2d 688, 694 (10th Cir.

1982) (quoting Nelson v. Moore, 470 F.2d 1192, 1197 (1st Cir. 1972)). But at a

certain point, when new evidence so changes the legal landscape that the state

court’s prior analysis no longer addresses the substance of the petitioner’s claim,

we must necessarily say that the new evidence effectively makes a new

claim—one that the state court has not adjudicated on the merits.

“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.” Wilson II, 2009 WL 2623336, at *6. Mr.

Fairchild only briefly mentioned the possibility of brain damage in his state

application. His argument was general and unfocused. It centered upon trial

counsel’s alleged failure to properly investigate mitigating evidence, as reflected

by the fact that counsel did not present any evidence of his history of drug use,

fighting, and amateur boxing. The important link between these particular events

and the possibility that Mr. Fairchild had physical, organic brain injury was far

from salient in Mr. Fairchild’s evidentiary showing. Moreover, even if the

evidence presented suggested that Mr. Fairchild could have suffered physical brain

-28-
damage, he presented only minimal evidence to suggest that he had, in fact,

suffered such a permanent impairment. That is, he presented only minimal

evidence that if trial counsel had actually undertaken a proper investigation of

such an impairment that he would have found the impairment to be present. See

Romero v. Tansy, 46 F.3d 1024, 1030 (10th Cir. 1995) (noting that a court “must

consider the potential value to the defense of the evidence that might have been

discovered in assessing the reasonableness of counsel’s failure to conduct further

investigation”).

On the other hand, the two affidavits that Mr. Fairchild submitted with his

federal habeas petition (i.e., affidavits of Drs. Smith and Crown) squarely

addressed these evidentiary deficiencies—establishing the link between his prior

history of drug abuse and head injuries and possible physical, organic brain injury;

and furnishing evidence that he in fact had such an injury. A month before trial,

Dr. Smith conducted a three-hour psychiatric interview with Mr. Fairchild. Dr.

Smith states that he was instructed prior to his psychiatric interview to focus on

the effects of alcohol. See R., Vol. I, Doc. 15, App. J ¶ 3 (Aff. of Dr. John Smith,

dated May 2, 2002) (noting that the purpose of the evaluation, as he understood it,

was to determine “the effect, if any, of drugs and alcohol on Mr. Fairchild on the

night he was accused of killing Adam Broomhall”). Dr. Smith prepared a written

report, however, that noted, among other findings, that Mr. Fairchild “suffered

from a severe organic brain syndrome of an acute and chronic nature.” Id. ¶¶ 8-9.

-29-
This supports Mr. Fairchild’s contention that trial counsel prematurely decided to

focus only on alcohol abuse before considering the availability of other more

powerful mitigating evidence.

Significantly, it appears that trial counsel spent very little time with Dr.

Smith discussing the results of his examination. According to Dr. Smith, his

primary contact with trial counsel after examining Mr. Fairchild was “a brief

conversation during a recess of Mr. Fairchild’s court proceedings, just before I

testified” which involved “little or no discussion of my findings.” Id. ¶ 10. Dr.

Smith “saw no indication [trial counsel] made a decision not to discuss Mr.

Fairchild’s organic brain damage or his history of head injuries.” Id. ¶ 12.

Instead, Dr. Smith stated, counsel “never really asked me about it . . . and I simply

did not have the opportunity to explore it with him.” Id. This plausibly suggests

that no reasoned decision was made not to present such evidence at trial, or if a

decision was made, it was made before counsel possessed sufficient knowledge to

weigh the potential importance of the evidence. While Dr. Smith’s opinion that

counsel’s approach was “most unusual”—giving rise to fear that the “case was

being thrown together rather than fully explored,” id.—is of limited value, the

facts averred in the affidavit support our similar concerns.

Dr. Crown reviewed Mr. Fairchild’s medical records and conducted a

battery of neuropsychological tests in April of 2002. See R., Vol. I, Doc. 15, App.

I (Aff. of Dr. Barry Crown, dated Apr. 24, 2002). Dr. Crown notes that Mr.

