Smith v. Duckworth

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS June 6, 2016

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

MICHAEL DEWAYNE SMITH,

Petitioner - Appellant,

v. No. 14-6201

KEVIN DUCKWORTH, Interim Warden,
Oklahoma State Penitentiary,

Respondent - Appellee.
_________________________________

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:09-CV-00293-D)
_________________________________

Emma V. Rolls, Assistant Public Defender (Patti Palmer Ghezzi, Assistant Federal Public
Defender, with her on the briefs), Office of the Public Defender, Oklahoma City,
Oklahoma, for Petitioner-Appellant.

Thomas Lee Tucker (E. Scott Pruitt, Attorney General of Oklahoma, and Robert
Whittaker, Assistant Attorney General on the brief), Office of the Attorney General for
the State of Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.
_________________________________

Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________


Pursuant to Fed. R. App. P. 43(c)(2), Kevin Duckworth, who was appointed
Interim Warden of the Oklahoma State Penitentiary on May 9, 2016, is automatically
substituted for Anita Trammell as Respondent in this case.
 I. INTRODUCTION

Michael DeWayne Smith was charged with two counts of murder for the

killings of Sarath Pulluru and Janet Moore. He was convicted and sentenced to death.

The Oklahoma Court of Criminal Appeals affirmed his convictions on direct appeal

and denied his two applications for postconviction relief. Mr. Smith sought a writ of

habeas corpus in federal district court, arguing, as relevant here, that he is ineligible

for the death penalty because he is intellectually disabled, that the state trial court had

erred in admitting Mr. Smith’s videotaped confession to the murders at trial, that his

trial counsel had rendered ineffective assistance in the presentation of his mitigation

case, and that cumulative error rendered his trial unfair.1 The district court denied

habeas relief, and Mr. Smith appealed.

We granted Mr. Smith’s request for a certificate of appealability on these four

issues, and we now affirm the district court’s judgment. Mr. Smith has failed to

demonstrate that the Oklahoma Court of Criminal Appeals’ rejection of his claims

was contrary to or involved an unreasonable application of clearly established federal

law. Thus, applying the deferential standard mandated by the Antiterrorism and

Effective Death Penalty Act, we affirm the district court’s denial of habeas relief.

1
Because the scope of our review is limited to the four issues on which we
granted a certificate of appealability, we do not discuss other claims Mr. Smith raised
in the state proceedings or in the district court.

2
 II. BACKGROUND

A. Factual Background 2

Petitioner Michael DeWayne Smith is a member of the Oak Grove Posse

(OGP), a subset of the Crips gang that operates in Oklahoma City. In November

2000, Teron “T-Nok” Armstrong and two other members of the OGP attempted to

rob Tran’s Food Mart in south Oklahoma City. The store owner shot and killed Mr.

Armstrong. Mr. Smith was not involved in the robbery but had “close personal ties”

to Mr. Armstrong. Smith v. State (Smith I), 157 P.3d 1155, 1161 (Okla. Crim. App.

2007).

The other two would-be robbers were later arrested and were set to be tried for

the robbery in February 2002. Two days before the trial, Mr. Smith, armed with a

.357 revolver, went to the apartment of Janet Moore. Believing Ms. Moore’s son was

a police informant, Mr. Smith kicked in her door and confronted her. When she

began to scream, Mr. Smith shot her to death. Before leaving, Mr. Smith wiped down

the apartment to eliminate any fingerprint evidence.

Mr. Smith next went to the A-Z Mart, a convenience store “immediately next

door” to Tran’s Food Mart—the site of the earlier failed robbery attempt. Id. at 1161.

Mr. Smith “emptied two pistols into” the clerk on duty, Sarath Pulluru, took money

2
This summary of the facts is based principally on the Oklahoma Court of
Criminal Appeals’ recitation of the facts in Mr. Smith’s direct appeal. See generally
Smith v. State (Smith I), 157 P.3d 1155 (Okla. Crim. App. 2007). We presume a state
court’s factual findings to be correct unless the petitioner rebuts that presumption by
“clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Mr. Smith has not done so
here.

3
from the register, and then used lighter fluid to set fires around the store. Id. He set

fire to Mr. Pulluru’s body and “whatever he had touched in the A-Z Mart to destroy

evidence.” Id. at 1162. Afterward he disposed of the clothes he had worn during the

murders.

Mr. Smith returned home early the next morning and reported to his roommate

that he had killed Janet Moore, had “done something else to ‘take care of business,’”

and had “avenged his family.” Id. at 1161. A couple of hours later, Mr. Smith went to

the home of Sheena Johnson. He told her that he had killed Ms. Moore because her

son had been “snitching” and that he had “killed a person at a ‘chink’ store” because

someone connected to the A-Z Mart “had been on television ‘dissing’ his set” in

response to the earlier attempted robbery. Id. Ms. Johnson later reported this

conversation to police, who had already taken Mr. Smith into custody on a different

matter.

Three days after Mr. Smith was arrested, detectives interviewed him about the

killings. He signed a written waiver of his Miranda rights3 and agreed to talk to the

detectives. After initially denying his involvement, Mr. Smith admitted to both

murders, explaining that he “killed both victims in retaliation for wrongs done him or

his family.” Id. He explained that he went to Ms. Moore’s apartment looking for her

son but ended up killing her when she “panicked and started screaming.” Id. And he

3
Under Miranda v. Arizona, a suspect in custody must be informed of his
rights to refuse to answer questions or to have retained or appointed counsel present
during questioning. 384 U.S. 436, 445 (1966).

4
stated that he killed Mr. Pulluru “in retaliation against the store owner who shot

Armstrong and in retaliation for disrespectful comments about Armstrong in the press

attributed to someone from the A-Z Mart.” Id. He further admitted that he had

disposed of the clothes he wore during the murders, wiped down Ms. Moore’s

apartment to eliminate fingerprints, and set fires in the A-Z Mart to destroy evidence.

Mr. Smith’s confession was videotaped.

B. Procedural Background

1. Trial and Direct Appeal

The State of Oklahoma charged Mr. Smith with two counts of murder,

burglary, robbery with a firearm, and arson. The state trial court held a pretrial

hearing to determine the validity of Mr. Smith’s Miranda waiver and the

admissibility of Mr. Smith’s videotaped confession. At the hearing, Mr. Smith put on

evidence that he was “a long term PCP user” and admitted to being under the

influence of PCP at the time of his arrest. Id. at 1171. An expert witness testified for

the defense and opined that Mr. Smith could have still been under the influence of

PCP at the time of his interrogation conducted three days after his arrest. Mr. Smith

also sought to elicit testimony regarding his low intelligence and information

processing deficits from Dr. Faust Bianco, a neuropsychologist. Mr. Smith proffered

Dr. Bianco’s opinion that Mr. Smith’s “functioning at a borderline or low average

[IQ] range with deficiencies in the information processing speed and the influence of

the chronic and current PCP use would affect his ability to understand the Miranda

5
warnings and more importantly to understand the consequences of waiving those

warnings.”

The trial court rejected the offer of proof, stating that “there are many indicia[]

demonstrat[ing] that this Defendant possessed intelligence” and “demonstrated in

many different ways his understanding of what was going on.” The trial court

reasoned that “testimony regarding [Mr. Smith’s] specific IQ range would [not] be

relevant” and excluded Dr. Bianco’s testimony. Relying on its own observations of

Mr. Smith’s demeanor over the course of the two-hour recorded interview, the trial

court concluded that Mr. Smith had knowingly and voluntarily waived his Miranda

rights and that his videotaped confession was therefore admissible.

