PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STEVEN H. OKEN,
Petitioner-Appellant,
v.
THOMAS CORCORAN, Warden of the
Maryland Correctional Adjustment
No. 99-27
Center and the Maryland
Penitentiary; J. JOSEPH CURRAN, JR.,
Attorney General of the State of
Maryland,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-97-585-PJM)
Argued: May 1, 2000
Decided: July 18, 2000
Before WILKINSON, Chief Judge, and LUTTIG
and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkinson joined. Judge Michael wrote a concur-
ring opinion, concurring in all but Part II.A. of the majority opinion
and concurring in the judgment.
_________________________________________________________________
COUNSEL
ARGUED: Fred Warren Bennett, BENNETT & NATHANS, L.L.P.,
Greenbelt, Maryland, for Appellant. Ann Norman Bosse, Assistant
Attorney General, Criminal Appeals Division, OFFICE OF THE
ATTORNEY GENERAL, Baltimore, Maryland, for Appellees. ON
BRIEF: Christopher M. Davis, DAVIS & DAVIS, Washington,
D.C., for Appellant. J. Joseph Curran, Jr., Attorney General of Mary-
land, Criminal Appeals Division, OFFICE OF THE ATTORNEY
GENERAL, Baltimore, Maryland, for Appellees.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Petitioner-appellant Steven Howard Oken, a Maryland inmate
under sentence of death, appeals from the district court's denial of his
application under 28 U.S.C. § 2254 for a writ of habeas corpus. Oken
claims, inter alia, that the state trial court's voir dire questions were
constitutionally inadequate under Morgan v. Illinois, 504 U.S. 719
(1992), and that he surrendered his right to testify at the criminal
responsibility phase of his trial in reliance on advice from the trial
court that was erroneous under Simmons v. United States, 390 U.S.
377 (1968). Because we conclude that the district court correctly
upheld the Maryland Court of Appeals' rejection of these and other
claims advanced by Oken, we affirm the district court's judgment
denying Oken's petition for a writ of habeas corpus.
I.
Oken was sentenced to death in 1991 by a Baltimore County jury
for the murder of Dawn Garvin.1 Four years earlier, Garvin's naked
corpse had been found by her father in the bedroom of her apartment,
with two contact gunshot wounds to her head and a bottle protruding
from her vagina. A .25 caliber handgun seized from Oken's bedroom
was later determined to be the murder weapon, and a piece of rubber
recovered from the crime scene was traced to Oken's tennis shoes.
Moreover, several of Garvin's neighbors identified Oken as the per-
son who had attempted to gain entry to their residences under various
_________________________________________________________________
1 Oken was separately convicted of murdering his sister-in-law, Patricia
Hirt, as well as a motel clerk in Maine, Lori Ward.
2
false pretenses a few days prior to Garvin's murder. On direct review,
the Maryland Court of Appeals affirmed Oken's convictions for first
degree murder and first degree sexual offense, as well as his sentence
of death, but reversed his conviction and sentence for burglary.2 See
Oken v. State, 612 A.2d 258, 283 (Md. 1992) ("Oken I"), cert. denied,
507 U.S. 931 (1993). On state collateral review, the Maryland Court
of Appeals again rejected Oken's challenges to his conviction and
sentence, affirming the lower court's denial of Oken's petition for
post-conviction relief. See Oken v. State, 681 A.2d 30, 53 (Md. 1996)
("Oken II"), cert. denied, 519 U.S. 1079 (1997). Oken then filed an
application for a writ of habeas corpus in federal district court, pursu-
ant to 28 U.S.C. § 2254. The district court denied Oken's application
for a writ of habeas corpus and subsequently denied his motion for
reconsideration.
II.
To determine whether the Maryland Court of Appeals' rejection of
Oken's claims "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," 28 U.S.C.
§ 2254(d)(1), we apply the standard of review set forth by the
Supreme Court in Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000),
which with one exception affirmed this court's interpretation of sec-
tion 2254(d)(1) in Green v. French , 143 F.3d 865 (1998), cert.
denied, 525 U.S. 1090 (1999). Specifically, the Court affirmed the
following interpretation of the "contrary to" clause that we set forth
in Green:
[A] decision is "contrary to" precedent only when, either
through a decision of pure law or the application of law to
facts indistinguishable in any material way from those on
the basis of which the precedent was decided, that decision
reaches a legal conclusion or a result opposite to and irrec-
oncilable with that reached in the precedent that addresses
the identical issue.
_________________________________________________________________
2 Oken's former conviction and sentence for burglary, set aside on
direct appeal, are not at issue in this case.
3
143 F.3d at 870. See Williams, 120 S. Ct. at 1519 (holding that the
preceding interpretation "accurately reflects th[e] textual meaning" of
the word "contrary"). The Court then restated the governing standard
in the following terms, which correspond closely with the preceding
sentence, and to which we of course adhere in reviewing Oken's
claims:
Under the "contrary to" clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion oppo-
site to that reached by this Court on a question of law or if
the state court decides a case differently than this Court has
on a set of materially indistinguishable facts.
Id. at 1523. The Court also upheld the following interpretation of the
"unreasonable application" clause that we set forth in Green:
[A] decision represents an "unreasonable application of"
precedent only when that decision applies a precedent in a
context different from the one in which the precedent was
decided and one to which extension of the legal principle of
the precedent is not reasonable, when that decision fails to
apply the principle of a precedent in a context where such
failure is unreasonable, or when that decision recognizes the
correct principle from the higher court's precedent, but
unreasonably applies that principle to the facts before it[.]
143 F.3d at 870. See Williams, 120 S. Ct. at 1520 (holding that the
preceding interpretation was "generally correct").3 The Court then
restated the governing standard in the following terms, to which we
of course also adhere in reviewing Oken's claims:
_________________________________________________________________
3 The Court did, however, leave open the question of whether "a deci-
sion represents an `unreasonable application of' precedent [. . .] when
that decision applies a precedent in a context different from the one in
which the precedent was decided and one to which extension of the legal
principle of the precedent is not reasonable, [or] when that decision fails
to apply the principle of a precedent in a context where such failure is
unreasonable," Green, 143 F.3d at 870, finding that "[a]lthough th[is]
holding may perhaps be correct," "[t]oday's case does not require us to
decide" whether in fact it is, Williams, 120 S. Ct. at 1521.