-30-
Fairchild’s history “reflected several markers or signs indicating the possibility of

organic brain damage.” Id. ¶ 3. Dr. Crown identified numerous specific incidents

that could have caused “actual physical damage to or malformation of the brain,”

including “cysts, tumors, . . . voids,” or “tearing . . . of neural tissues as well as

metabolic irregularities.” Id. Such injuries could have been caused by (1)

organized boxing from 14 to 17 years of age, (2) regular bar fights instigated by

his boxing trainer, (3) a 15-30 second period of unconsciousness accompanied by

jerking movements after being struck in the face by a large Marine which caused

his head to strike a pole, (4) hospitalization in 1989 after being struck twice on the

head by a two-by-four when Mr. Fairchild attempted to stop a thief from stealing

tools, (5) a 1992 incident where, after being pushed down on blacktop, Mr.

Fairchild was unable to walk and was numb from the waist down for a period of

time, and for which radiological testing indicated a possible fracture to the left

zygomatic arch (located between the cheekbone and the ear), or (6) an assault in

1992 in which Mr. Fairchild was struck in the back of the head, causing a nasal

fracture and dental injuries. Id. ¶¶ 4-5.

The tests administered by Dr. Crown led him to conclude that “[t]here are

multiple functional deficits reflecting damage primarily associated with the fronto-

temporal portions of the brain.” Id. ¶ 10. He found that Mr. Fairchild’s

“[r]easoning, judgment, and problem solving are significantly impaired.” Id. ¶ 11.

“Mr. Fairchild exhibits also an auditory attention deficit of organic origin. Mr.

-31-
Fairchild may not perceive stimuli in the same way fully functioning individuals

would and may completely misinterpret what he sees and hears.” Id. ¶ 13. The

affidavits of Drs. Smith and Crown, taken together, suggest more than alcohol-

induced explosiveness (i.e., that Mr. Fairchild was a mean drunk)—they point to

the possibility of separate physical brain damage, which could be aggravated in a

pathologically severe way by the ingestion of alcohol. See R., Vol. I, Doc. 15, at

72 (“Alcohol affects Mr. Fairchild differently from people without brain damage.

Alcohol acts as a trigger to Mr. Fairchild’s underlying brain damage.”).

We find that this evidence “significantly altered [his] ineffective assistance

of counsel claim, placing it in a much stronger legal posture than in the state court

proceedings.” Demarest, 130 F.3d at 933. If borne out upon investigation by trial

counsel, as Dr. Crown’s later affidavit suggests that it would have been, such

evidence could have provided an important explanation for the jury, similar to

what we described in Smith v. Mullin: that although the jury had received

evidence of the defendant’s impulsiveness and lack of control, what was lacking

was “an explanation of how [the defendant’s] organic brain damage caused these

outbursts of violence and caused this ‘kind hearted’ person to commit such a

shocking crime.” 379 F.3d at 943. Although trial counsel did provide an

explanation of sorts through his emphasis on the effect of alcohol on Mr. Fairchild

(whereas Mr. Smith’s counsel was not even aware that mental health issues could

be presented in mitigation, see id. at 939), if that explanation was selected before a

-32-
reasonable investigation was conducted or no reasonable decision not to

investigate further was made, the decision would violate Strickland, Terry

Williams, and Wiggins v. Smith, 539 U.S. 510 (2003). See, e.g., Terry Williams,

529 U.S. at 396 (finding that the failure to introduce the “voluminous amount” of

potentially mitigating evidence “clearly demonstrate[s] that trial counsel did not

fulfull their obligation to conduct a thorough investigation”).

