Grant v. Royal

FILED
United States Court of Appeals
Tenth Circuit

March 30, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD ANTHONY GRANT,

Petitioner - Appellant,

v. No. 14-6131

TERRY ROYAL, Warden, Oklahoma
State Penitentiary, *

Respondent - Appellee.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:10-CV-00171-F)

Patti Palmer Ghezzi, Assistant Federal Public Defender (Michael Lieberman,
Assistant Federal Public Defender, with her on the briefs), Oklahoma City,
Oklahoma, for Petitioner-Appellant.

Caroline E.J. Hunt, Assistant Attorney General (E. Scott Pruitt, Attorney General
of Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-
Appellee.

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges. **

*
In 2016 Mr. Terry Royal became the Warden of the Oklahoma State
Penitentiary. Accordingly he has been substituted per Fed. R. App. P. 43(c)(2).
**
The Honorable Neil M. Gorsuch heard oral argument in this appeal,
but has since been confirmed as an Associate Justice of the United States
Supreme Court; he did not participate in the consideration or preparation of this
opinion. The Honorable Nancy L. Moritz replaced him on the panel.
HOLMES, Circuit Judge.

Petitioner Donald Anthony Grant, an Oklahoma state prisoner on death

row, appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. Additionally, Mr. Grant filed a motion to expand the certificate of

appealability (“COA”). Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm the district court’s denial of Mr. Grant’s § 2254 petition and deny

Mr. Grant’s motion to expand the COA.

I. BACKGROUND

A. Facts

“The OCCA outlined the facts of Mr. [Grant’s] crimes, and ‘[w]e presume

that the factual findings of the state court are correct’ unless Mr. [Grant] presents

clear and convincing evidence otherwise.” Clayton Lockett v. Trammel, 711 F.3d

1218, 1222 (10th Cir. 2013) (quoting Fairchild v. Workman, 579 F.3d 1134, 1137

(10th Cir. 2009)); see also 28 U.S.C. § 2254(e)(1) (“[A] determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.”).

The OCCA provided the following factual summary:

The essential facts of the crimes are not disputed. On July
18, 2001, [Mr. Grant] entered a LaQuinta Inn in Del City,
ostensibly to fill out an employment application. In reality,

2
 [Mr. Grant] had planned to rob the hotel in order to obtain money
to post bond for a girlfriend, Shlonda Gatewood (who was in the
Oklahoma County Jail at the time), and was prepared to kill any
witnesses to the crime. [Mr. Grant] may have been motivated to
strike this particular business because another girlfriend of his,
Cheryl Tubbs, had been fired from employment there a few
months before; in any event, [Mr. Grant] was familiar with the
layout of the property and the location of video surveillance
equipment.

When [Mr. Grant] saw the hotel manager, Brenda
McElyea, he approached her with a pistol in his hand and ordered
her to walk to a storage room, where he fatally shot her once in
the head, and slashed her neck and back with a box knife to make
sure the knife was sharp enough to use on his next victim.
[Mr. Grant] then left the storage room and approached another
employee, Suzette Smith, in the break room. [Mr. Grant] ordered
Smith at gunpoint to give him the money from the hotel register,
which she did. [Mr. Grant] then ordered Smith to walk back to
the manager’s office, where he shot her three times in the face.
Smith continued to struggle to escape, so [Mr. Grant] brutally
beat her and cut her numerous times with his knife. He hit Smith
in the head with his pistol, attempted to break her neck, and
threw a computer monitor on her head in an effort to stop her
struggling. Eventually, Smith succumbed to her wounds and died
in the office. Before leaving the office, [Mr. Grant] took
personal property from Smith’s purse.

[Mr. Grant] then left the hotel and walked to a nearby
discount store, where he abandoned his pistol and some traveler’s
checks he had taken in the robbery. He then called a cab to take
him to the home of Cheryl Tubbs. Later that day, [Mr. Grant]
used money from the robbery to pay Shlonda Gatewood’s bond,
which was about $200. [Mr. Grant] and Gatewood then used a
stolen car to drive from Oklahoma City to New York City, where
[Mr. Grant] had family. About a month after the murders,
[Mr. Grant] was arrested in New York and returned to Oklahoma.

Grant v. State, 205 P.3d 1, 7 (Okla. Crim. App. 2009) (numeric paragraph

notations and footnote omitted).

3
 B. Procedural History

In August 2001, Mr. Grant was charged with two counts of first degree

murder and two counts of robbery with a firearm for the murders of Brenda

McElyea and Suzette Smith during the robbery of the La Quinta Inn in Del City,

Oklahoma. With respect to the murder counts, the State sought the death penalty.

It charged several aggravating circumstances to support such a sanction:

(1) that the defendant knowingly created a great risk of death to
more than one person; (2) that the murders were committed for
the purpose of avoiding arrest or prosecution; (3) that the
murders were committed by a person serving a sentence of
imprisonment on conviction of a felony; and (4) that a
probability existed that the defendant would pose a continuing
threat to society. As to one of the murder counts (Count 2)
[relating to Ms. Smith], the State also alleged that the murder
was heinous, atrocious, or cruel.

Grant, 205 P.3d at 6 n.1.

In November 2001, Mr. Grant’s counsel moved for a determination of his

competency to stand trial. The parties litigated Mr. Grant’s competency for the

next four years, culminating in a February 2005 trial, at which a jury found

Mr. Grant competent to stand trial.

Mr. Grant’s eight-day jury trial began on November 14, 2005. The jury

found Mr. Grant guilty on all counts. “As to each of the murder counts, the jury

found the existence of all aggravating circumstances alleged, and recommended

punishment of death on each count.” Id. at 6–7. Mr. Grant filed a direct appeal

and an application for an evidentiary hearing with the Oklahoma Court of

4
Criminal Appeals (“OCCA”). The OCCA affirmed Mr. Grant’s conviction and

death sentence and denied his request for an evidentiary hearing. In 2008

Mr. Grant filed an application for post-conviction relief with the OCCA. The

OCCA again denied relief.

In October 2012, Mr. Grant filed the instant 28 U.S.C. § 2254 petition with

the United States District Court for the Western District of Oklahoma. Mr. Grant

raised numerous propositions of error, five of which are relevant to the present

appeal. First, he argued that he was denied procedural due process because the

trial court failed to hold a second competency hearing in response to Mr. Grant’s

alleged manifestations of incompetence leading up to and during trial. Second, he

raised several ineffective-assistance-of-counsel claims relating to trial counsel’s

failures to investigate and present evidence regarding his competence and other

mitigating circumstances. Third, Mr. Grant challenged the constitutionality of a

jury instruction and related prosecutorial statements concerning mitigation

evidence. Fourth, Mr. Grant raised a constitutional challenge to the peremptory

strike of a potential juror on the basis of race. Finally, Mr. Grant argued that he

was prejudiced by cumulative error. The district court denied Mr. Grant’s

petition and granted a COA on the single issue of procedural competency.

Mr. Grant filed a timely appeal. In our December 12, 2014 Case

Management Order, we granted a COA on Mr. Grant’s additional claims

concerning (1) ineffective assistance of trial counsel, (2) the challenged jury

5
instruction and related prosecutorial statements, (3) the peremptory strike of a

minority (i.e., African-American) juror, and (4) cumulative error. On December

29, 2014, Mr. Grant filed a motion to expand the COA to include one additional

issue. This motion is still pending before us.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

“circumscribes our review of federal habeas claims that were adjudicated on the

merits in state-court proceedings.” Hooks v. Workman (“Victor Hooks II”), 689

F.3d 1148, 1163 (10th Cir. 2012). “Under AEDPA, a petitioner is entitled to

federal habeas relief on a claim only if he can establish that the state court’s

adjudication of the claim on the merits (1) ‘resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established

Federal law’; or (2) ‘resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” Littlejohn v. Trammell (“Littlejohn I”), 704 F.3d 817, 824 (10th

Cir. 2013) (quoting 28 U.S.C. § 2254(d)(1), (2)); see Kernan v. Cuero, --- U.S. ---

-, 138 S. Ct. 4, 5 (2017) (per curiam); Byrd v. Workman, 645 F.3d 1159, 1166

(10th Cir. 2011).

The AEDPA standard is “highly deferential [to] state-court rulings [and]

demands that state-court decisions be given the benefit of the doubt.” Woodford

v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation omitted) (quoting Lindh

6
v. Murphy, 521 U.S. 320, 333 n.7 (1997)); accord Littlejohn I, 704 F.3d at 824;

Victor Hooks II, 689 F.3d at 1163. “A habeas petitioner meets this demanding

standard only when he shows that the state court’s decision was ‘so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.’” Dunn v. Madison, ---

U.S. ----, 138 S. Ct. 9, 11 (2017) (per curiam) (quoting Harrington v. Richter, 562

U.S. 86, 103 (2011)). As the Court explained in Harrington, “If this [AEDPA]

standard is difficult to meet, that is because it was meant to be . . . . It preserves

authority to issue the writ in cases where there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with this Court’s

precedents. It goes no further.” 562 U.S. at 102 (citations omitted).

“In applying the legal inquiry under § 2254(d)(1), we ask at the threshold

‘whether there exists clearly established federal law, an inquiry that focuses

exclusively on holdings of the Supreme Court.’” Littlejohn I, 704 F.3d at 825

(quoting Victor Hooks II, 689 F.3d at 1163); see Cuero, 138 S. Ct. at 8 (“[W]e

still are unable to find in Supreme Court precedent that ‘clearly established

federal law’ demanding specific performance as a remedy. To the contrary, no

‘holdin[g] of this Court’ requires the remedy of specific performance under the

circumstances present here.” (alteration in original) (quoting Harrington, 562

U.S. at 100). “The absence of clearly established federal law is dispositive under

§ 2254(d)(1)” and results in the denial of habeas relief. Victor Hooks II, 689 F.3d

7
at 1163 (quoting House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008)).

If clearly established federal law exists, a state-court decision is contrary to

it only if the court “applies a rule different from the governing law set forth in

[Supreme Court] cases, or if it decides a case differently than [the Supreme Court

has] done on a set of materially indistinguishable facts.” Id. (alteration in

original) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). “A state court

decision unreasonably applies federal law if it ‘identifies the correct governing

legal principle from [Supreme Court] decisions but unreasonably applies the

principle to the facts of the prisoner’s case.’” Littlejohn I, 704 F.3d at 825

(alteration in original) (quoting Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.

2006)).

Finally, “[h]abeas relief is also warranted if the state court’s adjudication

of a claim on the merits ‘resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.’” Victor Hooks II, 689 F.3d at 1163 (quoting 28 U.S.C. §

2254(d)(2)). “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.” Michael Smith v. Duckworth, 824 F.3d 1233, 1250 (10th Cir. 2016) (citing

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

137 S. Ct. 1333, reh’g denied, 137 S. Ct. 2153 (2017).

8
 “[W]e review the district court’s legal analysis of the state court decision

de novo,” Byrd, 645 F.3d at 1165 (alteration in original) (quoting Bland, 459 F.3d

at 1009), and “the factual findings of the state court are [presumed] correct unless

the petitioner rebuts that presumption by ‘clear and convincing evidence,’” id.

(quoting 28 U.S.C. § 2254(e)(1)). Moreover, our review “is limited to the record

that was before the state court that adjudicated the claim on the merits.” Victor

Hooks II, 689 F.3d at 1163 (alteration in original) (quoting Cullen v. Pinholster,

563 U.S. 170, 181 (2011)).

“Our standard of review changes if there has been no state-court

adjudication on the merits of the petitioner’s claim.” Byrd, 645 F.3d at 1166.

That is, “[t]he [deferential] § 2254(d) standard does not apply to issues not

decided on the merits by the state court.” Welch v. Workman, 639 F.3d 980, 992

(10th Cir. 2011) (emphasis added) (quoting Bland, 459 F.3d at 1010). For such

claims, “we exercise our ‘independent judgment’ and ‘review the federal district

court’s conclusions of law de novo,’” and its factual findings for clear error.

Victor Hooks II, 689 F.3d at 1163–64 (quoting McCracken v. Gibson, 268 F.3d

970, 975 (10th Cir. 2001)). And, even in the setting where we lack a state court

merits determination, “[a]ny state-court findings of fact that bear upon the claim

are entitled to a presumption of correctness rebuttable only by ‘clear and

convincing evidence.’” Id. (quoting 28 U.S.C. § 2254(e)(1)).

9
 “Finally, we may not consider claims that have been ‘defaulted in state

court on adequate and independent state procedural grounds’” absent the

petitioner’s demonstration of “cause for the default and actual prejudice as a

result of the alleged violation of federal law, or [that] failure to consider the

claims will result in a fundamental miscarriage of justice.’” Byrd, 645 F.3d at

1167 (quoting Matthews v. Workman, 577 F.3d 1175, 1195 (10th Cir. 2009)); see

also Davila v. Davis, --- U.S. ----, 137 S. Ct. 2058, 2064 (2017) (“[A] state

prisoner must exhaust available state remedies before presenting his claim to a

federal habeas court. The exhaustion requirement is designed to avoid the

‘unseemly’ result of a federal court ‘upset[ting] a state court conviction without’

first according the state courts an ‘opportunity to . . . correct a constitutional

violation[.]’” (alteration in original) (citation omitted) (quoting Rose v. Lundy,

455 U.S. 509, 518 (1982))).

We now turn to assessing Mr. Grant’s claims.

III. MERITS

A. Procedural Due Process Competency Claim

Mr. Grant argues that the trial court violated his procedural due process

rights by allowing his trial to proceed while he was incompetent. The district

court deemed this claim to be procedurally barred, finding that Mr. Grant failed to

exhaust the claim in state court. Because we agree with the district court that

Mr. Grant failed to exhaust his procedural due process competency argument

10
before the OCCA, we uphold this aspect of the district court’s ruling.

1. Legal Framework

“A state prisoner generally must exhaust available state-court remedies

before a federal court can consider a habeas corpus petition.” Bland, 459 F.3d at

1011; see 28 U.S.C. § 2254(b)(1)(A); accord Thacker v. Workman, 678 F.3d 820,

838–39 (10th Cir. 2012); see also Ellis v. Raemisch, 872 F.3d 1064, 1076 (10th

Cir. 2017) (“More specifically, AEDPA prohibits federal courts from granting

habeas relief to state prisoners who have not exhausted available state

remedies.”). “Exhaustion requires that the claim be ‘fairly presented’ to the state

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

claim in state court.’” Fairchild, 579 F.3d at 1151 (quoting Bland, 459 F.3d at

1011); accord Jeremy Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir.

2015), cert. denied sub nom. Williams v. Warrior, --- U.S. ----, 136 S. Ct. 806

(2016). Put another way, “a federal habeas petitioner [must] provide the state

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

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

(1983); accord Picard v. Connor, 404 U.S. 270, 277 (1971).

“[T]he crucial inquiry is whether the ‘substance’ of the petitioner’s claim

has been presented to the state courts in a manner sufficient to put the courts on

notice of the federal constitutional claim.” Prendergast v. Clements, 699 F.3d

1182, 1184 (10th Cir. 2012) (citing Picard, 404 U.S. at 278). “A petitioner need

11
not invoke ‘talismanic language’ or cite ‘book and verse on the federal

constitution.’” Id. (quoting Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.

1989)); accord Picard, 404 U.S. at 278. But, a “‘[f]air presentation’ requires

more than presenting ‘all the facts necessary to support the federal claim’ to the

state court.” Bland, 459 F.3d at 1011 (emphasis added) (quoting Anderson, 459

U.S. at 6).

Nor is citing the relevant legal principles, absent the relevant facts,

sufficient to fairly present a claim. See Picard, 404 U.S. at 277 (finding no fair

presentation where state court had no “opportunity to apply controlling legal

principles to the facts bearing upon [the federal] claim”); Anderson, 459 U.S. at 6

(“[A] federal habeas petitioner [must] provide the state courts with a ‘fair

opportunity’ to apply controlling legal principles to the facts bearing upon his

constitutional claim.”); Jeremy Williams, 782 F.3d at 1210 (noting that the

substance of the claim “includes not only the constitutional guarantee at issue, but

also the underlying facts that entitle a petitioner to relief”).

Furthermore, a “petitioner cannot assert entirely different arguments [in his

or her request for habeas relief] from those raised before the state court.” Bland,

459 F.3d at 1011. That is, there is no fair presentation if the claim before the state

court was only “somewhat similar” to the claim pressed in the habeas petition.

Duncan v. Henry, 513 U.S. 364, 366 (1995); see also Bland, 459 F.3d at 1012

(finding failure to exhaust “[b]ecause presentation of a ‘somewhat similar’ claim

12
is insufficient to ‘fairly present’ a federal claim”). Indeed, “mere similarity of

claims is insufficient to exhaust.” Id. And the assertion of a general claim before

the state court is insufficient to exhaust a more specific claim asserted for habeas

relief. See Gray v. Netherland, 518 U.S. 152, 163 (1996) (“[I]t is not enough to

make a general appeal to a constitutional guarantee as broad as due process to

present the ‘substance’ of such a claim to a state court.”); see also Thomas v.

Gibson, 218 F.3d 1213, 1221 n.6 (10th Cir. 2000) (holding petitioner’s

“generalized” state-court ineffective-assistance claim was insufficient to exhaust

his later, more specific federal habeas claim).

Indeed, in order to be fairly presented, the state-court claim must be the

“substantial equivalent” of its federal habeas counterpart. Picard, 404 U.S. at

278. There is no such substantial equivalency where the claim raised in habeas

proceedings is “in a significantly different and stronger posture than it was when

the state courts considered it.” Jones v. Hess, 681 F.2d 688, 694 (10th Cir. 1982).

To satisfy exhaustion, then, the habeas petition’s focus—as well as the alleged

error that it identifies—cannot depart significantly from what the petitioner had

presented to the state court. See, e.g., Bland, 459 F.3d at 1012 (noting that the

habeas “challenge to the actions of the prosecution differs significantly from” the

state-court “challenge to the instructions given by the court,” even where both

concerned the propriety of a given jury instruction). Nor is it acceptable for the

habeas petitioner to “shift” the “basis for [his or her] argument” away from what

13
was previously raised in state court. Gardner v. Galetka, 568 F.3d 862, 872 (10th

Cir. 2009) (claims were not “substantially the same” where petitioner’s state-

court ineffective-assistance claim was predicated on counsel’s inaccurate

description of petitioner’s injury, but where his habeas claim was grounded on

counsel’s failure to undertake a thorough investigation of the murder weapon);

Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999) (holding a claim for

ineffective assistance of counsel not exhausted where petitioner “based [his state-

court claim] on different reasons” and on different “bases [than those] upon which

his current ineffective assistance of counsel claims rely”).

There are consequences for failing to properly present a claim. “Generally,

a federal court should dismiss unexhausted claims without prejudice so that the

petitioner can pursue available state-court remedies.” Bland, 459 F.3d at 1012;

see 28 U.S.C. § 2254(b)(1)(A). “However, dismissal without prejudice for failure

to exhaust state remedies is not appropriate if the state court would now find the

claims procedurally barred on independent and adequate state procedural

grounds.” Smallwood, 191 F.3d at 1267 (citing Coleman v. Thompson, 501 U.S.

722, 735 n.1 (1991)). Where the relevant state courts “would now find those

claims procedurally barred, there is a procedural default for the purposes of

federal habeas review.” Bland, 459 F.3d at 1012 (quoting Dulin v. Cook, 957

F.2d 758, 759 (10th Cir. 1992)); see also Moore v. Schoeman, 288 F.3d 1231,

1233 n.3 (10th Cir. 2002) (“‘Anticipatory procedural bar’ occurs when the federal

14
courts apply procedural bar to an unexhausted claim that would be procedurally

barred under state law if the petitioner returned to state court to exhaust it.”)

(citing Hain v. Gibson, 287 F.3d 1224, 1240 (10th Cir. 2002)). A petitioner may

overcome the procedural bar only if he can “demonstrate cause for the default and

actual prejudice as a result of the alleged violation of federal law, or demonstrate

that failure to consider the claims will result in a fundamental miscarriage of

justice.” Coleman, 501 U.S. at 750.

2. Analysis

We conclude after thorough review that Mr. Grant presented only a

substantive due process competency argument to the OCCA on direct appeal. In

short, he failed to present the substance of his procedural due process competency

argument to the state court. Mr. Grant’s argument to the contrary depends on the

inherent similarities between the two types of competency challenges. We

conclude, however, that Mr. Grant’s presentation of a “somewhat similar” claim,

Duncan, 513 U.S. at 366, on direct appeal 1 was insufficient to have put the state

courts on notice of the procedural competency claim he now urges, Jones, 681

F.2d at 694.

1
We confine our fair-presentation analysis to Mr. Grant’s direct
appeal briefing because he identifies no alternative places where he might have
established exhaustion.

15
 a

We begin the analysis by delineating the differences between claims of

procedural due process competency and claims of substantive due process

competency.

“[C]ompetency claims can raise issues of both substantive and procedural

due process.” Walker v. Attorney Gen., 167 F.3d 1339, 1343 (10th Cir. 1999).

Although “sometimes there is overlap,” procedural competency and substantive

competency are distinct claims. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th

Cir. 1999). “A procedural [due process] competency claim is based upon a trial

court’s alleged failure to hold a competency hearing, or an adequate competency

hearing, while a substantive competency claim is founded on the allegation that

an individual was tried and convicted while, in fact, incompetent.” Allen v.

Mullin, 368 F.3d 1220, 1239 (10th Cir. 2014) (quoting McGregor v. Gibson, 248

F.3d 946, 952 (10th Cir. 2001) (en banc)).

“The distinction between substantive and procedural claims is significant

because courts have evaluated these claims under differing evidentiary

standards.” Walker, 167 F.3d at 1344. To make out a procedural competency

claim, a defendant must demonstrate that “a reasonable judge should have had a

bona fide doubt as to [the defendant’s] competence at the time of trial,”

McGregor, 248 F.3d at 954, but the claim does “not require proof of actual

incompetency,” Allen, 368 F.3d at 1239. Further, procedural competency imposes

16
on the trial court a continuing duty to monitor the defendant’s behavior. See

Drope v. Missouri, 420 U.S. 162, 181 (1975) (“Even when a defendant is

competent at the commencement of his trial, a trial court must always be alert to

circumstances suggesting a change that would render the accused unable to meet

the standards of competence to stand trial.”).

“A substantive competency claim, on the other hand, requires the higher

standard of proof of incompetency by a preponderance of the evidence.” Allen,

368 F.3d at 1239 (emphasis added) (citing Cooper v. Oklahoma, 517 U.S. 348,

368–69 (1996)). A petitioner alleging a substantive claim must demonstrate that

he actually lacked a “sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding [and] a rational as well as a factual

understanding of the proceedings against him.” Dusky v. United States, 362 U.S.

402, 402 (1960). Thus, a petitioner alleging a substantive competency claim must

show that he was convicted during a period of incompetency, McGregor, 247 F.3d

at 953, whereas a procedural competency petitioner “states a procedural

competency claim by alleging the trial court failed to hold a competency hearing

after the defendant’s mental competency was put in issue.” Valdez v. Ward, 219

F.3d 1222, 1239 (10th Cir. 2000).

Moreover, the two claims rest on different evidentiary bases. In evaluating

a procedural competency claim, “[o]ur review is limited to the evidence that was

made available to the state trial court.” Lay v. Royal, 860 F.3d 1307, 1314 (10th

17
Cir. 2017) (citing Allen, 368 F.3d at 1239). However, post-conviction evidence

can often be relevant to establishing substantive incompetency. See, e.g., Nguyen

v. Reynolds, 131 F.3d 1340, 1345–47 (10th Cir. 1997) (considering post-

conviction behavior in prison in the context of a substantive competency claim).

In further juxtaposition, competency claims based on substantive due process are

subject neither to waiver, nor to procedural bar, whereas their procedural

counterparts are susceptible to both. See id. at 1346; Barnett, 174 F.3d at 1133.

Further, because procedural competency and substantive competency guard

against distinct harms, it should come as no surprise that their corresponding

remedies are also different. Since the error asserted in a procedural claim is the

court’s failure to provide adequate procedures—i.e., the failure to conduct a

competency hearing—a defendant who prevails on a procedural competency claim

is entitled to the procedures (i.e., a competency hearing) that he should have

received in the first instance. See McGregor, 248 F.3d at 952 (noting that “[a]

procedural competency claim is based upon a trial court’s alleged failure to hold a

competency hearing, or an adequate competency hearing”); id. at 962 (“Our

conclusion that McGregor’s procedural due process rights were violated does not

end the analysis. We next consider whether a retrospective competency hearing

can be held.”); see also Barnett, 174 F.3d at 1133–34 (noting that a petitioner

pursuing a procedural competency claim alleges that he was deprived of the right

“to an adequate state procedure to insure that he is in fact competent to stand

18
trial,” which he should have received in the first place); see also United States v.

Grist, 299 F. App’x 770, 775, 778 (10th Cir. 2008) (unpublished) (finding no

error in the magistrate judge’s assessment that no relief was due to the petitioner,

as he “ha[d] been afforded . . . the only relief to which [he] would be entitled for

a procedural due process competency violation: a retrospective competency

determination”). 2

Thus, the issuance of the habeas writ is not mandated in situations where

the procedural competency claimant is successful; it is resorted to only where a

retrospective competency hearing would not be feasible. Compare McGregor,

248 F.3d at 962 (“[W]e conclude that a meaningful retrospective competency

determination can not be made in this case. As such, McGregor’s due process

rights can not adequately be protected by remanding to the state court for such a

determination . . . . Accordingly, we GRANT McGregor’s request for habeas

corpus relief.”), and Pate v. Robinson, 383 U.S. 375, 387 (1966) (rejecting the

option of remand for a “limited hearing as to Robinson’s mental competence at

the time he was tried”), with Bryan v. State, 935 P.2d 338, 347 n.4 (Okla. Crim.

App. 1997) (“The [Robinson] Court did not, however, rule that retrospective

2
In several instances in this opinion, we rely on unpublished cases,
recognizing that we are not bound by them as controlling authorities. We do so
because we deem their analyses persuasive regarding material matters before us
here. See, e.g., United States v. Kurtz, 819 F.3d 1230, 1236 n.2 (10th Cir. 2016)
United States v. Engles, 779 F.3d 1161, 1162 n.1 (10th Cir. 2015).

19
hearings may not be held where such hearings are feasible, and has never so held

despite the opportunity in subsequent cases.”), and Walker, 167 F.3d at 1347 n.4

(“In these circumstances, we are not persuaded Mr. Walker was deprived of due

process by the retrospective competency hearing.”). Such a hearing would be

infeasible where—due to the passage of time, the unavailability of

contemporaneous medical evidence, the lack of defendant’s statements on the trial

record, or the absence of eyewitnesses to the defendant’s behavior during

trial—the examination would no longer be meaningful. See McGregor, 248 F.3d

at 962 (citing Clayton v. Gibson, 199 F.3d 1162, 1169 (10th Cir. 1999)).

As noted, the right at issue in a substantive competency claim is the right

not to be tried while incompetent; therefore, in the habeas context, the remedy

must involve the issuance of the writ because the conviction cannot

constitutionally stand. See, e.g., id. at 952 (noting that “a substantive competency

claim is founded on the allegation that an individual was tried and convicted

while, in fact, incompetent”); see also Godinez v. Moran, 509 U.S. 389, 396

(1993) (“A criminal defendant may not be tried unless he is competent.”).

It falls upon us to determine whether Mr. Grant actually presented a

procedural competency claim to the OCCA on direct appeal, in addition to a

substantive competency claim; we have undertaken analogous inquiries. See, e.g.,

Walker, 167 F.3d at 1343 (disagreeing with the district court’s characterization of

competency claim as procedural, rather than substantive); Barnett, 174 F.3d at

20
1134 (holding that the district court erred in construing the claim as substantive

when it was in fact procedural). In so doing, we parse the pleadings of Mr.

Grant’s direct-appeal brief and proceed with “care[] not to collapse the distinction

between procedural and substantive due process [claims].” McGregor, 248 F.3d

at 953.

b

Mr. Grant argues that he presented a procedural competency claim on direct

appeal: more specifically, he says that he cited the relevant caselaw, set forth the

relevant facts, and “correctly argued . . . that the trial judge independently had a

duty, based on all the information available to him prior to and during trial, to

halt the trial for additional competency proceedings.” Aplt.’s Opening Br. at 30.

We are not persuaded.

Our contrary view is supported by an independent examination of Mr.

Grant’s direct-appeal briefing: this review makes clear that the unwavering focus

of Mr. Grant’s arguments was on establishing his actual incompetence at the time

of trial—that is, on mounting a substantive competency claim, and not a

procedural one. We also find validation for our conclusion by juxtaposing

Mr. Grant’s state-court claim with the one filed for habeas relief; this side-by-side

view reveals that Mr. Grant’s original competency claim bears little resemblance

to the one he now advances.

21
 We are thus left with a firm conviction that Mr. Grant’s direct-appeal

competency claim was “based . . . on different reasons,” and grounded on

different legal “bases [than those] upon which his current . . . claim[] rely.”

Smallwood, 191 F.3d at 1267. We accordingly hold that Mr. Grant did not fairly

present a procedural competency claim to the OCCA. Furthermore, for reasons

explicated infra, this claim is subject to an anticipatory procedural bar.

Therefore, we are precluded from considering it.

i

Several aspects of Mr. Grant’s direct-appeal brief contradict his argument

that he fairly presented a procedural competency claim to the OCCA. Indeed, we

discern that the focus of Mr. Grant’s direct-appeal briefing—and therefore, the

substance of the claim before the OCCA—was on whether Mr. Grant was in fact

incompetent at the time of his November 2005 trial.

At the outset, we note that the heading to Proposition I—the section under

which Mr. Grant contends he raised his procedural competency claim—did

nothing to put the OCCA on notice of any such claim. In fact, the heading neatly

set out the standard—not for a procedural claim—but for proving a violation of

substantive due process. Compare Aplt.’s Direct Appeal Opening Br. at 3

(“Mr. Grant Was Incompetent When He Stood Trial, In Violation of Due

Process”), with Allen, 368 F.3d at 1239 (“[A] substantive competency claim is

founded on the allegation that an individual was tried and convicted while, in

22
fact, incompetent.”). 3 We also observe that Mr. Grant himself characterized

Proposition I as setting out “Appellant[’s] complain[t] that he was tried while

incompetent.” Aplt.’s Direct Appeal App. for Evidentiary Hr’g. on Sixth and

Fourteenth Amendment Claims (filed Oct. 11, 2007), at 1. 4

Nor would the body of the direct-appeal brief have put the OCCA on notice

that the competency claim was anything other than substantive in nature.

Proposition I was devoted to establishing Mr. Grant’s actual incompetency: the

unalloyed thrust of the facts presented there was that Mr. Grant was incompetent

in November 2005, when he stood trial. The argument opened by asserting that

the reason for the four-year delay in Mr. Grant’s trial was due to his

incompetence. It proceeded to lay out the lengthy chronology of Mr. Grant’s

3
Though it is certainly not dispositive, we consider it germane and
significant to our inquiry that the word “procedural” is absent from Mr. Grant’s
direct-appeal briefing on the competency issue; nor is there any other indication
in this briefing that Mr. Grant objected to the court’s failure to implement the
proper procedures to ensure his competency. See, e.g., Glossip v. Trammell, 530
F. App’x 708, 718 n.1 (10th Cir. 2013) (unpublished) (holding that there was no
fair presentation where the relevant federal claim was not mentioned “in either
the heading or text of [petitioner’s] brief”). Moreover, to echo an earlier decision
by a panel of our court, although we do not require Mr. Grant to recite the words
“procedural due process competency” “as some kind of talismanic incantation,”
we do require that a claim of procedural competency “not be camouflaged within
a welter of other claims.” Burnett v. Hargett, 139 F.3d 911, *5 (10th Cir. 1998)
(unpublished) (citing Nichols, 867 F.2d at 1252).
4
Mr. Grant submitted an OCCA Rule 3.11(B) Application, along with
his direct-appeal brief, to the OCCA. Mr. Grant refers to the Rule 3.11
Application in his discussion in Proposition I, asking the court to supplement the
record with a number of affidavits relating to Mr. Grant’s competency during
trial. Aplt.’s Direct Appeal Opening Br. at 11.

23
history with his lawyers, the court, and the psychological experts they appointed

to assess his competency to stand trial, who had found him to be incompetent. It

is evident from the brief that Mr. Grant’s quarrel was with the fact of his

conviction while incompetent.

Consistent with the requirements of a substantive claim, the brief alleged

facts showing that Mr. Grant “lack[ed] the capacity to understand the nature and

object of the proceedings against him, to consult with counsel, and to assist in

preparing his defense.” Drope, 420 U.S. at 171. Specifically, it noted

Mr. Grant’s “understanding of the charges and criminal proceedings was ‘fleeting

at best,’” Aplt.’s Direct Appeal Opening Br. at 4 (quoting from the underlying

state court record). Furthermore, it recounted how Mr. Grant “was agitated and

[the] presence [of his counsel] aggravated him.” Id. at 5. And the brief observed

that Mr. Grant’s lawyer was “concerned because” Mr. Grant was “making

statements that may hurt him in the future.” Id. (quoting from the underlying

state court record).

Conversely, Mr. Grant’s direct-appeal briefing does not similarly bear the

trappings of a procedural competency claim, which would have alleged that a

“reasonable judge should have had a bona fide doubt as to [petitioner’s]

competence at the time of trial.” McGregor, 248 F.3d at 954. For one, the direct-

appeal brief never mentioned the established “bona fide doubt” standard of proof.