4
Under the "unreasonable application" clause, a federal
habeas court may grant the writ if the state court identifies
the correct governing legal principle from this Court's deci-
sions but unreasonably applies that principle to the facts of
the prisoner's case.
Id. at 1523.
The Court also adopted our holding that the "unreasonable applica-
tion" inquiry is an objective one, see Green , 143 F.3d at 870 ("the
writ of habeas corpus should issue [. . .] if[the state court's] decision
rests upon an objectively unreasonable application of established prin-
ciples to new facts" (emphasis added)). Nevertheless, it rejected our
statement that state courts unreasonably apply clearly established fed-
eral law only when they "interpret[ ] or apply[ ]" such law "in a man-
ner that reasonable jurists would all agree is unreasonable," Green,
143 F.3d at 870, on the ground that this statement"would tend to mis-
lead federal habeas courts by focusing their attention on a subjective
inquiry rather than on an objective one," Williams, 120 S. Ct. at 1522.
Although the Court rejected reference to "all reasonable jurists" in
conducting the "unreasonable application" inquiry, we thus under-
stand the Court to have affirmed our categorical holding that the rele-
vant inquiry is an objective one. See supra.
A.
Oken argues that the district court erred in denying him relief on
his claim that the state trial court's voir dire questions were constitu-
tionally inadequate under Morgan v. Illinois, 504 U.S. 719 (1992),
because they failed to satisfy Morgan's requirement of an "inquiry"
sufficient to identify "those jurors who, even prior to the State's case
in chief, had predetermined [. . .] whether to impose the death pen-
alty," id. at 736. Specifically, Oken contends that, even though the
trial judge asked some of the potential jurors follow-up questions, the
initial questions propounded to every member of the jury panel were
inadequate to identify all of the potential jurors who would need to
be asked follow-up questions in order to satisfy the dictates of Mor-
gan.
We reject this claim as procedurally defaulted, and, in the alterna-
tive, on its merits.
5
1.
We reject Oken's Morgan claim as procedurally defaulted because
he failed to raise this claim on direct appeal in Oken I and thereby
waived it as a matter of state law, and because, as a matter of state
law, he failed to show special circumstances excusing this waiver. See
Oken II, 681 A.2d at 36-38. We are satisfied that this state procedural
rule requiring that, absent special circumstances, issues first be raised
on direct review is both "independent" and"adequate," as required by
Coleman v. Thompson, 501 U.S. 722, 750 (1991). It is "adequate"
because it is "consistently or regularly applied," Johnson v. Missis-
sippi, 486 U.S. 578, 587 (1988), by Maryland courts. See, e.g., McEl-
roy v. State, 617 A.2d 1068, 1070, 1075 (Md. 1993); Smith v.
Warden, Maryland Penitentiary, 243 A.2d 897, 898 (Md. Ct. Spec.
App. 1968), cert. denied sub nom. Smith v. Maryland, 393 U.S. 989
(1968); Anglin v. Director, Patuxent Institution, 232 A.2d 532, 533
(Md. Ct. Spec. App. 1967), cert. denied sub nom. Anglin v. Maryland,
389 U.S. 873 (1967). We are also satisfied that this procedural bar is
sufficiently "independent" of federal law, even though the Maryland
Court of Appeals, in applying it, referred to Johnson v. Zerbst, 304
U.S. 458 (1938), since the Maryland court's decision does not "fairly
appear to rest primarily on federal law or to be interwoven with fed-
eral law," Coleman, 501 U.S. at 735, 740. The rule that issues must
first be raised on direct appeal, on which the Maryland court based
its decision that Oken's Morgan claim was waived, is itself clearly a
state-law rule. See cases cited supra . Admittedly, the Maryland court
did look to federal law in making the antecedent determination that
this waiver need not be "intelligent and knowing." Because Maryland
caselaw has relied in part on Johnson v. Zerbst in construing the
scope of Md. Code Art. 27, § 645A(c)'s"intelligent and knowing"
waiver standard, see, e.g., McElroy, 617 A.2d at 1070, the Maryland
court did look to federal law in determining that this waiver standard
did not apply. Nevertheless, we cannot say that, by virtue of this fact
alone, the Maryland court's decision "rest[s] primarily on federal
law" or is "interwoven with federal law." To the extent that the Mary-
land court did look to federal law in making the antecedent determi-
nation that the waiver need not be "intelligent and knowing," the
court's reliance on federal law was limited to one aspect of the hold-
ing in Morgan and to state-law precedents applying Johnson's dicta
that "fundamental constitutional rights" may be waived only intelli-
6
gently and knowingly, 304 U.S. at 464. And, more importantly, the
Maryland court did not look primarily to federal law in making this
antecedent determination. Rather, it based its determination in large
part on the state-law premise that the failure to raise a Morgan claim
on direct appeal is the sort of "tactical decision of counsel" that Mary-
land courts have, as a matter of state law, construed as falling outside
the intended scope of section 645A(c). See Oken II, 681 A.2d at 37
(citing Curtis v. Maryland, 395 A.2d 464, 474 (Md. 1978)).
Under the rule of Coleman v. Thompson , we are therefore barred
from reviewing the merits of Oken's Morgan claim, unless Oken has
demonstrated that the "failure to consider [this claim] will result in a
fundamental miscarriage of justice" or that sufficient "cause" and
"prejudice" exist to excuse this procedural default. Coleman, 501 U.S.
at 750. Oken has demonstrated neither. He makes no argument that
the failure to consider his Morgan claim will result in a "fundamental
miscarriage of justice." And the only "cause" that Oken has advanced
for this procedural default -- the ineffective assistance of his Oken I
appellate counsel -- was itself procedurally defaulted because Oken
failed to make any mention of it in his opening brief to the Maryland
Court of Appeals in Oken II. See Oken II, 681 A.2d at 36 n.5; see also
Health Servs. Cost Review Comm'n v. Lutheran Hospital of Mary-
land, Inc., 472 A.2d 55, 61 (Md. 1984) (holding that issues raised
only in the reply brief, and not the opening brief, are waived); Federal
Land Bank of Baltimore, Inc. v. Esham, 406 A.2d 928, 938 (Md. Ct.