The case proceeded to trial, and the jury returned a guilty verdict on all five

counts. In the penalty phase for Mr. Smith’s murder convictions, the State sought to

prove two aggravating circumstances: (1) that “each murder was especially heinous,

atrocious or cruel,” and (2) that “there existed a probability that Smith would commit

future acts of violence constituting a continuing threat to society.” Id. at 1160 & n.1.

Defense counsel presented a mitigation defense centered on Mr. Smith’s inability to

cope with his father’s death, leading to his increased involvement with gangs. The

jury found both aggravating circumstances for each killing and fixed Mr. Smith’s

punishment as death for each count. The trial court accordingly sentenced Mr. Smith

to death.

Mr. Smith appealed, arguing his waiver of Miranda rights was invalid because

the trial court refused to receive evidence of his low intelligence in evaluating the

6
validity of that waiver. The Oklahoma Court of Criminal Appeals (the OCCA)

rejected that claim and affirmed Mr. Smith’s conviction and sentence on direct

appeal. Id. at 1171–72, 1180. Mr. Smith petitioned the United States Supreme Court

for a writ of certiorari, which the Court denied. Smith v. Oklahoma, 552 U.S. 1191

(2008).

2. Postconviction Proceedings

Mr. Smith next filed his first Application for Post-Conviction Relief with the

OCCA. He argued that his trial counsel rendered ineffective assistance in the penalty

phase by failing to fully investigate and present evidence of his family and social

history, including evidence of harsh discipline or physical abuse, early and consistent

exposure to drugs, and childhood head injuries. The OCCA denied relief in an

unpublished order.

Mr. Smith then petitioned the federal district court for a writ of habeas corpus

under 28 U.S.C. § 2254. In that petition, Mr. Smith argued he was intellectually

disabled and therefore ineligible for the death penalty under Atkins v. Virginia,4 the

OCCA had unreasonably determined that his Miranda waiver was valid, and his trial

counsel had rendered ineffective assistance in the mitigation phase by failing to

present evidence of his troubled upbringing, intellectual disability, and substance

abuse. With his habeas petition pending in federal court, Mr. Smith filed a second

4
As discussed in more detail below, the Supreme Court held in Atkins v.
Virginia that execution of intellectually disabled defendants violates the Eighth
Amendment’s bar on cruel and unusual punishment. 536 U.S. 304, 321 (2002).

7
Application for Post-Conviction Relief with the OCCA, seeking to exhaust his Atkins

claim and his ineffective-assistance claim based on failure to present intellectual-

disability and substance-abuse evidence. The OCCA denied this second application

in a published decision, Smith v. State (Smith II), 245 P.3d 1233 (Okla. Crim. App.

2010).

Mr. Smith then returned to federal court and sought adjudication of his habeas

petition. The district court denied relief, ruling that Mr. Smith was not intellectually

disabled and had not shown the OCCA’s decisions with respect to his Miranda

waiver or ineffective-assistance claim were contrary to or an unreasonable

application of clearly established federal law. The district court denied a certificate of

appealability (COA) on all issues.

Mr. Smith then sought a COA from this court, which we granted on four

issues: Mr. Smith’s intellectual-disability claim, his challenge to the exclusion of Dr.

Bianco’s testimony concerning the validity of his Miranda waiver, his claim of

ineffective assistance of counsel in the penalty phase, and cumulative error.

III. DISCUSSION

Federal habeas corpus review of a state prisoner’s conviction and sentence is

circumscribed by the provisions of the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA). Under AEDPA, a habeas petitioner is not entitled to relief on a

claim that has been adjudicated in state court unless “the state court’s resolution of

his claims was ‘contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States’ or
8
‘was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.’” Hooks v. Workman, 689 F.3d 1148, 1163

(10th Cir. 2012) (quoting 28 U.S.C. § 2254(d)(1), (2)). AEDPA thus “erects a

formidable barrier to federal habeas relief for prisoners whose claims have been

adjudicated in state court” and “requires a state prisoner [to] show that the state

court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error . . . beyond any possibility for fairminded

disagreement.” Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (alteration and omission in

original) (internal quotation marks omitted). But if “some fairminded jurists could

possibly agree with the state court decision, then it was not unreasonable and the writ

should be denied.” Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014).

A state-court decision is contrary to clearly established federal law under 28

U.S.C. § 2254(d)(1) if it “applies a rule that contradicts the governing law set forth in

Supreme Court cases or confronts a set of facts that are materially indistinguishable

from a decision of the Supreme Court and nevertheless arrives at a result different

from that precedent.” Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir.

2016) (internal quotation marks omitted). “A state-court decision is an ‘unreasonable

application’ of Supreme Court precedent if the decision ‘correctly identifies the

governing legal rule but applies it unreasonably to the facts of a particular prisoner’s

case.’” Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015) (quoting Williams

v. Taylor, 529 U.S. 362, 407–08 (2000)). In analyzing a state-court decision’s

compliance with clearly established federal law, we measure the decision against “the

9
governing legal principle or principles set forth by the Supreme Court at the time the

state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003).

That inquiry focuses exclusively on “the holdings, as opposed to the dicta, of [the

Supreme Court’s] decisions as of the time of the relevant state-court decision.” Id. at

71 (internal quotation marks omitted). “The absence of clearly established federal

law is dispositive under § 2254(d)(1).” Hooks, 689 F.3d at 1163.

Review of a state court’s factual findings under § 2254(d)(2) is similarly

narrow. We will not conclude a state court’s factual findings are unreasonable

“merely because we would have reached a different conclusion in the first instance.”

Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (brackets omitted). Rather, we must

defer to the state court’s factual determinations so long as “reasonable minds

reviewing the record might disagree about the finding in question.” Id. Accordingly,

a state court’s factual findings are presumed correct, and the petitioner bears the

burden of rebutting that presumption by “clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). But if the petitioner can show that “the state courts plainly

misapprehend[ed] or misstate[d] the record in making their findings, and the

misapprehension goes to a material factual issue that is central to petitioner’s claim,

that misapprehension can fatally undermine the fact-finding process, rendering the

resulting factual finding unreasonable.” Ryder, 810 F.3d at 739 (internal quotation

marks omitted).

In determining whether the federal district court erred in denying habeas relief,

“we review the district court’s legal analysis of the state court decision de novo and

10
its factual findings, if any, for clear error.” Frost, 749 F.3d at 1223 (internal

quotation marks omitted). Our review is limited to the record that was before the

state court that adjudicated the claim on the merits. Id. at 1224.

A. Intellectual-Disability Claim

We first address Mr. Smith’s claim that he is intellectually disabled and that

the OCCA’s rejection of his intellectual-disability claim is contrary to or an

unreasonable application of Atkins. The OCCA determined this claim was

procedurally barred but evaluated the merits to determine if ineffective assistance of

counsel excused the procedural default. We therefore consider both the OCCA’s

procedural-bar and merits rulings.

1. Procedural Bar

Mr. Smith raised his intellectual-disability claim for the first time in his second

Application for Post-Conviction Relief before the OCCA. The OCCA concluded the

claim was procedurally defaulted because it was not raised on direct appeal, in Mr.