Indeed, we conclude that, if established, the facts reflected in the additional

evidence that Mr. Fairchild has presented in his habeas proceeding might well

support a claim of ineffective assistance under Strickland. However, at this

juncture we decline to decide whether trial counsel’s performance was

unconstitutionally deficient. Before we can pass on the merits of Mr. Fairchild’s

ineffective assistance claim, he must first exhaust all available state-court

remedies. 28 U.S.C. § 2254(b)(1)(A); Bland v. Sirmons, 459 F.3d 999, 1011 (10th

Cir. 2006). Exhaustion requires that the claim be “fairly presented” to the state

court, which “means that the petitioner has raised the ‘substance’ of the federal

claim in state court.” Bland, 459 F.3d at 1011; McCormick v. Kline, 572 F.3d 841,

851 (10th Cir. 2009) (“Exhaustion is a doctrine of comity and federalism

‘dictat[ing] that state courts must have the first opportunity to decide a [habeas]

petitioner’s claims.’” (alterations in original) (quoting Rhines v. Weber, 544 U.S.

269, 273 (2005)).

-33-
 Our decision in Demarest is strikingly similar to this one. 8 There, the

petitioner presented an ineffective assistance of counsel claim to the state court

pursuant to postconviction relief procedures, and the court denied the claim on the

merits. Demarest, 130 F.3d at 929. In federal court, the petitioner produced

powerful new evidence showing that trial counsel had failed to conduct a

reasonable investigation of mitigating evidence. Id. at 933. The federal district

court granted the petitioner’s motion for a writ of habeas corpus, but this court

reversed in a thorough and scholarly opinion by our current Chief Judge (Henry).

The court emphatically agreed with the district court’s “incisive analysis of the

conduct of [petitioner’s] trial counsel,” based on the new evidence, and found that

conduct “objectively unreasonable and materially prejudicial.” Id. at 943.

However, that assessment could “only be reached by considering important

evidence not presented to the state courts in the post-conviction proceedings.” Id;

see id. at 938-39. Accordingly, the court held that “our respect for the state courts

requires us to remand this case to the district court for a determination of whether

this new evidence could now be presented in those courts.” Id. at 943. If so,

“then it is those courts, rather than the federal court, that should have the

8
Demarest was decided under pre-AEDPA law, but the principles of
exhaustion upon which it relies continue into AEDPA. This court has
subsequently cited Demarest in post-AEDPA cases for its interpretation of the
exhaustion requirement. See Bland, 459 F.3d at 1012; Hawkins, 291 F.3d at 670.
Moreover, AEDPA did not change the nature of what constitutes a distinct claim.

-34-
opportunity to initially consider it.” Id. We conclude that a similar approach is

called for here.

As in Demarest, Mr. Fairchild has “transformed his claim from one

involving only general allegations of failing to investigate . . . and only a minimal

showing of prejudice into one involving a concrete reference to a qualified expert

who could have been produced at trial” to present significant scientific evidence

regarding Mr. Fairchild’s mental condition. See id. at 938. The OCCA was never

presented with the specific allegations contained in Mr. Fairchild’s federal habeas

petition. Nor was it provided with the affidavits of Drs. Smith and Crown.

Because Mr. Fairchild has not fairly presented this claim to the OCCA, he has not

satisfied the exhaustion requirement.

When a petitioner raises a new claim in federal court that is not barred on

other procedural grounds, the federal court may, in appropriate circumstance, hold

the federal case in abeyance to allow the petitioner to take his unexhausted claim

back to state court for adjudication. Rhines, 544 U.S. at 278-79; see Clements v.

Maloney 485 F.3d 158, 169 n.16 (1st Cir. 2007) (“The ‘stay and abeyance’

procedure is a response to AEDPA’s one-year statute of limitations and total

exhaustion requirement; it was endorsed by a number of circuit courts, including

ours, prior to the Supreme Court’s decision in Rhines.”); Poindexter v. Mitchell,

454 F.3d 564, 570 n.2 (6th Cir. 2006) (“Post-AEDPA, courts now have discretion

to stay a mixed habeas petition to allow a petitioner to present his unexhausted

-35-
claims to the state court, and then return to federal court.”); see also Anne R.