For another, the scope of the information presented on direct appeal exceeded the

24
bounds of evidence relevant to a procedural claim. For example, in order to

demonstrate that Mr. Grant was not taking his medications, Mr. Grant’s direct-

appeal brief requested that the OCCA consider Mr. Grant’s medical records for

the period leading up to trial. See Aplt.’s Direct Appeal Opening Br. at 11.

However, these medical records were neither part of the trial record; nor were

they at any point before the trial judge. 5 As such, they were irrelevant to a

procedural due process claim, because “[o]ur review [as to such a claim] is

limited to the evidence that was made available to the state trial court.” Lay, 860

F.3d at 1314 (citing Allen, 368 F.3d at 1239); see also McGregor, 248 F.3d at 954

(“We view the evidence in the record objectively, from the standpoint of a

reasonable judge presiding over petitioner’s case at the time of trial.”) (emphases

added). Therefore, Mr. Grant’s reliance on evidence that was never before the

trial court, nor part of the record, is inconsistent with his assertion now that he

was presenting a procedural due process claim to the OCCA.

5
The medical records were appended to Mr. Grant’s Rule 3.11
Application to supplement the record. Mr. Grant himself referred to his Rule 3.11
Application as “an Application for Evidentiary Hearing on Sixth Amendment
Claims supported by matters outside the trial record.” Aplt.’s Direct Appeal
Opening Br. at 11 (emphasis added). In addition to his medical records, the Rule
3.11 Application sought to introduce into the record, inter alia, a retrospective
competency analysis performed by a psychologist retained by defense counsel, the
affidavit of Cheryl Tubbs (Mr. Grant’s ex girlfriend), and the affidavit of Anna
Wright (a nurse who interacted with Mr. Grant while he was incarcerated). Like
the medical records, these documents are not relevant to a procedural competency
claim because they were neither on the record, nor before the trial judge, at the
time of Mr. Grant’s trial.

25
 Quite significant, moreover, is the stark lack of fit between the remedy

requested from the OCCA on direct appeal and the procedural competency claim

Mr. Grant purports to have raised. Nowhere in Mr. Grant’s direct-appeal brief did

he mention the possible relief of a retrospective competency hearing—though

ordinarily, if feasible, this would be the relief available to him if he had

prevailed. See McGregor, 248 F.3d at 962 (“Our conclusion that McGregor’s

procedural due process rights were violated does not end the analysis. We next

consider whether a retrospective competency hearing can be held.”); see also

Grist, 299 F. App’x at 775, 778; Bryan, 935 P.2d at 347 n.4 (noting that, in the

procedural competency context, the OCCA “has remanded the issue for a

determination of feasibility and a [retrospective] hearing”); Boltz v. State, 806

P.2d 1117, 1121 (Okla. Crim. App. 1991) (“It is the opinion of this Court that if a

defendant’s competency at the time of trial can be meaningfully determined at a

subsequent time on the basis of credible and competent evidence, then error

committed by a district court in failing to hold a hearing at the proper time can be

cured. If the procedural defect is thereby cured, any due process attack based

upon the defect must fail.”). Nor did Mr. Grant ever allege that the trial court

should have halted the trial to perform a competency hearing. See Valdez, 219

F.3d at 1239 (“[A] petitioner states a procedural competency claim by alleging

that the trial court failed to hold a competency hearing.”). The notable absence of

a request for a (retrospective) competency hearing belies Mr. Grant’s assertion

26
that he sought to vindicate a procedural error on direct appeal.

Indeed, Mr. Grant demonstrated in his direct-appeal brief that he knew how

to ask for a hearing when he believed one was necessary to vindicate his rights.

Specifically, he alleged such an entitlement just a mere moment after his

competency arguments, in the context of Proposition II, which set out his Sixth

Amendment self-representation claim. See Aplt.’s Direct Appeal Opening Br. at

12–13 (“It was thus incumbent upon the trial court to hold a hearing on the issue

[of Mr. Grant’s desire to dismiss his attorneys], at which the trial court should

have evaluated [Mr. Grant’s] competency to waive [representation by counsel]

and warned him of the dangers of self-representation.”). The fact that Mr. Grant

did not ask for a hearing in Proposition I—which he now identifies as the source

of his procedural due process competency claim—strongly indicates that he did

not believe at that time that this remedy was material to the claim he was

pursuing there. And that belief would have been correct—if, as we

conclude—Mr. Grant was presenting there a substantive competency claim. Put

another way, given Mr. Grant’s demonstrated ability to challenge the court’s

failure to hold a hearing in the self-representation context, his silence regarding a

hearing in the competency context is deafening and strongly suggests that the kind

of competency claim that he actually was pursuing was not one that would have

been satisfied by a hearing. See Duncan, 513 U.S. at 366 (noting that failure to

raise a specific due process claim “is especially pronounced in that respondent did

27
specifically raise a due process objection before the state court based on a

different claim”).

Instead of requesting an additional hearing, Mr. Grant solely sought

reversal; as discussed, this remedy is clearly appropriate in the context of a claim

for substantive competency, but not a remedy at least of first resort in the setting

of a procedural competency claim. See, e.g., McGregor, 248 F.3d at 962; Bryan,

935 P.2d at 347 n.4. And the concluding paragraph of Proposition I is

particularly illuminating: there, Mr. Grant sought reversal based on the fact that

he “was not competent when he was tried . . . . in violation of his Fourteenth

Amendment due process right to be competent.” Aplt.’s Direct Appeal Opening

Br. at 11. This is paradigmatic language of a substantive due process competency

claim.

To be sure, throughout Proposition I, there are references to facts that could

have been relevant to a procedural due process competency claim. But given the

“blurred . . . distinctions” between substantive and procedural competency claims,

Walker, 167 F.3d at 1344, this is entirely unremarkable. For instance, direct-

appeal counsel quoted statements Mr. Grant made to the trial court, Mr. Grant’s

testimony during the penalty phase, and a letter Mr. Grant wrote to the

prosecutor. Direct-appeal counsel asserted that these statements were “full of

ramblings and delusions,” and that despite this, Mr. Grant’s “competence to stand

trial was never revisited, even though . . . he [showed] signs that his competence

28
may have slipped.” Aplt.’s Direct Appeal Opening Br. at 6–8. Yet the mere

presentation of potentially-relevant facts is not enough. See Bland, 459 F.3d at

1011 (“‘[F]air presentation’ requires more than presenting . . . ‘all the facts

necessary to support the federal claim’ to the state court) (quoting Anderson, 459

U.S. at 6).

Similarly, in Proposition I, Mr. Grant also cited to legal principles that

could have been relevant to a procedural due process competency claim. For

instance, he cited Drope, 420 U.S. at 180, for the proposition that “[e]ven if the

defendant is competent when the trial begins, the trial court must always be alert

to circumstances suggesting a change that would render the accused unable to

meet the standard of competence to stand trial.” Aplt.’s Direct Appeal Opening

Br. at 11. And he cited Robinson, 383 U.S. at 385–86, for the proposition that

“[e]vidence of a defendant’s irrational behavior, his demeanor at trial, and any

prior medical opinion on competence to stand trial are all relevant in determining

whether further inquiry is required.” Id.

However, recitations of caselaw—tethered neither to factual allegations nor

directed argumentation—also fall short of fairly presenting a legal claim. See

Gray, 518 U.S. at 163 (“[I]t is not enough to make a general appeal to a

constitutional guarantee as broad as due process to present the ‘substance’ of such

a claim to a state court.”); see also Thomas, 218 F.3d at 1221 n.6 (holding

petitioner’s “generalized” state-court ineffective-assistance claim was insufficient

29
to exhaust his later, more specific federal habeas claim). Indeed, Mr. Grant’s

citations to Robinson and Drope came at the tail-end of Proposition I and were

not connected, in any readily-discernible way, to the relevant factual allegations

discussed some five pages before. See Burnett v. Hargett, 139 F.3d 911, *5 (10th

Cir. 1998) (unpublished) (finding lack of exhaustion where petitioner belatedly

made “stray citations to a pair of potentially relevant federal cases”). Because

Mr. Grant failed to tie a legal theory grounded in procedural due process to the

salient facts, we hold that he failed to fairly present such a claim to the OCCA.

ii

Finally, our conclusion is further bolstered by a brief comparison of the

argument that Mr. Grant presented on direct appeal with the argument that he has

presented in his habeas petition. The claim on direct appeal is not the

“substantial equivalent” of the one asserted before us. Picard, 404 U.S. at 278.

“[T]he basis for [the competency] argument . . . shifted” from Mr. Grant’s alleged

incompetency during trial to the trial court’s failure to monitor his condition.

Gardner, 568 F.3d at 872.

Whereas the direct-appeal briefing made only fleeting references to the trial

court’s obligation to inquire into Mr. Grant’s competency, the habeas petition is

replete with assertions that the trial judge knew, was aware of, or otherwise

ignored signs that ought to have instilled in him a “bona fide doubt regarding

Mr. Grant’s competency to stand trial.” Aplt.’s Habeas Pet. at 11 (dated Jan. 25,

30
2011). Moreover, the petition explicitly identifies the procedural defect as the

trial judge’s “neglect [of] duty . . . to have a hearing on Mr. Grant’s competency.”

Id. at 23. This specific allegation of error—the trial court’s “failure to adopt a

procedure to ensure Mr. Grant was competent,” id. at 12–13—is nowhere to be

seen in Mr. Grant’s direct-appeal brief before the OCCA. The juxtaposition

between that brief and Mr. Grant’s habeas petition strongly underscores the

deficiencies of the former as an ostensible presentation of a procedural due

process competency claim. The direct-appeal brief did not offer a fair

presentation of such a claim.

c

In sum, in light of the foregoing, we cannot say that Mr. Grant “provide[d]

the state court with a ‘fair opportunity’ to apply controlling legal principles to the

facts bearing upon his” procedural due process competency claim. Anderson, 459

U.S. at 6. 6

Mr. Grant asks us to reach a contrary conclusion based in part on the

contents of the State’s direct-appeal response brief. Specifically, Mr. Grant

contends that, though the State argues now for a lack-of-exhaustion

determination, on direct appeal it sounded a different “tune” in that its response

6
Indeed, it comes as no surprise that the OCCA ruled only on the
single claim it perceived was before it—the substantive due process claim. See
Grant, 205 P.3d at 10 (denying Proposition I on the grounds that “the record
supports a conclusion that Appellant was competent at the time of his trial”).

31
brief “acknowledged the procedural due process element of the claim” and

responded to that element in its briefing. Aplt.’s Reply Br. at 3. Mr. Grant

contends that the State’s argument against a procedural due process claim is

tantamount to a “concession” that Mr. Grant actually presented such a claim to

the OCCA. Id. However, the State made no such concession, and certainly not

the kind of explicit one that would be necessary under the law to remove the

exhaustion-fair-presentation “issue from consideration.” Fairchild, 579 F.3d at

1148 n.7 (“[T]he State also has not explicitly argued exhaustion but that fact does

not remove the issue from consideration.”); see 28 U.S.C. § 2254(b)(3) (“A State

shall not be deemed to have waived the exhaustion requirement or be estopped

from reliance upon the requirement unless the State, through counsel, expressly

waives the requirement.”).

Therefore, our focus properly remains fixed on whether Mr. Grant satisfied

his burden to fairly present the argument to the OCCA. See Picard, 404 U.S. at

276 (“[W]e have required a state prisoner to present the state courts with the

same claim he urges upon the federal courts.”) (emphasis added). And Mr. Grant

cannot rely on the hypervigilence or extraordinary circumspection of others to

demonstrate his satisfaction of this burden. See Baldwin v. Reese, 541 U.S. 27,

32 (2004) (holding that “ordinarily a state prisoner does not ‘fairly present’ a

claim to a state court if that court must read beyond a petition or a brief (or a

similar document) that does not alert it to the presence of a federal claim in order

32
to find material . . . that does so”). In Baldwin, the Supreme Court rejected the

proposition that a petitioner could establish fair presentation as to the Oregon

Supreme Court simply by relying on the fact that a “lower state trial court” had

picked up on his federal constitutional violation, and that the Oregon Supreme

Court “had had ‘the opportunity to read . . . the lower [Oregon] court[’s]

decision.’” Id. at 30. A similar logic applies here. That the State’s attorney

elected to respond to an ostensible procedural due process competency

claim—whether out of hypervigilence, prophylactic intent, or simple

misunderstanding—does not relieve Mr. Grant of his burden of demonstrating that

he actually fairly presented such a claim to the OCCA. And we conclude that he

has not carried that burden. 7

Nor does Mr. Grant’s reliance on Sanders v. United States, 373 U.S. 1, 16

(1963), give us pause. Mr. Grant points to the district court’s characterization of

this question as a “close” one, see R., Vol. I, at 1578, and argues that, under

Sanders, we should resolve close calls in his favor and thus conclude that he

fairly presented a procedural due process competency argument to the OCCA,

Aplt.’s Opening Br. at 32. In Sanders, the Supreme Court explained: “Should

doubts arise in particular cases as to whether two grounds are different or the

same, they should be resolved in favor of the applicant.” 373 U.S. at 16. In

7
Notably, Mr. Grant did not even respond in his direct-appeal reply
brief to the State’s supposed procedural due process argument.

33
Mr. Grant’s view, because it is a close call whether the competency argument in

his direct-appeal brief was based on substantive due process alone or substantive

and procedural due process, we should resolve the question in favor of a

determination that Mr. Grant fairly presented a procedural due process claim to

the OCCA. We disagree.

Even assuming arguendo that the fair-presentation issue was close,

Mr. Grant’s reliance on Sanders would be unavailing. Sanders arises in a distinct

procedural context; it is not a fair-presentation case. The language Mr. Grant

relies on appears in the Court’s discussion of the principles that should determine

whether prior and successive habeas petitions, or such motions under 28 U.S.C.

§ 2255, present the same ground for federal relief. See Sanders, 373 U.S. at 16.

In other words, this language was offering guidance in resolving a distinct

problem, and Mr. Grant has not explained why it should apply in the fair-

presentation/exhaustion context, and we are not aware of any reason that it

should, especially given the unique federalism concerns at stake here. See

Picard, 404 U.S. at 275 (noting that “it would be unseemly in our dual system of

government for a federal . . . court to upset a state court conviction without an

opportunity to the state courts to correct a constitutional violation” (quoting Darr

v. Burford, 339 U.S. 200, 204 (1950))).

Indeed, Picard—which is a fair-presentation case—sheds useful light on

Sanders. Picard describes Sanders as a “ready example” of one of those

34
“instances in which ‘the ultimate question for disposition’ will be the same

despite variations in the legal theory or factual allegations urged in its support.”

Id. at 277 (quoting United States ex rel. Kemp v. Pate, 359 F.2d 749, 751 (7th Cir.

1966)). And Picard then explains that the Sanders example was not applicable

there because the claim that the petitioner pursued in federal court in Picard was

not the “substantial equivalent” of the claim presented in state court. Id. at 278.

This holds true here as well: the question for resolution in procedural and

substantive competency claims is not the same, and it is clear to us that the

competency claim that Mr. Grant presented in his direct-appeal brief to the OCCA

is not a “substantial equivalent” of the claim he presented in his habeas petition.

Id. In sum, Mr. Grant’s reliance on Sanders is misplaced.

Thus, we reject Mr. Grant’s arguments opposing our conclusion that he

failed to present a procedural due process competency claim to the OCCA.

d

All that said, we deem Mr. Grant’s procedural due process competency

claim unexhausted and—with an eye toward Oklahoma law—this claim is

seemingly subject to an anticipatory procedural bar. Specifically, if Mr. Grant

attempted to pursue this procedural competency claim in state court, that court

would deem the claim procedurally barred under Oklahoma law because

Mr. Grant could have raised it on direct appeal. Under Oklahoma’s Uniform

Post-Conviction Procedure Act, “only claims which ‘[w]ere not and could not

35
have been raised’ on direct appeal will be considered [in post-conviction

proceedings].’” Conover v. State, 942 P.2d 229, 230–31 (Okla. Crim. App. 1997)

(quoting O KLA . S TAT . TIT . 22, § 1089(c)(1)); see also James v. Gibson, 211 F.3d

543, 550 (10th Cir. 2000) (citing cases in which the OCCA applied Section

1089(c)(1) to competency claims not raised on direct appeal); Walker v. State,

933 P.2d 327, 338–39 (Okla. Crim. App. 1997), superceded by statute on other

grounds as recognized in Davis v. State, 123 P.3d 243, 245 (Okla. Crim. App.

2005) (holding capital petitioner’s competency claim procedurally barred because

he failed to raise the issue on direct appeal). 8 While it is true that “[t]o preclude

federal habeas review, a state procedural bar must be adequate,” Mr. Grant makes

no arguments relating to the adequacy of Oklahoma’s procedural default rule,

much less mount a challenge to the propriety of applying it here. 9 Spears v.

Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003).

8
It should also be noted that Mr. Grant’s claim is doubly subject to the
anticipatory procedural bar, as he would be raising his procedural competency
claim for the first time in a successive petition for post-conviction relief. See
Thacker, 678 F.3d at 841; see also Jeremy Williams, 782 F.3d at 1212 (citing
O KLA . S TAT . TIT . 22 §§ 1086, 1089(2)); Whittier v. Hargett, 12 F. App’x 707, 708
(10th Cir. 2001) (unpublished) (applying procedural bar to petitioner’s procedural
competency claim because he neither raised the claim on direct appeal nor in his
first application for post-conviction relief pursuant to Oklahoma’s Uniform Post-
Conviction Procedure Act).
9
Mr. Grant is apparently silent for good reason. See, e.g., Sherrill v.
Hargett, 184 F.3d 1172, 1175 (10th Cir. 1999) (“Oklahoma’s procedural rule
barring post-conviction relief for claims petitioner could have raised on direct
appeal constitutes an independent and adequate ground barring review of
petitioner's jury instruction claim.”).

36
 Therefore, we have no reason to question the rule’s application to him. See

id. at 1252 (“[B]ecause Powell does not address his alleged procedural default, let

alone challenge the adequacy of Oklahoma’s procedural rules, we conclude that

Oklahoma’s procedural bar is adequate to preclude our habeas review of these

particular ineffective-trial-representation claims.”). And so we hold that

Mr. Grant’s claim is subject to an anticipatory procedural bar. Cf. Thacker, 678

F.3d at 841 (“Were Thacker to now return to state court to attempt to exhaust a

claim that trial counsel was ineffective in advising him to enter a blind plea and

in failing to file a motion to withdraw the guilty plea, by filing a fourth

application for post-conviction relief, it would be procedurally barred under

Oklahoma law because Thacker failed to assert it in any of his applications for

post-conviction relief.”); Cummings v. Sirmons, 506 F.3d 1211, 1222–23 (10th

Cir. 2007) (“Although the claim is technically unexhausted, it is beyond dispute

that, were Cummings to attempt to now present the claim to the Oklahoma state

courts in a second application for post-conviction relief, it would be deemed

procedurally barred.”).

Furthermore, Mr. Grant makes no effort to overcome this bar by arguing

cause and prejudice, or a fundamental miscarriage of justice. Consequently, we

hold that we are precluded from considering Mr. Grant’s procedural due process

competency claim. See Coleman, 501 U.S. at 750; see also Thacker, 678 F.3d at

841–42 (“The only way for Thacker to circumvent this anticipatory procedural bar

37
is by making either of two alternate showings: he may demonstrate ‘cause and

prejudice’ for his failure to raise the claim in his initial application for

post-conviction relief, or he may show that failure to review his claim will result

in a ‘fundamental miscarriage of justice.’” (quoting Anderson, 476 F.3d at

1140)). 10

B. Ineffective Assistance of Counsel Claims

Mr. Grant argues that his trial counsel rendered ineffective assistance

resulting in an “unfair trial and an unreliable death sentence in violation of the

10
We arrive at this determination of procedural bar in full recognition
of the heightened sensitivity associated with capital cases. See Cooks v. Ward,
165 F.3d 1283, 1294 (10th Cir. 1998) (recognizing, in regard to an ineffective-
assistance claim raised in a capital habeas petition, “a need to apply . . . closer
scrutiny when reviewing attorney performance during the sentencing phase of a
capital case”); see also Lockett v. Ohio, 438 U.S. 586, 604 (1978) (Burger, C.J.,
joined by Stewart, Powell, and Stevens, JJ.) (“[T]his qualitative difference
between death and other penalties calls for a greater degree of reliability when the
death sentence is imposed.”); Gregg v. Georgia, 428 U.S. 153, 188 (1976) (joint
opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he penalty of death is different
in kind from any other punishment imposed under our system of criminal
justice.”). But we must balance this sensitivity with the federalism and comity
concerns that arise in the habeas context. “The exhaustion-of-state-remedies
doctrine . . . reflects a policy of federal-state comity,” Picard, 404 U.S. at 275,
and “it would be unseemly in our dual system of government for a federal . . .
court to upset a state court conviction without an opportunity to the state courts to
correct a constitutional violation,” id. (quoting Darr, 339 U.S. at 204). Like all
“[f]ederal courts sitting in habeas,” we are “not an alternative forum for trying
facts and issues which a prisoner made insufficient effort to pursue in state
proceedings.” Michael Williams v. Taylor, 529 U.S. 420, 437 (2000). Out of
deference to our system of federalism, we are constrained to conclude that Mr.
Grant failed to fairly present his procedural competency claim in state court, and
we are precluded from considering it.

38
Sixth, Eighth, and Fourteenth Amendments.” Aplt.’s Opening Br. at 50

(capitalization altered). We granted COAs regarding the following issues:

whether trial counsel rendered ineffective assistance by failing to (1) monitor

Mr. Grant’s competency, (2) investigate and present evidence of the effects of

Mr. Grant’s frontal-lobe damage (i.e., organic brain damage), and (3) investigate

and present evidence of (a) Mr. Grant’s purported delusional belief system and

(b) pertinent aspects of Mr. Grant’s childhood. Because Mr. Grant has not shown

that the OCCA’s resolution of his ineffective-assistance claims is contrary to or

an unreasonable application of clearly established federal law, or premised on an

unreasonable determination of fact, we affirm the district court’s denial of habeas

relief regarding Mr. Grant’s ineffective-assistance claims.

1. Legal Framework

We review claims of “ineffective assistance of counsel under the familiar

framework laid out in Strickland [v. Washington, 466 U.S. 668 (1984)].” Byrd,

645 F.3d at 1167. Under Strickland, a petitioner “must show both that his

counsel’s performance ‘fell below an objective standard of reasonableness’ and

that ‘the deficient performance prejudiced the defense.’” Id. (emphasis omitted)

(quoting Strickland, 466 U.S. at 687–88). “These two prongs may be addressed in

any order, and failure to satisfy either is dispositive.” Victor Hooks II, 689 F.3d

at 1186; see Littlejohn v. Royal (“Littlejohn II”), 875 F.3d 548, 552 (10th Cir.

2017) (“These two prongs may be addressed in any order; indeed, in Strickland,

39
the Supreme Court emphasized that ‘if it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice, . . . that course should be

followed.’” (omission in original) (quoting Strickland, 466 U.S. at 697)).

“[O]ur review of counsel’s performance under the first prong of Strickland

is a ‘highly deferential’ one.” Byrd, 645 F.3d at 1168 (quoting Danny Hooks v.

Workman, 606 F.3d 715, 723 (10th Cir. 2010)). “Every effort must be made to

evaluate the conduct from counsel’s perspective at the time.” Littlejohn I, 704

F.3d at 859 (quoting United States v. Challoner, 583 F.3d 745, 749 (10th Cir.

2009)). “[C]ounsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment.” Victor Hooks II, 689 F.3d at 1187 (quoting Byrd, 645 F.3d at 1168).

And the “petitioner ‘bears a heavy burden’ when it comes to overcoming that

presumption.” Byrd, 645 F.3d at 1168 (quoting Fox v. Ward, 200 F.3d 1286,

1295 (10th Cir. 2000)). “To be deficient, the performance must be outside the

wide range of professionally competent assistance. In other words, it must have

been completely unreasonable, not merely wrong.” Danny Hooks, 606 F.3d at

723.

“A state prisoner in the § 2254 context faces an even greater challenge.”

Victor Hooks II, 689 F.3d at 1187 (citing Byrd, 645 F.3d at 1168). “[W]hen

assessing a state prisoner’s ineffective-assistance-of-counsel claims on habeas

review, ‘[w]e defer to the state court’s determination that counsel’s performance

40
was not deficient and, further, defer to the attorney’s decision in how to best

represent a client.’” Id. (alterations in original) (quoting Byrd, 645 F.3d at 1168).

“Thus our review of ineffective-assistance claims in habeas applications under

§ 2254 is ‘doubly deferential.’” Id.; Harrington, 562 U.S. at 105 (“The standards

created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the

two apply in tandem, review is ‘doubly’ so . . . .” (citations omitted) (quoting

first Strickland, 466 U.S. at 689, and then Knowles v. Mirzayance, 556 U.S. 111,

123 (2009))).

“Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under § 2254(d). When

§ 2254(d) applies, the question is not whether counsel’s actions were reasonable.

The question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Harrington, 562 U.S. at 105 (emphasis

added). And “because the Strickland standard is a general standard, a state court

has . . . more latitude to reasonably determine that a defendant has not satisfied

that standard.” Byrd, 645 F.3d at 1168 (emphasis added) (quoting Knowles, 556

U.S. at 123); accord Frost v. Pryor, 749 F.3d 1212, 1223 (10th Cir. 2014);

see also Harrington, 562 U.S. at 105 (“The Strickland standard is a general one,

so the range of reasonable applications is substantial.”); Acosta v. Raemisch, 877

F.3d 918, 925 (10th Cir. 2017) (noting that under AEDPA “our inquiry is

informed by the specificity of the governing rule”).

41
 Despite our strong presumption that counsel rendered constitutionally

reasonable assistance, “we have recognized a need to apply . . . closer scrutiny

when reviewing attorney performance during the sentencing phase of a capital

case.” Cooks, 165 F.3d at 1294; see also Osborn v. Shillinger, 861 F.2d 612, 626

n.12 (10th Cir. 1988) (“[T]he minimized state interest in finality when

resentencing alone is the remedy, combined with the acute interest of a defendant

facing death, justify a court’s closer scrutiny of attorney performance at the

sentencing phase.”). “We judge counsel’s performance by reference to

‘prevailing professional norms,’ which in capital cases include the ABA

Guidelines for the Appointment and Performance of Counsel in Death Penalty

Cases (‘ABA Guidelines’).” Victor Hooks II, 689 F.3d at 1201 (quoting Young v.

Sirmons, 551 F.3d 942, 957 (10th Cir. 2008)). “Among the topics defense

counsel should investigate and consider presenting include medical history,

educational history, employment and training history, family and social history,

prior adult and juvenile correctional experiences, and religious and cultural

influences.” Young, 551 F.3d at 957.

“Counsel has a duty to conduct a ‘thorough investigation—in particular, of

mental health evidence—in preparation for the sentencing phase of a capital

trial.’” Victor Hooks II, 689 F.3d at 1201 (quoting Michael Wilson v. Sirmons

(“Michael Wilson I”), 536 F.3d 1064, 1083 (10th Cir. 2008)); accord Littlejohn I,

704 F.3d at 860. “[D]rawing on a trilogy of Supreme Court cases—[Terry]

42
Williams v. Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510 (2003),

and Rompilla v. Beard, 545 U.S. 374 (2005)—involving ineffective assistance at

capital-sentencing proceedings[,]” Littlejohn I, 704 F.3d at 860, we divined the

following three principles:

First, the question is not whether counsel did something; counsel
must conduct a full investigation and pursue reasonable leads
when they become evident. Second, to determine what is
reasonable investigation, courts must look first to the ABA
guidelines, which serve as reference points for what is acceptable
preparation for the mitigation phase of a capital case. Finally,
because of the crucial mitigating role that evidence of a poor
upbringing or mental health problems can have in the sentencing
phase, defense counsel must pursue this avenue of investigation
with due diligence. Our own Circuit has emphasized this guiding
principle. In Smith v. Mullin, 379 F.3d 919, 942 (10th Cir.
2004), we held that it was “patently unreasonable” for trial
counsel to fail to present evidence of Smith’s borderline mental
retardation, brain damage, and troubled childhood, and stated that
this type of mitigating evidence “is exactly the sort of evidence
that garners the most sympathy from jurors.”

Michael Wilson I, 536 F.3d at 1084–85 (citations omitted); accord Littlejohn I,

704 F.3d at 860.

“Under the prejudice prong [of Strickland], a petitioner must demonstrate

‘a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Littlejohn II, 875 F.3d at 552

(quoting Strickland, 466 U.S. at 694); accord Victor Hooks II, 689 F.3d at 1202.

“When a petitioner alleges ineffective assistance of counsel stemming from a

failure to investigate mitigating evidence at a capital-sentencing proceeding, ‘we

43
evaluate the totality of the evidence’” that AEDPA permits us to consider.

Jeremy Williams, 782 F.3d at 1215; accord Littlejohn II, 875 F.3d at 552–53; see

Cullen, 563 U.S. at 181 (“We now hold that review under § 2254(d)(1) is limited

to the record that was before the state court that adjudicated the claim on the

merits.”).

More specifically, “we ‘reweigh the evidence in aggravation against the

totality of available mitigating evidence,’ considering ‘the strength of the State’s

case and the number of aggravating factors the jury found to exist, as well as the

mitigating evidence the defense did offer and any additional mitigating evidence

it could have offered[.’]” Littlejohn II, 875 F.3d at 553 (quoting first Hooks, 689

F.3d at 1202, and then Knighton v. Mullin, 293 F.3d 1165, 1178 (10th Cir. 2002)).

Furthermore, “we must consider not just the mitigation evidence that Defendant

claims was wrongfully omitted, but also what the prosecution’s response to that

evidence would have been.” Michael Wilson v. Trammell (“Michael Wilson II”),

706 F.3d 1286, 1306 (10th Cir. 2013); accord Littlejohn II, 875 F.3d at 553; see

Michael Wilson II, 706 F.3d at 1305 (“To resolve whether there was prejudice, we

do not consider omitted mitigation evidence in a vacuum.”).

“If there is a reasonable probability that at least one juror would have

struck a different balance, . . . prejudice is shown.” Littlejohn I, 704 F.3d at 861

(quoting Victor Hooks II, 689 F.3d at 1202). Put another way, in the capital-

sentencing context, if the petitioner demonstrates that there is a reasonable

44
probability “that at least one juror would have refused to impose the death

penalty,” the petitioner has successfully shown prejudice under Strickland. Victor

Hooks II, 689 F.3d at 1202 (quoting Michael Wilson I, 536 F.3d at 1124 (Hartz,

J., concurring)); accord Littlejohn II, 875 F.3d at 553.

2. Misstatement of Strickland Standard

We first address Mr. Grant’s overarching claim that the OCCA’s rejection

of his ineffective-assistance claims is contrary to clearly established federal law

because the OCCA applied the incorrect legal framework—that is, the OCCA

failed to apply Strickland’s well-established rubric. When setting forth “the legal

framework for evaluating [Mr. Grant’s] ineffective-assistance claims,” the OCCA

stated that “[Mr. Grant] must demonstrate that trial counsel’s performance was so

deficient as to have rendered [him], in essence, without counsel.” Grant, 205

P.3d at 22. This statement of law, in Mr. Grant’s view, “placed an extra burden

on him which was contrary to law.” Aplt.’s Opening Br. at 83. Mr. Grant thus

argues that we must apply de novo review to his ineffective-assistance claims.

We disagree.

On habeas review, we properly eschew the role of strict English teacher,

finely dissecting every sentence of a state court’s ruling to ensure all is in good

order. Cf. Renico v. Lett, 559 U.S. 766, 773 (2010) (noting that “AEDPA imposes

a ‘highly deferential standard for evaluating state-court rulings[]’” (quoting Lindh

v. Murphy, 521 U.S. 320, 333 n.7 (1997))); Michael Williams, 529 U.S. at 411

45
(“Congress specifically used the word ‘unreasonable,’ and not a term like

‘erroneous’ or ‘incorrect.’”). Rather, our focus is on the reasonableness of the

state court’s decision—viz., whether that decision is contrary to or an

unreasonable application of clearly established federal law or based on an

unreasonable determination of the facts.

Consequently, our inquiry relates to the overall substance of the state

court’s analysis and the conclusion it thereafter makes. The Supreme Court has

emphasized § 2254’s focus on the decision of the state court: “Avoiding [§

2254’s] pitfalls does not require [a state court’s] citation of [Supreme Court]

cases—indeed, it does not even require [a state court’s] awareness of [Supreme

Court] cases, so long as neither the reasoning nor the result of the state-court

decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphases

added).

Viewed through this proper prism, there is no occasion here for us to apply

de novo review based on the OCCA’s language in a single sentence. Admittedly,

that language—especially, the “rendered without counsel” phrase—deviates from

the proper formulation of the Strickland standard. Cf. United States v. Cronic,

466 U.S. 648, 659 (1984) (“[I]f counsel entirely fails to subject the prosecution’s

case to meaningful adversarial testing, then there has been a denial of Sixth

Amendment rights that makes the adversary process itself presumptively

unreliable.”). But that is not material. The true question presented by

46
Mr. Grant’s challenge is simply whether the overall substance of the OCCA’s

analysis, as well as the result it reached, reflects that the court understood and

decided the ineffective-assistance issue under the proper Strickland framework.