Smith’s first Application for Post-Conviction Relief, or within sixty days of its

discovery. Smith II, 245 P.3d 1233, 1236 (Okla. Crim. App. 2010). But the OCCA

evaluated the merits of the claim to determine whether Mr. Smith’s postconviction

counsel had rendered ineffective assistance that would excuse the procedural default.5

5
The OCCA evaluated the performance of Mr. Smith’s postconviction counsel
based on Mr. Smith’s argument that postconviction counsel had the first opportunity
to raise this claim because his trial counsel also served as appellate counsel. Smith II,
245 P.3d 1233, 1236 (Okla. Crim. App. 2010). The OCCA assumed for purposes of

11
Finding the underlying claim of intellectual disability without merit, the OCCA

determined that postconviction counsel had not rendered ineffective assistance and

that the substantive issue was waived for failure to timely raise it. Id. at 1237–38. Mr.

Smith raises three separate challenges to the application of Oklahoma’s procedural

bar to this claim, but we need not address those challenges because we elect to

proceed directly to the merits.

Federal habeas review is generally barred where the prisoner “defaulted his

federal claims in state court pursuant to an independent and adequate state procedural

rule,” unless the prisoner can demonstrate cause for the default and “actual

prejudice” resulting from the alleged violation. Thacker v. Workman, 678 F.3d 820,

835 (10th Cir. 2012). However, where “the claim may be disposed of in a

straightforward fashion on substantive grounds,” this court retains discretion to

bypass the procedural bar and reject the claim on the merits. Revilla v. Gibson, 283

F.3d 1203, 1210–11 (10th Cir. 2002). Because we conclude this claim is readily

resolved on the merits, we elect to bypass the procedural issues.

2. Merits

The OCCA evaluated the merits of this claim and our review is therefore

governed by AEDPA.6 As a result, we may not grant relief unless Mr. Smith

its analysis that Mr. Smith’s failure to raise the issue earlier was excused because he
was represented by the same counsel at trial and on direct appeal. Id.
6
Mr. Smith contends that because the OCCA concluded this claim was
procedurally barred, its analysis of the claim under the ineffective-assistance rubric
does not constitute an adjudication on the merits that would subject its decision to

12
demonstrates the OCCA’s decision is contrary to or an unreasonable application of

clearly established federal law. Fairchild, 784 F.3d at 711. Mr. Smith contends the

OCCA’s rejection of his intellectual-disability claim is contrary to Atkins v. Virginia,

536 U.S. 304 (2002), because the OCCA’s evaluation of his claim is “inconsistent

with clinical practices.”

a. Atkins and Intellectual Disability

In Atkins, the Supreme Court held that the Eighth Amendment’s prohibition on

“cruel and unusual punishments” forbids the execution of intellectually disabled

criminal defendants. 536 U.S. at 321. But the Supreme Court declined to “provide

definitive procedural or substantive guides for determining when a person who

claims [intellectual disability] will be so impaired” as to be ineligible for the death

penalty. Bobby v. Bies, 556 U.S. 825, 831 (2009) (internal quotation marks omitted).

Rather, recognizing that “serious disagreement” could exist regarding who should be

deemed so intellectually disabled as to be categorically excluded from execution, the

Court “le[ft] to the State[s] the task of developing appropriate ways to enforce the

AEDPA deference. But we have held that “[w]hen a state court analyzes appellate
counsel ineffectiveness as an excuse for procedural default, we must afford AEDPA
deference to that analysis.” Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 746 (10th
Cir. 2016). The OCCA’s analysis of postconviction counsel’s performance as an
excuse for procedural default is no less an adjudication of the merits than the same
inquiry undertaken with respect to appellate counsel’s performance. Accordingly,
because the OCCA considered the merits of Mr. Smith’s intellectual-disability claim
in considering whether ineffective assistance excused his procedural default, we must
apply AEDPA deference to the OCCA’s evaluation of that claim.

13
constitutional restriction.” Atkins, 536 U.S. at 317 (second alteration in original)

(quoting Ford v. Wainwright, 477 U.S. 399, 405, 416–17 (1986)).

The Court in Atkins did, however, base its analysis on clinical definitions of

intellectual disability, and the Court has since recognized that such definitions “were

a fundamental premise of Atkins.” Hall v. Florida, 134 S. Ct. 1986, 1999 (2014). In

particular, the Court noted that “clinical definitions of mental retardation require not

only subaverage intellectual functioning, but also significant limitations in adaptive

skills such as communication, self-care, and self-direction that became manifest

before age 18.” Atkins, 536 U.S. at 318. And the Court observed that “an IQ between

70 and 75 or lower” is “typically considered the cutoff IQ score for the intellectual

function prong of the mental retardation definition.” Id. at 309 n.5. Most states have

responded to the Court’s decision in Atkins by incorporating clinical definitions of

intellectual disability into their death-penalty frameworks.

A clinical diagnosis of intellectual disability generally requires “an IQ score

that is approximately two standard deviations below the mean, considering the

standard error of measurement for the specific instruments used.” American

Association on Intellectual and Developmental Disabilities, Intellectual Disability:

Definition, Classification, and Systems of Supports 31 (11th ed. 2010). The mean

score for a standardized IQ test is 100, and the standard deviation is approximately

15. Hall, 134 S. Ct. at 1994. “Thus a test taker who performs two or more standard

deviations from the mean will score approximately 30 points below the mean on an

IQ test, i.e., a score of approximately 70 points.” Id.

14
 Every IQ test has a “standard error of measurement,” or SEM, that reflects

inherent imprecision in the test. Id. at 1995. The generally accepted SEM adjustment

for assessing intellectual disability is plus or minus five points of IQ, or

approximately two times the typical SEM for an IQ test. Id.; accord American

Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 37

(5th ed. 2013) [DSM-5]. “On tests with a standard deviation of 15 and a mean of 100,

this involves a score of 65–75 (70 +/- 5).” DSM-5 at 37; accord Atkins, 536 U.S. at

309 n.5.

Central to Mr. Smith’s challenge is a theory known as the Flynn Effect, which

proposes that the mean IQ score of a population increases at a rate of approximately

0.3 points per year. Hooks v. Workman, 689 F.3d 1148, 1169 (10th Cir. 2012). Under

this theory, the result of an IQ test must be adjusted to account for how long ago the

test was “normed,” or compared to a representative population at that time. In theory,

because the mean IQ goes up over time, a test normed years before it is given will

return an inflated score relative to the current mean IQ of the population—the

yardstick against which intellectual disability is measured. Accordingly, proponents

of the Flynn Effect argue IQ scores must be adjusted downward by 0.3 points for

each year that has passed since the test was normed to arrive at a proper measure of

the test taker’s IQ. Id. Scientific and legal acceptance of this theory is mixed. Id. at

1170.

15
 b. Oklahoma’s Intellectual-Disability Statute

Oklahoma prohibits by statute the execution of a defendant who has

established intellectual disability by proving three elements: “significantly

subaverage general intellectual functioning, significant limitations in adaptive

functioning, and that the onset of the mental retardation was manifested before the

age of eighteen (18) years.” Okla. Stat. tit. 21, § 701.10b(C). The statute further

provides that an “intelligence quotient of seventy (70) or below on an individually

administered, scientifically recognized standardized intelligence quotient test

administered by a licensed psychiatrist or psychologist is evidence of significantly

subaverage general intellectual functioning.” Id. The statute’s reference to IQ as a

touchstone for determining general intellectual function comes with two important

qualifications: first, “[i]n determining the intelligence quotient, the standard

measurement of error for the test administrated shall be taken into account.” Id.