Spec. App. 1979) (same). And Oken has also failed to make any
showing of "cause" and "prejudice" to excuse this last procedural
default. Thus, the alleged ineffective assistance of Oken's appellate
counsel cannot serve as "cause" to excuse Oken's failure to raise his
Morgan claim on direct appeal. See Edwards v. Carpenter, 120 S. Ct.
1587, 1592 (2000). Consequently, we reject Oken's Morgan claim as
procedurally defaulted, and thus we need not reach the merits of this
claim.
2.
Even if we were to reach the merits of Oken's Morgan claim, we
would still deny Oken relief on this ground because the Maryland
Court of Appeals' rejection of his Morgan claim was not "contrary
7
to," or an "unreasonable application of," Morgan. The four questions
initially asked of every member of the jury panel were as follows:
[1.] Do you have any strong feelings, one way or the
other, with regard to the death penalty?
[2.] Do you feel that your attitude, regarding the death
penalty, would prevent or substantially impair you from
making a fair and impartial decision on whether the Defen-
dant is not guilty or guilty, based on the evidence presented
and the Court's instructions as to the law?
[3.] Do you feel your attitude, regarding the death penalty,
would prevent or substantially impair you from making a
fair and impartial decision on whether the Defendant was or
was not criminally responsible by reason of insanity, based
on the evidence presented and the Court's instructions on
the law?
[4.] Do you feel that your attitude, regarding the death
penalty would prevent or substantially impair you from sen-
tencing the Defendant, based upon the evidence presented
and the Court's instructions as to the law which is applica-
ble?
Oken II, 681 A.2d at 38-39. These questions were not the sort of
"general fairness and `follow the law' questions" that the Court held
inadequate in Morgan, 504 U.S. at 734; see id. at 724 ("Do you know
of any reason why you cannot be fair and impartial?"; "Do you feel
you can give both sides a fair trial?"). Rather, they explicitly referred
to the death penalty and asked whether the potential juror's feelings
about the death penalty were "strong." Compare United States v. Tip-
ton, 90 F.3d 861, 878-79 (4th Cir. 1996) (holding that "the district
court's inquiry into death penalty attitudes was sufficient" to satisfy
the dictates of Morgan, where the only question propounded to every
member of the jury panel explicitly referred to the death penalty and
asked whether the potential juror's feelings about the death penalty
were "strong"), cert. denied, 520 U.S. 1253 (1997). Moreover, we fail
to see any meaningful difference between the question "Do you have
strong feelings in favor of the death penalty?", which Oken apparently
8
concedes would be adequate, see Appellant's Br. at 15-16 (citing Tip-
ton, 90 F.3d at 878), and the first question asked here -- "Do you
have any strong feelings, one way or the other, with regard to the
death penalty?". Fairly read, the initial four questions, if truthfully
answered, would have enabled the trial court to determine whether a
potential juror's feelings about the death penalty"would prevent or
substantially impair the performance of his duties as a juror in accor-
dance with his instructions and his oath," Morgan, 504 U.S. at 728
(citation omitted). Consequently, even if the trial court had not asked
several of the potential jurors additional follow-up questions on an
individual basis, as the court did here, we would still be satisfied that
the initial four questions asked of every member of the jury panel
were by themselves sufficient to satisfy Morgan 's requirement of an
"inquiry" sufficient to identify "those jurors who, even prior to the
State's case in chief, had predetermined [. . .] whether to impose the
death penalty," id. at 736; see also id. at 729 ("The Constitution [. . .]
does not dictate a catechism for voir dire, but only that the defendant
be afforded an impartial jury.").4
B.
Oken argues that the trial court erroneously advised him that any
testimony he provided at the criminal responsibility phase could be
used against him during the sentencing phase and that this erroneous
advice misled him into surrendering his right to testify at the criminal
responsibility phase of his trial.5 Oken contends that the court's
advice was erroneous because, under Simmons v. United States, 390
U.S. 377 (1968), any testimony that he gave at the criminal responsi-
bility phase could not be used against him at the later sentencing
phase.
_________________________________________________________________
4 We also reject the suggestion that the trial court was required to ask
potential jurors whether they would automatically impose the death pen-
alty in rape-murder cases because, as Oken conceded at oral argument,
Morgan does not require crime-specific voir dire questions.
5 The criminal responsibility phase, which Oken elected to have
decided by the trial judge sitting without the jury, followed the
guilt/innocence phase, which was heard by a jury, and preceded the sen-
tencing phase, which was heard by the same jury.
9
In making this last claim, Oken cannot, and does not, directly rely
upon the stated holding of Simmons "that when a defendant testifies
in support of a motion to suppress evidence on Fourth Amendment
grounds, his testimony may not thereafter be admitted against him at
trial on the issue of guilt unless he makes no objection," 390 U.S. at
394. Rather, he relies only upon the broadly worded rationale offered
by the Simmons Court for its holding -- namely, that "it [is] intolera-
ble that one constitutional right should have to be surrendered in order
to assert another," id. Based on this rationale, Oken argues that, unless
his testimony at the criminal responsibility phase is inadmissible
against him at the sentencing phase, his right to testify at the criminal
responsibility phase would "have to be surrendered in order to assert"
his Fifth Amendment right not to be compelled to incriminate himself
at the later sentencing phase.
We conclude that the Maryland Court of Appeals' rejection of this
claim was not "contrary to," or an "unreasonable application of," Sim-
mons because, had the criminal responsibility phase been tried to the
jury, as opposed to the judge sitting without the jury, then it would
not have been "contrary to," or an "unreasonable application of," Sim-
mons to hold that any testimony that Oken gave at the criminal
responsibility phase could be used against him at the later sentencing
phase, and because we see no reason why a different result should
obtain simply because the criminal responsibility phase was tried to
the judge sitting without the jury.6
_________________________________________________________________
6 In concluding that the trial court did not run afoul of Simmons by
advising Oken that any testimony he gave at the criminal responsibility
phase could be used against him at the later sentencing phase, the Mary-
land court reasoned that in McGautha v. California, 402 U.S. 183
(1971), vacated in part on other grounds sub nom . Crampton v. Ohio,
408 U.S. 941 (1972), the Court "declared that its earlier decision in Sim-
mons was strictly limited to the protection of a defendant's testimony in
a hearing on a motion to suppress evidence alleged to have been obtained
in violation of his constitutional rights," Oken I, 612 A.2d at 263 (citing
McGautha, 402 U.S. at 211-12). To avoid the question of the continued
authority of McGautha in the wake of its partial vacatur, we uphold the
Maryland court's decision that the trial court's advice did not run afoul
of Simmons on different grounds.