And we answer that question with no difficulty in the affirmative.

Virtually in the same breath—indeed, in the same paragraph on the same

page as the language that Mr. Grant identified—the OCCA articulated the proper

rubric of Strickland: it stated with respect to the performance prong—“We assess

counsel’s performance for reasonableness in light of prevailing professional

norms”—and regarding the prejudice prong—“Appellant must also demonstrate

that the allegedly deficient performance caused prejudice.” Grant, 205 P.3d at

22. And the OCCA never repeated in its Strickland discussion the “rendered

without counsel” linguistic formulation. Therefore, we have no difficulty

concluding that the OCCA’s analysis reflects that it understood and resolved the

ineffective-assistance issue under the proper Strickland framework. We

consequently reject Mr. Grant’s call for the application of de novo review based

on the (admittedly inaccurate) wording of a single sentence.

3. Failure to Monitor Competency

Mr. Grant argues that he is entitled to habeas relief based on the OCCA’s

rejection of his ineffective-assistance claim asserting that trial counsel’s alleged

unreasonable failure to monitor his competency—or, more precisely, his

purported decline into incompetency—prejudiced him. The OCCA summarized

47
the nature of Mr. Grant’s argument:

[Mr. Grant] submits that in the months between the
competency trial and the trial on guilt and punishment, his
competency may well have deteriorated. He points to his
statements at various pretrial and in camera hearings, pro se
writings, and his testimony in the punishment stage of the trial in
an attempt to support this claim. He also submits extra-record
evidence to support a related claim, based on the Sixth
Amendment right to counsel, that trial counsel was deficient for
not challenging his competency at the time of trial. Specifically,
he presents (1) an expert’s retrospective opinion, based on
evaluation of various materials, that [Mr. Grant] was not
competent to stand trial in November 2005; and (2) documentary
evidence suggesting that in mid–2005, Mr. Grant was not diligent
about taking medications prescribed to treat his mental illness.

Grant, 205 P.3d at 8 (emphasis added).

Regarding his pretrial statements, Mr. Grant highlights certain comments

that he made during a hearing in May 2005, when he waived a possible conflict of

interest involving one of his attorneys. After telling the court that he

“underst[ood] conflict of interest” and was prepared to “fire all staff and represent

myself once I feel that honestly [sic] matters are being taken out of proportion

meaning I’m being plotted against with the DA,” Mr. Grant offered his “theory”

in response to the court’s assurances that no such plotting was taking place: “My

theory plays my whole background. That’s for one. My way of life is I’m going

to leave this planet earth. That’s my theory. My theory I stand on it and it don’t

have nothing to do with this. My theory is my theory, you see what I’m saying.”

Mot. Hr’g Tr. at 7–8 (dated May 2, 2005). However, in response to follow-up

48
questioning, Mr. Grant indicated that he was not accusing the potentially

conflicted attorney of plotting with the District Attorney, and his other attorney

advised the court—without objection by Mr. Grant—that when Mr. Grant was

speaking about such plotting, he was simply “expressing concern that lawyers

sometimes do that.” Id. at 9.

Mr. Grant also draws our attention to two letters that he wrote in September

2005 to the judge and prosecutor, respectively. The first letter—which Mr. Grant

calls the “Eye” letter—refers to “electrons,” “eye,” “God,” and “Allah,” among

other things, R., Vol. I, at 782–84, and the author of Mr. Grant’s retrospective

competency hearing—Dr. Antoinette McGarrahan, PhD—subsequently suggested

that it “revealed incoherent ramblings and religious and grandiose delusions,” id.

at 771. The second letter (directed to the prosecutor) amounted to a confession to

the charged crimes which Mr. Grant wrote with the apparent hope of securing the

release of another inmate whom Mr. Grant described as “a good man from the

heart.” Id. at 786.

The OCCA’s ineffective-assistance analysis implicated Strickland’s first

prong— viz., the performance prong. Considering the extra-record materials that

Mr. Grant specifically marshaled with respect to this claim, the court held that the

materials were “insufficient to overcome the presumption that trial counsel had a

sound basis for believing [Mr. Grant] was competent at the time of trial.” Grant,

205 P.3d at 10. And the OCCA offered the following comments regarding the

49
underlying issue of competency:

[W]e find no reason to second-guess the judgment of those
parties most familiar with [Mr. Grant’s] history of mental
problems before and during the trial—defense counsel, the trial
court, and the defense experts retained at that time. The record
supports a conclusion that [Mr. Grant] was competent at the time
of his trial.

Id.

In resolving this claim, we first address below Mr. Grant’s contentions that

certain specific legal and factual errors are embedded in the OCCA’s analysis.

Concluding that these contentions are without merit, we then turn to the

substantive Strickland question. We determine that Mr. Grant’s ineffective-

assistance claim based on trial counsel’s alleged failure to monitor his purported

decline into incompetency fails under Strickland’s second prong—that is, on the

issue of prejudice. Accordingly, we affirm the district court’s denial of habeas

relief as to this claim.

a

First, Mr. Grant argues that the OCCA’s rejection of his failure-to-monitor

claim was contrary to clearly established federal law because it rested on a

determination of competence that was legally flawed. The OCCA rejected

Mr. Grant’s failure-to-monitor claim in significant part because it determined that

Mr. Grant was in fact competent when tried. Mr. Grant argues that the OCCA’s

competency determination was legally flawed because it addressed only one

50
prong of the two-pronged test for competency. We disagree.

“The [two-pronged] test for incompetence is . . . well settled. A defendant

may not be put to trial unless he ‘has [(1)] sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding . . . [and (2)] a

rational as well as factual understanding of the proceedings against him.’”

Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Dusky v. United States,

362 U.S. 402, 402 (1960) (per curiam)); see also Drope, 420 U.S. at 171 (“It has

long been accepted that a person whose mental condition is such that he lacks the

capacity to understand the nature and object of the proceedings against him, to

consult with counsel, and to assist in preparing his defense may not be subjected

to a trial.” (emphasis added)).

Mr. Grant argues that the OCCA’s competence determination is legally

flawed because it addressed only the second prong of the competency

standard—i.e., whether Mr. Grant understood the proceedings—and, therefore, the

OCCA’s resultant rejection of his failure-to-monitor claim is contrary to clearly

established federal law. Our review of the OCCA’s direct-appeal opinion,

however, reveals that the OCCA understood and also sufficiently considered the

first prong of the competence standard—i.e., whether Mr. Grant was able to assist

counsel in preparing his defense.

The OCCA clearly recognized that the competence standard had two

components and explicitly set them out. See Grant, 205 P.3d at 8 (“Under

51
Oklahoma law, a person is competent to stand trial if he has the present ability to

understand the nature of the charges and proceedings brought against him and to

rationally assist in his own defense. These standards are consistent with federal

constitutional requirements.” (emphasis added) (citations omitted, including to the

Supreme Court’s seminal decisions in Cooper and Drope)).

Furthermore, the OCCA’s reasoning also reflects its awareness of the first

prong of the standard and application of it. For example, the court reasoned that

Mr. Grant was able to make decisions regarding his defense; during the pre-trial

phase, for instance, the trial court “had several discussions with [Mr. Grant] about

various matters” and “these exchanges show[ed that Mr. Grant] had a rather keen

understanding of the legal process, and . . . was able to make important

decisions.” Id. at 9.

In short, we are confident that all fairminded jurists would not agree that

the OCCA misunderstood the appropriate federal standard for competency or

misapplied it. Its decision in this regard was not contrary to or an unreasonable

application of clearly established federal law.

b

Mr. Grant next argues that the OCCA’s rejection of his failure-to-monitor

claim and its related rejection of Mr. Grant’s request for an evidentiary hearing

were premised on an unreasonable determination of several facts. Specifically, he

claims that the OCCA unreasonably determined that (1) Mr. Grant “had a rather

52
keen understanding of the legal process . . . [and] was able to make important

decisions,” Grant, 205 P.3d at 9; (2) Mr. Grant had an awareness and

understanding of the “ramifications” of the “admission” in his confession letter,

id.; and (3) Mr. Grant’s purported “delusions” were actually “related to an

unconventional philosophy, or religion of sorts,” id. at 9 n.6.

We conclude that Mr. Grant has not preserved these three arguments for

appellate review because he failed to raise them in his habeas petition. See

Owens v. Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015) (“Because the

argument was not raised in his habeas petition, it is waived on appeal.”); Stouffer

v. Trammell, 738 F.3d 1205, 1222 n.13 (10th Cir. 2013) (“We do not generally

consider issues that were not raised before the district court as part of the habeas

petition.”); Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (deeming

waived certain ineffective-assistance claims where petitioner “fail[ed] to assert

them in his district court habeas petition”); see also Hancock v. Trammell, 798

F.3d 1002, 1021–22 (“But in the habeas petition, Mr. Hancock did not present this

allegation as a separate basis for habeas relief. As a result, this issue has been

forfeited.” (footnote omitted)). Accordingly, we do not reach the merits of them.

The third alleged unreasonable factual determination warrants a brief

discussion. 11 Mr. Grant argues that the OCCA unreasonably determined that the

11
The other two involve more straightforward instances of lack of
(continued...)

53
“‘delusions’ found by experts in their diagnoses of schizophrenia were not

delusions, but ‘related to an unconventional philosophy, or religion of sort.’”

Aplt.’s Opening Br. at 92 (quoting Grant, 205 P.3d at 9 n.6). Mr. Grant asserts

that this factual determination was unreasonable in light of the OCCA’s

contrasting determination that “experts tended to agree that [Mr. Grant] had . . . a

form of schizophrenia.” Id. (quoting Grant, 205 P.3d at 8). As Mr. Grant sees

things, these statements reflect “internally inconsistent determinations” and are,

therefore, unreasonable. Id.

The State contends that Mr. Grant waived this argument. In the State’s

view, Mr. Grant “never argued that the OCCA’s findings were unreasonable

because it made inconsistent findings.” Aplee.’s Br. at 51 n.9 (emphasis added).

We conclude that Mr. Grant has failed to preserve this argument for appellate

review. To be sure, Mr. Grant did contend that the OCCA made an unreasonable

11
(...continued)
preservation: Mr. Grant’s habeas materials are clearly silent regarding the
arguments. We do note regarding the first contention (understanding the legal
process), Mr. Grant essentially acknowledged in his habeas petition that he had
such an understanding prior to and during trial: “Mr. Grant’s understanding of the
legal process and his ability to understand the nature of the proceedings is only
one part of the competency standard—the part that was never seriously disputed.”
R., Vol. I, at 559 (emphasis added). He goes on to state that “[t]he evaluators
were nearly unanimous in concluding that Mr. Grant could understand the nature
of the legal proceedings.” Id. And, regarding the second (the confession letter),
though Mr. Grant discussed the confession letter in his petition, see, e.g., id. at
542, 549, he never contended that the OCCA’s findings regarding the letter were
an unreasonable determination of the facts.

54
determination of facts bearing on his delusions: “The OCCA also made an

unreasonable determination of the facts in concluding comments Mr. Grant made

in writings, colloquies with the court, and in his trial testimony are not ‘delusions

that sprang [from Mr. Grant’s] own mind [because] they related to an

unconventional philosophy, or religion of sorts.’” R., Vol. I, at 561 (quoting

Grant, 205 P.3d at 9 n.6). And Mr. Grant bolstered this assertion by noting that

the OCCA’s finding was contrary to the evidentiary findings of others: “The

wealth of evidence from all the experts indicate that his grandiose delusions,

which have a religious element, are a significant symptom of his mental illness

and not merely an unconventional philosophy.” Id. In other words, Mr. Grant

contrasted the OCCA’s factual findings with the allegedly abundant contrary

evidentiary findings of others and, on this basis, declared the OCCA’s findings

unreasonable.

However, at no point did Mr. Grant contend that the OCCA’s findings were

unreasonable because they were at odds with themselves—i.e., internally

inconsistent. More specifically, in seeking to establish their unreasonableness,

Mr. Grant did not compare one set of OCCA findings with another. But this

logically is what Mr. Grant would have done if he were attempting to demonstrate

that the unreasonableness of the OCCA’s findings was based on their internal

inconsistency. And, not surprisingly, this is precisely the line of argument that

Mr. Grant pursues on appeal.

55
 We do not understand the State—as Mr. Grant does—to be “essentially

assert[ing] that by not using the word ‘inconsistent’ . . . Mr. Grant waived the

argument.” Aplt.’s Reply Br. at 18. That is because both the totality of the

relevant language and structure of Mr. Grant’s arguments in his habeas petition

make patent to us that he did not advance this internal-inconsistency ground for

declaring the OCCA’s factual findings unreasonable in his habeas petition.

Accordingly, he has failed to preserve this contention for appellate review.

c

Having rejected Mr. Grant’s specific contentions of legal and factual error,

we turn to the merits of his ineffective-assistance claim based on trial counsel’s

alleged failure to monitor his competency. We conclude that Mr. Grant cannot

prevail on this ineffective-assistance claim under Strickland’s (second) prejudice

prong. That is, Mr. Grant cannot demonstrate that there is a reasonable

probability that the result of the proceeding would have been different but for

counsel’s failure to monitor Mr. Grant’s competency—or, as Mr. Grant views it,

his “slide into incompetency.” R., Vol. I, at 582.

It is undisputed—as the district court found—that the OCCA did not

“expressly address [Strickland’s] second prong.” 12 Id. at 1584. The parties joust

12
Mr. Grant complains about the OCCA’s “brief and conclusive
prejudice analysis without a totality of the evidence review.” Aplt.’s Opening Br.
at 92; see also R., Vol. I, at 605 (noting “the OCCA’s brief and conclusive
(continued...)

56
about whether we should apply AEDPA deference or de novo review in our

consideration of the prejudice prong. Advocating for de novo review, Mr. Grant

has the better of this argument—but only up to a point. Because the OCCA did

not—by the plain terms of its ruling—reach the prejudice question, we resolve

this overarching question de novo. See, e.g., Wiggins, 539 U.S. at 534 (“In this

case, our review is not circumscribed by a state court conclusion with respect to

prejudice, as neither of the state courts below reached this prong of the Strickland

analysis.”); Rompilla, 545 U.S. at 390 (noting that “[b]ecause the state courts

found the representation adequate, they never reached the issue of prejudice, and

so we examine this element of the Strickland claim de novo” (citation omitted));

Victor Hooks II, 689 F.3d at 1188 (“[I]n those instances where the OCCA did not

address the performance prong of Strickland and we elect to do so, our review is

de novo.”). But cf. McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 100

n.10 (3d Cir. 2012) (noting some “possible tension between” language in

Harrington regarding the adjudication of habeas claims and the approach of

Wiggins and its progeny where a portion of a Strickland claim is not reached by a

12
(...continued)
prejudice analysis”). However, though appearing in the portion of his brief
generally discussing trial counsel’s alleged failings in addressing Mr. Grant’s
mental-health issues, this comment does not appear to refer to the OCCA’s
specific ruling on the ineffective-assistance failure-to-monitor claim. Indeed,
Mr. Grant later agrees with the State, in his reply brief, that “the OCCA did not
adjudicate the prejudice prong of this sub-claim [i.e., failure-to-monitor
ineffective assistance].” Aplt.’s Reply Br. at 19.

57
state court, and collecting cases).

However, in resolving the merits of Strickland’s first prong (i.e.,

performance), the OCCA made a related, but distinct and independent, merits

determination regarding Mr. Grant’s substantive competency. See Grant, 205

P.3d at 10. We are obliged to take this ruling into account in our analysis of

Strickland’s prejudice prong. And it seemingly can be determinative regarding

whether Mr. Grant can prevail under that prong. For instance, commenting on

what constitutionally effective counsel would have done for him, Mr. Grant

states:

Reasonably effective counsel, with a client whose competency
was as mercurial as Grant’s, would have investigated, checked
medication records, interviewed the mental health professionals
at [the Oklahoma County Detention Center] who were treating
him daily, challenged Grant’s mental capacity to make a written
confession, and heeded the signs of decompensation noted by
their own expert.

Aplt.’s Opening Br. at 64. But, even assuming arguendo the performance of

Mr. Grant’s trial counsel was constitutionally deficient for failing to take such

steps—and, significantly, for failing to seek a second competency trial—if

Mr. Grant was actually competent, their unconstitutional performance would not

have prejudiced him. More specifically, any motion that Mr. Grant’s purportedly

effective counsel would have filed for a second competency proceeding would

have been properly denied.

58
 AEDPA’s deferential standards are appropriately applied to our review of

the OCCA’s distinct and independent merits determination of Mr. Grant’s

competency. And this is true even though—as Mr. Grant urges—we conduct a de

novo review of the overarching and related question of whether Mr. Grant was

prejudiced by trial counsel’s assumed unconstitutional performance. Compare

Spears, 343 F.3d at 1249–50 (using de novo review of petitioner’s

ineffective-assistance claim involving counsel’s failure to object to a

flight-from-the-crime instruction, but seemingly applying a deferential

reasonableness standard of AEDPA to the OCCA’s related determination of a

mixed question of law and fact, specifically, that “the State had presented

sufficient evidence to support giving the flight instruction”), with Victor Hooks v.

Ward (“Victor Hooks I”), 184 F.3d 1206, 1223 (10th Cir. 1999) (applying de novo

review where “the Oklahoma courts never considered Hooks’ federal

constitutional claim with regard to his requested instructions on lesser included

offenses” but according AEDPA’s presumption of correctness where “the

Oklahoma Court of Criminal Appeals made some factual determinations that may

bear on this issue” (emphasis added)).

The question then becomes what AEDPA standards govern this question:

viz., AEDPA’s standards pertaining to issues of fact (notably, § 2254(e)(1)) 13 or

13
To be sure, AEDPA’s deferential standards with respect to state court
(continued...)

59
those relating to law-dependent mixed questions of fact and law (i.e.,

§ 2254(d)(1)). Precedent from the Supreme Court and our court at least strongly

suggests that, in determining that Mr. Grant was substantively competent, the

OCCA resolved “a factual issue” that “shall be presumed to be correct”;

Mr. Grant would thus bear the burden of rebutting that presumption “by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1); see Thompson v. Keohane, 516

U.S. 99, 113 (1995) (noting that certain “practical considerations . . . prompted

the Court to type questions like . . . competency” as “factual issues”);

Demosthenes v. Baal, 495 U.S. 731, 735 (1990) (per curiam) (“We have held that

a state court’s conclusion regarding a defendant’s competency is entitled to such a

presumption [i.e., of correctness].”); Spitzweiser-Wittgenstein v. Newton, 978

F.2d 1195, 1197 (10th Cir. 1992) (“Competency is a question of fact subject to

the rebuttable presumption of correctness established in § 2254.”); 1 Randy Hertz

& James S. Liebman, F EDERAL H ABEAS C ORPUS P RACTICE & P ROCEDURE §

13
(...continued)
factual findings are also embodied in 28 U.S.C. § 2254(d)(2). However, insofar
as competency may be deemed a factual issue, the caselaw that we have
unearthed—which is discussed infra—primarily has focused on whether state
court determinations of competency are entitled to a “presumption of
correctness”—that is, on whether the standard that AEDPA ultimately
incorporated into 28 U.S.C. § 2254(e)(1) should apply. Therefore, that is our
focus as well. However, we recognize that Mr. Grant has alleged factual errors
related to the OCCA’s competency determination—which implicate
§ 2254(d)(2)’s rubric—but we have determined in Part II.B.3.b, supra, that
Mr. Grant has not preserved any of those contentions for appellate review.

60
20.3[d] at 1156 n.55 (noting that “[t]he lower federal courts are divided on the

question of whether competency to stand trial is a factual issue entitled to a

presumption of correctness or a mixed question of law and fact,” and citing Tenth

Circuit cases in the former camp).

The Supreme Court “typed” the competency issue as a factual one, even

though it is not comprised solely of “simple historical fact[s],” Miller v. Fenton,

474 U.S. 104, 113–14 (1985), but, rather, is determined by applying legal

standards to the subsidiary facts, see Thompson, 516 U.S. at 111 (“[T]he Court

has classified as ‘factual issues’ within § 2254(d)’s compass [certain] questions

extending beyond the determination of ‘what happened.’ This category notably

includes: competency to stand trial . . . .”). The Thompson Court explained the

“practical considerations” underlying this choice:

While these issues encompass more than “basic, primary, or
historical facts,” their resolution depends heavily on the trial
court’s appraisal of witness credibility and demeanor. This Court
has reasoned that a trial court is better positioned to make
decisions of this genre, and has therefore accorded the judgment
of the jurist-observer “presumptive weight.”

Id. at 100 (citation omitted) (citing Wainwright v. Witt, 469 U.S. 412, 429 (1985),

and quoting Miller, 474 U.S. at 114). 14

14
The Supreme Court recently employed a similar typing
methodology—involving the application of “practical considerations” (Thompson,
516 U.S. at 113) in the civil bankruptcy context—to determine that the proper
standard of review to apply to a certain “‘mixed question’ of law and fact” was
(continued...)

61
 We recognize that the key cases cited supra—Thompson, Demosthenes, and

its seminal Tenth Circuit progeny, Spitzweiser-Wittgenstein—were decided under

a pre-AEDPA version of § 2254 that contained the presumption-of-correctness

language that subsequently found a home in subsection (e)(1) of § 2254, with

AEDPA’s 1996 enactment. However, the presumption-of-correctness language

before and after AEDPA is intended to effectuate federalism principles by

“giv[ing] great weight to the considered conclusions of a coequal state judiciary,”

Miller, 474 U.S. at 112. Compare Thompson, 516 U.S. at 108 (quoting Miller, in

discussing the federalism principles underlying the presumption of correctness in

the pre-AEDPA regime), with Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010)

(“AEDPA in general and Section 2254(e) in particular were designed ‘to further

the principles of comity, finality, and federalism.’ Section 2254(e)(1) plainly

14
(...continued)
the standard generally applicable to factual issues—i.e., clear error—and not de
novo review. See U.S. Bank Nat. Ass’n ex rel. CW Capital Asset Mgmt. LLC v.
Vill. at Lakeridge, --- U.S. ----, 138 S. Ct. 960, 966 (2018). The mixed question
there generally was whether a “particular creditor is a non-statutory insider”; the
answer to that question turned on whether “the facts found showed” that the
creditor’s claim was acquired in “an arm’s-length transaction.” Id. at 967, 969.
As with competency, more was at issue in this determination than basic historical
facts; a legal standard had to be applied to those facts. See id. at 967.
Nevertheless, akin to competency, the Court concluded that answering the
question “entails primarily . . . factual work”; specifically, it involves “tak[ing] a
raft of case-specific historical facts, consider[ing] them as a whole, [and]
balanc[ing] them one against another.” Id. at 966–67. Thus, as the Thompson
Court reasoned regarding competency, the Lakeridge Court reasoned that such
work is “primarily” the province of the trial court and, consequently, it should be
deferentially “subject only to review for clear error.” Id. at 968–69.

62
seeks to conserve judicial resources and reflects Congress’s view that there is no

reason for a do-over in federal court when it comes to facts already resolved by

state tribunals. That section also reflects Congress’s respect for principles of

federalism, recognizing that a decision to set aside state court factual findings

intrudes on the state’s interest in administering its criminal law.” (citation

omitted) (quoting Michael Williams, 529 U.S. at 436)). Furthermore, we have no

reason to believe that the “practical considerations” that Thompson cited, 516

U.S. at 113, do not remain in full effect in the post-AEDPA era. Cf. United States

v. Mackovich, 209 F.3d 1227, 1232 (10th Cir. 2000) (“Competency to stand trial

is a factual determination that can be set aside only if it is clearly erroneous.”

(quoting United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998))).

Therefore, there is a strong suggestion in controlling precedent that competency

should be treated as a factual issue in the habeas context—even in the post-

AEDPA setting. If so, it would be subject to § 2254(e)(1)’s presumption of

correctness.

As it turns out, however, we need not definitively determine whether

subsection (e)(1)’s standard applies here. That is because whether this standard

applies or, alternatively, AEDPA’s standard pertaining to law-dependent mixed

questions—specifically, the standard of subsection (d)(1), see Michael Williams,

529 U.S. at 398; Gilson v. Sirmons, 520 F.3d 1196, 1233–34 (10th Cir. 2008)

(holding that whether there is sufficient evidence to warrant giving a lesser-

63
included-offense instruction is “a mixed question of law and fact and is thus

reviewable under § 2254(d)(1)”); Cook v. McKune, 323 F.3d 825, 829–30 (10th

Cir. 2003) (discussing Michael Williams and noting that § 2254(d)(1) “applies to

errors of law and mixed questions of fact and law”)—Mr. Grant cannot prevail.

In the former scenario, § (e)(1)’s “standard is demanding but not insatiable.”

Miller-El v. Dretke (“Miller-El II”), 545 U.S. 231, 240 (2005); accord Danny

Hooks, 606 F.3d at 721; House, 527 F.3d at 1019. But Mr. Grant would be hard-

pressed to satisfy it here because he makes no effort to take up the cudgel by

making specific arguments under § 2254(e)(1)’s framework to rebut the

presumption of correctness. In the latter scenario, Mr. Grant cannot demonstrate

that the OCCA’s determination of competency was contrary to or an unreasonable

application of clearly established federal law. See, e.g., Dusky, 362 U.S. at 402;

Drope, 420 U.S. at 171. At the very least, “it is possible fairminded jurists could

disagree” regarding whether the OCCA’s competency determination conflicts

with Supreme Court precedent. Harrington, 562 U.S. at 102.

Relevant to both scenarios, specifically, the OCCA considered the totality

of the evidence, including the supplemental materials that Mr. Grant submitted

with respect to his purported incompetency, and found “no reason to second-guess

the judgment of those parties most familiar with [Mr. Grant’s] history of mental

problems before and during the trial—defense counsel, the trial court, and the

defense experts retained at that time.” Grant, 205 P.3d at 10. This approach was

64
not unreasonable. And, as the OCCA explained, these sources uniformly did not

express doubt regarding Mr. Grant’s competency to stand trial. See id. at 9.

Notably, the OCCA stated:

[Mr. Grant’s] two-lawyer defense team was experienced and
zealous, considering that the overwhelming evidence against their
client limited their options. At no time did either of them
express doubts about their client’s competency during the trial.
Their chief mental-health expert, Dr. Grundy, who spent many
hours interviewing [Mr. Grant] over the lengthy course of the
prosecution, attended at least part of the trial and testified for the
defense. Yet, there is no indication that Dr. Grundy had doubts
about [Mr. Grant’s] competency, either at that time or on
reflection afterward.

Id.

The OCCA moreover called into question the adequacy of Mr. Grant’s

supplemental medical records that supposedly “suggest[ed] that in mid–2005,

[Mr. Grant] was not diligent about taking medications prescribed to treat his

mental illness.” Id. at 8. Mr. Grant contends that these “psychiatric medications .

. . . [were] required to keep him competent.” Aplt.’s Opening Br. at 65. And Dr.

McGarrahan’s report underscored the point: “Most all of the mental health

professionals who evaluated Mr. Grant, including court-ordered experts and

State’s experts agreed that Mr. Grant’s competency was basically dependent upon

. . . his use of psychotropic medications.” R., Vol. I, at 774.

Regarding the medication records, however, the OCCA stated:

The jail records regarding [Mr. Grant’s] medication history do
not warrant a different result. [Mr. Grant] claims these logs

65
 show that he was, at times, non-compliant in taking his
prescribed medication. However, the affidavit accompanying
these logs indicates that complete records for crucial time
periods—particularly, most of September 2005, all of October
2005, and most of November 2005, when the trial was held—are
missing or incomplete.

Grant, 205 P.3d at 10. In his appellate briefing, Mr. Grant does not dispute the

OCCA’s finding—based on the court’s review of the submitted affidavit—that his

medication records for a “key time period” leading up to trial were incomplete.

Aplt.’s Opening Br. at 65. He simply responds that “[h]ad counsel been

monitoring Grant’s medication contemporaneously, the medication picture for

October would be complete.” Id. But that comment does nothing to undermine

the OCCA’s factual judgment regarding the inadequacy of his medication records

to establish the alleged harmful pattern of Mr. Grant not taking his

medication—or, relatedly, to call into question the OCCA’s ultimate finding that

Mr. Grant was competent.

Similarly, Mr. Grant also attacks vigorously the OCCA’s reasoning

regarding the competency implications of his decision to testify and to send his

two September 2005 letters. But we discern nothing in these arguments that

would undermine the presumption of correctness that would attach to any OCCA

factual finding that Mr. Grant was competent, and at the very least, “it is possible

fairminded jurists could disagree” about whether the OCCA’s reasoning here

regarding competency conflicts with Supreme Court precedent. Harrington, 562

66
U.S. at 102.

In this regard, the OCCA rejected Mr. Grant’s argument that his decision to

testify, despite trial counsel’s contrary advice, militates in favor of a conclusion

that he was not competent. See Grant, 205 P.3d at 9. Dr. McGarrahan had

concluded that Mr. Grant was incompetent during his trial and sentencing, in part

because “Mr. Grant testified in the punishment stage against counsel’s advice.”

Id. The OCCA, however, generally refused to adopt Dr. McGarrahan’s opinion

because it was contrary to the opinions of the trial court, defense counsel, and

Dr. Grundy—who each observed Mr. Grant leading up to and during trial and

believed him to be competent. See id. Furthermore, the OCCA specifically

reasoned that, insofar as Dr. McGarrahan’s opinion rested on the fact that

Mr. Grant testified over the contrary advice of counsel, it really implicated

whether Mr. Grant’s decision-making was wise, not necessarily whether he was

competent to make such decisions. See id. More specifically, the OCCA

explained that the wisdom, or lack of wisdom, of Mr. Grant’s decisions is not

dispositive of the competency inquiry: “Just as we do not judge counsel’s

effectiveness solely by the success of their strategies, we refuse to judge a

defendant’s competency solely by the wisdom of his own choices.” Id.

The OCCA also did not shy away from addressing whether Mr. Grant’s

September 2005 letters evinced that he was incompetent. Relevant to the so-

called EYE letter, the OCCA reasoned:

67
 [Mr. Grant] points to several cryptic comments in his writings,
in his colloquies with the court, and in his trial testimony, as
evidence that he did not understand the nature of the proceedings.
But these comments were not delusions that sprang from
[Mr. Grant’s] own mind. They related to an unconventional
philosophy, or religion of sorts, that [Mr. Grant] adhered to,
similar in some respects to the Black Muslim or Nation of Islam
movements, and known variously as “The Nation of Gods and
Earths” or “The Five Percenters.” This set of beliefs is not
uncommon among inmates in the Northeastern United States,
where [Mr. Grant] had grown up and been incarcerated.

Id. at 9 n.6. Moreover, in the same vein as its comments regarding Mr. Grant’s

decision to testify in the sentencing proceeding, the OCCA offered the following

remarks regarding Mr. Grant’s letter to the prosecutor:

The letter [Mr. Grant] addressed to the prosecutor shortly before
trial, wherein he detailed his commission of the crimes, may not
have been the most prudent course of action, but it does not show
that he was unable to grasp the ramifications of such an
admission. To the contrary, the letter indicates that [Mr. Grant]
was fully aware of what he was doing.

Id. at 9. Notably, in the letter, Mr. Grant acknowledges that he may pay a “price”

for confessing, insists that he is not “crazy” and explains that he is making the

statement because he is “tired” and “want[s] to help someone.” R., Vol. I, at

786–87.

Based on the foregoing, we conclude that Mr. Grant has not rebutted the

presumption of correctness that attaches to the OCCA’s arguably factual

competency finding; or, alternatively, has not demonstrated that the OCCA’s

competency determination was contrary to or an unreasonable application of

68
clearly established federal law regarding substantive competency. Consequently,

we must accept this competency determination in our de novo consideration of

whether Mr. Grant can prevail under Strickland’s prejudice prong. 15 And we

15
We pause to more clearly define the scope of that prejudice analysis.
As noted, while concluding that Mr. Grant was competent, the OCCA also opined
that the performance of Mr. Grant’s counsel in monitoring his competency was
not constitutionally deficient (i.e., Strickland’s first prong). Notably, its ultimate
determination regarding Mr. Grant’s competency relied in part on certain
subsidiary factual findings that reflected this positive view of the performance of
Mr. Grant’s counsel. For example, the OCCA bolstered its determination that
Mr. Grant was competent with a finding that Mr. Grant’s counsel was zealous; it
reasoned from this finding that, if Mr. Grant was actually incompetent, his
counsel could reasonably have been expected—due to their zealous nature—to
have voiced doubts about his competency with the trial court, but counsel did not
do so. See Grant, 205 P.3d at 10. In conducting our de novo review of
Strickland’s prejudice prong, we keep in mind that the predicate for this de novo
analysis is the assumption that the performance of Mr. Grant’s counsel in
monitoring his competency was actually not constitutionally adequate—that is,
our assumption is contrary to the OCCA’s assessment of counsel’s performance.
Accordingly, the OCCA’s subsidiary factual findings on the competency question
that reflect its favorable view of counsel’s performance—e.g., its finding that
Mr. Grant’s counsel was zealous regarding the monitoring of his
competency—are not taken into account in our de novo prejudice analysis, even
though we accord AEDPA deference to the OCCA’s ultimate determination that
Mr. Grant was competent. Such subsidiary factual findings are logically
immaterial to our prejudice analysis, which rests on an assumption of deficient
performance, and have no place in it. To be clear, we are not saying that AEDPA
deference does not apply to these findings when we are assessing, in isolation, the
question of substantive competency vel non. Our point is simply that in
conducting our de novo analysis of prejudice under Strickland, subsidiary factual
findings of the OCCA reflecting a favorable view of the performance of
Mr. Grant’s counsel in monitoring his competency are not relevant to that
prejudice analysis and play no part in it—even though we accord AEDPA
deference to the OCCA’s ultimate competency determination. Moreover, it is
notable that this competency determination rested on much more than these
subsidiary findings (e.g., the absence of doubts of the trial court and Dr. Grundy
(continued...)