Second, “in no event shall a defendant who has received an intelligence quotient of

seventy-six (76) or above on any individually administered, scientifically recognized,

standardized intelligence quotient test administered by a licensed psychiatrist or

psychologist, be considered mentally retarded.” Id.

c. Mr. Smith’s Challenge

In support of his intellectual-disability claim, Mr. Smith offered the results of

three IQ tests indicating IQ scores of 76, 79, and 71. He contended that these scores,

once adjusted for the SEM and Flynn Effect, all fall below 70—within the typical

range of intellectual disability. The OCCA rejected this argument, concluding first

16
that the Flynn Effect “is not a relevant consideration in the mental retardation

determination for capital defendants.” Smith II, 245 P.3d at 1237 n.6. The OCCA

went on to conclude that Mr. Smith’s scores of 76 or higher disqualified him from a

finding of intellectual disability. The OCCA held the 76 cutoff was not subject to

adjustment for the SEM because “the Legislature has implicitly determined that any

scores of 76 or above are in a range whose lower error-adjusted limit will always be

above the threshold score of 70.” Id. at 1237. Because section 701.10b of the

Oklahoma Statutes provides that a score 76 or higher on any IQ test bars a defendant

from being found intellectually disabled, the OCCA concluded Mr. Smith’s

intellectual-disability claim failed under the express language of the statute. Id.

Mr. Smith argues that “Oklahoma’s rigid IQ score cut-off” is contrary to and

an unreasonable application of Atkins. Although Mr. Smith couches this argument

broadly in terms of the Oklahoma law’s failure to comport with clinical practices in

evaluating intellectual-disability claims, the only clinical practices he identifies as

relevant to our inquiry are adjustment for the SEM and the Flynn Effect.

With respect to the SEM, Atkins itself does not discuss the concept of the

SEM, and nothing in that decision mandates adjustment of IQ scores to account for

inherent testing error. Rather, the Supreme Court first held in Hall v. Florida that the

SEM must be accounted for in evaluating an Atkins intellectual-disability claim. 134

S. Ct. 1986, 2001 (2014). As discussed above, our review of the OCCA’s decision is

normally limited to evaluating whether that decision was contrary to or unreasonably

applied the holdings of the Supreme Court in force at the time it was rendered.

17
Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003). Because Hall was decided more than

three years after the OCCA ruled against Mr. Smith on this issue, Hall provides no

basis for us to disturb the OCCA’s decision.

But even assuming for purposes of argument that we could consider Hall’s

holding here, section 701.10b of the Oklahoma Statutes explicitly directs courts to

take into account “the standard measurement of error for the test administered” in

determining if a defendant has met the “threshold requirement” of an IQ score of 70

or below. Smith II, 245 P.3d at 1237. And as the OCCA explained in Smith II, the

Oklahoma legislature implicitly incorporated the SEM into the IQ cutoff of 76 by

excluding from the reach of the statute those defendants whose SEM-adjusted IQ

score would remain above the threshold score of 70. Id. That is, a score of 76

adjusted downward by 5 to account for the SEM equals 71 and therefore results in an

adjusted score that falls outside the intellectual-disability threshold of 70. Because

the statute’s cutoff score excludes only those whose SEM-adjusted IQ score would

fall outside the generally accepted range for intellectual disability, Oklahoma’s

statutory regime accounts for the SEM as required by Hall. Thus, even if subsequent

Supreme Court authority is considered, Mr. Smith has failed to demonstrate the

OCCA’s decision is contrary to or an unreasonable application of Hall due to a

failure to account for the SEM.

Mr. Smith’s remaining challenge can therefore be distilled to a claim that the

OCCA unreasonably refused to apply the Flynn Effect in considering the evidence of

18
his IQ.7 His core contention is that “Oklahoma’s strict construction of the

intellectual-functioning element as a bright-line cutoff, with no adjustment for

obsolete norms of outdated IQ tests, misunderstands and distorts the use of IQ

scores.” And Mr. Smith criticizes “Oklahoma’s failure to adjust an IQ score for norm

obsolescence,” contending that his IQ test results were “inflated as a result of the

growing obsolescence of the tests themselves.” As discussed, the adjustment for

“obsolete norms” is known as the Flynn Effect and proposes a 0.3 point reduction in

a test taker’s IQ score for every year since the test was “normed” by comparing it to a

representative population.

This argument, however, squarely contradicts our ruling in Hooks v. Workman,

where we explained that Oklahoma’s failure to apply the Flynn Effect was not

contrary to or an unreasonable application of clearly established federal law in light

of Atkins. 689 F.3d at 1170. We concluded in Hooks that the threshold requirement of

clearly established federal law had not been met, because Atkins does not mandate an

adjustment for the Flynn Effect, federal and state courts are divided on the validity of

applying the Flynn Effect in an Atkins claim, and “no decision of the Supreme Court

squarely addresses the issue.” Id. at 1170 (brackets and ellipses omitted).

7
While Mr. Smith observes generally that, under Oklahoma law, “defendants
who have just one IQ score above 75 always fall outside of Atkins’ protection,
regardless of . . . the existence of other scores below 75,” he raises no specific
challenge to this aspect of the law beyond his Flynn Effect claim and has not
otherwise attempted to demonstrate that such a rule is contrary to federal law.

19
 Mr. Smith contends that our holding in Hooks is “no longer tenable” in light of

Hall, which he argues “made clear that clinical practices must be followed” in

evaluating an Atkins claim. Again leaving aside whether Mr. Smith can rely on

Hall—a decision issued more than three years after the OCCA ruled against him—

Hall says nothing about application of the Flynn Effect to IQ scores in evaluating a

defendant’s intellectual disability. Rather, Hall focuses exclusively on the “statistical

fact” of the SEM for a given IQ test and holds that the SEM must be considered in

evaluating intellectual-disability claims. 134 S. Ct. at 1995. Because our review

under AEDPA is limited to “the holdings, as opposed to the dicta” of the Supreme

Court’s decisions, Lockyer, 538 U.S. at 71, Hall provides no basis for us to depart

from our conclusion in Hooks.8 And Mr. Smith has identified no other Supreme Court

case that has addressed the Flynn Effect at all, let alone mandated its consideration in

evaluating intellectual-disability claims under Atkins. Hooks therefore controls our

resolution of this issue.

Mr. Smith has failed to show that the OCCA’s refusal to apply the Flynn

Effect to his IQ scores was contrary to or an unreasonable application of clearly

established federal law. We therefore affirm the district court’s denial of habeas

relief on Mr. Smith’s intellectual-disability claim.

8
Neither can Hall be read as more broadly prohibiting the application of
Oklahoma’s IQ cutoff score of 76. In Hall, the Supreme Court invalidated Florida’s
“strict IQ test score cutoff of 70” for intellectual-disability claims. Hall v. Florida,
134 S. Ct. 1986, 1994 (2014). But the Court expressly excluded from its analysis “the
rule in States which use a bright-line cutoff at 75 or greater” because the petitioner
had not challenged the higher IQ cutoff. Id. at 1996.

20
 B. Miranda Waiver

Mr. Smith next argues the OCCA’s rejection of his Miranda claim was

unreasonable because the trial court and the OCCA failed to properly apply the

“totality of the circumstances” standard in assessing the validity of his Miranda

waiver. Specifically, Mr. Smith argues the OCCA “flouted and unreasonably” applied

this standard when it agreed with the trial court that Dr. Bianco’s testimony regarding

clinical testing of Mr. Smith’s intellectual capacity was not relevant to the validity of

his Miranda waiver. Because the OCCA addressed this claim on the merits on direct

appeal, we may not grant relief unless Mr. Smith demonstrates the OCCA’s decision

is contrary to or an unreasonable application of clearly established federal law.