Traum, Last Best Chance for the Great Writ: Equitable Tolling and Federal

Habeas, 68 Md. L. Rev. 545, 588 (2009) (discussing the stay-and-abeyance

procedure and noting that Rhines “makes clear that the AEDPA did not strip the

courts of their traditional equitable discretion to manage their docket and ensure

access to federal habeas review”); cf. Gardner, 568 F.3d at 869 (noting that “the

district court allowed [petitioner] to amend his petition, but held the added claim

in abeyance until he had exhausted state avenues for relief on the claim”);

Anderson v. Sirmons, 476 F.3d 1131, 1135 (10th Cir. 2007) (noting district court’s

determination to deny petitioner’s “request to decide the unexhausted ineffective

assistance claim on the merits and, instead, abated [petitioner’s] habeas petition so

he could return to state court and exhaust the claim”).

In Rhines, the Court discussed the circumstances under which the district

court should employ the stay-and-abeyance procedure:

Because granting a stay effectively excuses a
petitioner’s failure to present his claims first to the state
courts, stay and abeyance is only appropriate when the district
court determines there was good cause for the petitioner’s
failure to exhaust his claims first in state court. Moreover,
even if a petitioner had good cause for that failure, the district
court would abuse its discretion if it were to grant him a stay
when his unexhausted claims are plainly meritless.
....
. . . [I]t likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if
the petitioner had good cause for his failure to exhaust, his

-36-
 unexhausted claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally dilatory
litigation tactics. In such circumstances, the district court
should stay, rather than dismiss, the mixed petition.

Rhines, 544 U.S. at 277–78; see also Clements, 485 F.3d at 169 (noting that “[i]n

Rhines, the Court identified the three prerequisites for the ‘stay and abeyance’

procedure,” i.e., good cause for failure to exhaust, a potentially meritorious

unexhausted claim, and lack of indication that petitioner intentionally participated

in dilatory litigation tactics). If the state court resolves the unexhausted claim on

the merits, AEDPA deference applies. See supra Part II.A. If the state court

resolves the unexhausted claim on a procedural ground, such as a procedural bar

under state law, the federal court will review that disposition, applying the

standard of review that is appropriate under the circumstances. See Gardner, 568

F.3d at 870.

Although we decline to definitively decide the merits of Mr. Fairchild’s

unexhausted ineffective assistance claim, we have no doubt that this claim is

“potentially meritorious” within the contemplation of Rhines. See Miller v.

Dretke, 431 F.3d 241, 256 (5th Cir. 2005) (Garza, J., dissenting) (“Based on the

above, I find the materiality question to be close. At the very least, Miller’s

Brady claim is not plainly meritless. For that reason, I would remand to the

district court with instructions to determine if the first and third prongs of Rhines

v. Weber are satisfied and to stay and abey the proceedings if they are.”); see also

-37-
Whitley v. Ercole, 509 F. Supp. 2d 410, 420 (S.D.N.Y. 2007) (applying the Rhines

criteria, and noting that, “[h]aving reviewed the record and Petitioner’s

submissions, I conclude that Petitioner has shown that his unexhausted claim

alleging ineffective assistance of counsel has potential merit”); cf. Haynes v.

Quarterman, 526 F.3d 189, 196-97 (5th Cir. 2008) (holding the petitioner’s

unexhausted claims of ineffective assistance relating to the presentation of

mitigating evidence had “no potential merit” where petitioner “alleges that

mitigating evidence could have influenced the jury’s discretion but does not argue

that evidence not presented due to alleged ineffective assistance of counsel would

render him ineligible for the death penalty”). Accordingly, we believe that Mr.

Fairchild should have an opportunity to establish that the use of the stay-and-

abeyance procedure concerning his potentially meritorious ineffective assistance

claim would otherwise be appropriate on these facts. See, e.g., Akins v. Kenney,

410 F.3d 451, 456 (8th Cir. 2005) (“We remand to permit the district court to

exercise its discretion on this matter in the first instance within the framework set

forth in Rhines v. Weber.”); see also Dolis v. Chambers, 454 F.3d 721, 725 (7th

Cir. 2006) (“In keeping with Rhines, the district court would naturally have

discretion to decide whether a stay was warranted in the particular circumstances

of each case.”).