69
conclude that this competency determination sounds the death knell for

Mr. Grant’s ineffective-assistance claim because it undercuts his ability to satisfy

this prong.

Specifically, Mr. Grant cannot establish that, but for his trial counsel’s

failure to monitor his alleged descent into incompetency, the result of his

proceeding would have been different. For example, even if counsel had

responded to Mr. Grant’s seemingly strange behavior and requested a second

competency trial, they would not have been successful because Mr. Grant was in

fact competent. In other words, given Mr. Grant’s competency, there is no

reasonable probability that the court would have ruled favorably on such a

motion. In sum, we conclude that Mr. Grant’s ineffective-assistance claim based

on the failure to monitor fails under Strickland’s prejudice prong. The district

court reached a similar alternative holding. See R., Vol. I, 1584–85 (“[G]iven the

OCCA’s conclusion that petitioner was competent at the time of his trial, even

assuming that his counsel’s performance in allegedly failing to monitor

petitioner’s competence was deficient, petitioner cannot show that he was

prejudiced by his counsel’s failure or that fairminded jurists could not disagree

15
(...continued)
regarding Mr. Grant’s competency and the inadequacy of Mr. Grant’s
supplemental medical records to demonstrate that he was rendered incompetent by
the lack of proper medication), and it is sufficient quite apart from those findings
to warrant our deference.

70
that petitioner was prejudiced.”). We uphold the district court’s denial of habeas

relief on this claim.

4. Failure to Investigate and Present Evidence of Organic Brain Damage

Mr. Grant’s habeas petition asserts that his trial counsel was

constitutionally ineffective for failing to investigate and present evidence of his

frontal-lobe damage at the sentencing phase of his trial. Trial counsel’s

mitigation case focused on evidence of Mr. Grant’s schizophrenia, and his

dysfunctional family background. Trial counsel presented “red flags” suggestive

of organic brain damage, but never offered definitive evidence that Mr. Grant

suffered from organic brain damage.

To support his ineffective-assistance claim on direct appeal, Mr. Grant

presented a neuropsychological evaluation, performed by clinical psychologist

Dr. Michael M. Gelbort, PhD, in which Dr. Gelbort diagnosed Mr. Grant with

organic brain damage—specifically, damage to the frontal lobes. Based on

Dr. Gelbort’s evaluation, Mr. Grant argued on direct appeal that trial counsel’s

failure to investigate and present evidence of organic brain damage deprived him

of his constitutional right to effective assistance of counsel. The OCCA rejected

this argument, concluding that trial counsel’s performance was not

constitutionally deficient and that Mr. Grant was not prejudiced by trial counsel’s

failure to investigate and present evidence of his organic brain damage.

Mr. Grant raised this claim in his habeas petition in the district court and,

71
applying AEDPA deference, the district court found no error in the OCCA’s

denial of Mr. Grant’s claim. Mr. Grant argues before us that the OCCA’s

rejection of his claim is contrary to and an unreasonable application of clearly

established federal law and is premised on unreasonable factual determinations.

To aid our analysis, we first pause to explicate the OCCA’s adjudication of this

particular claim. We then address Mr. Grant’s arguments and ultimately conclude

that he has not shown that the OCCA’s denial of his claim was unreasonable or

otherwise erroneous under AEDPA’s standards.

a

In analyzing Mr. Grant’s claim, the OCCA considered both the additional

evidence that Mr. Grant argued trial counsel should have discovered and

presented at the penalty phase of his trial—that is, as relevant here, Dr. Gelbort’s

report—as well as the mitigation evidence that was in fact presented to the jury.

The OCCA characterized Dr. Gelbort’s report as “linking some of [Mr. Grant’s]

mental deficits to an organic brain disorder, and concluding that these deficits

appeared very early in [Mr. Grant’s] life.” Grant, 205 P.3d at 23. Next, the

OCCA reviewed trial counsel’s mitigation strategy: “Because the evidence of

[Mr. Grant’s] guilt was overwhelming, defense counsel focused on punishment.”

Id. The OCCA found that trial counsel “spent considerable time presenting

[mitigation] evidence to the jury.” Id. Specifically, trial counsel’s “strategy was

to present expert evidence on [Mr. Grant’s] mental illness, and testimony from

72
family members about his disadvantaged and dysfunctional childhood.” Id. The

OCCA stated that trial counsel’s mitigation strategies “were by no means

antagonistic” and concluded that “jurors might have found the circumstances

surrounding [Mr. Grant’s] formative years to have created, or at least aggravated,

his mental problems.” Id.

Based on the mitigation evidence before the jury, the OCCA reasoned that

“the fact that [Mr. Grant] had some sort of mental illness was never in serious

dispute” and, as a result, even though evidence of “organic brain disorder might

have shed light on one potential cause of [Mr. Grant’s] mental illness,” there was

not a reasonable probability that Dr. Gelbort’s report “would have affected the

jury’s sentencing decision.” Id. In particular, the OCCA opined that “the

affidavits [Mr. Grant] submit[ted] on appeal do not present anything qualitatively

different from what was presented at trial on these issues.” Id. The OCCA

further found that Mr. Grant failed to “overcome the strong presumption that his

trial counsel performed competently,” and denied his claim. Id.

b

Mr. Grant first argues that “the OCCA mischaracterized [his] claim as a

failure of trial counsel to call several witnesses who could have testified to

[Mr.] Grant’s mental illness generically.” Aplt.’s Opening Br. at 91

(emphasis omitted) (citing Grant, 205 P.3d at 23). Presumably, Mr. Grant is

referring to the following statement of the OCCA: “The final complaint is defense

73
counsel’s failure to call several witnesses who could have testified about [Mr.

Grant’s] mental illness.” Grant, 205 P.3d at 23. Mr. Grant asserts that this

characterization was unreasonable because trial counsel’s “deficient performance

did not arise from a strategic decision not to call witnesses but from a failure to

thoroughly investigate mitigating evidence in order to make reasonable strategic

decisions about what witnesses to call.” Aplt.’s Opening Br. at 91 (emphasis

added).

As a threshold matter, it appears that Mr. Grant neglected to raise this

argument in his habeas petition. Consequently, we could decline to consider it.

See, e.g., Parker, 394 F.3d at 1327. However, even if we saw fit to do so, see,

e.g., Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (“[T]he decision

regarding what issues are appropriate to entertain on appeal in instances of lack of

preservation is discretionary.”), we would be hard-pressed to conclude that the

OCCA mischaracterized Mr. Grant’s claim.

Reading the statement at issue in context, it appears to be merely a

shorthand reference to Mr. Grant’s claim, rather than a mischaracterization. The

OCCA’s opinion explicitly introduced the claim as one involving “trial counsel’s

failure to investigate aspects of [Mr. Grant’s] mental health.” Grant, 205 P.3d at

23 (emphasis added). And the concepts of deficient investigation and deficient

presentation are closely intertwined. Indeed, the OCCA reviewed the evidence

that Mr. Grant alleges trial counsel would have discovered from a reasonable

74
investigation and concluded that Mr. Grant was not prejudiced by the absence of

this evidence before the sentencing jury. See id. In light of the foregoing, we are

not persuaded that this stray line from the OCCA’s opinion constitutes a

misapprehension of Mr. Grant’s claim.

Furthermore, as previously noted, our focus under AEDPA’s deferential

standard is on the reasonableness of a state court’s decision—viz., whether that

decision is contrary to or an unreasonable application of clearly established

federal law or based on an unreasonable determination of the facts—not on the

unalloyed rectitude of each line of text of a state court’s opinion. And Mr. Grant

has not explained how this isolated line resulted in the OCCA performing an

unreasonable analysis in contravention of AEDPA’s standards. Consequently, on

this basis alone, we would reject Mr. Grant’s argument.

c

Mr. Grant argues that the OCCA’s finding that he suffered no prejudice

from trial counsel’s failure to investigate and present evidence of his organic

brain damage constitutes an unreasonable application of clearly established

federal law. 16 He asserts that “[p]rejudice has been specifically found by the

16
In this context, Mr. Grant challenges a stray statement in the
OCCA’s discussion; we summarily address and reject the challenge at this time.
Specifically, Mr. Grant argues that the OCCA unreasonably “[c]haracteriz[ed]
organic brain damage as potentially causing Mr. Grant’s probable schizophrenia.”
Aplt.’s Opening Br. at 87. Mr. Grant argues that this explanation “oversimplifies
(continued...)

75
Supreme Court from trial counsel’s deficient performance in not investigating a

client’s cognitive deficits.” Aplt.’s Opening Br. at 92 (citing Michael Williams,

529 U.S. at 396). To bolster his point, Mr. Grant challenges the OCCA’s

subsidiary conclusion that Mr. Grant’s particular organic-brain-damage evidence

was not qualitatively different, in terms of mitigating effect, from the evidence of

schizophrenia that trial counsel had presented to the jury. 17

16
(...continued)
the connection, if any, between the damage to Grant’s brain and his schizophrenia
[and] ignores the cumulative effect from these separate disease processes.” Id.
As we see it, Mr. Grant’s argument amounts to no more than a complaint that the
OCCA’s language was inartful. He has not shown that this particular statement
constituted an unreasonable determination of fact, much less that such an error
would warrant habeas relief. See Byrd, 645 F.3d at 1172 (“Section 2254(d)(2),
however, ‘is a daunting standard—one that will be satisfied in relatively few
cases.’ That is because an ‘unreasonable determination of the facts’ does not,
itself, necessitate relief.” (citation omitted) (quoting Taylor v. Maddox, 366 F.3d
992, 1000 (9th Cir. 2004)). Indeed, the OCCA’s statement finds support in
Dr. Grundy’s testimony, wherein he explained that part of his job was to “look[]
at the medical or physical history of a person” in order to determine “whether
there is a medical or physical cause,” such as organic brain damage, “that would
contribute to their mental illness,” such as schizophrenia. R., Vol. IV, Trial Tr.
VII at 18 (emphases added). In light of Dr. Grundy’s testimony, we cannot
conclude that the OCCA’s suggestion (perhaps inartfully expressed) of a potential
causal nexus between Mr. Grant’s organic brain damage and his mental illness
constitutes an unreasonable determination of fact based on the record before the
OCCA.
17
In his brief, Mr. Grant argues that the OCCA’s determination that
evidence of organic brain damage was not qualitatively different in mitigating
effect from the evidence of schizophrenia was an unreasonable determination of
fact. However, as we have recently highlighted, such a prejudice-related question
is actually “a mixed question of law and fact with a significant legal component.”
Littlejohn II, 875 F.3d at 558 n.3; see Michael Williams, 529 U.S. at 398 (“The
[state] court correctly found that as to ‘the factual part of the mixed question,’
(continued...)

76
 In line with Mr. Grant’s arguments, we elect to focus our deferential review

under AEDPA on the OCCA’s prejudice ruling—viz., its determination that there

is not a reasonable probability that, but for trial counsel’s failure to investigate

and present organic-brain-damage evidence, the jury’s sentencing verdict would

have been different. See, e.g., Strickland, 466 U.S. at 697 ( “If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.”); see also

Littlejohn II, 875 F.3d at 552 (noting that “[t]hese two prongs” of the Strickland

standard “may be addressed in any order”). And, viewed through AEDPA’s

17
(...continued)
there was ‘really . . . n[o] . . . dispute’ that available mitigation evidence was not
presented at trial. As to the prejudice determination comprising the ‘legal part’ of
its analysis, it correctly emphasized the strength of the prosecution evidence
supporting the future dangerousness aggravating circumstance.” (citations
omitted) (quoting Williams v. Warden of the Mecklenburg Corr. Ctr., 487 S.E.2d
194, 198–99 (Va. 1997))). Consequently, the OCCA’s comment on this matter
implicates the legal component of AEDPA, § 2254(d)(1). See Acosta, 877 F.3d at
927 (“Contrary to the district court’s assertion, whether the facts found
concerning the prosecution’s efforts to produce the witness support the legal
conclusion that it acted in good faith is a mixed question of law and fact. Under
AEDPA, it is reviewed for an ‘unreasonable application of clearly established
Federal law.’” (citation omitted) (quoting Cook v. McKune, 323 F.3d 825, 831
(10th Cir. 2003))); cf. Lakeridge, 138 S. Ct. at 970 (holding that “the standard of
review for a mixed question [of law and fact] all depends—on whether answering
it entails primarily legal or factual work” and concluding that clear error (rather
than de novo) review applied to the mixed question of non-statutory insider status
under bankruptcy law because resolution of it largely involved factual work).
Accordingly, we consider Mr. Grant’s objection to the OCCA’s not-qualitatively-
different determination in the context of resolving the overall question of whether
the OCCA’s lack-of-prejudice conclusion was contrary to or an unreasonable
application of Strickland.

77
prism, we conclude that Mr. Grant has not carried his burden to demonstrate

prejudice under Strickland.

i

“Evidence of organic brain damage is something that we and other courts,

including the Supreme Court, have found to have a powerful mitigating effect.”

Victor Hooks II, 689 F.3d at 1205 (citing Rompilla, 545 U.S. at 392; Michael

Wilson I, 536 F.3d at 1094; Roderick Smith v. Mullin, 379 F.3d 919, 942–43 (10th

Cir. 2004)); see Littlejohn I, 704 F.3d at 864 (“Evidence of organic mental

deficits ranks among the most powerful types of mitigation evidence available.”).

“And for good reason—the involuntary physical alteration of brain structures,

with its attendant effects on behavior, tends to diminish moral culpability, altering

the causal relationship between impulse and action.” Victor Hooks II, 689 F.3d at

1205.

In Littlejohn II, we had occasion to elaborate on this “proposition”—and,

thereby, clarify the mitigating role that organic-brain-damage evidence plays in

the capital-sentencing context. See Littlejohn II, 875 F.3d at 559. Specifically,

we said:

[T]his proposition only has explanatory power with respect to our
caselaw when appropriately qualified in two salient respects.
First, it does not mean that all evidence of organic brain damage
has the same potency in the Strickland prejudice analysis and
will ineluctably result in a determination of prejudice. Our
caselaw requires us to examine the precise nature of the alleged
organic brain damage. In this regard, in several instances, we

78
 have concluded that evidence alleged to show organic brain
damage, or related mental-health evidence, would have had little,
if any, impact on the jury’s decision-making process. . . .
....
Second, we have concluded, in some instances, that
organic-brain-damage evidence would have been just as
likely—if not more likely—to have had an aggravating effect
rather than a mitigating effect on a sentencing jury.

Id. at 559–60 (citations omitted).

Put more simply, with respect to the first point, we must carefully consider

in our analysis the “precise nature” of the organic-brain-damage evidence at issue

and recognize that, though this category of evidence generally packs a powerful

mitigating punch, particular versions of it may be “qualitatively weak in their

mitigating effects on jurors.” Id. at 559, 566. And, regarding the second point,

because omitted mitigation evidence may have the effect of a “double-edged

sword”—cutting both in favor of mitigation and in favor of aggravation—we must

remain cognizant of the possibility that the evidence actually would have hurt

more than helped the petitioner’s mitigation case. 18 See Davis v. Exec. Dir. of

Dep’t of Corr., 100 F.3d 750, 762 (10th Cir. 1996) (noting that courts must

18
In his reply brief, Mr. Grant asserts that “the Supreme Court . . .
rejected the ‘double-edged’ characterization of [organic-brain-damage] evidence,”
in Sears v. Upton, 561 U.S. 945 (2010). Aplt.’s Reply Br. at 26–27. We recently
rejected the same argument in Michael Smith. See 824 F.3d at 1254 (“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.”). Accordingly, on
this basis, we reject Mr. Grant’s assertion.

79
carefully review omitted mitigation evidence to determine if it truly mitigates or,

instead, has the possibility of being a “two-edged sword” (quoting Davis v.

People, 871 P.2d 769, 774 (Colo. 1994))); see Gilson, 520 F.3d at 1250 (noting,

as to organic-brain-damage evidence, that “the presentation of this evidence

would likely have weighed against [petitioner] by erasing any lingering doubts

that may have existed as to his role in [the victim’s] murder, and by confirming

the jury’s conclusion that he represented a continuing threat, even if confined in

prison for life”); see also Littlejohn II, 875 F.3d at 564 (noting that “the

introduction of Mr. Littlejohn’s organic-brain-damage evidence at resentencing

likely would have been the impetus for developments harmful to his case”). In

sum, the identification of organic-brain-damage evidence that counsel allegedly

omitted unreasonably from the sentencing phase marks the beginning—not the

end—of our prejudice analysis under Strickland.

ii

(1)

On direct appeal, Mr. Grant submitted the neuropsychological evaluation

performed by clinical psychologist Dr. Gelbort. In summary, Dr. Gelbort’s report

indicated that Mr. Grant has a “frontal lobe syndrome,” causing him to suffer

from certain cognitive impairments. Aplt.’s Direct Appeal Appl. for Evidentiary

Hr’g, Ex. G-2. He found that Mr. Grant’s “impairments . . . predate the [offense

conduct],” “are omnipresent[,] and continuously affect his behavior in a negative

80
way.” Id. at Ex. G-3. More specifically, Dr. Gelbort found that Mr. Grant is

“never as able as a normal individual to think logically, adaptively, and

coherently,” and that “[h]is capacity for normal reasoning” is impaired. Id. As a

result, “his behavior [was] less likely to conform to normal standards at the time

of the crime.” Id.

Mr. Grant argues that this evidence could have explained to the jury that

his frontal lobe damage “caused [the] neuro-cognitive deficiencies that are linked

to his lifetime of impulsive, aggressive, and irrational behaviors.” Aplt.’s

Opening Br. at 87. Moreover, he argues that Dr. Gelbort’s evidence could have

“proved the brain damage to which trial counsel alluded, [and] also explained

. . . . in mitigating terms the self-destructive impulsive behaviors that carried over

into his devastating confession letter and testimony, and explained how his

impulse to sabotage his case was impossible for him to control.” Id. at 61–62.

We conclude that the OCCA could have reasonably concluded that the

organic-brain-damage evidence from Dr. Gelbort “would have been qualitatively

weak in [its] mitigating effects on jurors.” Littlejohn II, 875 F.3d at 566.

Dr. Gelbort spoke only in general terms about the presence of “frontal-lobe

damage” and Mr. Grant’s inability to think “logically, adaptively, and

coherently.” See Aplt.’s Direct Appeal Appl. for Evidentiary Hr’g, Ex. G-2, G-3.

Contrary to Mr. Grant’s suggestion, Dr. Gelbort’s testimony never indicated that

Mr. Grant’s brain defects caused his behavior to be “impulsive” or “aggressive”

81
in a way that would meaningfully explain his involvement in the double murders

for which he suffered convictions.

Indeed, evidence of impulse-control impairments would have been of

modest explanatory power in this particular case, where the overwhelming

evidence in the record indicates that Mr. Grant’s commission of the offenses at

issue was not the result of impulse; on the contrary, Mr. Grant’s criminal episode

was a planned, organized, and methodical one designed to secure money for his

girlfriend’s bail. See, e.g., R., Vol. IV, Trial Tr. VI, at 194 (“Q: So was it part of

your plan, before you went there, that you were going to get the videotape [from

the security camera]? [Mr. Grant:] Most definitely.”); id. at 194–95 (“Q: And so

before you ever entered the La Quinta Inn that day you had a knife and a gun and

you knew that you were going to kill whoever was there; is that correct?

[Mr. Grant:] Most definitely.”).]

As a result, in this case, any evidence of Mr. Grant’s inability to control his

impulses would have done little to connect the dots between his brain damage and

the offense conduct. Cf. Hooks, 689 F.3d at 1204 (“Counsel in capital cases must

explain to the jury why a defendant may have acted as he did—must connect the

dots between, on the one hand, a defendant’s mental problems, life circumstances,

and personal history and, on the other, his commission of the crime in question.”).

Furthermore, with regard to Dr. Gelbort’s opinion that Mr. Grant’s “behavior

[was] less likely to conform to normal standards at the time of the crime,” Aplt.’s

82
Direct Appeal Appl. for Evidentiary Hr’g. at Ex. G-3, the OCCA could have

reasonably concluded that “such evidence[, which] tends to depict [Mr. Grant] as

unstable and unable to control his actions[,] . . . could have [had] an overall

aggravating, rather than mitigating, effect,” and, therefore, its omission was not

prejudicial. Littlejohn II, 875 F.3d at 562.

Moreover, the OCCA also could have reasonably concluded that the

potency of Dr. Gelbort’s organic-brain-damage evidence would have been

significantly weakened by the fact that he never indicated that the negative

manifestations of Mr. Grant’s organic brain damage—for instance, his inability to

conform to societal norms—were treatable with medication or other such means.

See id. at 565 (“[T]he mitigating effect of Mr. Littlejohn’s evidence of organic

brain damage would likely have been diminished by the lack of reliable treatment

options for Mr. Littlejohn’s attention deficit and impulse-control disorders.”); cf.

Littlejohn I, 704 F.3d at 865 n.24 (evidence of organic brain damage coupled with

evidence of available medical treatments could give a sentencing jury “some

assurance that” the petitioner’s “criminal, violent past would not be prologue”);

Michael Wilson I, 536 F.3d at 1094 (“Diagnoses of specific mental illnesses such

as schizophrenia or bipolar, which are associated with abnormalities of the brain

and can be treated with appropriate medication, are likely to [be] regarded by a

jury as more mitigating than generalized personality disorders, which are

diagnosed on the basis of reported behavior, are generally inseparable from

83
personal identity, and are often untreatable through medical or neurological

means.” (emphases added)); cf. also Hooks, 689 F.3d at 1205 (citing Michael

Williams, 529 U.S. at 398).

In sum, we conclude that the OCCA could have reasonably concluded that

the “mitigating effects on the jurors” of the particular organic-brain-damage

evidence identified by Mr. Grant “would have been qualitatively weak.”

Littlejohn II, 875 F.3d at 566.

(2)

Furthermore, this qualitatively-weak evidence would not have been

considered by the sentencing jury in a vacuum; Strickland and its progeny lead us

to examine the role that the evidence would have played in Mr. Grant’s overall

mitigation case. As the Supreme Court put it,

In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the evidence
before the judge or jury. Some of the factual findings will have
been unaffected by the errors, and factual findings that were
affected will have been affected in different ways. Some errors
will have had a pervasive effect on the inferences to be drawn
from the evidence, altering the entire evidentiary picture, and
some will have had an isolated, trivial effect.

Strickland, 466 U.S. at 695–96; accord Jeremy Williams, 782 F.3d at 1215;

Michael Wilson II, 706 F.3d at 1305.

The OCCA observed that trial counsel “spent considerable time presenting

[mitigation] evidence to the jury.” Grant, 205 P.3d at 23. Trial counsel’s

84
mitigation case included expert evidence of Mr. Grant’s schizophrenia presented

by Dr. Grundy; testimony from family members and Dr. Art Williams, PhD, about

his disadvantaged and dysfunctional childhood; and various references to certain

“red flag” indicators of organic brain damage, though no definitive evidence of

organic brain damage was presented.

Dr. Grundy testified that he diagnosed Mr. Grant with schizophrenia and

that this illness “significantly impaired his competency,” but that medication and

a structured environment “helped his symptoms go into partial remission . . . to a

great extent.” R., Vol. IV, Trial Tr. VI, at 231. He also noted that Mr. Grant was

subject to certain “stressors” including that he grew up in “a high crime

neighborhood” with “poor parental supervision,” and possibly “parental neglect.”

Id., Trial Tr. VII, at 19. Dr. Grundy explained that when these “stressors are

present . . . mental illness worsens.” Id. at 20.

Dr. Grundy did not testify as to organic brain damage because he was not

qualified to “examine . . . and assess” the “potential for organic brain damage.”

Id. at 16, 18. However, he testified to certain “red flag” indicators of organic

brain damage including that Mr. Grant was deprived of oxygen at birth. Id. at 16,

28. Moreover, Mr. Grant’s mother testified that she drank alcohol heavily during

her pregnancy with Mr. Grant and that he was born “blue” and without a pulse.

Id., Vol. IV, Trial Tr. VI, at 133–34. And the jury was given the following

mitigation instruction further reinforcing the potentiality for organic brain

85
damage: “There are indications of brain damage existing at or before Donald

Grant’s birth[, including] his mother’s heavy consumption of alcohol during her

pregnancy with Donald Grant and the loss of oxygen to him during delivery.” Id.,

Trial Tr. VIII, at 34–35.

Dr. Williams testified regarding Mr. Grant’s “[v]ery pathological”

childhood. Id., Trial Tr. VII, at 181. Dr. Williams explained that Mr. Grant’s

father was an alcoholic and his mother was addicted to crack cocaine, and that, as

a result, “[h]e didn’t get any of the core values . . . the discipline accountability

[values] in terms of a family system and support system. . . . [H]e didn’t get any

positive rol[e] models early in life in relationship of support.” Id. at 181–82.

In light of the foregoing, we may certainly conclude that this is patently not

a situation where Mr. Grant’s trial counsel just “did something” in the mitigation

case. Michael Wilson I, 536 F.3d at 1084. Far from it. Consequently, with the

totality of this evidence before it, we think that the OCCA’s rejection of

Mr. Grant’s prejudice showing under Strickland cannot be found to be contrary to

or an unreasonable application of clearly established federal law. At a minimum,

“‘fairminded jurists could disagree’ on the correctness of the [OCCA’s] decision.”

Harrington, 562 U.S. at 101 (quoting Yarborough, 541 U.S. at 664).

Significantly, the omitted evidence of organic brain damage in this case

would have merely supplemented the same mitigation theory as was already

presented in the record. The jury heard evidence, inter alia, of Mr. Grant’s

86
schizophrenia diagnosis, and red flags of organic brain damage, as part of trial

counsel’s strategy to show that Mr. Grant was relatively less morally culpable for

his crimes. The omitted evidence of Dr. Gelbort’s evaluation and related

testimony would have followed this same theme: Mr. Grant is less morally

culpable for his crimes because of a mental impairment beyond his control. More

specifically, trial counsel’s mitigation case was targeted specifically to explain

and lessen Mr. Grant’s culpability for his offense conduct by underscoring a

clinically-diagnosable mental-health condition afflicting Mr. Grant, that is,

schizophrenia. And to this end, counsel put substantial evidence before the

sentencing jury regarding Mr. Grant’s mental illness.

Thus, evidence of organic brain damage would have only supplemented,

rather than introduced, this mitigation theory to the sentencing jury. Indeed, the

further evidence of organic brain damage could have been in tension with the

mitigation case and had a doubled-edged effect. Whereas Dr. Grundy testified, as

to schizophrenia, that—though it “significantly impaired his competency”—

medication and a structured environment “helped his symptoms go into partial

remission . . . to a great extent,” R., Vol. IV, Trial Tr. VI, at 231, there was not

similar testimony from Dr. Gelborn regarding the possibility of successful

treatment options for Mr. Grant’s organic brain damage. See, e.g., Littlejohn II,

875 F.3d at 565 (“[T[he mitigating effect of Mr. Littlejohn’s evidence of organic

brain damage would likely have been diminished by the lack of reliable treatment

87
options for Mr. Littlejohn’s attention deficit and impulse-control disorders.”); cf.

Michael Wilson I, 536 F.3d at 1094 (“Diagnoses of specific mental illnesses such

as schizophrenia or bipolar [disorder], which are associated with abnormalities of

the brain and can be treated with appropriate medication, are likely to [be]

regarded by a jury as more mitigating than generalized personality disorders,

which are diagnosed on the basis of reported behavior, are generally inseparable

from personal identity, and are often untreatable through medical or neurological

means.” (emphases added)). In sum, for Mr. Grant, evidence of his organic brain

damage—absent any indication that the symptoms could be treated—could well

have caused some damage to the substantial mitigation case trial counsel had

already presented to the jury.

Mr. Grant points to a number of cases in which the Supreme Court and this

one have found prejudice stemming from counsel’s failure to investigate and

present evidence of organic brain damage. In several of these cases—unlike the

circumstances here—trial counsel’s only mitigation theory was far afield from

that supported by (omitted) evidence of organic brain damage. For instance, in

Sears v. Upton, 561 U.S. 945, 947, 949 (2010), the Supreme Court found

prejudice where trial counsel’s mitigation case “portray[ed] the adverse impact of

[the defendant’s possible] execution on his family and loved ones,” and omitted

evidence of the defendant’s “frontal lobe abnormalities” and dysfunctional

childhood, which impaired the defendant’s planning, sequencing, and impulse

88
control. Similarly, in Rompilla, 545 U.S. at 378, 392, the Court found prejudice

where trial counsel presented testimony from family members that the defendant

“was innocent and a good man,” and omitted evidence that the defendant suffered

from organic brain damage and fetal alcohol syndrome.

And, in Wiggins, the Court found prejudice where counsel argued only that

the defendant had a “clean record,” with no prior convictions, despite the fact that

“[t]he mitigating evidence that counsel failed to discover and present in this case

[was] powerful,” including evidence of petitioner’s “diminished mental

capacities.” 539 U.S. at 515, 534–35. Finally, in Anderson v. Sirmons, 476 F.3d

1131, 1146–47 (10th Cir. 2007), we found prejudice where counsel presented

evidence that the defendant “was a kind, hard-working, normal man who could be

of some help to his daughter if his life were spared,” and omitted evidence, inter

alia, that the defendant had brain damage and was “borderline mentally

defective.”

In each of these cases, the good-guy and beloved-family-member mitigating

evidence presented by counsel was significantly different from the omitted—and

potentially more powerful—evidence of organic brain damage, which could have

served to explain and lessen the defendants’ moral culpability for their offense

conduct. Not so here. Evidence of organic brain damage would have only

supplemented, rather than introduced, the mitigation theory of Mr. Grant’s

counsel to the sentencing jury.

89
 Furthermore, a proper Strickland prejudice analysis would also necessarily

take into account the State’s potential case in aggravation. See, e.g., Michael

Wilson II, 706 F.3d at 1306 (noting that, in making the prejudice determination

under Strickland, we must evaluate the strength of the omitted evidence in light of

“what the prosecution’s response to that evidence would have been”). In support

of its contention that Mr. Grant deserved the death penalty, the State argued, inter

alia, that Mr. Grant posed a continuing threat to society. At least under facts akin

to these, “we have characterized a petitioner’s potential for continued

dangerousness, even if incarcerated, as ‘perhaps [the] most important aggravating

circumstance’ that juries consider in weighing the death penalty.” Littlejohn II,

875 F.3d at 564 (quoting John Grant v. Trammell, 727 F.3d 1006, 1017 (10th Cir.

2013)); see also Littlejohn I, 704 F.3d at 865 (holding that “[t]he potential

prejudice flowing from th[e] omission” of organic-brain-damage evidence could

have been “heightened” where “a considerable portion of the State’s case in

aggravation relate[d] to the continuing-threat aggravator”). Thus, in considering

the State’s potential case in aggravation, the jury would likely have used evidence

of Mr. Grant’s organic brain damage and its possibly untreatable symptoms as

support for a conclusion that Mr. Grant would pose a continuing threat to society,

notwithstanding his incarceration. The OCCA thus could have reasonably

concluded that, in this instance, “organic-brain-damage evidence would have been

just as likely—if not more likely—to have had an aggravating effect rather than a

90
mitigating effect on a sentencing jury.” Littlejohn II, 875 F.3d at 560.

***

In sum, we are not persuaded that the OCCA was unreasonable in

concluding that this additional mental-health explanation for Mr. Grant’s offense

conduct—offered in the form of organic-brain-damage evidence from

Dr. Gelbort—would have created a reasonable probability that a juror would have

voted differently at Mr. Grant’s sentencing. See Grant, 205 P.3d at 23 (“[W]hile

the presence or absence of organic brain disorder might have shed light on one

potential cause of [Mr. Grant’s] mental illness, the fact that [Mr. Grant] had some

sort of mental illness was never in serious dispute. In our view, the affidavits

[Mr. Grant] submits on appeal do not present anything qualitatively different from

what was presented at trial on these issues.”); cf. [Lois] Smith, 235 F.3d at 1282

(“Although the evidence pertaining to Smith’s organic brain damage would have

been proper mitigating evidence and may have helped explain the crime to some

degree . . . . we are not persuaded it is reasonably probable that the introduction

of the organic brain damage evidence would have led the jury to choose a life

sentence rather than a death sentence.”). At a minimum, “‘fairminded jurists

could disagree’ on the correctness of the [OCCA’s] decision.” Harrington, 562

U.S. at 101 (quoting Yarborough, 541 U.S. at 664). We cannot conclude that the

OCCA’s Strickland prejudice determination concerning the omitted organic-brain-

damage evidence is contrary to or an unreasonable application of clearly

91
established federal law. This determination dooms the organic-brain-damage

aspect of Mr. Grant’s Strickland claim because he necessarily cannot satisfy his

two-part burden. We accordingly affirm the district court’s denial of habeas

relief as to this claim.

5. Failure to Investigate and Present Evidence of Delusional Belief System

Mr. Grant argues that he was denied effective assistance of counsel because

trial counsel “fail[ed] to investigate and present evidence that [Mr. Grant’s]

delusions were,” in fact, delusions and “not related to any recognized religion.”