10
Had the criminal responsibility phase been tried to the jury, it
would not have been "contrary to," or an "unreasonable application
of," Simmons to hold that any testimony that Oken gave at the crimi-
nal responsibility phase could be used against him at the later sentenc-
ing phase because the Supreme Court has, post-Simmons, consistently
upheld and assumed the validity of bifurcated capital-murder proceed-
ings in which the same jury hears the evidence at both the
guilt/innocence and sentencing phases without being instructed that
the defendant's testimony at the guilt/innocence phase may not be
used against the defendant at the sentencing phase. See, e.g., Romano
v. Oklahoma, 512 U.S. 1 (1994) (assuming the validity of such a pro-
ceeding); Buchanan v. Kentucky, 483 U.S. 402, 417 (1987) (reaffirm-
ing "that the State's interest in having a single jury decide all the
issues in a capital trial was proper," without intimating any need for
instructing the jury that the defendant's testimony in the
guilt/innocence phase may not be used against the defendant in the
sentencing phase); Lockhart v. McCree , 476 U.S. 162, 180 (1986)
("We have upheld against constitutional attack the Georgia capital
sentencing plan which provided that the same jury must sit in both
phases of a bifurcated capital murder trial," and which did not require
that the jury be instructed that the defendant's testimony in the
guilt/innocence phase may not be used against the defendant in the
sentencing phase); Gregg v. Georgia, 428 U.S. 153, 190-92, 195, 207
(1976) (plurality opinion); 428 U.S. at 207-08 (White, J., concurring
in the judgment). Indeed, the Court has never even suggested the need
for such an instruction. Consequently, although the Court has never
squarely held that the jury need not be instructed that the defendant's
testimony in the guilt/innocence phase may not be used against the
defendant in the sentencing phase, we cannot say that it would be
"contrary to," or an "unreasonable application of," Simmons to so
hold, given that the Court has repeatedly upheld state capital-murder
proceedings that have not included such an instruction. And, again,
we see no reason, nor could Oken at oral argument suggest any rea-
son, why a different result should obtain simply because the criminal
responsibility phase was tried to the judge sitting without the jury.
Even if a different result should obtain when the criminal responsi-
bility phase is tried to the judge sitting without the jury, Oken still
does not have a colorable claim that he "ha[d] to [. . .] surrender[ ]"
his right to testify at the criminal responsibility phase "in order to
11
assert" his Fifth Amendment privilege against compelled self-
incrimination at the sentencing phase because, assisted by counsel, he
chose to have the criminal responsibility phase tried to the judge sit-
ting without the jury. And that choice itself, which was provided for
only by state law, see Md. R. Cr. P. 4-314(b)(5)(B), did not involve
the exercise of a federal constitutional right, see Lockhart, cited supra
at 11 (reaffirming the Court's decision in Gregg upholding Georgia's
capital sentencing plan under which "the same jury must sit in both
phases of a bifurcated capital murder trial" once the defendant elects
to have the first phase tried to a jury (emphasis added)).
C.
Oken next argues that there is insufficient evidence to sustain his
conviction for first degree sexual offense. And because the state
obtained the death penalty based only upon the aggravating circum-
stance that Oken murdered Garvin while committing or attempting to
commit a first degree sexual offense against her, Oken contends that
he may not lawfully be executed. No rational trier of fact could have
found him guilty beyond a reasonable doubt of first degree sexual
offense, Oken argues, because there was insufficient evidence that
Garvin was alive when her vagina was penetrated with the bottle.
Oken focuses in particular on the fact that the medical examiner
found no evidence of trauma to Garvin's groin area, which, Oken
argues, suggests that Garvin was not alive when the bottle was
inserted into the vagina.
We disagree. "[V]iewing the evidence in the light most favorable
to the prosecution," a "rational trier of fact could have found the
essential elements of [first degree sexual offense] beyond a reason-
able doubt," Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because
Garvin's clothing was found strewn about the living room floor,
because her pants were found turned inside out, and because her bras-
siere was still fastened but ripped on the side, a rational trier of fact
could have inferred that Garvin resisted perpetration of the sexual
offense upon her and thus was alive at the time that the offense was
committed. See Oken I, 612 A.2d at 275-76. More importantly, the
police recovered from Oken's home a list in Oken's handwriting that
included the following items: "gauze pads; [. . .] chloroform, [. . .],
gag; sock and adhesive tape, [. . .] dildos; vibrators," Oken I, 612
12
A.2d at 276. From this list, a rational factfinder could have inferred
that Oken had planned to restrain and perpetrate a sexual offense
upon a live victim; such a factfinder could have then drawn the addi-
tional inference that Oken did in fact carry out such a plan. Moreover,
a rational factfinder could have concluded that the absence of signs
of trauma to Garvin's groin area is not inconsistent with the bottle
having been inserted into Garvin's vagina while Garvin was still alive
because Oken wielded a gun at the time and could have therefore
coerced Garvin into cooperating with the insertion of the bottle.
D.
Oken argues that his trial counsel was constitutionally ineffective
in failing adequately to prepare two expert witnesses, Drs. Payson and
Berlin, who testified on direct examination at the sentencing phase
that Oken suffered from "sexual sadism," a mental disorder for which,
they testified, there is presently no cure. J.A. 663, 672, 759. Counsel's
failure to prevent Oken's experts from describing him as an incurable
sexual sadist, Oken argues, "fell below an objective standard of rea-
sonableness" and prejudiced him in the eyes of the jury, Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984).
We disagree, and we are confident that, in rejecting this claim, the
Maryland Court of Appeals did not render a decision that was "con-
trary to," or "an unreasonable application of," Strickland. Trial coun-
sel's presentation of evidence of Oken's sexual sadism did not fall
below an objective standard of reasonableness because it was a rea-
sonable attempt to prove, as a mitigating circumstance, that Oken suf-
fered from a recognized mental disorder. See Oken II, 681 A.2d at 47.