Fairchild v. Trammell, 784 F.3d 702, 711 (10th Cir. 2015).

Miranda v. Arizona holds that the Fifth Amendment guarantees a suspect in

custody the right to refuse questioning or to have retained or appointed counsel

present during questioning. 384 U.S. 436, 444–45 (1966). A defendant may waive

these rights, but any such waiver must be made “voluntarily, knowingly and

intelligently.” Id. at 444. To determine if a defendant has validly waived his Miranda

rights, the trial court must engage in two distinct inquiries:

First, the relinquishment of the right must have been voluntary in the sense
that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have been
made with a full awareness of both the nature of the right being abandoned
and the consequences of the decision to abandon it. Only if the “totality of
the circumstances surrounding the interrogation” reveal both an uncoerced
choice and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.

21
Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare v. Michael C., 442 U.S. 707,

725 (1979)). “The totality approach permits—indeed, it mandates—inquiry into all the

circumstances surrounding the interrogation.” Fare, 442 U.S. at 725. These

circumstances include “evaluation of the [suspect’s] age, experience, education,

background, and intelligence, and . . . whether he has the capacity to understand the

warnings given him, the nature of his Fifth Amendment rights, and the consequences of

waiving those rights.” Id. But mental deficiency alone does not render a Miranda waiver

invalid. Colorado v. Connelly, 479 U.S. 157, 164 (1986).

Mr. Smith argued on direct appeal that the trial court “failed to properly

evaluate the validity of the Miranda waiver under the totality of the circumstances

standard” because the trial court “refused to allow a neuropsychologist, Dr. Bianco,

to testify at the suppression hearing as to [Mr. Smith’s] intelligence.” Smith I, 157

P.3d 1155, 1171 (Okla. Crim. App. 2007). Mr. Smith contended “Dr. Bianco’s

testimony was necessary to establish that [Mr. Smith] was of low intelligence and as

a result was unable to comprehend the nature or consequences of the rights he was

waiving.” Id. The OCCA rejected this argument, concluding the trial court had not

abused its discretion in rejecting the proposed testimony as irrelevant to the Miranda

inquiry. Id. at 1171–72. And the OCCA held that the trial court had “sufficient

evidence before [it] to find by a preponderance of evidence that Smith knowingly and

voluntarily waived his Miranda rights.” Id.

Mr. Smith argues that his intellectual capacity is relevant to whether he could

offer a knowing and intelligent waiver of his Miranda rights, and the OCCA’s

22
decision therefore “flies in the face of Moran, Edwards[ v. Arizona, 451 U.S. 477

(1981)], and [Fare v.] Michael C.” He contends Dr. Bianco could have provided

relevant testimony regarding Mr. Smith’s IQ, academic skills, reading ability, and the

potential effect of his chronic PCP use on his ability to understand the waiver of his

Miranda rights. Because the trial court rejected this testimony, Mr. Smith contends it

failed to properly consider his low intelligence in the totality of the circumstances

analysis, and he argues the OCCA’s approval of that decision was therefore contrary

to clearly established federal law.

But Mr. Smith’s narrow focus on Dr. Bianco’s clinical opinion ignores the trial

court’s broader consideration of Mr. Smith’s intelligence in evaluating the validity of

his Miranda waiver. After defense counsel offered Dr. Bianco’s testimony that Mr.

Smith is “borderline to low intelligence” and was “very slow in processing

information,” the trial court gave a detailed explanation of its findings that Mr. Smith

had sufficiently understood the waiver of his Miranda rights. Based on its review of

Mr. Smith’s videotaped interview, the trial court observed that Mr. Smith was “very

cocky” and “extremely verbal about how he tricks people and misleads them and has

got them convinced how crazy he is”; that he “was able to plan how to switch clothes

with different people and conceal his identity” to hide from police; that during the

interview he was not “disoriented or unable to comprehend” but rather was

“extremely animated and disturbingly explanatory about the murders he committed

and how they were other people’s fault”; and that he demonstrated the “ability to

reason, make intelligent decisions, to co-op other people into his plan and to

23
understand perfectly the consequences of his actions as he’s trying to avoid capture.”

Ultimately, the trial court determined that “there are many indicia[] demonstrat[ing]

that [Mr. Smith] possessed intelligence” and that, during the interview, “he

demonstrated in many different ways his understanding of what was going on.”

Accordingly, the trial court concluded that “testimony regarding his specific IQ

range” would not be relevant to its assessment of his Miranda waiver.

The trial court’s findings demonstrate that it gave fair consideration to Mr.

Smith’s intelligence with respect to his ability to understand the nature of the rights

he was waiving and the consequences of his waiver. The trial court’s findings

regarding Mr. Smith’s intelligence are based on the court’s own observations of Mr.

Smith’s behavior and interactions with the detectives over the course of a nearly two-

hour interview, and Mr. Smith has not rebutted the correctness of these findings. See

Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016). Neither has Mr.

Smith identified Supreme Court precedent establishing that a trial court must, when

evaluating the knowing and voluntary nature of a Miranda waiver, assess a

defendant’s intelligence through expert testimony concerning the defendant’s IQ

score or other clinical measures of intellectual ability rather than the trial court’s own

observations of the defendant.

Instead, Mr. Smith seizes on a statement by the trial court, viewed in isolation,

to suggest it failed to consider Mr. Smith’s intelligence in assessing his Miranda

waiver. In response to counsel’s explanation that Dr. Bianco would testify as to his

24
clinical testing of Mr. Smith’s intelligence, the trial court questioned whether that

testimony was relevant:

Now, the fact that he’s [of] low intelligence I don’t think is a huge surprise
to anybody based on the fact that we all deal with criminal law and most of
the Defendants who come in here are not rocket scientists. Is there any law
that says that I am to take that into consideration in Jackson v. Denno?
Even someone of low intelligence.
Mr. Smith believes this statement demonstrates “the trial court did not believe the law

required her to consider Mr. Smith’s low intelligence as part of the inquiry as to whether

Mr. Smith knowingly and intelligently waived his Miranda rights.” But this claim cannot

be squared with the trial court’s detailed discussion of Mr. Smith’s intelligence and its

reasons for finding his Miranda waiver voluntary. A more plausible interpretation is that

the trial court was questioning whether it was obligated to consider expert testimony

concerning clinical evidence of Mr. Smith’s specific IQ. Indeed, the trial court’s findings

demonstrate a proper and thorough consideration of Mr. Smith’s intelligence in assessing

whether he voluntarily, knowingly, and intelligently waived his Miranda rights. Thus,

Mr. Smith has not demonstrated that the OCCA’s approval of the trial court’s ruling was

unreasonable in light of clearly established federal law, and we affirm the district court’s

denial of habeas relief on this claim.

C. Ineffective Assistance in Penalty Phase

Mr. Smith also argues that his trial counsel rendered ineffective assistance in

the investigation and presentation of mitigating evidence in the penalty phase of his

trial. Mr. Smith contends the mitigation case put on by defense counsel was

inadequate and failed to humanize Mr. Smith. Specifically, he claims trial counsel

25
should have instead presented evidence of his low intelligence and his troubled

childhood—including evidence of physical and sexual abuse, early and continuous

drug use, and childhood head injuries. The OCCA addressed these claims on the

merits, and its rulings are therefore subject to deferential review under AEDPA.

Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012).