Aplt.’s Opening Br. at 77 (capitalization altered). The district court found that

this claim was unexhausted. As we have noted, exhaustion in the state courts is a

prerequisite for habeas review in federal court. See, e.g., Davila, 137 S. Ct. at

2064; Picard, 404 U.S. at 275.

Mr. Grant argues that the district court erred because he presented this

claim to the OCCA on direct appeal and in his application for post-conviction

relief by presenting certain affidavits to the OCCA at each of these phases.

Specifically, he contends that, on direct appeal, he presented this claim through

the affidavits of Anna Wright and Natasha Briggs, both of whom worked in the

medical unit at the prison where Mr. Grant was incarcerated. Additionally, he

contends that he presented this argument on post-conviction through the affidavit

of Stacey Hemphill, Mr. Grant’s cellmate.

We have comprehensively explicated in Part III.A.1, supra, the relevant

92
principles governing exhaustion and, more specifically, the fair presentation of

federal claims in state court. We will not repeat that discussion here. Suffice it

to say that presenting the relevant facts to the state court is not enough to

constitute the fair presentation of a claim. See Bland, 459 F.3d at 1011. To

exhaust his claim in state court, Mr. Grant needed to also present the argument

that he was denied effective assistance of counsel because trial counsel failed to

investigate and present evidence that his delusions were, in fact, delusions, and

not expressions of religion. In his briefing to this court, Mr. Grant has identified

no such language in his direct-appeal or post-conviction briefing.

Nor could we find any on our independent review of Mr. Grant’s briefing

before the OCCA. His direct-appeal briefing makes no such argument. And his

post-conviction brief likewise offers no argument on these matters. Mr. Grant

does refer to Mr. Hemphill’s affidavit in his post-conviction brief, but Mr. Grant

does so only in relation to his argument that he was tried while purportedly

incompetent. Mr. Grant does not link Mr. Hemphill’s statement to an argument

that trial counsel failed to investigate and present evidence that his seemingly

delusional statements reflected actual delusions, rather than religious beliefs.

Accordingly, Mr. Grant failed to exhaust this claim in state court. This

argument would appear to be subject to an anticipatory procedural bar because the

Oklahoma courts would not entertain it if Mr. Grant were to return to those courts

either because they would find that Mr. Grant could have raised the claim on

93
direct-appeal or subsequently in his post-conviction proceeding. See, e.g.,

Thacker, 678 F.3d at 841; Conover, 942 P.2d at 230. Mr. Grant makes no attempt

to argue that such a bar would not apply here were we to determine that this claim

is unexhausted. And he has made no showing of cause and prejudice or a

fundamental miscarriage of justice to excuse his default. See, e.g., Davila, 137 S.

Ct. at 2064–65; Bland, 459 F.3d at 1012. Therefore, we have no occasion to

reach the merits of this claim; our review is precluded.

6. Failure to Investigate and Present Evidence of Pertinent Aspects of
Mr. Grant’s Childhood

Mr. Grant received a COA to challenge trial counsel’s failure to investigate

and present evidence of pertinent aspects of his childhood. Mr. Grant argues that

trial counsel failed to “uncover family historians who observed unusual behaviors

in Donald as a child.” Aplt.’s Opening Br. at 78. Specifically, Mr. Grant points

to affidavits submitted with his post-conviction application that as a child he

“acted crazy,” and was “unpredictable[,] impulsive,” and “mentally ill.” Id.

(quoting Aplt.’s App. to Post-Conviction Appl., Ex. 7, 8). He asserts that his

“case in mitigation would have been significantly stronger if counsel had

thoroughly interviewed [his] mother and siblings, and interviewed other family

members [that] post-conviction counsel easily found.” Id. For the reasons set

forth below, we uphold this aspect of the district court’s denial of Mr. Grant’s

petition.

94
 a

To make sense of Mr. Grant’s request for relief, we pause briefly to review

the procedural history of this particular claim.

On direct appeal, Mr. Grant argued that trial counsel rendered ineffective

assistance, inter alia, by omitting certain evidence of his dysfunctional childhood

from its mitigation case. For support, he submitted “three affidavits from friends

or family which discuss his disadvantaged childhood, and offer occasional

examples of his strange behavior in the years preceding the instant crimes.”

Grant, 205 P.3d at 23. Specifically, he submitted the affidavit of his step-father,

Ronald Williams, who knew Mr. Grant as a child, as well as Mr. Grant’s former

girlfriend Cheryl Tubbs and her nephew Keith Tubbs, who each averred that they

had second-hand knowledge of Mr. Grant’s childhood. The OCCA found that

these “affidavits [did] not present anything qualitatively different from what was

presented at trial on these issues” and concluded that there was “no reasonable

probability that these additional witnesses would have affected the jury’s

sentencing decision,” and accordingly denied Mr. Grant relief under Strickland.

Id.

In his post-conviction application, Mr. Grant argued that trial and direct-

appeal counsel rendered ineffective assistance by “failing to investigate and

present to the jury [additional] compelling mitigation evidence.” Aplt.’s Post-

Conviction Appl. at 35 (capitalization altered). Specifically, Mr. Grant identified

95
several of his family members who could have testified to pertinent aspects of his

childhood. He submitted affidavits of his mother, Mary Williams, his sister,

Juzzell Robinson, and his younger brother, Lennox Grant. These three family

members each testified at sentencing, but Mr. Grant argued that they had

additional information that went undiscovered by trial and direct-appeal counsel.

He also submitted affidavits from two uncles, John Robinson and Isaiah

Robinson, and his cousin, Louis Robinson. Mr. Grant explained that these family

members would have been willing to testify but were never asked to do so. In its

denial of Mr. Grant’s post-conviction application, the OCCA found that Mr.

Grant’s claim “reformulate[d] an argument presented and addressed on direct

appeal,” and was therefore “barred [from post-conviction review] under the

doctrine of res judicata.” Grant II, No. PCD-2006-615, slip op. at 7.

b

Mr. Grant argues that our merits review of this claim should include the

materials that he submitted in post-conviction proceedings. See Aplt.’s Opening

Br. at 93 (“The post-conviction material should be considered as part of the

merits review of Grant’s claim.”). Mr. Grant asserts that, under Cone v. Bell, a

state court’s refusal to “review the merits of a petitioner’s claim on the ground

that it has done so already”—that is, res judicata—“creates no bar to federal

habeas review.” Id. (quoting Cone v. Bell, 556 U.S. 449, 466 (2009)). Therefore,

he urges us to consider his post-conviction materials as part of our merits review

96
of his claim.

In Cone, the state post-conviction court refused to consider a petitioner’s

claim based on its erroneous finding that the claim had been previously

adjudicated in state court. Cone, 556 U.S. at 466 (“That conclusion rested on a

false premise: . . . [the petitioner] had not presented his Brady claim in earlier

proceedings and, consequently, the state courts had not passed on it.”). The Court

held that the state court’s refusal to review the merits of the petitioner’s claim on

this mistaken ground—i.e., that it had done so already—created no bar to federal

habeas review. See id. at 467. Because the claim had never been reviewed on the

merits in state court, it was not subject to AEDPA review, and the Court thus

proceeded to review the claim de novo. Id. As applied here, Mr. Grant seems to

argue that Cone would permit us to consider his post-conviction materials de novo

in resolving his ineffective-assistance claim, given that the OCCA never

considered them on the merits due to its res judicata ruling.

But Mr. Grant is mistaken. Assuming arguendo that Cone is instructive

here at all, it leads in a different direction. It is true that, under Cone, the

OCCA’s refusal to consider his claim in the post-conviction context based on res

judicata created no bar to habeas review of the claim in the federal courts.

However, unlike in Cone, the OCCA has already adjudicated this claim on the

merits on direct appeal. In other words, the OCCA was not mistaken in

concluding that it had previously considered the claim. Indeed, Mr. Grant does

97
not dispute this; more specifically, he does not contest the OCCA’s finding that

his post-conviction claim was merely a reformulation of his direct-appeal claim

and thus barred by res judicata. Consequently, as applied here, Cone would

simply instruct that the OCCA’s refusal to consider the claim post-conviction on

res judicata grounds creates no barrier to our review of its resolution of this claim

on direct appeal. And because the OCCA reached the merits on direct appeal,

unlike in Cone, we are bound by AEDPA and, notably, its prohibition against the

consideration of materials that were not part of the state-court record when the

state court ruled. See, e.g., Cullen, 563 U.S. at 181 (“We now hold that review

under § 2254(d)(1) is limited to the record that was before the state court that

adjudicated the claim on the merits.”). Thus, we are not permitted to consider the

post-conviction materials that Mr. Grant tenders here.

Stripped of those materials and the possibility of de novo review, Mr. Grant

offers little to advance his cause. Specifically, Mr. Grant has not shown—or, for

that matter, even argued here—that, under AEDPA, the OCCA’s rejection of this

particular ineffective-assistance claim is contrary to or an unreasonable

application of clearly established federal law, or premised on an unreasonable

determination of the facts. Rather, he asserts only that his “case in mitigation

would have been significantly stronger if counsel had thoroughly interviewed

[his] mother and siblings, and interviewed other family members [that] post-

conviction counsel easily found.” Aplt.’s Opening Br. at 78. Mr. Grant may be

98
correct, but this argument falls patently short of satisfying the AEDPA standard.

To satisfy AEDPA, Mr. Grant needed to go further—for example, arguing

that the OCCA’s rejection of his ineffective-assistance claim is contrary to or an

unreasonable application of clearly established federal law in light of the

“significantly stronger” mitigation case that trial counsel could have—but did

not—present. See, e.g., Littlejohn I, 704 F.3d at 824. This Mr. Grant has not

done. Therefore, under AEDPA, he is not entitled to relief.

***

In sum, Mr. Grant has not persuaded us that the OCCA’s rejection of his

ineffective-assistance claim here—viz., that trial counsel was constitutionally

ineffective in failing to investigate and present further evidence of his troubled

and dysfunctional childhood—was contrary to or an unreasonable application of

clearly established federal law, or an unreasonable determination of the facts.

Accordingly, we uphold the district court’s resolution of this portion of

Mr. Grant’s petition. 19

19
Under the rubric of ineffective assistance of counsel, Mr. Grant has
additionally advanced arguments regarding “two investigative failures”: He
contends that these failures “should not be considered separately from the general
failure of counsel to throughly and adequately investigate Mr. Grant’s
constellation of mental illnesses” and that they are “intertwined with counsel’s
deficient performance in failing to investigate relevant aspects of Mr. Grant’s
childhood.” Aplt.’s Reply Br. at 9 (emphasis added). Generally, these purported
failures relate to “counsel’s failure to discover that Mr. Grant showed signs of
mental illness throughout his childhood” and “counsel’s failure to discover
(continued...)

99
 19
(...continued)
Mr. Grant was at genetic risk to develop schizophrenia because he had a
biological parent who suffered from the same disease.” Id. at 8. The State insists
that we did not grant a COA to Mr. Grant with respect to these particular “sub-
claims” of ineffective assistance. Aplee.’s Br. at 22 n.5. Indeed, our Case
Management Order does not explicitly address these matters. Moreover, in
responding to the State’s objection, to support his contention that these matters
are properly before us, Mr. Grant directs us to only one conclusory sentence of
his filing seeking a COA from this Court regarding ineffective-assistance claims.
See Aplt.’s Reply Br. at 10. Under the general heading “Other Mitigation
Investigative Failures,” this sentence simply averred in conclusory fashion that
counsel should have “investigated Mr. Grant’s genetic history of psychopathy”
and “his bizarre behaviors throughout his life and prior to the crime” and, if
counsel had done so, counsel “could have countered the prosecution’s arguments
that there was no evidence Mr. Grant was schizophrenic prior to the crime and
that he only had religious beliefs, not religious delusions.” Case Management
Statement of Issues and Request for Expansion of Certificate of Appealable Issues
at 33 (dated Oct. 15, 2014). This single sentence was not supported by authority
or discussions of record evidence, and Mr. Grant did not elaborate on the
relevance of these investigative failings for his specific ineffective-assistance
claims; he simply noted, as he does on appeal, that they are “intertwined and
connected” with the other specific attorney failures that he presents. Id. This
stands in sharp contrast to Mr. Grant’s treatment of these two issues in his
opening brief, where he devotes at least four pages to them, including significant
references to, and discussions of, record evidence. See Aplt.’s Opening Br. at
72–76. Thus, the State’s position is not without persuasive force, insofar as it
underscores that Mr. Grant did very little—and arguably not enough—to put our
court on notice that these two matters should be included within the scope of its
grant of COAs with respect to certain specific claims of ineffective assistance
and, more specifically, to explain the relevance of these matters to such claims.
However, even if we accept for the sake of resolving this case, that the terms of
our Case Management Order (construed liberally) do encompass these two
additional matters, it is patent that COAs were not issued separately as to them
and they are not to be analyzed as stand-alone claims—points that Mr. Grant
seems to acknowledge. Accordingly, we have considered them as part and parcel
of our ineffective-assistance analyses of his specific ineffective-assistance claims.
But ultimately this consideration has not materially altered the substance of our
reasoning or the outcomes we have reached regarding these claims.

100
 C. Jury Instruction and Closing Statements
on Mitigation Evidence

Mr. Grant argues that one of the sentencing-phase jury instructions,

Instruction 12, standing alone and in conjunction with the State’s closing

arguments, unconstitutionally limited the jury’s consideration of evidence

presented in mitigation of his death sentence. Instruction 12 provides in pertinent

part: “Mitigating circumstances are those which, in fairness, sympathy, and

mercy, may extenuate or reduce the degree of moral culpability or blame.” O.R.

2349 (Instr. 12). In Mr. Grant’s view, this text of Instruction 12 (i.e., the “moral-

culpability text”) caused the jury to ignore otherwise proper mitigating evidence,

and the prosecution exploited this allegedly infirm instruction in its closing

arguments.

On direct appeal, the OCCA reviewed and rejected on the merits

Mr. Grant’s dual challenge to the moral-culpability text of Instruction 12 and the

related prosecutorial statements. Mr. Grant argued that “the prosecutor focused

on only part of the definition of mitigating evidence, and thus unfairly limited the

jurors’ consideration of the evidence [he] had offered as mitigating.” Grant, 205

P.3d at 20. And he relatedly contended that “the prosecutor misstated the law by

telling the jurors that the evidence he had presented as ‘mitigating’ did nothing to

justify a sentence less than death.” Id. However, the OCCA ruled that “[t]he

jurors in this case were properly instructed that anything could be considered

101
mitigating.” Id. at 21. It further reasoned that

[Mr. Grant] confuses what kind of information may be offered as
mitigating evidence, with whether that information successfully
serves its intended purpose. While there is no restriction
whatsoever on what information might be considered mitigating,
no juror is bound to accept it as such, and the State is free to try
to persuade the jury to that end. The prosecutor’s arguments did
not misstate the law on this point.

Id. Accordingly, the OCCA denied Mr. Grant’s dual challenge. Because it did so

on the merits, we must accord AEDPA deference to the OCCA’s decision. 20 See,

20
The Dissent argues that the OCCA “misunderstood” Mr. Grant’s
argument related to the prosecution’s alleged exploitation of the moral-culpability
text and, therefore, its ruling on that issue is not entitled to AEDPA
deference—viz., the OCCA’s ruling supposedly did not amount to an adjudication
on the merits. Dissenting Op. at 2, 17. We must respectfully disagree. As
explicated infra in note 22, the OCCA’s explicit substantive reasoning belies this
argument. However, at the outset, we deem it sufficient to reject the Dissent’s
argument on more basic grounds—specifically, because Mr. Grant has “never
made” this argument in this federal proceeding, either in his habeas petition or in
his briefing on appeal. Eizember v. Trammell, 803 F.3d 1129, 1140 (10th Cir.
2015). Indeed, the Dissent acknowledges as much, conceding that “Grant doesn’t
argue for de novo review” of this mitigating evidence issue. Dissenting Op. at
14. In Eizember, we rebuffed a similar effort by the dissent to sua sponte
advance an argument that would have had the effect of stripping away AEDPA
deference from our review of an OCCA ruling. See Eizember, 803 F.3d at 1140.
We held that, because the petitioner had not presented the argument in his habeas
petition, he had “forfeited such a contention” and, because he had not presented
the argument in his appellate briefing, he had “independently waived” it. Id. at
1141. We are hard-pressed to see why we should not reach a similar conclusion
here. See also Stouffer, 738 F.3d at 1221 n.13 (refusing to entertain two “new
claims of prosecutorial misconduct that were not part of [the petitioner’s] § 2254
habeas petition”); Fairchild, 784 F.3d at 724 (“Even a capital defendant can
waive an argument by inadequately briefing an issue . . . . Defendant has done so
here, waiving any argument that he is entitled to relief on the exhausted claim.”
(quoting John Grant, 727 F.3d at 1025).
(continued...)

102
e.g., Victor Hooks II, 689 F.3d at 1163. For the reasons set forth below, we

conclude that Mr. Grant cannot prevail on any of his arguments here.

20
(...continued)
The Dissent rejects this possible outcome, however, by arguing that we
must consider this new argument for de novo review anyway because “the correct
standard of review under AEDPA is not waivable.” Dissenting Op. at 14 (quoting
Gardner, 568 F.3d at 879). However, the case upon which the Dissent relies for
this assertion—Gardner—was addressing a distinct question: “[C]an the
congressionally mandated deferential standard of review [specified by AEDPA]
be waived by counsel?” Gardner, 568 F.3d at 878 (emphasis added). We
answered in the negative. See id. at 879 (“We agree with our sibling circuits that
the correct standard of review under AEDPA is not waivable.”). In our reasoning,
we highlighted that AEDPA’s deferential standard of review effectuates a
“congressional purpose” and presents a default, “unavoidable legal question we
must ask, and answer, in every case.” Id. (emphasis added). We distinguished
that AEDPA situation from one where we permit litigants under the circumstances
of particular cases “to forfeit claims, defenses, or lines of argument.” Id. The
Dissent does not advance a similar congressional purpose that would oblige
us—in contravention of our customary preservation rules that we apply in
individual cases—to routinely strip sua sponte state court decisions of AEDPA’s
default, deferential standard of review simply because we believe a less
deferential standard (i.e., de novo) is the more appropriate one. See Eizember,
803 F.3d at 1141 n.3 (“Neither does the dissent offer any argument or authority
suggesting that this court may or should sua sponte on appeal develop an
argument for reversal . . . that a habeas petitioner has not ever himself pursued.
Nor could it for, as we’ve seen, governing law is to the contrary, holding that
even a capital defendant may forfeit or waive arguments by declining to pursue
them anywhere in a litigation as long lived as this one.”). And “the principles of
comity, finality, and federalism” animating AEDPA lead us to, at the very least,
question whether such a congressional purpose could exist in the habeas context.
Michael Williams, 529 U.S. at 436 (noting that “[t]here is no doubt Congress
intended AEDPA to advance” “the principles of comity, finality, and
federalism”); accord Jimenez v. Quarterman, 555 U.S. 113, 121 (2009); Case v.
Hatch, 731 F.3d 1015, 1035 (10th Cir. 2013). Accordingly, at the outset, we must
respectfully conclude that the Dissent’s contention that we must apply de novo
review to the OCCA’s ruling on Mr. Grant’s prosecution-exploitation challenge is
flawed for a basic, but important, reason: Mr. Grant has never made that argument
in his habeas proceeding.

103
 1. Legal Framework

“[T]he Eighth and the Fourteenth Amendments require that the sentencer,

in all but the rarest kind of capital case, not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s character or record and any of the

circumstances of the offense that the defendant proffers as a basis for a sentence

less than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)

(footnote omitted); accord Eddings v. Oklahoma, 455 U.S. 104, 110 (1982).

“Lockett and its progeny stand only for the proposition that a State may not cut

off in an absolute manner the presentation of mitigating evidence, either by

statute or judicial instruction, or by limiting the inquiries to which it is relevant

so severely that the evidence could never be part of the sentencing decision at

all.” Johnson v. Texas, 509 U.S. 350, 361–62 (1993) (quoting McKoy v. North

Carolina, 494 U.S. 433, 456 (1990) (Kennedy, J., concurring in judgment)); see

also Brecheen v. Reynolds, 41 F.3d 1343, 1361 n.13 (10th Cir. 1994)

(summarizing the holdings of Lockett and its progeny and observing that “[t]hose

cases all involved situations where the sentencer was, for a variety of reasons,

prevented or precluded from considering relevant mitigating evidence”). Though

this body of authority highlights that there are various ways in which the

sentencer (here, the jury) might be precluded from considering all mitigating

evidence, these ways do not all have the same potency. Notably, improper

comments of the prosecution “are not to be judged as having the same force as an

104
instruction from the court.” Boyde v. California, 494 U.S. 370, 384–85 (1990).

As relevant here, the Court in Boyde elaborated on this point:

[A]rguments of counsel generally carry less weight with a jury
than do instructions from the court. The former are usually billed
in advance to the jury as matters of argument, not evidence, and
are likely viewed as the statements of advocates; the latter, we
have often recognized, are viewed as definitive and binding
statements of the law. Arguments of counsel which misstate the
law are subject to objection and to correction by the court. This
is not to say that prosecutorial misrepresentations may never
have a decisive effect on the jury, but only that they are not to be
judged as having the same force as an instruction from the court.
And the arguments of counsel, like the instructions of the court,
must be judged in the context in which they are made.

Id. (citations omitted).

Regarding the importance of context, “we accept at the outset the well

established proposition that a single instruction to a jury may not be judged in

artificial isolation, but must be viewed in the context of the overall charge.”

Cupp v. Naughten, 414 U.S. 141, 146–47 (1973). Where a jury instruction is

alleged to be “subject to an erroneous interpretation . . . . the proper inquiry in

such a case is whether there is a reasonable likelihood that the jury has applied

the challenged instruction in a way that prevents the consideration of

constitutionally relevant evidence.” Boyde, 494 U.S. at 380; accord Hanson v.

Sherrod, 797 F.3d 810, 850 (10th Cir. 2015). “Although a defendant need not

establish that the jury was more likely than not to have been impermissibly

inhibited by the instruction,” the defendant must show more than “a possibility of

105
such an inhibition.” Boyde, 494 U.S. at 380. The Court in Boyde further

observed:

There is, of course, a strong policy in favor of accurate
determination of the appropriate sentence in a capital case, but
there is an equally strong policy against retrials years after the
first trial where the claimed error amounts to no more than
speculation. Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that
lawyers might. Differences among them in interpretation of
instructions may be thrashed out in the deliberative process, with
commonsense understanding of the instructions in the light of all
that has taken place at the trial likely to prevail over technical
hairsplitting.

Id. at 380–81 (footnote omitted).

2. Analysis

a

We first address Mr. Grant’s argument that the moral-culpability text of

Instruction 12 violated his constitutional rights and that the OCCA’s approval of

the instruction was thus contrary to or an unreasonable application of clearly

established federal law. For support, Mr. Grant relies on an Oklahoma state case

decided after his trial called Harris v. State—which was on the books at the time

of his direct appeal—in which the OCCA expressed concern that prosecutors

“consistent[ly] misus[e] . . . the language in this instruction [i.e., the moral-

culpability text identical to that found in Instruction 12]” to argue that mitigating

evidence cannot be considered when it does not bear on moral culpability or

blame, 164 P.3d 1103, 1114 (Okla. Crim. App. 2007). For this reason, the OCCA

106
recommended reformation of this pattern instruction to “clarify” its meaning. Id.

Specifically, the OCCA “refer[red] this issue to the Oklahoma Uniform Jury

Instruction Committee (Criminal) for promulgation of a modified jury instruction

defining mitigating circumstances in capital cases.” Id. Nevertheless, the Harris

court determined that the existing instruction, while imperfect, was

constitutionally sound. See id. at 1113. In response to the OCCA’s referral, a

reformed instruction was created; it defines mitigating circumstances to include

those “which in fairness, sympathy, or mercy may lead you as jurors individually

or collectively to decide against imposing the death penalty.” See OUJI-CR 4-78

(Sup. 2008) (emphasis added).

Mr. Grant argues, based on the OCCA’s criticism in Harris of the moral-

culpability text of the instruction before it, that the OCCA acted contrary to (as

well as unreasonably applied) clearly established federal law here when it held

that the identical moral-culpability text—which is contained in Instruction

12—was not unconstitutional. He asserts that the “OCCA’s actions [—i.e.,

endorsing reformation of the instruction in Harris—] speak far louder than its

internally inconsistent and thus unreasonable endorsement of the instruction as

constitutionally sound.” Aplt.’s Opening Br. at 103. In this regard, Mr. Grant

contends that in Mills v. Maryland, 486 U.S. 367, 382 (1988), “[t]he Supreme

Court [indicated that] the remedial measures state courts perform are at least

some indicia the prior instructions were infirm.” Id. at 101 (emphasis omitted).

107
His argument thus seems to be that the OCCA’s approval of the moral-culpability

text of the instruction here is contrary to or an unreasonable application of Mills

and, more generally, Lockett’s progeny.

We rejected this very argument, however, under similar circumstances in

Hanson. In particular, we rebuffed the notion that Mills was “germane,” in light

of our examination of the “OCCA’s explanation as to why it amended the

instruction” in Harris. 797 F.3d at 851. That explanation belied the petitioner’s

contention that the OCCA’s comments regarding the reformation of the

instruction had amounted to a tacit acknowledgment that the pre-reformation

instruction was constitutionally infirm. See id. We noted that the Harris court

“emphasize[d] that the language of the current instruction [i.e., the pre-

reformation instruction] itself [wa]s not legally inaccurate, inadequate, or

unconstitutional,” and explicitly stated that “[c]ases in which the current

[instruction] ha[d] been used and applied are not subject to reversal on this basis.”

Id. at 850–51 (first and fourth alteration in original) (quoting Harris, 164 P.3d at

1114). Consequently, in Hanson, we reasoned that Mills was inapposite in

discerning the import of Oklahoma’s reformation of the mitigation instruction

and, more specifically, its moral-culpability text. See id. at 851.

Significantly, in repudiating the petitioner’s Eighth Amendment challenge

to the instruction’s moral-culpability text, we also observed that “some of the

other instructions from [the petitioner’s] trial concerning mitigating evidence

108
broadened the scope of evidence the jury could consider.” Id. at 851. First of all,

within the instruction itself containing the moral-culpability text, there was

language that informed the jury that it was its responsibility to determine what

circumstances are mitigating under the facts before it. See id. We said that

“[t]his statement broadened any potential limitations imposed by the first sentence

of the instruction [i.e., the moral-culpability text].” Id. Further, we observed that

there was another instruction given to the jury that “listed 11 specific mitigating

circumstances for the jury to consider, some of which had nothing to do with [the

petitioner’s] moral culpability”; it listed circumstances such as his family and

emotional history, his fatherhood of a young son, and his trait of being “a

follower.” Id. (quoting the instruction from the record). And that instruction

concluded by counseling the jury as follows: “In addition, you may decide that

other mitigating circumstances exist, and if so, you should consider those

circumstances as well.” Id. (emphasis added) (quoting the instruction from the

record). In light of these additional instructions, our resolution of the petitioner’s

Eighth Amendment attack on the moral-culpability text of the instruction at issue

was clear: “Viewing the challenged instruction in the context of all the

instructions, we do not think the jury would have felt precluded from considering

any mitigating evidence . . . .” Id.(emphasis added).

Hanson controls our resolution of Mr. Grant’s challenge to the moral-

culpability text of Instruction 12 here. For the reasons stated in Hanson,

109
Mr. Grant’s Mills-based argument is without merit. Furthermore, as explicated

infra in connection with our resolution of Mr. Grant’s prosecution-exploitation

claim, the additional instructions relating to mitigating evidence that we

concluded in Hanson “broadened the scope of evidence the jury could consider”

also were present—in all material respects—in Mr. Grant’s case. Id. Therefore,

Hanson’s conclusion—through the broader lens of all of the instructions—that

“the jury would [not] have felt precluded [by the moral-culpability text of the

instruction] from considering any mitigating evidence,” id., governs here as well

regarding Instruction 12’s identical moral-culpability text. Indeed, Mr. Grant

does not meaningfully dispute this conclusion. See Aplt.’s Opening Br. at 101

(“This Court recently held [in Hanson] that, given other Oklahoma jury

instructions, the instruction itself does not violate the Constitution.”). But he has

“respectfully persist[ed] in presenting his concerns about the instruction to, at

minimum, preserve them for potential further review.” Id. However, applying

AEDPA deference to the OCCA’s determination upholding the constitutionality of

the moral-culpability text of Instruction 12, and adhering to Hanson’s reasoning

and holding, we must reject Mr. Grant’s contention here.

b

We turn now to the contention that Mr. Grant pursues with greater vigor:

specifically, that the prosecution’s arguments to the jury impermissibly exploited

Instruction 12’s moral-culpability text in a way that makes it reasonably likely

110
that the jury believed that it was limited to only considering evidence in

mitigation that extenuated or reduced Mr. Grant’s moral culpability or blame. See

Aplt.’s Opening Br. at 103 (noting that “the prosecutor’s exploitation” of the

moral-culpability text effected an Eighth Amendment violation). According to

Mr. Grant, the prosecution improperly argued that certain “evidence did not

qualify as ‘mitigating’ because it did not reduce his moral culpability or blame for

the crime.” Id. (citing R., Vol. IV, Trial Tr. VIII, at 73–75, 79–80). 21 Mr. Grant

contends that the prosecution’s arguments violated his Eighth Amendment rights

safeguarded by Lockett and its progeny by preventing the sentencing jury from

“consider[ing] all mitigating evidence.” Aplt.’s Opening Br. at 107. 22 We

21
Mr. Grant further argues that “the trial court doubly endorsed the
prosecutor’s limiting framework as the law,” but this assertion is belied by the
record. See Aplt.’s Opening Br. at 104. According to Mr. Grant, when trial
counsel objected to the prosecutor’s statement, the trial court compounded the
alleged error by stating, “[the prosecutor] is reading directly from . . . the OUJI
jury instructions.” Aplt.’s Opening Br. at 102 (quoting R., Vol. IV, Trial Tr.
VIII, at 74). However, these statements were “had at the bench out of the hearing
of the jury.” R., Vol. IV, Trial Tr. VIII, at 74. Therefore, the trial court did not
“endorse” the prosecutor’s argument to the jury. We thus proceed to analyze
Mr. Grant’s claim putting aside this argument; it is without merit.
22
As we have previously discussed, see supra note 20, the Dissent
argues that the OCCA “misunderstood” Mr. Grant’s prosecution-exploitation
challenge and, therefore, its ruling regarding that challenge does not qualify as a
merits adjudication entitled to AEDPA’s deferential standard of review.
Dissenting Op. at 2, 17. In addition to this argument failing at the outset because
Mr. Grant has never made it in this habeas proceeding, see supra note 20, we
respectfully submit that the Dissent is simply mistaken on the substance of the
matter. It points to the following statement from the OCCA as proof that it
misunderstood Mr. Grant’s claim: “Appellant claims the prosecutor misstated the
(continued...)

111
disagree.

We begin our analysis by explicating the prosecution’s arguments upon

22
(...continued)
law by telling the jurors that the evidence he had presented as ‘mitigating’ did
nothing to justify a sentence less than death.” Grant, 205 P.3d at 21. However, a
more comprehensive reading of the OCCA’s opinion reveals that the precise
nature of Mr. Grant’s claim was crystal clear to the OCCA. Indeed, at the outset
of its analysis, the OCCA described Mr. Grant’s contention this way:

In Proposition 11, [Mr. Grant] claims that the trial court’s
instructions, coupled with the prosecutors’ closing arguments,
improperly limited the jury’s consideration of evidence presented
in mitigation of the death sentence. The trial court administered
the standard instructions on the definition and use of mitigating
evidence . . . . [Mr. Grant] concedes that we have found these
instructions to be entirely proper . . . . Nevertheless, [Mr. Grant]
maintains that the prosecutor focused on only part of the
definition of mitigating evidence, and thus unfairly limited the
jurors’ consideration of the evidence [Mr. Grant] had offered as
mitigating.

Id. at 20 (emphases added). As the italicized language makes clear, the OCCA
clearly understood that Mr. Grant’s contention was that the prosecution’s
comments unconstitutionally limited the jury’s consideration of mitigating
evidence. In other words, the OCCA fully comprehended that Mr. Grant was
arguing that the prosecution’s comments engendered paradigmatic Lockett
error—viz., they had the effect of absolutely precluding the jury from considering
aspects of Mr. Grant’s mitigating evidence. See, e.g., Lockett, 438 U.S. at 604
(noting that the Eighth Amendment generally mandates that a sentencing jury “not
be precluded from considering” mitigating circumstances); see Johnson, 509 U.S.
at 361–62 (noting that “a State may not cut off in an absolute manner the
presentation of mitigating evidence, either by statute or judicial instruction, or by
limiting the inquiries to which it is relevant so severely that the evidence could
never be part of the sentencing decision at all” (quoting McKoy, 494 U.S. at 456
(Kennedy, J., concurring in judgment)). Accordingly, the substantive predicate
for the Dissent’s argument that we should apply de novo review to the OCCA’s
disposition of Mr. Grant’s prosecution-exploitation challenge is simply illusory.