To implement such a defense strategy, which succeeded in persuading
at least one member of the jury, see J.A. 840 (form containing jury's
"findings and sentence determination," in which the jury certified that
"[o]ne or more of us" found sexual sadism to be a mitigating circum-
stance), trial counsel had to establish, through the testimony of Drs.
Payson and Berlin, the factual bases for their diagnosis of Oken's sex-
ual sadism; such a diagnosis would not have been persuasive as a mit-
igating factor had Drs. Payson and Berlin not fully explained it to the
jury. In preparing Drs. Payson and Berlin to provide such an explana-
tion, trial counsel could not have specifically instructed the doctors to
avoid characterizing sexual sadism as incurable, since it would have
13
been improper to have instructed the doctors as to the specific content
of their testimony. See Oken II, 681 A.2d at 47 (citing, inter alia,
State v. Earp, 571 A.2d 1227, 1235 (1990) (cautioning attorneys that,
in preparing witnesses, they should "avoid suggesting to the witness
what his or her testimony should be")). And Oken was not prejudiced,
because even if counsel had ignored this admonition by Maryland's
highest court, the prosecution almost certainly would have elicited,
through cross-examination or direct examination of other expert wit-
nesses, a similar description of the current prospects for treating sex-
ual sadism.
E.
We are also unpersuaded by the other claims of ineffective assis-
tance of counsel advanced by Oken. First, trial counsel was not con-
stitutionally ineffective in failing to object to, or move for a mistrial
based on, certain remarks made by the prosecutors in their closing
argument because it would have been futile for counsel to have done
so, given the "wide latitude" accorded counsel in making closing
arguments, Oken I, 612 A.2d at 281, and given that the prosecutors'
remarks, read in context, did not constitute an improper comment on
Oken's failure to testify or otherwise infringe upon Oken's constitu-
tional rights.7
Second, trial counsel was not constitutionally ineffective in advis-
ing Oken to enter a conditional guilty plea to Lori Ward's murder in
Maine. Oken argues that counsel was ineffective because counsel
incorrectly advised him that the Maine guilty plea would not be
admissible against him in Maryland, and because counsel incorrectly
advised him that, under the Interstate Agreement on Detainers
("IAD"), the Maine guilty plea would shield him from Maryland's
death penalty by virtue of his having to first serve his Maine sentence
_________________________________________________________________
7 The prosecutors indirectly referred to Oken as a "monster," com-
mented upon his demeanor during the trial, stated that "[t]he defendant
said some things through his attorney in opening that I wanted to
address," noted that Oken "really doesn't dispute any" of the prosecu-
tion's evidence, and called upon the jury to make the same "kind of a
personal sacrifice" that U.S. soldiers fighting the Persian Gulf War were
making at the time of the trial. J.A. 246, 197, 245, 819.
14
of life imprisonment before any Maryland sentence could be satisfied.
Oken contends that he was prejudiced by this erroneous advice
because, absent such advice, he would not have pled guilty in Maine,
and thus would have been eligible for another potential mitigating
factor at the sentencing phase of his Maryland trial-- namely, the
absence of prior convictions for crimes of violence, see Md. Code
Art. 27, § 413(g)(1). We reject Oken's claim as meritless.
Trial counsel's performance did not fall below an objective stan-
dard of reasonableness because at the time that counsel advised Oken
to plead guilty in Maine, "there was no way of knowing the Gover-
nors of the two states would enter into" an executive agreement
trumping the IAD, as they did after the proceeding in Maine, see J.A.
862, nor was it by any means "certain that this plea would be admissi-
ble in the [Maryland] proceeding," Oken II, 681 A.2d at 50; see, e.g.,
Md. R. Evi. 5-403 ("evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confu-
sion of the issues, or misleading the jury [. . .]"). Further, Oken cannot
show that he was prejudiced by counsel's advice because, even had
he not pled guilty in Maine, he would have almost certainly been con-
victed in Maine prior to his trial for Garvin's murder in Maryland, see
Oken II, 681 A.2d at 50 ("[Oken]'s own[post-conviction] expert
admitted the case against [him] in Maine was overwhelming."), since
at the time of his arrest in Maine and the commencement of Maine's
proceedings against him, Maryland had not yet filed formal charges
against him in connection with Garvin's murder, see J.A. 851.
Third, trial counsel was not constitutionally ineffective at the sen-
tencing phase in failing to present sufficient evidence of Oken's
parole ineligibility under Maine law. The jury was adequately
apprised of Oken's parole ineligibility through the introduction into
evidence of Oken's pre-sentence investigation report, which "showed
that Oken had been sentenced in Maine to life imprisonment without
parole," and through counsel's opening statement and closing argu-
ment. See Oken II, 681 A.2d at 41; see , e.g., J.A. 822-24 ("His pun-
ishment [in Maine] was life without parole. The man is already in jail
in a prison for the rest of his days, life without parole, and that means
life without parole. He isn't going anywhere. If you found him not
guilty [. . .], he would go back to the state of Maine and spend the
rest of his life in jail there.").
15
Fourth, trial counsel was not constitutionally ineffective in failing
to adduce sufficient evidence of Oken's substance abuse at the time
of the Garvin murder. Counsel presented substantial evidence of
Oken's substance abuse "through the testimony of Oken's ex-wife,
father, mother, acquaintances, and [. . .] Dr. Berlin, Dr. Payson, and
Dr. Spodak." Oken II, 681 A.2d at 45; see, e.g., J.A. 545-49, 557-59,
603-19, 640-43, 723-24, 780. Any further evidence of his substance
abuse would have been nothing more than cumulative. 8
Finally, even were we to find one or more of these purported
instances of objectively unreasonable performance by counsel to be
such, either individually or cumulatively, we still could not say that
"there is a reasonable probability that, but for counsel's unprofes-
sional errors, the result of the proceeding would have been different,"
Strickland, 466 U.S. at 694. Even Oken's own expert testified on
cross-examination during the sentencing phase:
I was told by Mr. Oken that he approached the victim out-
side the apartment, asked if he could use the phone, made
his way into her apartment, looked about, shut the door,
took out a gun and asked that she get undressed. He asked
her to begin masturbating. He masturbated. At the same
time he then asked her to get up and perform oral sex on
him. He then pushed her back. He got on top of her, he tried
to have intercourse, he did this in different positions, includ-
ing anal sex. He got up at some point, went into the kitchen,
brought back a bottle, Durkee's hot sauce bottle, which he
said he inserted into her vagina. He made her take the bottle
in and out. He was masturbating at the same time. He
became angry because he couldn't reach climax and then he
killed her.