In particular, Mr. Fairchild should be permitted to demonstrate that he had

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good cause for failing to exhaust the claim. 9 See King v. Ryan, 564 F.3d 1133,

1136 (9th Cir. 2009) (noting that “importantly, [the Rhines stay-and-abeyance

procedure] is available only upon a showing that the petitioner had good cause for

not exhausting his state claims earlier”), petition for cert. filed, __ U.S.L.W. __

(U.S. July 2, 2009) (No. 09-5100); cf. Clements, 485 F.3d at 171 (“Clements’ lack

of good cause means that, under Rhines, he cannot take advantage of the ‘stay and

abeyance’ procedure. Therefore, we affirm the denial of a stay.”); see also Pace

v. DiGuglielmo, 544 U.S. 408, 416 (2005) (“A petitioner’s reasonable confusion

about whether a state filing would be timely will ordinarily constitute ‘good

9
We recognize that this approach—stay and abeyance—“should be
available only in limited circumstances.” Rhines, 544 U.S. at 277. In particular,
the Supreme Court has cautioned that “[s]taying a federal habeas petition
frustrates AEDPA’s objective of encouraging finality by allowing a petitioner to
delay the resolution of the federal proceedings. . . . [And it] undermines
AEDPA’s goal of streamlining federal habeas proceedings by decreasing a
petitioner’s incentive to exhaust all his claims in state court prior to filing his
federal petition.” Id. But this case presents a unique circumstance. It is
primarily because of the State’s failure to raise the issue of diligence that we are
forced to confront the principal issue in this case: how to adjudicate a habeas
petitioner’s claim when the federal evidentiary record is materially different than
that presented to the state court. In the vast majority of cases, it is safe to assume
that any lack of diligence by the petitioner will not go unnoticed. In light of the
State’s failure to contest diligence, our choice is between immediate federal
adjudication of Mr. Fairchild’s claim—specifically, determination of his
entitlement to a federal evidentiary hearing—and a remand for possible ultimate
disposition by state courts, as a consequence of the district court’s
implementation of the stay-and-abeyance procedure. The latter is more consistent
with AEDPA’s principles of comity, by giving the state courts the first crack at
evaluating the procedure and substance of Mr. Fairchild’s presentation of his new
evidence of ineffective assistance.

-39-
cause’ for him to file in federal court.” (citing Rhines, 544 U.S. at 278)). In this

connection, we acknowledge that the good cause requirement should not be “the

sort of strict and inflexible requirement that would trap the unwary pro se

prisoner.” Rhines, 544 U.S. at 279 (Stevens, J., concurring) (internal quotation

marks omitted) (quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)); see Ellison v.

Rogers, 484 F.3d 658, 662 (3d Cir. 2007) (noting that “[w]e are mindful of Justice

Stevens’ concurrence” concerning the good cause requirement not being a trap for

the unwary pro se litigant, but noting that the prisoner before the court “is not an

unwary petitioner”).

Furthermore, “if a petitioner presents a district court with a mixed petition

and the court determines that stay and abeyance is inappropriate, the court should

allow the petitioner to delete the unexhausted claims and to proceed with the

exhausted claims if dismissal of the entire petition would unreasonably impair the

petitioner’s right to obtain federal relief.” Rhines, 544 U.S. at 278; see Allen, 568

F.3d at 1201 n.7. The district court should consider the propriety of granting Mr.

Fairchild this option, if it ultimately decides not to employ the stay-and-abeyance

procedure.

We are aware that the Second Circuit has handled differently the situation

of additional evidence presented for the first time in a habeas petition. In Wilson

v. Mazzuca, 570 F.3d 490 (2d Cir. 2009) (Cabranes, J.), that court held that where

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the state court adjudicates a habeas claim on the merits, but the factual record

properly before the federal court includes additional evidence, the federal court

may take that new evidence into consideration in determining whether the state

court decision was unreasonable. 570 F.3d at 500. “Where, as here, the habeas

claim is brought under 28 U.S.C. § 2254(d)(1), a habeas court asks whether there

was ‘an unreasonable application of clearly established Federal law,’ in light of

all the facts and circumstances—including whatever facts are discovered during a

post-conviction hearing in federal court subject to the requirements of 28 U.S.C. §

2254(e)(1).” Id. According to that court, “[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.”