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which Mr. Grant grounds his Eighth Amendment challenge. Then, putting those

arguments in the broader context of the instructions before the jury and other

arguments to the jury by the prosecution and the defense, we conclude that the

OCCA did not act unreasonably when it concluded that there was no reasonable

likelihood that the jury believed—based on the prosecution’s arguments—that it

was limited to only considering evidence in mitigation that had the effect of

extenuating or reducing Mr. Grant’s moral culpability or blame.

i

Mr. Grant’s central concerns relate to the arguments made by one of the

two prosecutors representing the State at trial—Sandra Elliott—during the

prosecution’s rebuttal closing. This closing followed the defense’s closing

argument, which repeatedly informed the jury that the defense’s intention was not

to “excuse what happened in this case,” but rather to offer “an explanation” for it.

R., Vol. IV, Trial Tr. VIII, at 44. As material here, the prosecution responded:

You know, what I noted about the argument of defense counsel
is they spent a long time trying to describe to you how what they
have offered in mitigation is not an excuse, how what they’re
trying to tell you about the life and times of Donald Grant is not
an excuse for the behavior that he committed at the La Quinta Inn
in July of 2001. And that is exactly what the law says. Because
one thing that I noticed that they did not talk about in their
closing argument is what the definition of a mitigating
circumstance is. Because the law tells you what that means. It
tells you that in order -- first of all, you have two choices: Do
you believe that the mitigating circumstance has been proven

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 because you don’t have to believe everything that you have heard
from the witnesses who testified. You can choose what parts you
want to believe and disregard those parts that you believe
perhaps people were exaggerating about or somehow trying to
make things sound a whole lot worse than they actually were. But
let’s assume for the sake of argument that everything that you
were told was correct, that not any person made up or fudged a
little bit in what they were telling you about. What does it say
mitigating circumstances are? What does that mean when we say
that something may mitigate the murder of these two women, the
lives that he took? It says that mitigating circumstances are those
which reduce the moral culpability or blame of the defendant.
That those things, in order to be mitigating, must reduce his
moral culpability or blame.

Id. (emphases added). After the defense unsuccessfully challenged this argument

on the ground that it “would tend to mislead the jury into believing” that the

defense’s evidence did not qualify as “proper mitigation circumstances to

consider,” the prosecution continued:

It’s not Sandra Elliott telling you that this will make something
mitigating, that’s what the law says. And we all talked about
during voir dire that we would be discussing the law that the
Court’s going to be giving you. And the law says, not Sandra
Elliott, not what the defense attorneys say, but what the Court
tells you and what the law says is that before something can be
mitigating it must reduce the moral culpability or blame of the
defendant.

Id. at 75 (emphases added). Lastly, in one instance, the prosecution specifically

employed the moral-culpability text of Instruction 12 to argue against one element

of Mr. Grant’s mitigation case, relating to his alleged schizophrenia. In this

regard, Ms. Elliott stated:

Does it reduce his moral culpability, his moral blame for what he

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 did? And I would submit to you that it does not in any way.

So while they may say to you that I’m not
offering this as an excuse for Mr. Grant’s behavior, you
have to look at whether or not it reduces his moral
culpability or blame. That is what the law says that
you must do.

Id. at 79 (emphasis added).

Mr. Grant contends that the prosecution’s rebuttal closing arguments had

the unconstitutional effect of precluding the jury from considering that portion of

his proferred mitigation evidence that did not extenuate or reduce his moral

culpability or blame; as he reasons, the jury would have been operating under the

mistaken belief—instilled by the prosecution—that this evidence was not legally

proper mitigating evidence and thus should not be considered. However, applying

AEDPA’s deferential standards, we ultimately conclude that the OCCA was not

unreasonable in reaching a contrary conclusion.

To be sure, we acknowledge that a plausible argument could be made here

that the prosecutor’s rebuttal arguments were “improper”—that is, one could

plausibly contend that those remarks resemble the kind of “misuse” of the moral-

culpability text that concerned the OCCA in Harris. 164 P.3d at 1114. We need

not, however, definitively opine on the matter. The important point is that such a

conclusion would not be determinative of the constitutional question before us:

whether those prosecution arguments (improper or not) had the effect of violating

Mr. Grant’s Eighth Amendment rights under Lockett and its progeny. The test of

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constitutional error under Lockett is not (as relevant here) whether the

prosecution’s arguments were improper, but rather whether there is a reasonable

likelihood that they had the effect of precluding the jury from considering

mitigating evidence.

Put another way, even if we were to accept that the prosecution’s rebuttal

arguments here were improper, that would not necessarily mean that the OCCA

was unreasonable in concluding that there was no Lockett error because there was

no reasonable likelihood that the jury was precluded by those arguments from

considering all of Mr. Grant’s mitigating evidence—including the evidence that

did not extenuate or reduce his moral culpability or blame. Indeed, considering

the record as a whole—notably, the jury instructions and other unchallenged

aspects of the prosecution’s closing arguments, as well as the defense’s closing

arguments—we conclude that the OCCA was not unreasonable in ruling (in

substance) that the prosecution’s closing arguments did not violate Mr. Grant’s

Eighth Amendment rights established by Lockett and its progeny.

Significantly, based on the totality of the record, it would not have been

unreasonable for the OCCA to conclude that, even if some of the prosecution’s

comments were improper, that it was not reasonably likely that the jury read the

comments as doing anything more than vigorously—but permissibly—attacking

the veracity, credibility, and weight of Mr. Grant’s mitigating evidence, rather

than barring or “cut[ting] off in an absolute manner,” Johnson, 509 U.S. at 361

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(quoting McKoy, 494 U.S. at 456 (Kennedy, J., concurring in judgment)), the

jury’s discretion to consider all of his mitigating evidence. Cf. Bland, 459 F.3d at

1026 (rejecting the petitioner’s claim that he was deprived of a fair trial because

“the prosecution improperly demeaned his mitigating evidence by suggesting that

the jury ignore mitigating evidence and by recharacterizing the mitigating

evidence as evidence in aggravation,” after concluding that “[a]s long as the jury

is properly instructed on the use of mitigating evidence, the prosecution is free to

comment on the weight the jury should accord to it” and “[t]he prosecutors, while

critical of [the petitioner’s] mitigating evidence, never told the jury it could not

consider [the petitioner’s] mitigating evidence”); Fox v. Ward, 200 F.3d 1286,

1299–1300 (10th Cir. 2000) (rebuffing the petitioner’s claim that he received “a

fundamentally unfair trial,” after determining that “the prosecutor merely

commented on the weight that should be accorded to the mitigating factors” but

“did not suggest that the jury was not permitted to consider the factors”). Indeed,

in essence, this is precisely what the OCCA held. See Grant, 205 P.3d at 21

(“While there is no restriction whatsoever on what information might be

considered mitigating, no juror is bound to accept it as such, and the State is free

to try to persuade the jury to that end.”).

Before turning to the specifics, we underscore that the question before us is

not whether the OCCA’s determination of this issue is wrong. Rather it is

whether “it is possible fairminded jurists could disagree” about whether the

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OCCA’s decision conflicts with Supreme Court precedent. Harrington, 562 U.S.

at 102. And we conclude that such a disagreement is indeed possible.

ii

Our Hanson decision is also helpful in our resolution of Mr. Grant’s

prosecution-exploitation claim because there we rejected essentially the same

challenge to an Oklahoma prosecutor’s alleged exploitation of the moral-

culpability text of the pattern mitigating-evidence jury instruction to preclude the

jury’s consideration the defense’s proferred mitigating evidence. See Hanson,

797 F.3d at 851–52. Though the factual circumstances of Hanson are not entirely

on all fours with this case, its mode of analysis is instructive and its substantive

holding provides cogent support for the conclusion we reach here regarding

Mr. Grant’s claim.

The petitioner in Hanson argued that the prosecutor unconstitutionally

exploited the moral-culpability text when “the prosecutor told the jury to consider

whether any of the mitigating circumstances ‘really extenuate or reduce [the

petitioner’s] degree of culpability or blame in this case.’” 797 F.3d at 851

(quoting the record). In rejecting this contention, the Hanson panel reasoned that

the OCCA could reasonably conclude that it was not reasonably likely that the

prosecutor’s comment precluded the jury from considering mitigating evidence, in

light of the jury instructions and the other unchallenged comments of the

prosecution. See id. at 852 (“In light of all of the instructions and of the

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prosecutor’s various comments, we find it hard to imagine that the jurors thought

they were prohibited from considering any of the mitigating evidence they heard

at the resentencing hearing.”); see also id. (“We conclude that there is no

reasonable likelihood that the jurors applied [the moral-culpability text of]

Instruction No. 22 in a way that precluded them from considering mitigating

evidence.”).

(1)

The Hanson panel made only a shorthand reference to the jury instructions

in the context of determining the prosecution-exploitation claim. Id. (saying “[i]n

light of all of the instructions”). But the panel’s extensive analysis of those

instructions in disposing of the petitioner’s challenge to the constitutionality of

the instruction’s moral-culpability text makes sufficiently clear to us the import of

this reference. As noted supra, the Hanson panel concluded that “some of the

other instructions from [the petitioner’s] trial concerning mitigating evidence

broadened the scope of evidence the jury could consider.” Id. at 851. These

instructions supported the panel’s conclusion that the OCCA could have

reasonably determined that the jury instruction containing the moral-culpability

text was not itself unconstitutional. Id. The logical implications of the panel’s

analysis for its resolution of the prosecution-exploitation claim are patent. First,

because the moral-culpability text itself was not unconstitutional—at least in the

context of other, broadening instructions—the prosecutor’s isolated references to

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that text, without more, did not effect a constitutional violation. And, second, by

“broaden[ing] the scope of evidence the jury could consider,” id., the jury

instructions militated against and served to counteract any allegedly

impermissible efforts of the prosecution to limit the jury’s consideration of

mitigating evidence to only that evidence that extenuated or reduced moral

culpability and blame. We are confident that the Hanson panel discerned these

obvious implications and took them into account in rejecting the petitioner’s

prosecution-exploitation claim.

This mode of analysis based on jury instructions is significant here as well

and contributes to our decision to reject Mr. Grant’s claim. In this regard, we

underscore at the outset that a jury is presumed to follow the trial court’s

instructions. See, e.g., Weeks v. Angelone, 528 U.S. 225, 234 (2000) (“A jury is

presumed to follow [the trial court’s] instructions.”); Louis Jones v. United States,

527 U.S. 373, 394 (1999) (“The jurors are presumed to have followed these [trial

court] instructions.”). As we have noted supra, the instructions in Hanson that

“broadened the scope of evidence the jury could consider,” 797 F.3d at 851, also

were present—in all material respects—in Mr. Grant’s case. For instance, as in

Hanson, id. at 849, 851, in the same instruction that included the moral-

culpability text, there was language that vested the jury with the responsibility for

determining what evidence was mitigating: “The determination of what

circumstances are mitigating is for you to resolve under the facts and

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circumstances of this case.” O.R. 2349 (Instr. 12).

Further, akin to Hanson, id. at 151, there was another instruction that

informed the jury that “[e]vidence ha[d] been introduced as to [specified] . . .

mitigating circumstances” O.R. 2350 (Instr. 13) (emphasis added), and then listed

ten items, “some of which had nothing to do with [the petitioner’s] moral

culpability,” Hanson, 797 F.3d at 851. In other words, in this

instruction—Instruction 13—the trial judge specifically characterized as

“mitigating” factors that ordinarily would not be deemed to have extenuated or

reduced Mr. Grant’s moral culpability or blame. See Hanson, 797 F.3d at 851

(noting that some of the instructions that did not extenuate moral culpability or

blame discussed the petitioner’s family and emotional history and his fatherhood

of a young son).

For instance, Instruction 13 listed the following:

! “A substantial portion of Donald Grant’s childhood was
spent in a violent and drug-infested neighborhood.”

! “For extended periods of time, Donald Grant’s mother was
unable or unwilling to take care of him to the extent that
he sometimes was deprived of food and nurturing.”

! “Donald Grant’s life will be of value to other persons
besides himself.”

! “Donald Grant’s family and cultural history indicate that
he did not receive what most families consider important
for their children to have success in the world.”

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 ! “Donald Grant periodically became a ward of the
government at a young age.”

O.R. 2350–51.

Significantly, as evident from the foregoing quotation, many of the

identified mitigating circumstances that did not extenuate or reduce moral

culpability or blame—viz., that fell outside of the scope of the moral-culpability

text—related to Mr. Grant’s difficult and turbulent upbringing. These factors

closely reflected a major thrust of Mr. Grant’s mitigation evidentiary presentation

and related closing arguments. As his defense counsel observed in closing

argument, the “horrible circumstances in [Mr. Grant’s] upbringing” constituted

one of “two categories” of circumstances it had stressed in its evidentiary

presentation and would discuss in his oral argument (the other being that

Mr. Grant “suffered from a very serious mental illness”). R., Vol. IV, Trial Tr.

VIII, at 47–48. One could reasonably conclude that the jury might be inclined to

view evidence that played such a marquee role in the defense’s mitigation

evidentiary presentation and oral argument as actually being legally permissible

mitigation evidence, absent a clear court instruction to the contrary. After all, the

court did not stop the defense from putting the evidence before the jury. See

Boyde, 494 U.S. at 384–85 (“All of the defense evidence presented at the penalty

phase . . . related to petitioner’s background and character, and we think it

unlikely that reasonable jurors would believe the court’s instructions transformed

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all of this ‘favorable testimony into a virtual charade.’ . . . Presentation of

mitigating evidence alone, of course, does not guarantee that a jury will feel

entitled to consider that evidence. But the introduction without objection of

volumes of mitigating evidence certainly is relevant to deciding how a jury would

understand an instruction which is at worst ambiguous.” (emphasis added)

(citation omitted) (quoting California v. Brown, 479 U.S. 538, 542 (1987));

accord Buchanan v. Angelone, 522 U.S. 269, 278 (1998). There was no such

clearly contrary instruction here. Indeed, the obverse was true: there was a clear

introductory instruction from the court that identified these horrific-upbringing

factors—which did not extenuate or reduce moral culpability or blame—as

“mitigating circumstances.” O.R. 2350.

And it would have been reasonable to conclude that Instruction 13’s list

would have tended to militate against and counteract any belief that the

prosecution’s rebuttal argument might have planted in the jury’s mind that it was

precluded from considering evidence in mitigation that did not extenuate or

reduce moral culpability or blame. This is especially so because—as in Hanson,

797 F.3d at 851—Instruction 13 ended with this admonition: “In addition, you

may decide that other mitigating circumstances exist, and if so, you should

consider those circumstances as well.” O.R. 2351 (emphasis added). In other

words, in the context of an instruction that included factors that did not extenuate

or reduce moral culpability or blame, the court advised that the jury was free to

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determine that other circumstances also should be given mitigating effect. Thus,

the jury might reasonably infer from this instruction that—among the other

circumstances that it could deem to be mitigating—would be those like the ones

listed in Instruction 13 that did not extenuate or reduce moral culpability or

blame.

In sum, the Hanson panel relied in significant part on other unchallenged

jury instructions in the record in concluding that the OCCA would not have been

unreasonable in determining that the prosecution’s closing argument did not have

the unconstitutional effect of precluding the jury from considering the petitioner’s

proferred mitigating evidence that did not extenuate or reduce moral culpability

or blame. The materially similar instructions in Mr. Grant’s record lead us in the

same direction.

In addition, the trial court here specifically admonished the jury that its

instructions “contain all the law and rules you must follow,” O.R. 2357 (Instr.

17), and during the course of the prosecution’s arguments reminded the jury on

two occasions that the prosecution’s statements were “argument only” and “for

purposes of persuasion.” R., Vol. IV, Trial Tr. Vol. VIII, at 37; see id. at 34.

One could reasonably conclude that these instructions also would have tended to

make it less reasonably likely that the jurors would have “applied Instruction [12]

in a way that precluded them from considering mitigating evidence,” Hanson, 797

F.3d at 852, despite any prosecution arguments that may have had the effect

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(whether inadvertently or not) of militating to an appreciable extent in favor of

such preclusion. See Boyd, 494 U.S. at 384 (“[A]rguments of counsel generally

carry less weight with a jury than do instructions from the court. The former are

usually billed in advance to the jury as matters of argument, not evidence, and are

likely viewed as the statements of advocates; the latter, we have often recognized,

are viewed as definitive and binding statements of the law.” (citation omitted);

see also Fox, 200 F.3d at 1299 (“Only the court instructs the jury. The prosecutor

merely argues to the jury.”).

(2)

The Hanson panel’s rejection of the petitioner’s claim also took account of

other unchallenged prosecution arguments that it deemed to have a corrective

effect. Specifically, the panel noted that “the prosecutor made a number of other

comments to the jury that encouraged them to consider any and all mitigating

evidence they thought relevant.” Hanson, 797 F.3d at 851. For example,

apparently in his opening closing argument, the prosecutor referred to the

instruction (which we have discussed supra) that contained a list of mitigating

circumstances—“some of which had nothing to do with [the petitioner’s] moral

culpability”—and told the jury to “[g]o back, talk about those. Think about those.

Make a decision.” Id. (quoting the trial record). “And in rebuttal argument, the

prosecutor said, ‘Consider all the mitigating circumstances and you’ll consider

what weight [to give them.]’” Id. at 851–52 (alteration in original) (quoting trial

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record). The panel thus concluded that “[t]hese statements demonstrate that the

prosecutor encouraged the jury to consider all sorts of mitigating evidence,”

including the kind that did not extenuate or reduce moral culpability or blame.

Id. at 852.

Following Hanson’s analytical methodology, we also have inquired into the

other unchallenged prosecution comments to assess whether they would have

made it less likely that a jury would have interpreted the arguably improper

prosecution rebuttal arguments here as precluding them from considering

mitigating evidence that did not extenuate or reduce moral culpability or blame.

We believe that those other unchallenged prosecution comments would have made

such an impermissible jury interpretation less likely. The prosecutor handling the

opening closing argument (who commenced the round of oral arguments)—i.e.,

Suzanne Lister—spent the lion’s share of her time casting doubt on the veracity,

credibility, and weight of the evidence supporting the mitigating circumstances

that the court identified in Instruction 13. Yet, as discussed supra, many of these

circumstances cannot be deemed ones that extenuate or reduce moral culpability

or blame. Nevertheless, as in Hanson (797 F.3d 851), the prosecutor offered the

following advice to the jury:

These [factors of Instruction 13] are for you to consider. You
don’t have to accept them. You can talk about them, you can
talk amongst yourselves, you can talk about the testimony. . . .
....
The defendant has alleged the following mitigating

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 circumstances [in Instruction 13]: And I want to talk about them
individually. And it’s up to you to determine whether or not
these mitigators – whether or not these circumstances somehow
mitigate what Donald Anthony Grant did . . . .

R., Vol. IV, Trial Tr. VIII, at 31–32 (emphases added).

At no point during her opening closing remarks did Ms. Lister assert that

the jury was not free under the law to consider all of the mitigating factors that

the court identified in Instruction 13 on the ground that some of them did not

extenuate or reduce moral culpability or blame. In other words, the first voice

that the jury heard during closing arguments identified several

circumstances—which the court had characterized as mitigating—that did not

have the effect of extenuating or reducing moral culpability or blame and, yet,

this voice never questioned whether those circumstances qualified under the law

as mitigating evidence. The jury might logically infer from this presentation that

the evidence actually did legally qualify as mitigating evidence, and that the

question before them was the one that Ms. Lister hammered on: whether there was

sufficiently accurate, credible, and weighty evidence to support a jury finding as

to these alleged mitigating circumstances. Cf. Ayers v. Belmontes, 549 U.S. 7,

16–17 (2006) (“It is improbable the jurors believed that the parties were engaging

in an exercise in futility when [the defendant] presented (and both counsel later

discussed) his mitigating evidence in open court. Arguments by the prosecution

and the defense assumed the evidence was relevant.”). Such an inference that all

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of the Instruction 13 mitigating evidence was legally proper (even if otherwise

insufficient) would have tended to undermine a subsequent suggestion by the

prosecution (Ms. Elliott) in the rebuttal closing argument that the jury was legally

precluded by the moral-culpability text from considering any evidence in

mitigation that did not extenuate or reduce moral culpability or blame.

To be sure, unlike Hanson, there were no further statements from the

prosecution—i.e., Ms. Elliott—in rebuttal closing that could reasonably suggest

that “the prosecutor encouraged the jury to consider all sorts of mitigating

evidence.” Hanson, 797 F.3d at 852. Instead, on more than one occasion, the

prosecution admittedly argued in rebuttal closing that “what the law says is that

before something can be mitigating it must reduce the moral culpability or blame

of the defendant.” R., Vol. IV, Trial Tr. at 75; see id. at 79–80 (admonishing the

jury that after it determines the evidentiary sufficiency and veracity of the

proferred mitigation evidence, it must “ask . . . does it reduce [Mr. Grant’s] moral

blame for what happened at the La Quinta Inn in July of 2001”).

Therefore, we acknowledge that a plausible argument could be made under

Hanson’s analytical methodology— due to the comparatively greater strength of

the permissible prosecution mitigation-related statements in Hanson—that

Hanson is a stronger case than this one for concluding that it was not reasonably

likely that the jury was precluded from considering mitigating evidence. In this

vein, Mr. Grant argues that, unlike the prosecutor in Hanson who “extensive[ly]

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‘encourage[d]’” the jurors to consider the mitigating circumstances, the

prosecutors in his case made more “generic” comments that never made up for the

combined unconstitutional effect of the jury instruction and the prosecutors’

limiting statements regarding mitigation in rebuttal closing. Aplt.’s Opening Br.

at 106. And Mr. Grant further suggests that any ameliorative statements the

prosecutors made in his case were less effective than those in Hanson because

they were made before the allegedly improper statements; according to Mr. Grant,

in his case, the prosecutors’ “principal cabining [i.e., limiting] of mitigation

evidence [took place] in their second closing [and] . . . was among the last things

the jury heard before their deliberations.” Id. 23

However, whether Hanson actually is a stronger case is immaterial. As

explicated further infra, Hanson is not the measuring stick under AEDPA for

23
The Dissent further attempts to distinguish Hanson on the grounds
that “[t]he prosecution in Hanson didn’t give the jury an erroneous definition of
‘mitigating.’” Dissenting Op. at 22. However, Mr. Hanson did not see things that
way: he “argue[d] that the prosecutors ‘manipulated the [challenged jury]
instruction to ensure the jurors were pressured into discarding the otherwise
constitutional [mitigating] evidence.” Hanson, 797 F.3d at 850 (emphases added)
(quoting Mr. Hanson’s brief). Indeed, as we noted supra, the prosecutor in
Hanson told the jury “to consider whether any of the mitigating circumstances
‘really extenuate or reduce [Mr. Hanson’s] degree of culpability or blame in this
case.’” Id. at 851 (quoting the record). As such, we respectfully contend that the
Dissent is incorrect when it characterizes Hanson as a case in which the
prosecution merely commented on the weight the jury should accord to the
mitigating evidence, see Dissenting Op. at 13, 22, rather than one in which the
prosecution insinuated that the jury could not properly consider some of the
evidence that Mr. Hanson offered in mitigation because it did not extenuate or
reduce Mr. Hanson’s degree of moral culpability or blame.

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assessing whether the OCCA acted unreasonably in resolving this prosecution-

exploitation claim; Supreme Court law is. 24 And Hanson certainly does not

purport to establish the floor or an essential set of circumstances necessary for the

State to prevail on such a claim. Hanson simply provides a useful analytical

framework for resolving this case under its own unique facts because in Hanson

we rejected essentially the same prosecution-exploitation challenge that Mr. Grant

raises here.

In any event, even if we accept for purposes of argument that the legally

permissible prosecution statements in this case were more “generic” than those in

Hanson, that does not mean that, coupled with the jury instructions, those

statements did not adequately highlight for the jury its singular responsibility to

consider all evidence proferred in mitigation—including evidence that did not

extenuate or reduce moral culpability or blame. And the OCCA could reasonably

conclude that they did so. Furthermore, any fair comparison of the strengths of

24
We are of course bound in habeas cases, like any other, by our
controlling precedent’s prior interpretation of Supreme Court caselaw until such
an interpretation is overruled by an en banc proceeding of our court or subsequent
Supreme Court precedent. See Barnes v. United States, 776 F.3d 1134, 1147
(10th Cir. 2015) (“[W]e are bound by the precedent of prior panels absent en banc
reconsideration or a superseding contrary decision by the Supreme Court.”
(quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (emphasis omitted))); cf.
Evans v. Ray, 390 F.3d 1247, 1252 n.3 (10th Cir. 2004) (noting that, under
AEDPA, “we are only bound to investigate federal law as expressed by the
Supreme Court” but that “in reviewing habeas petitions, we often look for
guidance in the Tenth Circuit’s interpretation of Supreme Court cases.”).

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the two cases would have to take into account on the other side of the ledger the

fact that there were instructions present here that were not mentioned in Hanson

that expressly informed the jury that it should not treat the lawyers’ arguments as

expressing the governing law of the case. See, e.g., O.R. 2357 (court

admonishing the jury that its instructions “contain all the law and rules you must

follow”); R., Vol. IV, Trial Tr. Vol. VIII, at 37 (court reminding the jury that the

prosecution’s closing-argument statements were “argument only” and “for

purposes of persuasion”). Presuming that jurors follow the court’s instructions,

see Weeks, 528 U.S. at 234, those instructions would have aided the jury, in a way

that may not have been not possible in Hanson, in avoiding any improper

prosecution efforts to limit the scope of mitigation evidence to those things that

extenuated or reduced moral culpability.

Moreover, Mr. Grant’s argument regarding the timing of the allegedly

harmful statements—viz., they should be deemed more prejudicial than those in

Hanson because they were delivered closer to the time the jury began its

deliberations—relies on nothing more than speculation and conjecture about the

impact of the timing of the statements on the jurors’ decision-making. One could

just as well argue that the ameliorative statements of the prosecution (i.e.,

Ms. Lister) in the opening closing arguments—which were the first thing that the

jury heard in that phase of the trial—would have had a more powerful impact on

the jury than the statements in rebuttal closing. Compare Richard B. Klein,

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T RIAL C OMMUNICATION S KILLS 15:4 (2d ed.) Westlaw (database updated Nov.

2017) (“[I]t is not possible to establish a fixed rule saying that the best tactic will

always be to apply the primacy or the recency theory . . . .”), and Spencer H.

Silvergate, Closing Argument, 25 T RIAL A DVOCATE QUARTERLY 28, 29 (2005)

(“The laws of primacy and recency tell us that people best remember what they

hear first and last. Therefore, the strongest points should be made at the beginning

and end of the closing.”), with Bill Kanasky, Jr., The Primacy and Recency: The

Secret Weapons of Opening Statements, 33 T RIAL A DVOCATE Q UARTERLY 26, 29

(2014) (“The recency effect is far less powerful [than certain primacy effects], as

it is a simple enhancement of short-term memory due to recent exposure to

information. In other words, it is easy to remember information that is presented

an hour ago compared to information from a week ago.”). Mr. Grant cites no

legal authority to support his position that the later comments in rebuttal closing

in his case prejudiced him more than the ones in Hanson. For the foregoing

reasons, we reject both of these arguments based on the comparative strength of

Hanson.

At bottom, we must determine whether the OCCA would have been

unreasonable in concluding that there was no reasonable likelihood that the jury

was precluded by the prosecution’s closing arguments from considering all of

Mr. Grant’s mitigation evidence—including the evidence that did not extenuate or

reduce his moral culpability or blame. Considering the record as a

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whole—notably, the jury instructions, other unchallenged aspects of the

prosecution’s closing arguments and the closing arguments of the defense—we

conclude that OCCA would not have been unreasonable. In this regard, we hold

that the OCCA’s decision was not contrary to or an unreasonable application of

Lockett and its progeny. At the very least, “it is possible fairminded jurists could

disagree” about whether the OCCA’s decision conflicts with Supreme Court

precedent. Harrington, 562 U.S. at 102.

iii

Regarding Supreme Court precedent, we do not lose sight of the fact that

the focus of our deferential review under AEDPA is the clearly established law of

the Supreme Court. In that regard, we are hard-pressed to conclude that the

OCCA’s determination of Mr. Grant’s prosecution-exploitation claim was

contrary to or an unreasonable application of Lockett and its progeny because

Mr. Grant cannot point to even one case where the Supreme Court has approved

of a grant of habeas relief under circumstances like those here. Put another way,

we are reluctant to conclude that the OCCA’s approach was unreasonable when

there is no relevant guidance from the Supreme Court.

In arguing for a contrary result, Mr. Grant highlights three Supreme Court

cases in which the Court examined a jury instruction and related prosecution

statements under Lockett, and ultimately remanded for resentencing. However,

we discern nothing in these cases to alter our conclusion.

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 First, he cites Penry v. Lynaugh, 492 U.S. 302 (1989) abrogated on other

grounds by Atkins v. Virginia, 536 U.S. 304 (2002), in asserting that “[t]he

Supreme Court has recognized similar [prosecution] arguments exacerbate faulty

instructions.” Aplt.’s Opening Br. at 107 (emphasis added). In Penry, the Court

concluded that the court’s jury instructions were inherently flawed and, therefore,

the prosecutor’s argument “stressing that the jurors had taken an oath to follow

the law, and that they must follow the instructions they were given” served to

compound the error of the instructions. 492 U.S. at 325. The Court concluded

that “[i]n light of the prosecutor’s argument, and in the absence of appropriate

jury instructions, a reasonable juror could well have believed that there was no

vehicle for expressing the view that Penry did not deserve to be sentenced to

death based upon his mitigating evidence.” Id. at 326 (emphasis added). In

contrast, following Hanson’s lead, we have already concluded supra that the

OCCA would not have been unreasonable in concluding that the moral-culpability

text of Instruction 12 was not unconstitutional under Lockett and its progeny, at

least when read in the context of other instructions in the record. In other words,

unlike in Penry, it is not established here that the instruction at issue was

inherently flawed or defective as a matter of law.

Moreover, even accepting that some of the prosecutors’ comments here

urged the jury to follow the law, as they did in Penry, if the jury had done so, it

not only would have followed the moral-culpability text of Instruction 12, but

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notably also Instruction 13, which “set[] out the mitigators that the defendant

allege[d the jury] should consider with regards to determining whether or not this

is mitigation,” R., Vol. IV, Trial Tr. VIII, at 31. And, as previously noted, many

of those mitigating circumstances listed in Instruction 13 did not involve matters

that properly could be viewed as extenuating or reducing moral culpability or

blame. Therefore, the OCCA could have reasonably viewed the jury here—unlike

in Penry—as having had a “vehicle for expressing the view that [Mr. Grant] did

not deserve to be sentenced to death based upon his mitigating evidence,” Penry,

492 U.S. at 326—including his evidence that did not extenuate or reduce moral

culpability or blame. In any event, there is at least a “possibility fairminded

jurists could disagree” about whether the OCCA would have been correct to adopt

this position. Harrington, 562 U.S. at 102. Accordingly, Mr. Grant’s reliance on

Penry is unavailing.

Our exposition of our reasoning with respect to Penry permits us to

demonstrate in short order the flaw in Mr. Grant’s reliance on the second case,

LaRoyce Smith v. Texas, 543 U.S. 37 (2004). As in Penry—and contrary to this

case—the Court had declared that the instruction at issue in Smith itself was

“constitutionally inadequate.” 543 U.S. at 48. And, like Penry, but not this case,

the prosecutor’s remarks exacerbated the prejudicial nature of the legally infirm

instruction because the prosecutor “similarly reminded the jury that each and

every one of them had promised to ‘follow the law’ and return a ‘Yes’ answer to

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the special issues so long as the State met its burden of proof.” Id. at 48 n.5

(quoting petitioner’s certiorari petition). For the reasons we explicated above in

addressing Penry, LaRoyce Smith lends Mr. Grant no succor.

Lastly, Mr. Grant comes up the shortest in his reliance on the third

case—Caldwell v. Mississippi, 472 U.S. 320, 323 (1985). He cites Caldwell for

the proposition that “the type of misconduct at issue is one that invades specific

Constitutional rights” and under a “strict scrutiny” standard of review applicable

to such invasions, the “OCCA’s ruling was . . . contrary to law.” Aplt.’s Opening

Br. at 107. However, it is patent that Caldwell stands on a distant shore from this

case. There, the Supreme Court considered the constitutionality of “a prosecutor

urg[ing] the jury not to view itself as determining whether the defendant would

die, because a death sentence would be reviewed for correctness by the State

Supreme Court.” 472 U.S. at 323 (emphasis added). The Court in Caldwell held

that “it is constitutionally impermissible to rest a death sentence on a

determination made by a sentencer who has been led to believe that the

responsibility for determining the appropriateness of the defendant’s death rests

elsewhere.” Id. at 328–29. Mr. Grant has not identified any such statements by

the prosecutors in this case regarding the jury’s role and the role of the reviewing

court. Put directly, there is nothing in Caldwell that avails Mr. Grant.