Oken I, 612 A.2d at 679; see also J.A. 772-73. Thus, the jury had
before it an overwhelming amount of evidence of the aggravating cir-
_________________________________________________________________
8 As to the remainder of Oken's claims, we agree with the district court
that Oken has failed to make "a substantial showing of the denial of a
constitutional right," 28 U.S.C. § 2253(c)(2). We therefore deny a certifi-
cate of appealability as to these claims, as did the district court, and dis-
miss the appeal as to these claims.
16
cumstance of the first degree sexual offense to outweigh both the mit-
igating evidence which was introduced at trial and that which Oken
now contends should have been introduced.
CONCLUSION
The judgment of the district court denying Steven Howard Oken's
petition for a writ of habeas corpus is hereby affirmed.
AFFIRMED
MICHAEL, Circuit Judge, concurring:
I concur in the judgment and in all but part II.A. of the majority
opinion. As for part II.A., I agree that Oken has procedurally
defaulted the claim he asserts under Morgan v. Illinois, 504 U.S. 719
(1992), though I come to that conclusion by a different course than
does the majority. If we could reach the merits of the Morgan claim,
I would vote to grant the writ so as to allow Oken a new sentencing
proceeding.
I.
Oken's trial counsel objected to the trial court's voir dire and
requested additional questions aimed at identifying jurors who would
impose the death penalty regardless of mitigating evidence. The trial
court overruled the objection and refused to ask the questions ten-
dered by Oken's counsel. On direct appeal Oken was represented by
a different lawyer. That lawyer failed to appeal the voir dire issue,
believing that the questions actually asked satisfied the requirements
of Wainwright v. Witt, 469 U.S. 412 (1985). After oral argument on
Oken's direct appeal, but before the Maryland Court of Appeals ren-
dered its decision, the United States Supreme Court decided Morgan.
In Morgan the Court held that a capital defendant, upon his request,
must be allowed to ask "reverse Witherspoon "1 questions on voir dire
_________________________________________________________________
1 See Witherspoon v. Illinois , 391 U.S. 510 (1968). Witherspoon per-
mits voir dire to determine whether a potential juror would always refuse
to impose the death penalty upon conviction. "Reverse Witherspoon"
voir dire is intended to determine a pro-death bias on the part of a pro-
spective juror. See Morgan, 504 U.S. at 722.
17
in order to determine whether particular jurors would always vote to
impose death following a capital conviction. See 504 U.S. at 736.
Although Oken's appellate counsel read Morgan when it was decided,
she did not "associate[ ] Morgan with the Oken case." As a result, she
did not seek leave to file a supplemental brief on the voir dire issue.
After the Maryland Court of Appeals affirmed his conviction and
sentence and the United States Supreme Court denied his petition for
certiorari, Oken filed a state habeas petition in Maryland circuit court.
There Oken argued (1) that the trial court had violated Morgan in fail-
ing to ask "reverse Witherspoon" questions on voir dire and (2) that
appellate counsel had been ineffective in failing to raise the issue.
Although the state contended that Oken had waived his Morgan claim
by not raising it on direct appeal, the state habeas court proceeded
directly to the merits, holding that the trial court's follow-up ques-
tions satisfied Morgan. The state habeas court then went on to hold
that Oken's appellate counsel had not been constitutionally ineffective
in failing to raise the Morgan claim on direct appeal.
Oken petitioned the Maryland Court of Appeals for leave to appeal
the decision of the state habeas court. In his petition he argued the
merits of his Morgan claim and argued that his appellate counsel on
direct appeal had been ineffective in failing to raise that claim. The
Court of Appeals granted leave to appeal all issues raised in the peti-
tion. In his opening brief in the habeas appeal, Oken argued the merits
of his Morgan claim, but mentioned the ineffectiveness of appellate
counsel issue only in a footnote. In the footnote Oken asserted that the
Court of Appeals had granted the relief sought on his ineffective
assistance claim when it granted him leave to appeal the merits of the
state habeas court's decision on the Morgan issue. The ineffective
assistance of appellate counsel claim was therefore moot, according
to Oken. The state argued in its response that Oken's counsel on
direct appeal had waived the Morgan claim and that Oken had now
abandoned his claim of ineffective assistance of appellate counsel. In
his reply brief Oken denied any intent to abandon his ineffective
assistance claim, but offered no argument in support of that claim. As
to waiver, Oken contended (1) that the Morgan claim had not been
knowingly and intelligently waived, and thus was not waived under
Maryland law; (2) that Maryland's "special circumstances" exception
to waiver applied because the Supreme Court's Morgan decision
18
came down after oral argument on his direct appeal; and (3) that Mor-
gan was a new rule decided while his case was still on direct appeal,
so he should be permitted to raise it on collateral review.
The Court of Appeals (on habeas) rejected Oken's argument that
his ineffective assistance of appellate counsel claim was moot and
held, without discussion, that he had abandoned that claim. See Oken
II, 681 A.2d at 36 n.5. The Morgan claim thus was presented solely
as a trial court error, and the Court of Appeals proceeded to the ques-
tion whether Oken had waived that claim of error by failing to raise
it on direct appeal. With one judge dissenting, the Court of Appeals
concluded that the Morgan issue had been waived on direct appeal.
The court held that Maryland's "knowing and intelligent" requirement
for waiver applied only in the same circumstances as the "knowing
and intelligent" standard of Johnson v. Zerbst, 304 U.S. 458 (1938),
and Fay v. Noia, 372 U.S. 391 (1963), see Curtis v. State, 395 A.2d
464 (1978), and that Morgan did not create rights that were subject
to the Johnson/Fay standard. The special circumstances exception did
not apply, according to the Court of Appeals, because the principle
announced by Morgan was already clearly established by the
Supreme Court in Ross v. Oklahoma, 487 U.S. 81 (1988), and by
Maryland in Bowie v. State, 595 A.2d 448, 457-59 (Md. 1991), and
Hunt v. State, 583 A.2d 218, 231-34 (Md. 1990). See Oken II, 681
A.2d at 38. For the same reason, the Court of Appeals rejected Oken's
argument that he was entitled to the benefit of Morgan as a new rule.