Id.

With all respect, that is not a logical reading of AEDPA. AEDPA

explicitly provides that federal court review of the reasonableness of the state

court’s factual findings must be made “in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d); see Hammon v. Ward, 466 F.3d

919, 928 (10th Cir. 2006) (“In reviewing the OCCA’s adjudication of Petitioner’s

ineffective assistance of appellate counsel claim, we consider the record as it

existed before the OCCA.”). Evidence presented for the first time in federal court

is not relevant to whether the state court decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law.” 28 U.S.C. §

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2254(d)(1). It is surely not “unreasonable” for the state court to base its decision

on the only facts that have been put before it. On the other hand, if the new

evidence is of such a character that the federal court is presented with a

substantially different issue, not decided by the state court, then no deference is

due. New evidence may produce a “new claim,” but it cannot render the state

court’s determination of the same claim unreasonable.

In sum, we conclude that Mr. Fairchild has presented a potentially

meritorious claim of ineffective assistance of counsel. However, he did not

exhaust that claim before the state courts. Specifically, the claim is predicated on

new powerful evidence that Mr. Fairchild never presented to the OCCA. That

evidence has effectively transformed the ineffective assistance claim that Mr.

Fairchild presented to the OCCA into a new claim. But before we will pass on

the merits of that claim, principles of comity and efficient judicial administration,

oblige us to insist that Mr. Fairchild exhaust his claim. And we have concluded

that the district court should determine under the circumstances of this case the

appropriateness of using the stay-and-abeyance procedure to permit Mr. Fairchild

to pursue exhaustion.

C. Other Claims and Total Exhaustion

In addition to his unexhausted ineffective assistance claim, Mr. Fairchild

has brought several other claims that are exhausted. He argues that (1) the jury

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instructions failed to adequately explain the possible sentence of life without

possibility of parole; (2) application of Oklahoma court decisions regarding the

applicable mens rea for child abuse murder violates the Fourteenth Amendment;

(3) Oklahoma’s mens rea requirement for child abuse murder violates the Eighth

Amendment; and (4) the exclusion of lesser-included or lesser-related offense

instructions violated federal rights. We must decline to address on the merits

these arguments because of the total exhaustion doctrine.

“Congress has emphatically directed us that habeas petitioners seeking

relief in federal court must first exhaust all available state court remedies—that

is, unless doing so would be futile because of ‘an absence of available State

corrective process’ or because ‘circumstances exist that render such process

ineffective to protect the rights of the applicant.’” Magar v. Parker, 490 F.3d

816, 818 (10th Cir. 2007) (quoting 28 U.S.C. § 2254(b)(1)). Under this

requirement, “federal district courts may not adjudicate mixed petitions for

habeas corpus, that is, petitions containing both exhausted and unexhausted

claims.” Rhines, 544 U.S. at 273 (summarizing Rose, 455 U.S. at 518-19); see

also Allen, 568 F.3d at 1201 n.7 (discussing mixed petitions and Rhines).

When a district court is presented with a petition containing both exhausted

and unexhausted claims and addresses all of the claims on the merits, the proper

approach on appeal ordinarily is to

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 vacate[] the order . . . and remand[] the case to the district
court so that it [can] do one of four things: (1) dismiss the
mixed petition in its entirety, Rhines, 544 U.S. at 274; (2) stay
the petition and hold it in abeyance while the petitioner returns
to state court to raise his unexhausted claims, id. at 275; (3)
permit the petitioner to dismiss the unexhausted claims and
proceed with the exhausted claims, id. at 278; or (4) ignore the
exhaustion requirement altogether and deny the petition on the
merits if none of the petitioner’s claims has any merit, 28
U.S.C. § 2254(b)(2).

Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009) (emphasis omitted); see,

e.g., Cassett v. Stewart, 406 F.3d 614, 625 (9th Cir. 2005) (instructing the district

court on remand “to consider, consistent with Rhines, whether to stay the

proceedings, hold in abeyance [the] exhausted petition, and dismiss without

prejudice his unexhausted . . . claim so that he can present it to the . . . state

courts”). Under the unique circumstances of this case, we have determined that in

the first instance upon remand the district court should examine the second option

noted above—viz., it should give Mr. Fairchild the opportunity to establish that

the use of the stay-and-abeyance procedure concerning his potentially meritorious

ineffective assistance claim would be appropriate on these facts.

The inefficiencies of this course of action are not lost on us. The district

court addressed Mr. Fairchild’s exhausted claims on the merits and the parties

have fully briefed them on appeal. Moreover, if the district court determines that

use of the stay-and-abeyance procedure is not warranted in this case, then the

court may simply allow Mr. Fairchild to “dismiss and abandon [his] unexhausted

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claim and then reenter the very judgment that is now before us.” Rockwell v.

Yukins, 217 F.3d 421, 425 (6th Cir. 2000).

Nevertheless, it is AEDPA that requires us to remand without addressing

these claims on the merits. See id. (“It is AEDPA, however, that mandates our

decision, not the whims of this panel.”). Moreover, the Court has made it

abundantly clear that “before you bring any claims to federal court, be sure that

you first have taken each one to state court.” Rose, 455 U.S. at 520. While the

decision to remand without addressing the exhausted claims on the merits is

“admittedly inefficient in the present case,” we believe that this approach will

“promote overall judicial efficiency and other important values.” Rockwell, 217

F.3d at 425; see Rose, 455 U.S. at 518-19 (requiring the dismissal of mixed

petitions in order to preserve comity and reduce the temptation of district courts

to consider unexhausted claims).

III. CONCLUSION

For the foregoing reasons, we VACATE the district court’s judgment and

REMAND for the district court to determine whether to use the stay-and-

abeyance procedure to permit Mr. Fairchild to exhaust his new potentially

meritorious claim for ineffective assistance of counsel and for it to conduct

further proceedings consistent with this opinion. We do not reach the merits of

-45-
Mr. Fairchild’s other claims of error. 10

10
Mr. Fairchild moves this court to grant a COA, see 28 U.S.C. §
2253(c)(2), with regard to his claim of cumulative error. We DENY this motion
as moot.

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06-6327 – Fairchild v. Workman

McCONNELL, Circuit Judge, concurring:

I join the majority opinion in full, and write separately only to emphasize

the unusual procedural posture surrounding Mr. Fairchild’s ineffectiveness claim,

and in particular its relation to this court’s en banc decision in Wilson v.

Workman, No. 06-5179, slip op. (filed August 27, 2009) (en banc).

At the state post-conviction proceeding, Mr. Fairchild presented the OCCA

with a number of affidavits in an attempt to show that he might have brain

damage, thus suggesting that his trial counsel was ineffective in not investigating

his medical history and presenting it as mitigating evidence. Although this

evidence was excluded from the record under Oklahoma Rule 3.11 and therefore

was not before the OCCA, the OCCA nonetheless considered the evidence and, in

a detailed discussion, held that even if the evidence was a part of the record, it

would not demonstrate ineffective assistance of counsel. Because the state court

considered Mr. Fairchild’s proffered evidence and ruled that it would not satisfy

the Strickland standard, its ruling constituted an adjudication on the merits of that

claim. Cf. Wilson, No. 06-5179, slip op. [14-15].

The OCCA’s decision in this case was a reasonable and almost certainly a

correct conclusion based on the proffered evidence. At that stage, the petitioner

had offered no evidence, but only speculation, regarding whether counsel had

actually failed to investigate his medical history; moreover, he had offered no
evidence that his mental health problems were a product of organic brain damage,

other than the fact that he had engaged in boxing and had been injured. At that

stage, therefore, the petitioner had not “show[n], 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).