To establish ineffective assistance of counsel, a defendant must show both that

counsel’s performance was deficient and that the defense was prejudiced by that

deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). An

insufficient showing on either element is fatal to an ineffective-assistance claim,

rendering consideration of the other element unnecessary. Id. at 697. To demonstrate

deficient performance, “the defendant must show that counsel’s representation fell

below an objective standard of reasonableness” when evaluated from counsel’s

perspective at the time. Id. at 688. “The question is whether an attorney’s

representation amounted to incompetence under prevailing professional norms, not

whether it deviated from best practices or most common custom.” Harrington v.

Richter, 562 U.S. 86, 105 (2011). And to establish prejudice, the defendant must

show that, but for counsel’s deficient performance, there is a reasonable probability

the result of the proceeding would have been different. Strickland, 466 U.S. at 694.

Because imposition of the death sentence under Oklahoma law requires a unanimous

jury, Malone v. State, 168 P.3d 185, 215 n.138 (Okla. Crim. App. 2007), “the

question is whether there is a reasonable probability that, absent the errors, [at least

26
one juror] . . . would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Strickland, 466 U.S. at 695.

Although presented as a single claim, Mr. Smith’s argument challenges two

separate rulings by the OCCA. In his first Application for Post-Conviction Relief,

Mr. Smith argued that trial counsel was ineffective for failing to pursue a

“‘reasonable’ investigation into Mr. Smith’s family and social history.” He submitted

evidence showing he was delivered by forceps and born with a swollen area on his

head, his father was an abusive alcoholic, he grew up in a crime-ridden neighborhood

surrounded by gangs, he struggled with school work, and he got involved in gangs at

a young age. The OCCA rejected this claim, finding no prejudice when viewing the

record as a whole because this new evidence was largely cumulative with the

evidence presented at trial and “the slight bit of new information contained in these

materials is tenuous at best.” In his second Application for Post-Conviction Relief,

Mr. Smith argued trial counsel was ineffective for failure to present evidence that,

due to organic brain damage and the long-term effects of his PCP abuse, Mr. Smith

had low intelligence and limited mental abilities. The OCCA rejected this claim on

prejudice grounds as well, concluding the evidence had a “double-edged quality”

because “such evidence might bolster a conclusion that the defendant represents a

continuing threat to society.” Smith II, 245 P.3d 1233, 1242–43 (Okla. Crim. App.

2010). We address the OCCA’s rulings in turn.

27
1. Family and Social History

Mr. Smith contends the OCCA’s rejection of the ineffective-assistance claim

in his first Application for Post-Conviction Relief was based on an unreasonable

determination of the facts.9 We will not conclude that a state court’s determination of

the facts is unreasonable unless the court plainly and materially misstated the record

or the petitioner shows that reasonable minds could not disagree that the finding was

in error. Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016).

In support of his first Application for Post-Conviction Relief, Mr. Smith

submitted affidavits from family members recounting details of Mr. Smith’s

childhood: that his father and other family members imposed harsh physical

discipline or abuse; that his father was an alcoholic and abusive toward his mother

until his parents separated when Mr. Smith was approximately two years old; that

Mr. Smith was introduced to drugs and gangs at a young age by his brothers; that Mr.

Smith was born with a swollen area on his head, was delivered by forceps, and

suffered other head injuries as a child; and that Mr. Smith was sexually abused by an

older woman when he was seven or eight years old. Mr. Smith also attached a

protective order his mother had obtained against his father, in which she stated that

Mr. Smith’s father was “very violent” and had threatened “to kill and to fight” her.

In rejecting Mr. Smith’s claim, the OCCA stated the “affidavits and documents

establish a larger quantity of mitigating evidence than was presented at trial, but

9
Mr. Smith has presented no argument that the OCCA’s ruling on this point
was contrary to or an unreasonable application of clearly established federal law.

28
cover little new ground.” The OCCA observed that the evidence tended to show

“Smith’s father was an alcoholic, that he was abusive, . . . that Smith was a gang

member,” and “that Smith grew up in a neighborhood known for gang activity,

violence, and drug activity.” In the OCCA’s view, this information had, “in one form

or another,” already been developed at trial. The OCCA also noted Mr. Smith had

failed to connect the evidence of childhood head injuries to any then-current medical

diagnoses of brain damage, intellectual disability, or other impairment.10 And the

OCCA concluded that the “slight bit of new information” was “tenuous at best.” The

OCCA therefore concluded that, “when the materials are viewed as a whole,” there

was no reasonable probability the outcome of Mr. Smith’s sentencing would have

been different. Accordingly, the OCCA rejected Mr. Smith’s ineffective-assistance

claim on prejudice grounds without evaluating trial counsel’s performance.

Mr. Smith argues the OCCA’s factual determinations are unreasonable for two

reasons. First, he challenges as “patently unreasonable” the OCCA’s conclusion that

the relevant information had been developed at trial and that the postconviction

materials therefore “cover[ed] little new ground.” While Mr. Smith concedes the jury

heard evidence of his father’s “criminal behavior” and “Mr. Smith’s exposure to

gangs through older brothers,” he contends the jury never heard about the “sexual

10
At the time the OCCA ruled on this claim, Mr. Smith had yet to present to
the OCCA the opinion of Dr. Saint Martin, who diagnosed Mr. Smith with
intellectual disability and opined that his intellectually disability could have been
caused, in part, by “genetics or intrauterine developmental problems” that a
childhood head injury “could have worsened.”

29
and physical abuse Mr. Smith suffered as a child,” the head injuries Mr. Smith

experienced, or “the extent of the violence perpetrated” by his father against his

mother.

But even if the OCCA mischaracterized the specific contours of the evidence

that had been placed before the jury, and even assuming for purposes of our analysis

that the OCCA’s factual error was unreasonable, Mr. Smith has failed to demonstrate

that error entitles him to habeas relief. Under § 2254(d)(2), “an unreasonable

determination of the facts does not, itself, necessitate relief.” Byrd v. Workman, 645

F.3d 1159, 1172 (10th Cir. 2011) (internal quotation marks omitted). Rather, a habeas

petitioner must demonstrate that the state court’s decision is “based on”—i.e., “rests

upon”—that unreasonable determination of the facts. Id.

Mr. Smith has failed to make the necessary showing with respect to the

OCCA’s analysis of prejudice under Strickland. In pressing this argument, Mr. Smith

makes no real attempt to explain how this purported factual error undermined the

OCCA’s Strickland analysis. Rather, he merely asserts that, had the jury been

presented with additional mitigation evidence, “there is a reasonable probability at

least one [juror] would have arrived at a sentence less than death.” But that claim

illustrates only that Mr. Smith disagrees with the OCCA’s ultimate determination that

he suffered no prejudice; it says nothing about whether the OCCA’s prejudice

decision was “based on” an erroneous factual finding.

Mr. Smith’s failure to explain the relationship between the alleged error and

the OCCA’s analysis is fatal when considering the prejudice standard the OCCA was

30
required to apply. In evaluating whether prejudice resulted from the omission of

mitigation evidence, the OCCA was obligated to consider the totality of mitigation

evidence before it—both that adduced at trial and that adduced in the postconviction

proceeding—and to reweigh the combined mitigation evidence against the

aggravation evidence presented by the state. Williams v. Taylor, 529 U.S. 362, 397–

98 (2000). The OCCA was then required to consider whether, in light of the old and

new evidence taken together, a reasonable likelihood existed that one or more jurors

would have voted against the death penalty. Strickland, 466 U.S. at 695. Mr. Smith

has made no attempt to explain how the OCCA’s alleged misunderstanding of

whether certain evidence had been first presented at trial or in Mr. Smith’s

Application for Post-Conviction Relief affected its analysis of whether the totality of

the mitigation evidence gave rise to a reasonable probability of a non-death verdict.