The Court of Appeals then proceeded to the merits of the Morgan
claim and held that "[a]lthough better questions could have been
asked," the voir dire conducted by the trial court was adequate to "life
qualify" the jury. See Oken v. State, 681 A.2d 30, 40 (Md. 1996)
(Oken II). One judge dissented. See id. at 53-59 (Bell, J., dissenting).
II.
To repeat, the Maryland Court of Appeals found that the Morgan
issue had been waived on direct appeal. I agree with the majority that
the Maryland court's grounds for finding waiver were independent of
federal law and were constitutionally adequate. Oken's Morgan claim
therefore is procedurally defaulted. I also agree that the only cause for
Oken's procedural default was the ineffectiveness of his appellate
19
counsel and that he procedurally defaulted that claim when he failed
to raise it before the Maryland Court of Appeals on appeal from the
state habeas court. However, I do not agree that Oken was required
under Maryland law to raise his ineffective assistance claim in his
opening brief on appeal from the state habeas court. Had Oken actu-
ally argued ineffective assistance of appellate counsel in his reply
brief, he would have preserved his Morgan claim.
The state had argued waiver before the state habeas court and lost
because that court first decided the Morgan claim on the merits and
then rejected Oken's claim of ineffective assistance of appellate coun-
sel. See Oken II, 681 A.2d at 36 ("The State contended before [the
state habeas court] and before this Court, that because Oken did not
raise this claim on direct appeal, it is waived."); id. at 54 (Bell, J., dis-
senting) (recognizing that the state habeas court had "found, if only
implicitly, sufficient `special circumstances' to excuse the appellant's
failure to raise the Morgan issue on direct appeal"). Thus, when Oken
filed his opening brief with the Maryland Court of Appeals on habeas,
he was entitled to rely on the state habeas court's implicit holding that
his substantive Morgan claim was preserved. In other words, since the
state habeas court had not found the claim defaulted, Oken had no
reason to argue cause for default in his opening brief on appeal.
The state, however, did argue default in its response brief. At that
point, Oken was both entitled and obligated to contest the allegation
of default, either by challenging waiver itself or by offering some
cause supported by the record, such as ineffective assistance of appel-
late counsel. See Federal Land Bank of Baltimore, Inc. v. Esham, 406
A.2d 928, 936 (Md. Ct. Spec. App. 1979) ("The function of a reply
brief is limited. The appellant has the opportunity and duty to use the
opening salvo of his original brief to state and argue clearly each
point of his appeal. We think that the reply brief must be limited to
responding to the points and issues raised in the appellee's brief.");
id. at 937 ("Due process requires that all parties have an opportunity
to reply to new issues asserted against them . . . ."); id. ("The reply
brief must do what it purports to do: it must respond to the points
raised in the appellee's brief which, in turn, are addressed to the
issues originally raised by the appellant."). Oken did contest the
state's waiver argument for the first time in his reply brief, and the
Maryland Court of Appeals considered his arguments on that point
20
without finding them abandoned. See Oken II, 681 A.2d at 36. Oken
did not, however, make any argument that his appellate counsel had
been ineffective. Thus, he abandoned his ineffective assistance of
appellate counsel claim not because he raised it for the first time in
his reply brief, but because he failed to raise it even then.2
III.
Oken raised the Morgan issue at trial, in the state habeas court, in
his petition for leave to appeal the decision of the state habeas court,
and in his opening brief, reply brief, and oral argument before the
Maryland Court of Appeals on habeas. The trial court, the habeas
court, and the Maryland Court of Appeals each considered the Mor-
gan claim on the merits. Nonetheless, the claim is procedurally
defaulted because his appellate counsel failed to raise it on direct
appeal. And because the cause for that default was abandoned when
Oken's habeas counsel mistook the Court of Appeals' grant of review
for a grant of relief, the rule of procedural default precludes all federal
review of Oken's Morgan claim. The majority's treatment of the mer-
its of the Morgan claim therefore is dictum, but it is dictum that I can-
not join. I believe that the voir dire conducted in this case was
insufficient to identify jurors who would automatically impose the
death penalty upon conviction.
A capital defendant has the right to challenge for cause any juror
who "would unwaveringly impose death after a finding of guilt."
Morgan, 504 U.S. at 733. See also Yeatts v. Angelone, 166 F.3d 255,
265 (4th Cir. 1999); Mackall v. Angelone, 131 F.3d 442, 450-51 (4th
Cir. 1997). In order for the defendant to exercise that right effectively,
the voir dire must include questions that "are enough to detect those
in the venire who automatically would vote for the death penalty."
Morgan, 504 U.S. at 734. "[G]eneral fairness and `follow the law'
questions" are not enough. Id. See also id. at 735 ("As to general
questions of fairness and impartiality, [jurors with dogmatic views on
_________________________________________________________________
2 Oken did state in his reply brief, in a footnote, that he had not waived
his claim for ineffective assistance of appellate counsel. In order to pre-
serve an issue on appeal, however, it is not enough simply to assert the
claim; a party must provide supporting argument. See Federal Land
Bank, 406 A.2d at 935-36.
21
the death penalty] could in all truth and candor respond affirmatively,
personally confident that such dogmatic views are fair and impar-
tial.").
The second, third, and fourth voir dire questions are unquestion-
ably "general fairness and `follow the law' questions." See ante at 8
(listing questions). More importantly, they do not focus on the essen-
tial inquiry mandated by Morgan: the jurors' ability to give due con-
sideration to mitigating evidence at sentencing. The majority
concludes, however, that the first voir dire question, "Do you have
any strong feelings, one way or the other, with regard to the death
penalty?" was sufficient to root out any unconstitutional bias toward
death. I disagree. As Oken has argued, the trial court's voir dire ques-
tions failed to identify venire members who would automatically
impose the death penalty for particular crimes, such as a murder-rape.