Mr. Fairchild then took his case to federal court. This time, his habeas

petition included two new affidavits: one from Dr. John Smith, the doctor whom

trial counsel had retained to testify at trial, and one from Dr. Barry Crown, a

psychologist who later examined Mr. Fairchild. Dr. Smith avers that he presented

trial counsel with a report indicating that Mr. Fairchild suffered from a severe

organic brain syndrome, but that trial counsel never discussed these findings with

him. In fact, Dr. Smith states that he had very little discussion with trial counsel

before his testimony, despite being the defense medical expert. Dr. Crown’s

affidavit confirms that Mr. Fairchild indeed has organic brain damage and opines

that this would have been apparent from standard testing. These two affidavits

thus plug the very gaps in the petitioner’s evidence that made the OCCA decision

reasonable: we now know that trial counsel had reason to suspect brain damage

but neglected to investigate, and that if counsel had investigated he would have

uncovered evidence highly relevant to mitigation. These facts, if established,

-2-
might well support a claim of ineffective assistance under Strickland.

The problem is that Mr. Fairchild did not present these affidavits to the

state court. He produced them for the first time at federal habeas proceeding. We

thus have the very situation that the dissenters in Wilson had feared: that a

prisoner might receive de novo review from the federal courts simply by

withholding crucial evidence until habeas. This case, however, shows why those

fears are groundless.

First, in the ordinary case, counsel for the State would have challenged the

petitioner’s right to an evidentiary hearing in federal court on the ground that the

petitioner had not exercised due diligence in presenting the factual basis for his

claim of ineffective assistance of counsel in state court. There is no reason

apparent from the record why Mr. Fairchild’s state habeas counsel could not have

produced the Smith and Crown affidavits as easily as federal habeas counsel did.

28 U.S.C. § 2254(e)(2) provides:

If the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the
claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactively
applicable to cases on collateral review by the Supreme Court,
that was previously unavailable, or
(ii) a factual predicate that could not have been discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no

-3-
 reasonable fact-finder would have found the applicant guilty of the
underlying offense.

In (Michael) Williams v. Taylor, 529 U.S. 420 (2000), the Supreme Court held

that § 2254(e)(2) does not bar a federal evidentiary hearing where the petitioner’s

neglect or lack of diligence was not responsible for the failure to develop the

record. But where the petitioner is not “diligent in developing the record,” thus

“himself . . . contributing to the absence of a full and fair adjudication in state

court,” the Supreme Court made clear that “§ 2254(e)(2) prohibits an evidentiary

hearing to develop the relevant claims in federal court, unless the statute's other

stringent requirements are met.” Id. at 437.

In this case, however, counsel for the State has not defended the district

court’s denial of an evidentiary hearing on the basis of Mr. Fairchild’s lack of

diligence. This court therefore assumes, without deciding, and frankly in the

teeth of the record, that Mr. Fairchild was diligent. It is only because of the

State’s failure to raise the diligence issue, therefore, that we are forced to

consider the merits of his claim. In the vast majority of cases, it is safe to assume

that the habeas petitioner’s lack of diligence will not go unnoticed, and thus the

Wilson dissenters’ fears will be alleviated at the outset.

Second, as today’s decision indicates, the requirement that habeas

petitioners exhaust their claims in state court presents a second safeguard against

the sort of “sandbagging” the Wilson dissenters fear. Even if they get past the

-4-
diligence requirement, petitioners cannot receive de novo review in federal court

when they failed to present the substance of that claim first to the state court.

Either their claim will be procedurally barred or they will have to take it back to

the state court, where all the ordinary procedural requirements will be applicable.

The effect is to protect AEDPA’s structure of comity and federalism. The

diligence requirement gives the petitioner the incentive to present all his best

evidence to the state court at the appropriate time, for one determination. The

exhaustion requirement ensures that the state court gets the first crack at the case.

Only when the state court fails to address the merits of the claim or renders a

decision that is “contrary to, or involved an unreasonable application of, clearly

established Federal law” or “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), will the petitioner receive de novo in federal court.

-5-