Moreover, the OCCA stated that its prejudice determination was based on a review of

the evidentiary materials as a whole, and Mr. Smith does not argue the OCCA failed

to properly apply the correct standard. Accordingly, Mr. Smith has failed to

demonstrate that the OCCA’s prejudice decision was “based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d)(2) (emphasis added).

Second, Mr. Smith challenges the OCCA’s characterization of the evidence

presented in support of his first Application for Post-Conviction Relief as “slight,”

and “tenuous at best.” He asserts this characterization is unreasonable because it fails

to recognize the relevance of a disadvantaged background to the issue of moral

culpability. However, the OCCA’s characterization of the evidence as “slight” and

31
“tenuous” is a matter of weight, not relevance. Mr. Smith’s argument thus advances

nothing more than his disagreement with the weight afforded to this evidence by the

OCCA. But neither his disagreement, nor even this court’s disagreement, can render

a state court’s weighing of the evidence unreasonable. Brumfield v. Cain, 135 S. Ct.

2269, 2277 (2015). Rather, Mr. Smith was required to show that “reasonable minds

reviewing the record” could not disagree that the OCCA’s determination that he had

not been prejudiced by counsel’s performance was erroneous. Id. (internal quotation

marks omitted). He has not undertaken to do so and, based on our review of the

record, we conclude that reasonable minds could differ on this point. We must

therefore defer to the OCCA’s evaluation of the evidence presented in Mr. Smith’s

first Application for Post-Conviction Relief.

Mr. Smith has failed to demonstrate the OCCA unreasonably concluded he

was not prejudiced by trial counsel’s failure to present the omitted family- and social-

history evidence in mitigation. Because the OCCA reasonably concluded that Mr.

Smith suffered no prejudice, we do not consider whether trial counsel rendered

deficient performance by failing to present this evidence. We therefore affirm the

district court’s denial of habeas relief on this aspect of Mr. Smith’s ineffective-

assistance claim.

2. Low Intelligence and Drug Use

We next consider Mr. Smith’s challenge to the OCCA’s rejection of the

claim—raised in his second Application for Post-Conviction Relief—that his trial

counsel was ineffective for failure to present evidence of his low intelligence due to

32
organic brain damage and long-term PCP use. He contends the OCCA’s

determination that no prejudice stemmed from the omission of this “double-edged”

evidence is contrary to Sears v. Upton, 561 U.S. 945 (2010). We will conclude a

state-court decision is contrary to governing federal law only if it applies a

contradictory rule or confronts a set of facts materially indistinguishable from

Supreme Court precedent and arrives at a different result. Ryder, 810 F.3d at 739.

In his second Application for Post-Conviction Relief, Mr. Smith argued that

trial counsel was “ineffective for failing to provide Mr. Smith’s jury with evidence

that he suffers from organic brain damage and low intelligence” because “[t]rial

counsel failed to investigate the long term effects of phencyclidine (PCP) use and

abuse.” “If counsel had done this investigation,” Mr. Smith contended, “they could

have presented powerful mitigation evidence to the jury.” In support of this claim,

Mr. Smith relied on reports from Drs. Manuel Saint Martin and Deborah Mash, who

both opined that Mr. Smith’s long-term use of PCP likely contributed to brain

damage and lowered intelligence. Mr. Smith specifically quoted Dr. Saint Martin’s

conclusions regarding the effect of drug use on his developing brain:

[T]he clinical picture for Mr. Smith is . . . childhood/adolescent brain insult
caused by substance abuse.
....
The substances linked to neural damage in Mr. Smith’s developing brain
are PCP, alcohol and marijuana. PCP is known to produce dissociative
states and symptoms similar to schizophrenia. Long term use of PCP is
neurotoxic in rat and primate brains, and in humans it inhibits the brain’s
ability to learn new information.
....

33
 The tests indicate non-specific brain damage affecting his attention,
calculation, and short term memory. These . . . neuropsychological deficits
could be due to Mr. Smith’s substance use, especially PCP . . . .

(Alteration and omissions in original.) Mr. Smith also quoted Dr. Mash’s opinion that

“[t]he early exposure to PCP and [Mr. Smith’s] chronic use contributed to diffuse

impairment of cognitive functioning” and “Mr. Smith’s [early] exposure [and chronic

use of] ‘wet’ undoubtedly contributed to developmental brain abnormalities . . . .”11

(Alterations and omission in original.)

The OCCA rejected Mr. Smith’s ineffective-assistance claim. Limiting its

analysis to prejudice, the OCCA concluded this evidence has a “double-edged

quality,” and noted that a “a jury presented with evidence that the defendant is a

chronic substance abuser might draw a negative inference from that evidence just as

easily as it might find it mitigating.” Smith II, 245 P.3d at 1242–43. The OCCA also

noted, in the context of Mr. Smith’s case, “such evidence might bolster a conclusion

that the defendant represents a continuing threat to society, one of the aggravating

circumstances charged.” Id. at 1243. The OCCA accordingly concluded that Mr.

Smith failed to demonstrate “a reasonable probability that the jury would have

reached a different sentencing result if it had been presented with evidence of [Mr.

Smith’s] chronic use of PCP and its allegedly attendant brain damage.” Id.

11
According to Dr. Mash, “wet” is slang for a method of PCP ingestion that
involves “dipping cigarettes or marijuana cigarettes in liquid PCP” or a solution of
PCP and embalming fluid.

34
 Mr. Smith raises three challenges to the OCCA’s conclusion. First, he argues

the OCCA unreasonably “presupposed that Mr. Smith’s organic brain damage and

low intelligence [were] caused by long-term daily use of [PCP].” (Alterations in

original, internal quotation marks omitted.) He contends that Dr. Saint Martin

attributed only some of his impairments to PCP use but “made clear there is evidence

from [Mr. Smith’s] school records and developmental history that he had significant

intellectual impairments before he began using illicit substances.” (Internal quotation

marks omitted.) Thus, he claims, “[a]ny statement that Mr. Smith’s intellectual

limitations were caused exclusively by his substance abuse is objectively

unreasonable.”

In making this argument, Mr. Smith ignores his own briefing of the claim in

his second Application for Post-Conviction Relief. As discussed above, Mr. Smith’s

argument before the OCCA focused exclusively on his drug abuse as a cause of brain

damage and low intelligence. Indeed, in presenting Dr. Saint Martin’s opinion to the

OCCA, Mr. Smith omitted language from the quoted portions of Dr. Saint Martin’s

report that attributed Mr. Smith’s “mental retardation” to “prenatal or idiopathic

brain insult” and opined that his neuropsychological deficits could also be due to “the

factors causing his idiopathic mental retardation.” The OCCA’s view of Mr. Smith’s

theory as claiming that his alleged brain damage and low intelligence were caused by

his history of drug abuse is not unreasonable in light of Mr. Smith’s selective

quotation of his own experts’ opinions to present precisely that picture to the court.

35
 Second, Mr. Smith contends the OCCA’s characterization of this evidence as

having a “double-edged quality” is contrary to established Supreme Court precedent.