In sum, we are not convinced—with our focus properly set on Supreme

Court caselaw, and viewing the record as a whole—that the OCCA’s conclusion

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that it was not reasonably likely that the prosecution’s comments in closing

argument unconstitutionally restricted the evidence the jurors could consider in

mitigation was contrary to or an unreasonable application of Lockett and its

progeny.

c

Finally, Mr. Grant argues that the OCCA’s “unreasonable assessment . . . is

likely traceable to factual error and confusion revealed in the OCCA opinion.” 25

Aplt.’s Opening Br. at 109. Specifically, Mr. Grant points to footnote 34, in

which the OCCA purported to refer to the jury instruction at issue—Instruction

12—but, by mistake, described the post-Harris reformed version of this standard

25
Mr. Grant’s briefing may be read as intertwining this contention of
factual error with an inapposite assertion of legal error. In this regard, Mr. Grant
seemingly argues under AEDPA’s rubric of reasonableness that the OCCA erred
(i.e., acted unreasonably) in concluding that the prosecutor’s arguments were not
improper because this holding is inconsistent with its previous ruling in Harris
(where the court found that some of the prosecution’s arguments were improper
but did not find reversible error). More specifically, Mr. Grant argues that the
OCCA’s ruling in this case “flies in the face of Harris.” Aplt.’s Opening Br. at
109; see also id. at 110 ((“The OCCA pointed in opposite directions in this case
and in Harris, which is unreasonable.”). However, we are at a loss to understand
how any purported inconsistency in the OCCA’s own (state law) precedent
produced by the OCCA’s ruling in Mr. Grant’s case is germane to our inquiry
under AEDPA—where the unalloyed legal concern is clearly established federal
law. See, e.g., 28 U.S.C. § 2254(d)(1) (obliging federal courts to defer to a state
court adjudication “unless the adjudication of the claim . . . 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” (emphasis added)). Therefore, insofar as Mr. Grant makes a legal
argument predicated on the purported inconsistency between the OCCA’s ruling
in this case and Harris, we reject it as inapposite.

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mitigation instruction, which was never given in Mr. Grant’s case. This

misstatement, however, is merely a scrivener’s error. In footnote 33, the OCCA

explicitly stated that the Grant trial court applied the pre-Harris (i.e., pre-

reformation) mitigation jury instruction—which contained the moral-culpability

text—thus indicating an understanding of the pre- and post-Harris instruction

distinction. As such, in our view, footnote 34’s reference to this reformed

instruction is a mere mistake, lacking in decisional or legal significance. It

certainly does not suggest that the OCCA’s ruling rested on “an unreasonable

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

Mr. Grant’s argument is without merit.

***

In sum, Mr. Grant has not demonstrated that the OCCA’s rejection of his

challenge to Instruction 12—and, more specifically, that instruction’s moral-

culpability text—and the prosecution’s statements relating to the instruction is

contrary to or an unreasonable application of clearly established federal law, or

premised on an unreasonable determination of the facts. Therefore, we uphold the

district court’s denial of habeas relief on this claim.

D. Batson Claim

Mr. Grant argues that he is entitled to habeas relief because the trial court

permitted a prosecutor to use a peremptory strike to exclude a potential juror on

the basis of race. Mr. Grant raised this claim before the OCCA on direct appeal,

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and the OCCA rejected the claim on the merits. Therefore, we ordinarily would

accord AEDPA deference to the OCCA’s resolution of this claim. Mr. Grant

contends, however, the OCCA’s decision was contrary to the controlling

Supreme Court case—Batson v. Kentucky, 476 U.S. 79 (1986)—and its progeny,

because “the OCCA rejected, or at the very least devalued, the use of comparative

juror analysis.” Aplt.’s Opening Br. at 116. Therefore, reasons Mr. Grant, de

novo review is the proper standard for assessing the merits of his Batson claim.

More specifically, Mr. Grant asserts that, applying a de novo standard of review,

we should conclude that “the State’s discriminatory strike . . . deprived Grant [of]

due process as recognized in Batson.” Id. at 118. Notably, Mr. Grant does not

explicitly contend that the OCCA’s Batson ruling is also infirm under AEDPA

deference—that is, that we also should conclude that, under this deferential

standard, the OCCA committed Batson error.

We determine that the OCCA’s decision—and, more specifically, its

treatment of comparative-juror analysis—is not contrary to, or an unreasonable

application of Batson and its progeny. Therefore, AEDPA supplies the

appropriate standard of review. And, given Mr. Grant’s failure to make an

explicit Batson argument under AEDPA, we could very well end our analysis

there. But, even were we to reach the merits of the Batson claim under AEDPA,

Mr. Grant could not prevail. We would conclude that the OCCA’s Batson

determination neither contravenes the legal nor the factual standards of AEDPA.

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 1. Legal Framework

In Batson, the Supreme Court held that “the Fourteenth Amendment’s

Equal Protection Clause prohibits the prosecution’s use of peremptory challenges

to exclude potential jurors on the basis of their race.” House, 527 F.3d at 1020

(quoting Saiz v. Ortiz, 392 F.3d 1166, 1171 (10th Cir. 2004)). The Batson Court

provided a three-step analysis for determining whether the prosecution

impermissibly used a peremptory challenge:

First, a defendant must make a prima facie showing that a
peremptory challenge has been exercised on the basis of race [.
S]econd, if that showing has been made, the prosecution must
offer a race-neutral basis for striking the juror in question [.
T]hird, in light of the parties’ submissions, the trial court must
determine whether the defendant has shown purposeful
discrimination.

Miller-El II, 545 U.S. at 277 (alterations omitted) (quoting Miller-El v. Cockrell

(“Miller-El I”), 537 U.S. 322, 328–29 (2003)). Notably, in Miller-El II, the Court

underscored “Batson’s explanation that a defendant may rely on ‘all relevant

circumstances’ to raise an inference of purposeful discrimination.” Id. at 240

(quoting Batson, 476 U.S. at 96–97). Consequently, the Court has “made it clear

that in considering a Batson objection, or in reviewing a ruling claimed to be

Batson error, all of the circumstances that bear upon the issue of racial animosity

must be consulted.” Snyder v. Louisiana, 552 U.S. 472, 478 (2008) (emphasis

added); accord Foster v. Chatman, --- U.S. ----, 136 S. Ct. 1737, 1748 (2016).

“[I]f, at step three, the court finds the proffered ground to be pretextual, it

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may determine that the strike was purposeful discrimination.” Black v. Workman,

682 F.3d 880, 894 (10th Cir. 2012). That “step turns on factual determinations,”

to which a reviewing court ordinarily accords deference. Foster, 136 S. Ct. at

1747 (quoting Synder, 552 U.S. at 477); see United States v. Atkins, 843 F.3d 625,

633 (6th Cir. 2016) (describing “the ultimate issue” as “factual” where

“[d]efendant is squarely challenging the district court’s finding at Batson step

three that the government lacked intent to discriminate”).

More specifically, in the AEDPA context, the deferential analytical rubric

of § 2254(d)(2) comes into play and, to grant relief, “a federal habeas court must

find the state-court conclusion ‘an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.’” Rice v. Collins, 546

U.S. 333, 338 (2006); accord Black, 682 F.3d at 880. And § 2254(e)(1)’s

“presumption of correctness” applies to state court findings relating to the

ultimate factual question at Batson’s step three—i.e., purposeful discrimination;

consequently, such findings can only be rebutted by “clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1); see Black, 682 F.3d at 898 (“The question

before us is whether the prosecution’s failure to strike a white juror despite his

not disclosing a prior misdemeanor conviction would establish by clear and

convincing evidence that the prosecutor’s challenge to the prospective

African–American juror was racially motivated.” (emphasis added)); Moody v.

Quarterman, 476 F.3d 260, 269 (5th Cir. 2007) (“[T]he district court’s task was

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not to assess whether it agreed with the state court’s ruling, but to determine

whether the state court’s finding [at Batson step three] was entitled to the

presumption of correctness and to decide whether that determination was

unreasonable in light of the evidence presented.”); see also Akins v. Easterling,

648 F.3d 380, 392 (6th Cir. 2011) (noting that “[t]he question at step three of

Batson—whether the defendant has shown intentional discrimination on the basis

of race—is a question of fact” and applying AEDPA’s presumption of correctness

to such findings); Weaver v. Bowersox, 241 F.3d 1024, 1030 (8th Cir. 2001)

(applying AEDPA’s presumption of correctness to a state court’s factual findings

pertaining to its Batson step three determination); cf. Hernandez v. New York, 500

U.S. 352, 367 (1991) (observing in the direct-appeal context that “[w]hether a

prosecutor intended to discriminate on the basis of race in challenging potential

jurors is, as Batson recognized, a question of historical fact.”); Madison v.

Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1251 n.11 (11th Cir. 2014) (noting

that “the state court made no factual determination at Batson’s third step that

could be entitled to a presumption of correctness”).

2. Background and Adjudication on Direct Appeal

Mr. Grant’s Batson claim concerns potential juror Valerie Jamerson, an

African-American woman. When asked to give a race-neutral explanation for

removing Ms. Jamerson, the prosecution stated that Ms. Jamerson “was one of the

jurors who said she could not look at photographs and did not want to look at

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photographs that might be graphic.” R., Vol. IV, Trial Tr. III, at 113. Mr. Grant

challenged the prosecution’s justification on direct appeal, “pointing out that

several non-minority panelists who were not challenged by the State had

expressed similar discomfort at having to consider photographs that were assured

to be gruesome.” Grant, 205 P.3d at 15. The OCCA rejected this claim of Batson

error:

[R]acially-motivated discrimination is not established simply
because panelists of different races provide similar responses,
and one is excused while the other is not. Rather, all the
attendant circumstances are relevant to whether the strike was
racially motivated. [Miller-El II, 545 U.S. at 240.] [Mr. Grant]
argues that statistical analysis—e.g. the percentage of minorities
removed by the State from the panel—is relevant to whether
racial discrimination was at work. But statistical analysis does
not advance [Mr. Grant]’s argument here. The State used only
two of its nine peremptory challenges to remove minority
panelists, and left more minorities on the panel than it removed.

Id. (emphases added) (citations omitted). The OCCA thus concluded, “[t]he

prosecutor’s explanation for striking Panelist J. [i.e., Ms. Jamerson] was

sufficiently race-neutral,” and denied Mr. Grant’s Batson claim. Id.

3. Analysis

a

Mr. Grant argues that the OCCA’s rejection of his Batson claim is contrary

to clearly established federal law. Specifically, he argues that the OCCA

“rejected, or at the very least devalued, the use of comparative juror analysis,”

and that this “approach was contrary to [the] clearly established law of Miller-

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El[II].” Aplt.’s Opening Br. at 116. More specifically, he challenges the

OCCA’s statement that “racially-motivated discrimination is not established

simply because panelists of different races provide similar responses, and one is

excused while the other is not.” Id. at 114–15 (quoting Grant, 205 P.3d at 15).

Mr. Grant reads this statement to mean that the OCCA “dismiss[ed] comparative

juror analysis as a means of detecting discrimination.” Aplt.’s Opening Br. at

114. “This approach,” Mr. Grant asserts, “was both contrary to law and

unreasonable.” Id. at 115. We disagree with Mr. Grant’s analysis.

At the outset, it is important to clarify what Batson and its progeny do not

expressly hold. This line of cases does not explicitly state that comparative juror

evidence, standing alone, must be accorded determinative effect with regard to the

question of racially-motivated discrimination—i.e., Batson’s third step. In other

words, these cases do not explicitly provide that, if a racial minority juror and a

non-minority juror voice a similar response during voir dire and the prosecutor

excludes only the minority juror, that this is conclusive proof of the prosecutor’s

discriminatory motive.

Notably, Miller-El II—the case that Mr. Grant principally relies on—does

not articulate this proposition. Rather, it is reasonably read as standing for the

patently logical view that such evidence is probative of discriminatory intent and,

indeed, may be persuasive evidence thereof. In this regard, the Court in Miller-El

II stated, “If a prosecutor’s proffered reason for striking a black panelist applies

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just as well to an otherwise-similar nonblack who is permitted to serve, that is

evidence tending to prove purposeful discrimination to be considered at Batson’s

third step.” Miller-El II, 545 U.S. at 241 (emphasis added); see also Black, 682

F.3d at 897 (“Whenever the prosecutor’s explanation for striking a minority juror

would also apply to a white juror who was not struck, the explanation loses some

credibility.”). Thus, by its plain terms, Miller-El II establishes only that such

comparative juror analysis “tend[s] to prove purposeful discrimination,” not that

it is definitive proof of such discrimination. 545 U.S. at 241 (emphasis added).

Indeed, Miller-El II and subsequent cases of the Court underscore that “in

considering a Batson objection, or in reviewing a ruling claimed to be Batson

error, all of the circumstances that bear upon the issue of racial animosity must be

consulted.” Snyder, 552 U.S. at 478 (emphases added); accord Foster, 136 S. Ct.

at 1748; see Miller-El II, 545 U.S. at 240 (highlighting “Batson’s explanation that

a defendant may rely on ‘all relevant circumstances’ to raise an inference of

purposeful discrimination” (quoting Batson, 476 U.S. at 96–97)).

That is not to say that, under certain circumstances, the Court has not

expressly found that comparative juror evidence was “compelling.” Foster, 136

S. Ct. at 1754. However, even in Foster—a case where the evidence fit this

description—the Court recognized that, in conducting its third-step,

discriminatory-intent analysis, “that is not all.” Id. In addition to comparative

juror evidence, the Court noted the prosecutor’s “shifting explanations” for

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dismissing the minority jurors and the “persistent focus on race in [notes relating

to voir dire that the Court attributed to the prosecution team].” Id. Concluding

its analysis, the Foster Court stated, “Considering all of the circumstantial

evidence that ‘bear[s] upon the issue of racial animosity,’ we are left with the

firm conviction that the strikes of [the minority jurors] were ‘motivated in

substantial part by discriminatory intent.’” Id. (quoting Snyder, 552 U.S. at 478,

485). Thus, in Foster, even the “compelling” comparative juror evidence was not

dispositive on the question of racially-discriminatory intent at Batson’s third step.

In light of the foregoing, we cannot conclude that the OCCA’s ruling is

contrary to the clearly established federal law of Batson and its progeny. There is

at least a “possibility fairminded jurists could disagree,” Harrington, 562 U.S. at

102, about whether the OCCA “rejected” or “devalued” the role that the Supreme

Court has indicated that comparative juror analysis plays in the Batson

discrimination rubric, Aplt.’s Opening Br. at 116, by merely concluding that

“racially-motivated discrimination is not established simply because panelists of

different races provide similar responses, and one is excused while the other is

not,” Grant, 205 P.3d at 15 (emphasis added). Indeed, such jurists are more

likely to agree that the OCCA’s ruling does not deviate from the clear

pronouncements of the Batson line of cases and, more specifically, Miller-El II,

which the OCCA explicitly cited—in that the OCCA explicitly recognized that

“all the attendant circumstances are relevant to whether the strike was racially

146
motivated.” Id. (emphasis added).

Because the OCCA’s Batson ruling, as it pertains to comparative juror

evidence, is not contrary to Batson and its progeny, we must reject Mr. Grant’s

call for us to apply de novo review on this basis to his Batson claim.

Significantly, Mr. Grant does not explicitly contend that the OCCA’s Batson

ruling is also infirm under AEDPA deference—viz., he does not argue that we

should conclude under AEDPA that the OCCA committed Batson error.

Therefore, we could end our analysis here. However, even were we to reach the

merits of the Batson claim under AEDPA, Mr. Grant could not prevail.

Specifically, as we have previously discussed, the OCCA’s Batson determination

regarding Ms. Jamerson was neither contrary to nor an unreasonable application

of Batson. And, most relevant here, it also was not a decision “based on an

unreasonable determination of the facts in light of the evidence.” 28 U.S.C. §

2254(d)(2), and there is no evidence that would clearly and convincingly rebut the

presumption of correctness that attaches to the OCCA’s factual findings regarding

whether the prosecutor acted with purposeful discrimination in excluding

Ms. Jamerson from the jury.

b

Like Mr. Grant’s briefing, we focus on the third step of Batson—that is,

whether the prosecutor engaged in purposeful discrimination in striking

Ms. Jamerson. Significantly, Mr. Grant’s discussion of his Batson claim centers

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solely on comparative juror evidence. In other words, he does not identify other

circumstances from which the OCCA could have found a Batson violation at step

three. Therefore, we similarly focus on this evidence.

The comparative juror evidence in the record clearly indicates that the

OCCA was not unreasonable in finding that there was no showing of purposeful

discrimination in violation of Batson. The OCCA could have reasonably

determined on the record that Ms. Jamerson and the two identified non-minority

jurors were not similarly situated. Therefore, the prosecutor’s differential

treatment of them would not be “evidence tending to prove purposeful

discrimination to be considered at Batson’s third step.” Miller-El II, 545 U.S. at

241 (emphasis added).

More specifically, as noted, the prosecution indicated that it peremptorily

dismissed Ms. Jamerson because she expressed hesitancy about viewing graphic

photos. Mr. Grant argues that “[n]on-minority jurors Abrams and Dinwiddie

expressed the same concerns about the gruesome photographs [as Ms. Jamerson],

but were not stricken.” Aplt.’s Opening Br. at 114. In our view, the OCCA

would not have been unreasonable in reaching a contrary conclusion.

The OCCA could have reasonably concluded that Ms. Jamerson expressed

more concern about viewing graphic photographs than Jurors Abrams and

Dinwiddie. Upon questioning regarding her ability to look at graphic

photographs, Ms. Jamerson said “I think it would be difficult. Even if it’s not

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real, it’s on TV, I have problems looking at it. . . . [I]t’s [too hard] sometimes to

stop your emotions.” R., Vol. IV, Trial Tr. I, at 226. She later stated, “I think I

would have a hard time. Even on TV when it is not real I can’t watch it. I don’t

want to see it.” Id. at 227. Finally, the prosecutor asked, “[T]he key is do you

have the stomach to do it, if you are called upon to serve the community?” and

Ms. Jamerson responded, “If I was called on.” Id. at 228. Ms. Jamerson thus

expressed clear reluctance three times before she agreed that she could look at the

graphic photographs and, notably, indicated that even when she knows the graphic

images are not real (i.e., on TV), she has trouble watching them.

By contrast, Juror Abrams could reasonably be viewed as expressing a

lesser degree of concern. Juror Abrams agreed that she could look at graphic

photographs the first time that she was asked about the matter in voir dire.

Specifically, the prosecutor told her that “you may see some things that are pretty

graphic,” and asked Ms. Abrams “how [she would] feel about that.” Id. at 248.

Juror Abrams responded, “I think it would be upsetting, but I think I can handle

it.” Id. The prosecutor said, “12 people have to listen to the facts of this case,

have to look at the photographs and have to make a determination. Are you okay

with that if you are called upon?” Id. Juror Abrams responded, “Yes.” Id.

Juror Dinwiddie likewise could reasonably be viewed as expressing less

concern about the gruesome photographs than Ms. Jamerson. When Juror

Dinwiddie was seated, the prosecutor asked “do you understand that there may be

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some very graphic testimony, there may be some very graphic photographs that as

a juror you have to look at.” Id., Trial Tr. III, at 31. And Juror Dinwiddie

responded, “Yes, I understand.” Id. The prosecutor added, “And is that

something that you can do?” Id. And Juror Dinwiddie responded “Well, just like

everyone else, it’s not something anyone wants to do, but if that is what I’m being

asked to do I believe I have the courage and the strength to do it.” Id. (emphasis

added).

In our view, this comparative juror evidence clearly indicates that the

OCCA would not have been unreasonable in finding that Ms. Jamerson was not

similarly situated to the non-minority jurors who expressed some concern about

gruesome photographs—viz., Ms. Jamerson expressed more concern about

viewing graphic photographs than Jurors Abrams and Dinwiddie. Consequently,

under Batson, the prosecutor’s exclusion of Ms. Jamerson and retention of the

other two would not be “evidence tending to prove purposeful discrimination to

be considered at Batson’s third step.” Miller-El II, 545 U.S. at 241 (emphasis

added).

Thus, the record strongly indicates that the OCCA was not unreasonable in

finding that there was no showing of purposeful discrimination in violation of

Batson—that is, for finding that “[t]he prosecutor’s explanation for striking

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[Ms. Jamerson] was sufficiently race-neutral.” 26 Grant, 205 P.3d at 15. And

there is nothing in the record that clearly and convincingly rebuts the presumption

of correctness that attaches to the OCCA’s factual findings regarding this matter.

More generally, we can discern no ground on which to hold that the OCCA’s

Batson determination as to Ms. Jamerson was contrary to or an unreasonable

application of Batson. Therefore, even reaching the merits of Mr. Grant’s Batson

claim, we would conclude that he cannot prevail.

E. Cumulative Error

Mr. Grant’s final claim is that, even if we decline to grant habeas relief on

any one of his aforementioned individual claims, we should nonetheless reverse

the district court’s denial of his petition under the cumulative-error doctrine. 27

26
The notion that the prosecution had a discriminatory motive for
striking Ms. Jamerson is also undermined by the fact that the State attempted to
waive its remaining peremptory strikes before using one on Ms. Jamerson. But,
in response to the State’s waiver request, the court indicated that the prosecution
must use all of its peremptory strikes, and the State thereafter struck Ms.
Jamerson.
27
In denying Mr. Grant’s cumulative-error argument, the district court
stated, inter alia, that “[t]here is no authority from the United States Supreme
Court recognizing ‘cumulative error’ as a separate violation of the federal
constitution or as a separate ground for federal habeas relief.” R., Vol. I, at 1610.
And, the State echoed this position on appeal, noting that “this Court has
repeatedly stated that, although it has long conducted cumulative-error analysis in
its review of federal habeas claims, it has never expressly held that cumulative-
error analysis is clearly established federal law.” Aplee.’s Br. at 90 (citing
Littlejohn I, 704 F.3d at 869 & n.29; Victor Hooks II, 689 F.3d at 1194 n.24).
However, our circuit rejected this argument in Hanson, 797 F.3d at 852 n.16,
holding that cumulative-error analysis does reflect clearly established Supreme
(continued...)

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“The cumulative effect of two or more individually harmless errors has the

potential to prejudice a defendant to the same extent as a single reversible error.

The purpose of a cumulative-error analysis is to address that possibility.” United

States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc). “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.” Victor Hooks II, 689 F.3d at 1194

(quoting Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003)). “[S]uch errors

will suffice to permit relief under [the] cumulative error doctrine only when the

constitutional errors committed in the state court trial so fatally infected the trial

that they violated the trial’s fundamental fairness.” Littlejohn II, 875 F.3d at 567

(second alteration in original) (emphasis added) (quoting Littlejohn I, 704 F.3d at

868); see John Grant, 727 F.3d at 1025 (“Only if the errors ‘so fatally infected the

trial that they violated the trial’s fundamental fairness’ is reversal appropriate.”

(quoting Matthews, 577 F.3d at 1195 n.10)). “We cumulate error only upon a

showing of at least two actual errors.” Hanson, 797 F.3d at 852 (citing Fero v.

Kerby, 39 F.3d 1462, 1475 (10th Cir. 1994)).

“It is not lost on us, however, that ‘as easy as the standard may be to state in

27
(...continued)
Court law, and we are bound by this reading of the Court’s precedent. We thus
consider the merits of Mr. Grant’s cumulative-error claim for habeas relief, but
ultimately reject it.

152
principle, it admits of few easy answers in application.’” Littlejohn II, 875 F.3d at

567 (quoting John Grant, 727 F.3d at 1025). We elaborated on the point in John

Grant:

Where and how, then, should a court draw the line between
what’s ordinary (and ordinarily harmless) and what’s rare (and
fundamentally unfair)? Especially when the errors we are called
on to accumulate may be very different in kind (incommensurate)
and involve separate aspects of the case (guilt versus penalty)?
Our precedent doesn’t say except to suggest that wherever the
cumulative error line may fall, it is not crossed often.

727 F.3d at 1025.

The OCCA rejected Mr. Grant’s cumulative-error arguments on direct

appeal and on post-conviction review, finding no errors to cumulate. However, in

resolving under the prejudice prong of Strickland Mr. Grant’s ineffective-

assistance claims based on counsel’s alleged failure (1) to monitor his

competency, and (2) to investigate and present mitigating evidence of organic

brain damage, we have effectively assumed that counsel’s performance was

constitutionally deficient. See Cargle, 317 F.3d at 1207 (“These substantive

prejudice components [e.g., under the Strickland rubric] essentially duplicate the

function of harmless-error review.”). And thus we are obliged to assess these two

assumed errors in a cumulative-error analysis. See, e.g., Littlejohn II, 875 F.3d at

568 (“Although we have held supra that his ineffective-assistance claim fails to

evince the level of prejudice required under Strickland, we include the assumed

error resulting from Mr. Rowan’s alleged ineffective assistance in the

153
cumulative-error analysis.”); Cargle, 317 F.3d at 1207 (“[P]articular types of error

considered here are governed in the first instance by substantive standards which

already incorporate an assessment of prejudice with respect to the trial process as

a whole: Strickland errors require us to assess whether there is a reasonable

probability that counsel’s deficient performance affected the trial outcome . . . .

[S]uch claims should be included in the cumulative-error calculus if they have

been individually denied for insufficient prejudice.” (footnotes omitted)).

Because the OCCA did not conduct a cumulative-error analysis (much less

one involving these precise errors), we must perform our own de novo, employing

the well-established standard found in Brecht v. Abrahamson, 507 U.S. 619

(1993). See, e.g., Littlejohn II, 875 F.3d at 568 (conducting a de novo cumulative-

error analysis under Brecht, where “the cumulative-error claim advanced here

differs from the claim that the OCCA confronted”); Cargle, 317 F.3d at 1224

(“[T]he OCCA did not recognize and address the collective errors we have before

us here. Thus, we address the issue de novo under the Brecht standard . . . .”). In

doing so, we inquire whether the identified harmless errors, in the aggregate, “had

[a] substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)); accord Littlejohn II, 875 F.3d at 568; Cargle, 317 F.3d at 1224. “An

error may be deemed to have a substantial and injurious effect under Brecht’s

rubric when a ‘conscientious judge [is left] in grave doubt about the likely effect

154
of an error on the jury’s verdict.’” Littlejohn II, 875 F.3d at 568 (alteration in

original) (quoting O’Neal v. McAninch, 513 U.S. 432, 435 (1995)); accord Welch,

639 F.3d at 992.

We have no such grave doubt here. We turn first to counsel’s assumed error

in failing to investigate and present mitigating evidence of organic brain damage.

Based especially on our analysis in Part II.B.4.c, supra, “we do not believe the

Strickland prejudice question [as to this individual error] is a close one.”

Littlejohn II, 875 F.3d at 570. In other words, the harmlessness of this individual

error is not a close call. Specifically, the particular nature of the organic-brain-

damage evidence that Mr. Grant identified (notably, coming from Dr. Gelbort) was

qualitatively weak in its likely mitigating force. Moreover, this evidence—absent

any indication that the symptoms associated with such brain damage could be

treated—may well have caused (if presented) some damage to the substantial

mitigation case trial counsel did present to the jury, which notably focused in large

part on Mr. Grant’s mental-health problems. However, akin to our reasoning in

Littlejohn II—which took into account the fact that generally “[e]vidence of

organic mental deficits ranks among the most powerful types of mitigation

evidence available,” Littlejohn I, 704 F.3d at 864—we are willing to assume

arguendo that “some modest prejudice” resulted from the assumed unreasonable

failure of Mr. Grant’s counsel to investigate and present organic-brain-damage

evidence to the sentencing jury, Littlejohn II, 875 F.3d at 570.

155
 As for the other assumed error—i.e., involving the failure to monitor

Mr. Grant’s purported decline into incompetency—we can hardly do more. After

all, as we explicated in Part II.B.3.c, supra, we must accept the OCCA’s

related—but distinct and independent—determination that Mr. Grant was in fact

substantively competent. Therefore, any prejudice stemming from the

unreasonable failure of Mr. Grant’s counsel to monitor his descent into

incompetency cannot rise above the modest level, when Mr. Grant was in fact

competent.

In Littlejohn II, in facing a similar showing of purported cumulative error,

we reasoned:

From a purely additive or sum-of-the parts perspective, the three
dashes of modest prejudice that we have assumed here . . . hardly
constitute, in the aggregate, a recipe for the kind of prejudice that
would render Mr. Littlejohn’s resentencing proceeding
fundamentally unfair or cause us to have grave doubts about
whether the errors affected the jurors’ verdict, especially when
viewed in the context of the State’s substantial case in
aggravation.

875 F.3d at 570. This logic applies with even greater force here, where we are

collectively assessing the modest prejudicial effect of only two errors, not three;

and the State was able to present here a substantial aggravation case—which was

sufficient to win the jury’s verdict regarding no less than four aggravating factors,

instead of only two in Littlejohn, see Littlejohn I, 704 F.3d at 824—and notably

where the State would very likely have underscored in its case, in response to

156
organic-brain-damage evidence, arguments supporting the continuing-threat

aggravator, which we have considered in settings like this one, “perhaps [the]

most important aggravating circumstance.” Littlejohn II, 875 F.3d at 564

(alteration in original) (quoting John Grant, 727 F.3d at 1017). In short, from “a

purely additive or sum-of-the parts perspective,” Littlejohn II, 875 F.3d at 570, we

are hard-pressed to conclude that these errors—viewed collectively—“fatally

infected” Mr. Grant’s proceedings, Matthews, 577 F.3d at 1195 n.10 (quoting

Young, 551 F.3d at 972), so as to cause fundamental unfairness.

To be sure, cumulative-error analysis is not confined solely to this

perspective. As we recognized in Cargle, harmless individual errors may possess

“an inherent synergistic effect,” 317 F.3d at 1221, such that the errors may be

“collectively more potent than the sum of their parts,” Littlejohn II, 875 F.3d at

571; see Hanson, 797 F.3d at 853 (discussing Cargle’s application of this

principle). But Mr. Grant makes no argument that the two errors that we have

assumed here possess any “particularized synergies.” Aplt.’s Reply Br. at 47; see

Aplt.’s Opening Br. at 120–21 (discussing two other “set[s] of violations with

synergistic effect”). Therefore, this synergy principle of Cargle does not avail

Mr. Grant.

In sum, we cannot conclude that, viewed collectively, the two ineffective-

assistance errors that we have assumed here—relating to counsel’s failure (1) to

monitor Mr. Grant’s competency, and (2) to investigate and present mitigating

157
evidence of organic brain damage—had a substantial and injurious effect on the

jury’s consideration of Mr. Grant’s case and, more specifically, we are not in

grave doubt about the likely effect of these errors (in the aggregate) on the jury’s

verdict either in the guilt or penalty phase. Accordingly, we affirm the district

court’s denial of this final aspect of Mr. Grant’s petition.

IV. MOTION TO EXPAND COA

Mr. Grant has filed a motion to expand the COA to add a sixth claim that

the “jury was prevented from considering mitigation evidence in violation of the

Sixth, Eighth, and Fourteenth Amendments by mechanistic application of state

evidentiary rules.” Aplt.’s Mot. for COA at 3. Specifically, Mr. Grant’s claim

addresses two groups of expert reports: (1) eight reports authored by Dr. Curtis

Grundy (“Grundy Reports”), who testified for Mr. Grant during the penalty stage

of his trial, and (2) ten psychological reports on Mr. Grant authored by other

doctors that Dr. Grundy relied on in forming his opinions (“other expert reports”).

The sentencing court excluded both sets of reports and the OCCA found the

exclusion to be within the sentencing court’s discretion.

Specifically, the OCCA found that (1) the Grundy Reports were cumulative

of Dr. Grundy’s testimony, and (2) the other expert reports were properly excluded

absent the live testimony of their authors. The OCCA offered a detailed

explanation as to the latter ruling:

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 By excluding the [other expert reports], the trial court avoided
placing undue emphasis on writings by authors who were never
asked to come to court and testify about them. Many of these
reports contain information and terminology which might be
confusing to someone outside the world of psychology and
psychiatry. Liberal admission of such documents could turn trials
into paper wars, and undermine the fundamental preference for
live testimony subject to cross-examination. Further, admitting
a stack of evaluations by non-testifying experts runs a serious risk
of confusing the jury.

Grant, 205 F.3d at 20 (footnotes and citation omitted). Moreover, the OCCA

indicated that, even if Mr. Grant were able to demonstrate that the trial court

abused its discretion by excluding all of the reports at issue, Mr. Grant would not

be entitled to relief because he failed to demonstrate that he was “prejudiced by

the trial court’s decision.” Id. In particular, even though the jurors were

prevented from reviewing the actual reports, Dr. Grundy provided “a

comprehensive summary of [their contents]” through his live testimony. Id. In

sum, the OCCA upheld the trial court’s exclusion of the other expert reports.

In his § 2254 petition, Mr. Grant argued to the district court that the

OCCA’s affirmance of the sentencing court’s exclusion of both sets of reports was

contrary to clearly established federal law. The district court rejected this

argument. Mr. Grant now seeks a COA on this additional issue. We deny relief.

A. Legal Standard

“[A] prisoner who was denied habeas relief in the district court must first

seek and obtain a COA” before he may secure a merits review on appeal. Miller-

159
El I, 537 U.S. at 335–36; see 28 U.S.C. § 2253(c)(1). “Under AEDPA, a COA

may not issue unless ‘the applicant has made a substantial showing of the denial of

a constitutional right.’” Slack v. McDaniel, 529 U.S. 473, 483 (2000) (quoting 28

U.S.C. § 2253(c)).

To make this showing, a petitioner must demonstrate that “reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were ‘adequate to

deserve encouragement to proceed further.’” Id. at 475 (quoting Barefoot v.

Estelle, 463 U.S. 880, 893 n.4 (1983), superseded on other grounds by statute, 28

U.S.C. § 2253(c)(2)). Furthermore, “AEDPA’s deferential treatment of state court

decisions must be incorporated into our consideration of a habeas petitioner’s

request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004); accord

Davis v. McCollum, 798 F.3d 1317, 1320 (10th Cir. 2015); Dodd v. Trammell, 753

F.3d 971, 999 (10th Cir. 2013). Therefore, we must determine whether reasonable

jurists could debate whether Mr. Grant was entitled to habeas relief on this

additional claim (or believe that it was worthy of encouragement to proceed

further).