Prospective jurors might be able to answer "in all truth and candor"
that they do not have strong views on the death penalty, yet at the
same time believe that death invariably should be imposed when the
murder is committed in the course of a sex offense. 3 Such jurors will
vote to impose a sentence based solely on the proof of the offense
itself. "But such jurors obviously deem mitigating evidence to be
irrelevant to their decision to impose the death penalty: They not only
refuse to give such evidence any weight but are also plainly saying
that mitigating evidence is not worth their consideration and that they
will not consider it." Id. at 736. The Morgan court was unequivocal.
A juror who would "automatically vote for the death penalty without
regard to the mitigating evidence is announcing an intention not to
follow the instructions to consider the mitigating evidence." Id. at
738. Such a juror is not just merciless, he is "lawless." Id.
_________________________________________________________________
3 For instance, a juror might answer the trial court's question by saying
that he does not have strong views on the death penalty, believing that
it is warranted in some circumstances while not in others. See, e.g., JA
366 (statement of venire member K.: "I believe that [the death penalty]
should be used when it's necessary."); JA 388 (statement of venire mem-
ber B.: "it depends what the crime is . . ."), JA 397 (statement of venire
member S. that "maybe" she has strong feelings about the death penalty;
"it depends upon the situation"). These seemingly evenhanded responses
easily might conceal an uncompromising belief that death is invariably
warranted for patricides, infanticides, or murder-rapes, for example.
22
The question suggested by Oken and rejected by the trial court was
directed precisely toward identifying "lawless" jurors who would not
consider mitigating evidence: "Are there any murders or any type of
murders where no matter what excuses or explanations are offered,
you would feel that the person responsible should get the death pen-
alty? What are they?" JA 28. Compare Morgan , 504 U.S. at 723 (trial
court committed reversible error in refusing to ask proposed voir dire
question: "If you found Derrick Morgan guilty, would you automati-
cally vote to impose the death penalty no matter what the facts are?").
The trial court's first question, in contrast, was a vague, unfocused
query about the venire members' "feelings" about the death penalty.
The inherent ambiguity of that question was only worsened by the
trial court's failure to explain to the prospective jurors that they would
be required to consider mitigating and aggravating evidence at sen-
tencing. Indeed, many of the venire members were unaware that the
trial would be bifurcated into separate guilt and penalty phases. See,
e.g., JA 329-30. The obligation to consider mitigating evidence was
never mentioned during voir dire. But "[m]embers of the venire can-
not be expected to divine what attitudes and animosities the court and
the parties want to know about. . . . If voir dire is to yield helpful
information, the questions themselves must be framed so as to elicit
concrete, candid responses." United States v. Torres, 191 F.3d 799,
813 (7th Cir. 1999) (Rovner, J., concurring). Stripped of any context,
the trial court's unfocused inquiry into venire members' feelings
about the death penalty could not reliably identify jurors whose bias
in favor of the death penalty prevented them from considering miti-
gating evidence as required by the law.
A review of the voir dire reveals as much. In response to the ques-
tion, "Do you have any strong feelings, one way or the other, regard-
ing the death penalty," many venire members gave the same
ambiguous response: "Not really." See, e.g., JA 293, 304, 307, 330,
356, 385, 386, 388. When venire members responded with an unqual-
ified "Yes," or even with expressions of support for the death penalty,
the trial court frequently did no more than continue with its three "fol-
low the law" questions, none of which concerned sentencing. Thus,
venire persons who admitted strong feelings about the death penalty,
see JA 357, 375-76, 395-96, 406, "favor[ed] the death penalty," JA
299, believed "it should be enforced," JA 382, or were "for it," JA
23
389-90, were asked no questions about how those feelings would
affect their ability to consider mitigating evidence at sentencing.
Given the number of ambiguous responses and the identical treatment
of yes and no answers, it is difficult to believe that the voir dire con-
ducted here served the purpose required by Morgan, that is, identify-
ing jurors whose strong feelings about the death penalty would
prevent them from sentencing in accordance with the law.
Because neither the voir dire questions themselves nor the context
in which they were asked directed the venire members' attention to
their obligation to consider mitigating evidence, this case has only a
superficial similarity to United States v. Tipton, 90 F.3d 861 (4th Cir.
1996). In Tipton we emphasized the context in which the voir dire
was conducted, particularly the way in which the jurors were
reminded of the need to consider and weigh mitigating evidence:
[T]he district court first explained to each juror that if guilt
of a capital offense was found in a first stage of the trial, the
jury would then consider whether to impose the death pen-
alty in a second stage at which the Government would try
to convince the jury that aggravating factors warranted death
while the defense would try to convince the jury that
because of mitigation, death was not appropriate, and that
this was then to be decided by the jurors on the basis of that
evidence and the court's instructions on the law. Against
this background, the court then asked each prospective
juror: "[D]o you have strong feelings in favor of the death
penalty?" If the juror answered with an unqualified "No,"
the court moved on.
Tipton, 90 F.3d at 878. We concluded that"[u]nder all of the circum-
stances," the district court's voir dire did not violate Morgan. Id. at
879 (emphasizing "the question's logical adequacy to address the ulti-
mate issue of death-penalty impartiality, the context in which it was
put, [and] the court's repeated admonitions that under the law consid-
eration of mitigating factors would be required"). Whereas the venire
members in Tipton were made explicitly aware of the particular con-
text in which their feelings on the death penalty were deemed relevant
-- their obligation to weigh aggravating and mitigating evidence at
24
sentencing -- the venire members for Oken's trial were given no such
information.
The voir dire conducted in this case could not reliably identify
jurors who would invariably impose the death penalty based solely
upon the crimes for which the defendant was convicted. As a result,
I cannot discount the possibility that such jurors in fact sat on Oken's
jury and voted for his death. Ambiguous, unfocused, and devoid of
any context that would direct jurors to examine their ability to con-
sider evidence offered in mitigation, the voir dire for Oken's trial vio-
lated the central requirement of Morgan. The Maryland Court of
Appeals' conclusion that Morgan was satisfied thus was "contrary to"
clearly established Supreme Court precedent. If the merits of that
decision were before us, I would vote to grant the writ of habeas cor-
pus and allow the State of Maryland to conduct a second sentencing
proceeding.
25