Mr. Smith contends the Supreme Court “rejected the ‘double-edged’ characterization

of this type of mitigating evidence” in Sears. In particular, he relies on the Court’s

statement in Sears that “[c]ompetent counsel should have been able to turn some of

the adverse evidence into a positive—perhaps in support of a cognitive deficiency

mitigation theory.” 561 U.S. at 951. Thus, Mr. Smith contends, Sears constitutes a

clearly established rejection of the “double-edged” theory of prejudice employed by

the OCCA.

We cannot agree that Sears clearly prohibits courts from considering the

“doubled-edged” nature of mental-health and substance-abuse evidence in evaluating

prejudice resulting from its omission during the penalty phase of trial. We first note

that Mr. Smith relies on a portion of Sears discussing the attorney-performance

element of the petitioner’s Strickland claim, not prejudice. Thus, to the extent Sears

can be read as establishing a general rule relating to the handling of this type of

evidence, it establishes at best that an attorney’s failure to use evidence of

“substantial deficits in mental cognition and reasoning” in some positive fashion may

constitute deficient performance. But because the OCCA never reached the issue of

deficient performance, Sears does not control our analysis here. 12

12
The Court in Sears did determine the state court’s analysis of prejudice was
flawed, but it did so on a different ground. Sears v. Upton, 561 U.S. 945, 954–56
(2010). The state trial court had failed to consider both the newly uncovered evidence

36
 Moreover, the Supreme Court has explicitly recognized that mental-health

evidence, including evidence of low intelligence, can have a double-edged impact on

the jury. In Atkins v. Virginia, the court specifically noted that the intellectually

disabled face “a special risk of wrongful execution” in part because “reliance on

mental retardation as a mitigating factor can be a two-edged sword that may enhance

the likelihood that the aggravating factor of future dangerousness will be found by

the jury.” 536 U.S. 304, 321 (2002). And subsequent to Sears, in Cullen v.

Pinholster, the Court reiterated the principle, citing Atkins for the proposition that

“mitigating evidence can be a ‘two-edged sword’ that juries might find to show

future dangerousness.” 563 U.S. 170, 201 (2011). Like this case, Cullen involved a

claim of ineffective assistance for trial counsel’s failure to introduce mitigating

evidence. There, the Court concluded that the bulk of new evidence presented by the

petitioner in support of his state habeas petition—evidence that he suffered from

bipolar mood disorder and that his family had a history of “serious substance abuse,

mental illness, and criminal problems”—was of “questionable mitigating value”

because it could have opened the door to rebuttal and may have convinced the jury

the petitioner “was simply beyond rehabilitation.” Id. Because the other new

evidence presented by the petitioner was “sparse,” the Court held the state court did

and the evidence introduced at trial in weighing the probability of a different
sentencing result. Id. at 955–56. Accordingly, the Supreme Court remanded for the
state court to perform a proper prejudice analysis. Id. at 956.

37
not unreasonably conclude that the petitioner had failed to demonstrate prejudice

under Strickland. Id. at 202.

From these decisions, it is apparent the Supreme Court did not clearly establish

in Sears that mental-health and substance-abuse evidence cannot be viewed as

“double-edged” in evaluating the prejudicial effect of omitting such evidence in the

penalty phase.13 “The absence of clearly established federal law is dispositive under

§ 2254(d)(1).” Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012) (internal

quotation marks omitted).

Last, Mr. Smith argues more generally that the OCCA’s prejudice

determination was unreasonable. We interpret this challenge as a claim that the

OCCA unreasonably applied the Strickland analysis. He contends “the OCCA’s

reliance on the role of the continuing threat aggravating circumstance” is

unreasonable because the jury “had already heard the State’s case in aggravation,

including evidence of Mr. Smith’s behavior.” Although Mr. Smith does not develop

this argument further, he presumably seeks to liken his case to those like Smith v.

Mullin, where we have concluded that the aggravating “edge” of the evidence was

blunted because the negative aspects of the evidence had already been placed before

the jury. 379 F.3d 919, 943 & n.11 (10th Cir. 2004). But Mr. Smith does not explain

how the aggravating edge of this evidence—that damage to his brain was caused or

13
Mr. Smith also contends our own precedents “foreclose a finding of no
prejudice on the ‘double-edged’ characterization.” But none of the decisions Mr.
Smith cites have addressed the dispositive question here: whether the Supreme Court
has clearly established the rule he seeks to apply to the OCCA’s decision.

38
exacerbated by habitual drug use—was before the jury in such a way that it was

unreasonable for the OCCA to conclude the evidence was likely to be as harmful to

him as helpful. Absent such a showing, we cannot conclude the OCCA’s application

of Strickland was unreasonable.14

Mr. Smith has failed to demonstrate the OCCA unreasonably concluded he

was not prejudiced by his trial counsel’s failure to present additional evidence in

mitigation. Absent a showing of prejudice, his claims under Strickland must fail. We

therefore affirm the district court’s denial of habeas relief on Mr. Smith’s ineffective-

assistance claims.

D. Cumulative Error

As a final point, Mr. Smith contends he is entitled to relief on the basis of

cumulative error. “A cumulative-error analysis aggregates all errors found to be

harmless and analyzes whether their cumulative effect on the outcome of the trial is

such that collectively they can no longer be determined to be harmless.” Cargle v.

Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003). “The cumulative-error analysis applies

where there are two or more actual errors. It does not apply, however, to the

cumulative effect of non-errors.” United States v. Franklin-El, 555 F.3d 1115, 1128

(10th Cir. 2009) (internal quotation marks omitted). Respondent contends our review

14
Mr. Smith also contends the OCCA failed to properly conduct a totality of
the evidence review under Strickland and “considered only Mr. Smith’s ‘chronic use
of PCP and its allegedly attendant brain damage,’” rather than all of the evidence
offered in mitigation, to evaluate prejudice. Mr. Smith has identified nothing in the
OCCA’s decision to suggest its analysis was so limited, and we can identify nothing
that lends merit to Mr. Smith’s claim.

39
of this claim is constrained by AEDPA and that no clearly established federal law

recognizes cumulative error as a ground for habeas relief. However, because we can

easily resolve these claims on the merits, it is not necessary for us to evaluate what

deference may be owed to the OCCA under the circumstances.

Mr. Smith identifies what he terms two “clusters” of error that he contends

cumulatively deprived him of a fair trial. With respect to the first cluster, Mr. Smith

argues his trial counsel’s ineffectiveness, his claimed intellectual disability, and the

admission of his confession “individually and in combination resulted in an

unreliable sentence of death.” Because we have concluded that the OCCA did not

unreasonably reject Mr. Smith’s Atkins claim or his challenge to the admission of his

confession, there are not “two or more actual errors” to cumulate with respect to this

claim. Id. (internal quotation marks omitted).

The second cluster of errors Mr. Smith identifies involves the admission of his

confession compounded with the trial court’s error in responding to a jury question

outside the presence of Mr. Smith’s counsel, an error the OCCA recognized on direct

appeal. Because we have concluded the OCCA did not unreasonably reject Mr.

Smith’s challenge to the admission of his confession, there is only one error—the

trial court’s response to the jury’s question—and, therefore, nothing for us to

cumulate.

Thus, Mr. Smith has failed to demonstrate that the cumulative effect of two or

more errors had a prejudicial effect on the outcome of his trial, and he is not entitled

to habeas relief on this claim.

40
 IV. CONCLUSION

Mr. Smith has failed to demonstrate that the OCCA’s decisions on his

intellectual disability, Miranda waiver, or ineffective-assistance claims were

unreasonable. The district court properly denied habeas relief on each of Mr. Smith’s

claims. We therefore AFFIRM the judgment of the district court.

41