With this legal framework in mind, we address Mr. Grant’s arguments to

expand the COA. We ultimately conclude that Mr. Grant has not made a sufficient

showing to warrant issuance of a COA.

160
 B. Excluded Evidence

1. Grundy Reports

Mr. Grant argues that the OCCA’s exclusion of the Grundy Reports was

contrary to Skipper v. South Carolina, 476 U.S. 1 (1986), a death-penalty case.

But Mr. Grant’s argument misjudges Skipper’s reach. In Skipper, the Supreme

Court held that the trial court infringed on the defendant’s well-established federal

“right to place before the sentencer relevant evidence in mitigation of punishment”

when the court excluded certain evidence that it deemed cumulative. 476 U.S. at

4, 8. There, the defendant sought to admit at his sentencing hearing the testimony

of two jailers and a regular visitor at the jail. See id. at 3. The proposed witnesses

would have testified regarding the defendant’s good behavior in jail while

awaiting trial, thus allegedly mitigating the prosecution’s argument that, if

sentenced to life in prison, the defendant posed a threat to the safety of other

inmates. See id. at 4, 8. The State argued that the testimony was properly

excluded because it was merely cumulative of other testimony of the defendant

and his former wife that his behavior in jail had been satisfactory. See id. at 8.

The Court concluded that the additional evidence was not cumulative and

that its exclusion constituted reversible error. See id. at 8. The Court explained:

The evidence petitioner was allowed to present on the issue of his
conduct in jail was the sort of evidence that a jury naturally would
tend to discount as self-serving. The testimony of more
disinterested witnesses—and, in particular, of jailers who would
have had no particular reason to be favorably predisposed toward

161
 one of their charges—would quite naturally be given much
greater weight by the jury.

Id. (emphasis added). In light of the prosecutor’s contention that the defendant

posed a continuing threat even if incarcerated, the Court concluded that “it appears

reasonably likely that the exclusion of evidence bearing upon petitioner’s behavior

in jail (and hence, upon his likely future behavior in prison) may have affected the

jury’s decision to impose the death sentence.” Id. Therefore, the Court declared

the exclusion of the evidence “reversible error.” Id.

Here, Mr. Grant argues that the exclusion of the Grundy Reports as

cumulative was contrary to Skipper. He acknowledges, however, that

Dr. Grundy’s testimony—which the jury heard—and the Grundy Reports both

reflect Dr. Grundy’s medical opinions of Mr. Grant’s mental illness. But he

argues that the reports are not cumulative of Dr. Grundy’s testimony because they

contain different examples of Mr. Grant’s behavior, and therefore their exclusion

is contrary to Skipper.

We conclude, however, that no reasonable jurists could debate that the

OCCA’s decision to exclude the Grundy Reports was not contrary to or an

unreasonable application of Skipper. The OCCA could have reasonably concluded

that the facts of Skipper are distinguishable. More specifically, it could have

reasonably concluded that no circumstances in this case—including with respect to

the contents of the Grundy reports themselves—would have naturally led

162
Mr. Grant’s jury to accord “much greater weight” to the Grundy Reports than the

live testimony from Dr. Grundy. See Skipper, 476 U.S. at 8. Accordingly, we

conclude that no reasonable jurist could debate the correctness of the decision to

deny Mr. Grant a COA regarding the exclusion of the Grundy Reports or deem the

matter one that was worthy of encouragement to proceed further.

2. Other Expert Reports

With regard to the other expert reports, Mr. Grant asserts that they contain

“critical mitigating evidence . . . that Dr. Grundy’s testimony did not, and could

not fully address.” Aplt.’s Mot. for COA at 12. Accordingly, Mr. Grant argues

that the exclusion of the other expert reports for lack of authentication violates

Lockett and its progeny. As we noted in Part II.C.1, supra, the Lockett Court held

that the Constitution “require[s] that the sentencer, in all but the rarest kind of

capital case, not be precluded from considering, as a mitigating factor, any aspect

of a defendant’s character or record and any circumstances of the offense that the

defendant proffers as a basis for a sentence less than death.” 438 U.S. at 604.

However, we conclude that no reasonable jurists could debate that the

OCCA’s decision to exclude the other expert reports was not contrary to or an

unreasonable application of Lockett. More specifically, the OCCA could have

reasonably determined that the evil that Lockett addressed was not present here.

The other expert reports concern Mr. Grant’s mental illness and Mr. Grant was

never prevented from presenting evidence of his mental illness as a mitigating

163
factor. The record is replete with evidence of Mr. Grant’s mental illness,

including Dr. Grundy’s testimony that Mr. Grant had schizophrenia. Rather, by

excluding the other expert reports, the court prevented Mr. Grant from submitting

evidence of additional examples and proof of Mr. Grant’s mental illness. The

OCCA could have reasonably determined that such an exclusion is not a concern

of Lockett— viz., the OCCA could have reasonably concluded that Lockett does

not stand for the proposition that every scrap or scintilla of evidence bearing on a

defendant’s mitigation issue—here, mental illness—must be admitted without

consideration of the rules of evidence. In sum, no reasonable jurists could debate

the conclusion that Mr. Grant has not made a substantial showing that the OCCA’s

decision is contrary to or an unreasonable application of Lockett.

Mr. Grant also relies on Crane v. Kentucky, 476 U.S. 683, 690 (1986), but to

no better effect. In Crane, the Court struck down a state’s “blanket exclusion of . .

. testimony about the circumstances of [a defendant’s] confession” as

unconstitutional. 476 U.S. at 690. But, the Crane Court carefully limited its

holding, noting that the Court has “never questioned the power of States to

exclude evidence through the application of evidentiary rules that themselves

serve the interests of fairness and reliability—even if the defendant would prefer

to see that evidence admitted.” Id. Once again, no reasonable jurists could debate

that the OCCA’s decision to uphold the exclusion of the other expert reports was

not contrary to or an unreasonable application of Crain. Unlike Crain, the OCCA

164
did not endorse a wholesale exclusion of evidence relating to one mitigating

factor. Instead, the OCCA upheld the sentencing court’s discretionary application

of evidentiary rules that favor live testimony (which permits adversarial testing)

and guard against juror confusion; like those alluded to in Crain, such rules “serve

the interests of fairness and reliability.” Id. In our view, no reasonable jurists

could debate the conclusion that Mr. Grant has not made a substantial showing

that the OCCA’s decision to uphold the exclusion of the other expert reports was

contrary to or an unreasonable application of Crain.

***

In sum, we conclude that no reasonable jurist could debate the correctness

of the district court’s decision to deny Mr. Grant a COA regarding the exclusion of

the Grundy Reports and the other expert reports, or deem the matter one that was

worthy of encouragement to proceed further. Accordingly, we deny Mr. Grant’s

motion to expand the COA.

V. CONCLUSION

In sum, for the reasons explicated above, we AFFIRM the district court’s

decision denying Mr. Grant’s § 2254 petition for a writ of habeas corpus. We also

DENY Mr. Grant’s motion to expand the COA.

165
No. 14-6131, Grant v. Royal
MORITZ, J., dissenting.
During the rebuttal portion of her closing argument, the prosecutor told Grant’s

jury, “[T]he law says . . . that before something can be mitigating it must reduce

the moral culpability or blame of the defendant.” R. Vol. 4, Trial Tr. 8, at 75 (emphasis

added). And to ensure that no reasonable juror would have cause to doubt her, the

prosecutor reinforced that this wasn’t just what she was saying or what the court was

saying, but what “the law sa[id].” Id. (emphasis added). I would find that no reasonable

juror would have doubted her. Nor would a reasonable juror have doubted the prosecutor

on the three other separate occasions when she told the jurors that the law prohibited

them from considering evidence as mitigating unless it reduced Grant’s culpability or

blame.

The majority doesn’t dispute that the prosecutor misstated the law on mitigating

evidence. Nor does it dispute that she did so repeatedly. Instead the majority questions

whether the jury believed those repeated misstatements. Yet I see no reason to think it

wouldn’t have. The prosecutor’s numerous misstatements found explicit support in the

jury instructions.1 Further, the trial court implicitly endorsed the prosecutor’s

misstatements by overruling the defense’s objection to them. It’s therefore clear that the

jury felt legally precluded from considering all of Grant’s mitigation evidence. Grant’s

1
Instruction 12 stated, “Mitigating circumstances are those which, in fairness,
sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame.”
O.R. 2349.
death sentence therefore violates the Eighth and Fourteenth amendments, and I would

reverse the district court’s order denying Grant’s habeas petition.

Analysis

The majority all but concedes that the prosecutor’s comments impermissibly

narrowed the scope of evidence that the jury could treat as mitigating. But it nevertheless

affirms Grant’s death sentence because it opines that the OCCA reasonably concluded

that the prosecutor’s improper comments didn’t actually mislead the jury. In doing so, the

majority errs in two respects. First, the majority overlooks the fact that the OCCA

misunderstood Grant’s argument on direct appeal and therefore didn’t actually adjudicate

this claim on the merits. Thus, AEDPA’s deferential standard of review doesn’t apply.

See Chadwick v. Janecka, 312 F.3d 597, 606 (3d Cir. 2002) (explaining that “if an

examination of the opinions of the state courts shows that they misunderstood the nature

of a properly exhausted claim and thus failed to adjudicate that claim on the merits, the

deferential standards of review in AEDPA do not apply”); 28 U.S.C. § 2254(d) (requiring

us to defer to state-court decision only when state court resolved particular claim “on the

merits”). Second, even if the OCCA had resolved this claim on the merits, it would have

been unreasonable for the OCCA to conclude that there was no reasonable likelihood the

prosecutor’s comments misled at least one juror.

The majority “acknowledge[s] that a plausible argument could be made here that

the prosecutor’s rebuttal arguments were ‘improper.’” Maj. Op. 115 (quoting Harris v.

State, 164 P.3d 1103, 1114 (Okla. Crim. App. 2007)). But because the majority doesn’t

“definitively opine on the matter,” id., it has no reason to discuss just how “improper”

2
those statements actually were, id. (quoting Harris, 164 P.3d at 1114). I take a different

approach. First, I explain how the prosecutor’s misstatements undermined the

Constitution’s promise that the death penalty will not be imposed without the most

circumspect deliberation. Then, with that conclusion in mind, I explain the two

overarching deficiencies in the majority’s analysis: its deference to the OCCA and its

conclusion that the OCCA reasonably resolved this issue in the state’s favor.

I. Flaws in Grant’s Sentencing Proceeding

“[I]n capital cases the fundamental respect for humanity underlying the Eighth

Amendment requires consideration of the character and record of the individual offender

. . . as a constitutionally indispensable part of the process of inflicting the penalty of

death.” Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (plurality opinion)

(citation omitted). Thus, a jury must “not be precluded from considering, as a mitigating

factor, any aspect of a defendant’s character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death.” Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (plurality opinion) (footnote omitted); see also Eddings

v. Oklahoma, 455 U.S. 104, 110 (1982) (adopting Lockett plurality’s rule). Critically, this

is true even if the evidence that “the defendant proffers,” Lockett, 438 U.S. at 604,

doesn’t provide a legal excuse for the defendant’s crime, see Eddings, 455 U.S. at 112–

14, 117 (reversing death sentence where sentencing judge stated that he was legally

precluded from considering defendant’s violent background; explaining that although

sentencer “may determine the weight to be given relevant mitigating evidence,” it “may

3
not give it no weight by excluding such evidence from [its] consideration” (emphasis

added)).

Clearly established Supreme Court precedent therefore requires that Grant’s jury

felt free to at least consider all the mitigating evidence that Grant presented. Of course the

jury could have properly decided to give that evidence little weight. See Eddings, 455

U.S. at 114–15. But Grant’s death sentence cannot stand if there’s a “reasonable

likelihood that the jury would have found itself foreclosed from [even] considering” his

mitigating evidence. Johnson v. Texas, 509 U.S. 350, 367–68 (1993). And although this

standard requires more than the mere “possibility of such an inhibition,” it doesn’t require

Grant to show “that the jury was more likely than not to have been impermissibly

inhibited” from considering all of Grant’s mitigating evidence. Boyde v. California, 494

U.S. 370, 380 (1990).

Finally, in determining whether the jury felt free to consider all of Grant’s

mitigating evidence, we review the totality of the jury instructions and closing arguments.

See id. at 383–86 (considering challenged instruction in context of closing arguments and

other jury instructions); Penry v. Lynaugh (Penry I), 492 U.S. 302, 325–26 (1989)

(considering challenged instruction in context of closing arguments), abrogated on other

grounds by Atkins v. Virginia, 536 U.S. 304 (2002); Hanson v. Sherrod, 797 F.3d 810,

852 (10th Cir. 2015) (considering challenged instruction in context of other instructions

and closing arguments).

4
 A. Instruction 12

Like the majority, I start with the instruction that defined mitigating circumstances

for the jury. Instruction 12 stated, in relevant part, “Mitigating circumstances are those

which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral

culpability or blame. The determination of what circumstances are mitigating is for you

to resolve under the facts and circumstances of this case.” O.R. 2349.

Instruction 12 is ambiguous at best. The word “may” might arguably broaden the

instruction. Id. But at least some jurors very likely read Instruction 12 to prevent the jury

from “consider[ing], as a matter of law,” Eddings, 455 U.S. at 114, “aspects of [Grant’s]

character and record” that didn’t reduce his moral culpability or blame, Lockett, 438 U.S.

at 605. This definition of mitigating circumstances was impermissibly narrow. See

Lockett, 438 U.S. at 604 (holding that jury must be free to consider “any aspect of a

defendant’s character or record and any of the circumstances of the offense that the

defendant proffers as a basis for a sentence less than death” (emphasis added)).

Indeed, even the OCCA has recognized that Instruction 12 can be problematic

when the prosecution takes certain liberties in its closing arguments. See Harris v. State,

164 P.3d 1103, 1113–14 (Okla. Crim. App. 2007). In fact, after Grant’s 2005 trial, the

OCCA recommended that the Oklahoma Uniform Jury Instruction Committee amend

Instruction 12 because prosecutors had been using the instruction to “egregious[ly]

misstate[] . . . the law on mitigating evidence” by “argu[ing] that evidence of a

defendant’s history, characteristics or propensities should not be considered as mitigating

simply because it does not go to his moral culpability or extenuate his guilt.” Id. at 1113–

5
14. But the OCCA refrained from declaring that Instruction 12 was unconstitutional in

the absence of such improper arguments.2 See id. at 1113.

B. The Prosecution’s Improper Assertions

Our starting point is thus an instruction that—at minimum—flirts with the

impermissible. But as Penry I, Boyde, and Hanson instruct us, we must consider the

totality of the jury instructions and closing arguments. Doing so here only reinforces the

2
Relying on Mills v. Maryland, 486 U.S. 367 (1988), Grant argues that the
OCCA’s decision to amend Instruction 12 in Harris is strong evidence that Instruction 12
is unconstitutional. In Mills, the Court reversed a defendant’s death sentence because it
concluded that Maryland’s jury instructions might have led some jurors to believe that
they were compelled to vote for death if the jury failed to unanimously agree on the
existence of any particular mitigating factor. Id. at 384. As the OCCA did in Harris, 164
P.3d at 1113–14, the Maryland Court of Appeals rejected the defendant’s argument but
then changed the uniform instruction. Id. at 371–73, 381–83. The Supreme Court took
this into account when it concluded that the former instructions were impermissibly
misleading, explaining that the Court “infer[red] from these changes at least some
concern on the part of [the Maryland Court of Appeals] that juries could misunderstand
the previous instructions as to unanimity and the consideration of mitigating evidence by
individual jurors.” Id. at 383.

Grant argues that we should take a similar approach here and view Harris as
evidence that Instruction 12 is impermissibly misleading. But, as Grant acknowledges,
we declined to use Harris as grounds to find Instruction 12 unconstitutional in Hanson,
797 F.3d at 850–51. He nevertheless advances this argument to preserve it for further
review.

Although I recognize that this panel can’t overturn Hanson, I question whether we
overlooked there the extent of the similarity between Mills and Harris. In Hanson, we
explained that Harris didn’t inform our inquiry because in Harris, “the OCCA
‘emphasize[d] that the language of [Instruction 12] itself [was] not legally inaccurate,
inadequate, or unconstitutional.’” Hanson, 797 F.3d at 850–51 (first alteration in original)
(quoting Harris, 164 P.3d at 1114). But the Maryland Court of Appeals in Mills likewise
expressed contentment with its instruction. See Mills v. State, 527 A.2d 3, 15 (Md. 1987)
(concluding “there [was] no ambiguity in the language of [the instruction] concerning
unanimity”), rev’d by Mills, 486 U.S. at 384. So I see little difference between the
Maryland Court of Appeals’ decision to change its jury instruction and the OCCA’s
decision to change Instruction 12.
6
unavoidable conclusion that the jury likely believed it couldn’t consider Grant’s evidence

as mitigating. That’s because, during closing arguments, the prosecution here did exactly

what “troubled” the OCCA in Harris: the prosecution used Instruction 12 to “argue that

evidence of [Grant’s] history, characteristics [and] propensities should not be considered

as mitigating simply because” that evidence didn’t “go to his moral culpability or

extenuate his guilt.” 164 P.3d at 1114.

Grant produced two categories of mitigating evidence during the sentencing phase.

First, he proffered significant evidence showing that he was schizophrenic. Second, he

offered testimony from family members establishing that he experienced an abhorrent

childhood that was riddled with parental drug abuse, extreme poverty, and violence. In its

closing argument-in-chief during Grant’s penalty phase, the prosecution focused on

attacking the sufficiency of the evidence that Grant offered. In other words, the

prosecution tried to convince the jury that Grant wasn’t actually schizophrenic and that

his childhood wasn’t that bad. Grant doesn’t dispute that this was appropriate; nor do I.

The jury isn’t required to believe all the testimony it hears, and the prosecution is free to

implore it not to.

Then, during Grant’s closing arguments, his attorneys asked for the jury’s

sympathy. They were frank about the fact that none of the mitigating evidence Grant

presented would actually reduce his moral culpability or guilt. As one of Grant’s

attorneys told the jury, “I want to be clear that none of the mitigating evidence that

we . . . will ask you to consider excuses . . . what happened in this case. And we

understand that and we don’t ask you to excuse what happened in this case. It’s an

7
explanation.” R., vol. 4, Trial Tr. 8, at 44. Both of Grant’s attorneys repeated this theme

throughout their closing arguments. For example, one attorney explained, “We didn’t get

up in [the guilt] stage and try to tell you . . . Grant is not guilty because he is

schizophrenic, but it is an explanation. It’s a reason that he ended up where he ended up.”

Id. at 53. Then, after reviewing the evidence of Grant’s terrible upbringing, Grant’s

attorney again explained, “I’m not t[r]ying to say that it’s okay that [Grant] committed a

crime because he had tough environments, I’m just trying to explain to you how . . .

Grant got to this point in his life.” Id. at 58.

Then Grant’s other attorney took over. She began discussing Grant’s life and then

told the jury,

I’m going to stop in the story here and talk about that idea of fault for a
minute because what we’re talking about doesn’t have to do with fault
. . . . So don’t let [the prosecution] tell you or don’t presume on your own
that we’re telling you that . . . Grant’s life is an excuse for what he did. It is
not an excuse for what he did. We’re not saying that. It never will be an
excuse. What it is is appropriate information to consider in determining
punishment.

Id. at 64–65 (emphasis added). The defense’s theme is clear and reasonable. Grant’s

attorneys recognized that he committed a horrible crime. And they recognized that

neither his mental illness nor his childhood reduced his culpability or his blame. But

these are undisputedly relevant mitigating factors, so the defense urged the jury to

consider them and show Grant mercy.

Given the defense’s theme, I question whether the jury would have read

Instruction 12—even in isolation—as “provid[ing] a vehicle for the jury to give

mitigating effect to” Grant’s evidence. Penry I, 492 U.S. at 324. That’s because

8
Instruction 12 defined mitigating circumstances as “those which, in fairness, sympathy,

and mercy, may extenuate or reduce the degree of moral culpability or blame.” O.R.

2349. And in light of the defense’s repeated concessions that Grant’s mental illness and

childhood did neither, it’s difficult to see how the jury could have read Instruction 12 as

allowing it to consider this evidence as mitigating.

But even if some jurors might have read Instruction 12 in isolation to allow the

jury to consider evidence that didn’t reduce Grant’s culpability or blame, the

prosecution’s rebuttal arguments made it nearly certain that the jurors would conclude

they couldn’t do so.

For instance, shortly into her rebuttal, the prosecutor picked up where Grant’s

attorneys left off and told the jury the following:

You know, what I noted about the argument of defense counsel is they
spent a long time trying to describe to you how what they have offered in
mitigation is not an excuse, how what they’re trying to tell you about the
life and times of . . . Grant is not an excuse for the behavior that he
committed at the La Quinta Inn in July of 2001. And that is exactly what the
law says. Because one thing that I noticed that they did not talk about in
their closing argument is what the definition of a mitigating circumstance
is. Because the law tells you what that means. It tells you that in order—
first of all, you have two choices: Do you believe that the mitigating
circumstance has been proven because you don’t have to believe everything
that you have heard from the witnesses who testified. You can choose what
parts you want to believe and disregard those parts that you believe perhaps
people were exaggerating about or somehow t[r]ying to make things sound
a whole lot worse than they actually were. But let’s assume for the sake of
argument that everything that you were told was correct, that not any
person made up or fudged a little bit in what they were telling you about.
What does it say mitigating circumstances are? What does that mean when
we say that something may mitigate the murder of these two women, the
lives that he took? It says that mitigating circumstances are those which
reduce the moral culpability or blame of the defendant. That those things,
in order to be mitigating, must reduce his moral culpability or blame.

9
R. Vol. 4, Trial Tr. 8, at 73–74 (emphases added).

At this point, the defense objected, the parties conferred at the bench, and the trial

court overruled the objection. Then the prosecutor continued:

It’s not Sandra Elliott [the prosecutor] telling you that this will make
something mitigating, that’s what the law says. And we all talked about
during voir dire that we would be discussing the law that the [c]ourt’s going
to be giving you. And the law says, not Sandra Elliott, not what the defense
attorneys say, but what the [c]ourt tells you and what the law says is
that before something can be mitigating it must reduce the moral
culpability or blame of the defendant.

Id. at 75 (emphases added).

Finally, after discussing the specifics of the evidence Grant presented, the

prosecutor repeated, “So while [the defense] may say to you that [they are] not offering

this as an excuse for . . . Grant’s behavior, you have to look at whether or not it reduces

his moral culpability or blame. That is what the law says that you must do.” Id. at 79

(emphasis added).

The prosecutor thus made clear that the jurors could fully exercise their discretion

to decide whether, as a factual matter, Grant’s evidence proved the circumstances he

asserted as mitigating. But she told them that they couldn’t stop there. Instead, they then

had to decide whether the factors that Grant proved reduced his culpability or blame. If

not, the prosecutor explained, the law prohibited the jurors from considering those factors

as mitigating.

Using mandatory language like “must,” the prosecutor’s comments improperly

conveyed to the jury that each factor Grant asserted as mitigating had to impact moral

culpability or blame to be a mitigating factor. Id. at 75; accord id. at 79. And even more

10
problematically, she added clear qualifying language indicating that this was a

prerequisite to ultimately considering a factor as mitigating at all. See id. (“[B]efore

something can be mitigating it must reduce the moral culpability or blame of the

defendant.” (emphasis added)). With these comments, the prosecutor explicitly tethered

the legal definition of “mitigating circumstance” to a circumstance that reduced Grant’s

moral culpability or blame. And she repeatedly and explicitly made clear that this wasn’t

just her own guidance to the jury; it was what “the law” compelled. Id. at 75; accord id.

at 73; id. at 79.

Put differently, my objection is that the prosecution used an ambiguous jury

instruction to inject an additional, unconstitutional step into the mitigation analysis.

Normally, the jury should undertake a two-step process. First, it should consider whether

the evidence actually supports the defendant’s asserted mitigating factor. Cf. Eddings,

455 U.S. at 113 (explaining that sentencer may “evaluate the evidence in mitigation and

find it wanting as a matter of fact”). Next, it should consider what weight to afford that

mitigating factor when balanced against the aggravating factors. Cf. id. at 114–15 (“The

sentencer . . . may determine the weight to be given relevant mitigating evidence . . . .”).

But the prosecution’s comments here suggest an intermediate step: if the jury determines

that the evidence supports the asserted mitigating factor, then it must also determine

whether that factor is actually mitigating—that is, whether it “reduce[s] the moral

culpability or blame of the defendant.” R. vol. 4, Trial Tr. 8, at 75. If so, then—and only

then—can the jury reach the final step of the inquiry and determine what weight to afford

the mitigating factor.

11
 The result is the precise scheme that the Court rejected in Eddings. In that case,

the sentencing judge concluded that “‘in following the law,’ he could not ‘consider the

fact of [the defendant]’s violent background.’” Eddings, 455 U.S. at 112–13 (citation

omitted). The judge’s error, the Supreme Court later explained, was not that he

“evaluate[d] the evidence in mitigation and [found] it wanting as a matter of fact; rather

he found that as a matter of law he was unable even to consider the evidence.” Id. at 113.

This is precisely what the prosecution told the jury it must do here: if the jury did not

believe the evidence reduced Grant’s culpability or blame, then the “the law sa[id]” the

jury could not find the evidence to be mitigating. R. Vol. 4, Trial Tr. 8, at 75.

The majority disagrees. In doing so, it relies heavily on comparisons to Hanson,

797 F.3d 810. But the error here is materially—albeit subtly—different from the error

asserted in that case.

We’ve explained that the prosecution may “comment[] on the weight that should

be accorded to the mitigating factors” but may not “suggest that the jury [is] not

permitted to consider the factors.” Fox v. Ward, 200 F.3d 1286, 1300 (10th Cir. 2000);

see also Eddings, 455 U.S. at 114–15 (“The sentencer, and the Court of Criminal Appeals

on review, may determine the weight to be given relevant mitigating evidence. But they

may not give it no weight by excluding such evidence from their consideration.”). In

Hanson, the prosecution did the former. It encouraged “the jury to consider whether any

of the mitigating circumstances ‘really extenuate[d] or reduce[d] [the defendant’s] degree

of culpability or blame in this case.’” 797 F.3d at 851 (citation omitted). And it said,

“Consider all the mitigating circumstances and you’ll consider what weight [to give

12
them].” Id. at 852 (alteration in original) (citation omitted). But it doesn’t appear that the

prosecution in Hanson suggested—as the prosecutor did here—that, “as a matter of law,”

the jury couldn’t conclude the evidence was mitigating if it didn’t reduce the defendant’s

culpability or blame. Eddings, 455 U.S. at 113. Thus, while the prosecution in Hanson

permissibly “commented on the weight” that the jury should accord the mitigating

factors, the prosecution here impermissibly asserted “that the jury was not permitted to

consider [Grant’s] factors.” Fox, 200 F.3d at 1300.

II. Grounds for Habeas Relief

It’s thus abundantly clear that the prosecutor’s comments here were “an egregious

misstatement of the law on mitigating evidence.” Harris, 164 P.3d at 1114. And the

majority doesn’t seriously dispute this. See Maj. Op. 115 (“To be sure, we acknowledge

that a plausible argument could be made here that the prosecutor’s rebuttal arguments

were ‘improper’—that is, one could plausibly contend that those remarks resemble the

kind of ‘misuse’ of the moral-culpability text that concerned the OCCA in Harris.”

(quoting Harris, 164 P.3d at 1114)). Rather, the majority questions the effect of the

prosecution’s “improper” misstatements on the jury. Id. (quoting Harris, 164 P.3d at

1114). And it concludes that the OCCA could have reasonably decided that there is no

reasonable likelihood the jury would have credited those misstatements.

The majority errs in two respects. First, the OCCA didn’t address this argument

“on the merits,” 28 U.S.C. § 2254(d), so AEDPA’s deferential standard of review doesn’t

apply. And second, it beggars belief to conclude that there’s no reasonable likelihood the

13
jury followed the prosecution’s commands. So even if the OCCA reached this

conclusion, it did so unreasonably.

A. Proper Standard of Review

1. Grant’s Failure to Argue for De Novo Review

Preliminarily, the majority concludes that we must defer to the OCCA because

Grant doesn’t argue for de novo review. But “the correct standard of review under

AEDPA is not waivable.” Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009). And

despite the majority’s assertion to the contrary, we made clear in Gardner that this

principle applies to both habeas petitioners and respondents: our discussion in that case

broadly (and repeatedly) referred to the “parties.” Id. (“Other courts of appeal . . . all have

concluded that the standard of review under AEDPA cannot be waived by the parties.”

(emphasis added)); accord id. (“It is one thing to allow parties to forfeit claims, defenses,

or lines of argument; it would be quite another to allow parties to stipulate or bind us to

application of an incorrect legal standard, contrary to the congressional purpose.”

(emphases added)). Moreover, as support for our decision, we relied on a Sixth Circuit

case specifically holding that a habeas petitioner can’t waive de novo review of an

exhausted claim that the state court didn’t adjudicate on the merits. See id. (citing Brown

v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008)); Brown, 551 F.3d at 428–30, 428 n.2.

Despite Gardner’s broad language, the majority suggests it doesn’t apply to the

specific facts before us here. According to the majority, congressional interests in

federalism, comity, and finality require us to defer to the state court regardless of whether

14
the state argues we should. But those same concerns, the majority indicates, forbid us

from reviewing the state court de novo unless the petitioner argues we should.

For several reasons, I find the majority’s attempts to distinguish Gardner

unavailing. First, Gardner simply applies to the habeas context the more general rule

“that ‘the court, not the parties, must determine the standard of review, and therefore, it

cannot be waived.’” United States v. Fonseca, 744 F.3d 674, 682 (10th Cir. 2014)

(quoting Worth v. Tyer, 276 F.3d 249, 262 n.4 (7th Cir. 2001)). Thus, although

federalism, comity, and finality might provide additional reasons why we shouldn’t let

the state waive deferential review under AEDPA, Gardner doesn’t in any way suggest we

would depart from Fonseca’s more general rule in the habeas context absent these

additional policy considerations.

Second, the majority doesn’t explain how we would offend principles of

federalism or comity by reviewing de novo an argument that the OCCA didn’t address on

the merits, even if the petitioner hasn’t asked us to apply that less deferential standard of

review. Federalism and comity require us—within reason—to respect how a state court

chooses to resolve an issue. See § 2254(d); Woodford v. Garceau, 538 U.S. 202, 206

(2003). But this concern simply isn’t implicated when the state court doesn’t resolve that

issue on the merits. Thus, there’s no reason federalism or comity should reenter the

equation just because a petitioner fails to argue for de novo review.

Third, as much as AEDPA seeks to protect federalism and comity, it also seeks to

ensure that defendants aren’t convicted or sentenced in violation of federal law. See

Murdoch v. Castro, 609 F.3d 983, 1001 (9th Cir. 2010) (Kozinski, J., dissenting)

15
(explaining that deferring to state-court decision that doesn’t resolve particular federal

claim “upsets the ‘delicate balance’ struck by AEDPA between vindicating the rights of

criminal defendants and upholding the authority of state courts as the primary forum for

adjudicating these rights” (quoting Williams v. Taylor, 529 U.S. 420, 436 (2000))). Thus,

although AEDPA cautions us to respect a state court’s decision, it also requires that at

least one court—state or federal—hears the defendant’s exhausted claims. See id. (noting

that although state court has “primary responsibility” to adjudicate federal habeas claims,

federal court must adjudicate those claims on merits if state court forgoes this

responsibility). In short, if federalism and comity require us to defer to a state court’s

decision regardless of whether the state asks us to, then AEDPA’s interest in the

protection of federal rights likewise requires us to grant de novo review of claims not

addressed on the merits regardless of whether the petitioner asks us to.

Finally, the case that the majority relies on—Eizember v. Trammell, 803 F.3d 1129

(10th Cir. 2015)—doesn’t establish otherwise. In Eizember, we concluded that a habeas

petitioner waived an argument that he could overcome AEDPA deference; we did not, as

the majority asserts here, “rebuff[]” an “effort by the dissent” in that case to establish that

AEDPA deference didn’t apply at all. Maj. Op. 102 n.20; see also Eizember, 803 F.3d at

1140–41. That is, the dissent in Eizember never suggested, as I do here, that the state

court failed to adjudicate the petitioner’s claim on the merits, thus triggering de novo

review. See Eizember, 803 F.3d at 1160–61 (Briscoe, J., concurring in part and dissenting

in part). And this distinction explains why we didn’t acknowledge Gardner in Eizember,

let alone suggest that we were overruling it or our more general rule that parties can’t

16
waive the appropriate standard of review. See id. at 1140–41 (majority opinion). Nor

would we have had any reason to do so. Gardner explicitly left open the path the

majority followed in Eizember: it distinguished between “lines of [substantive]

argument” (which are subject to traditional principles of waiver and forfeiture) and

AEDPA’s standard of review (which is not). Gardner, 568 F.3d at 879. Eizember

concerned only the former. In reaching a different conclusion about the latter, the

majority here charts new ground.

2. The OCCA’s Misunderstanding of Grant’s Argument

In arguing to the OCCA on direct appeal that the state improperly precluded the

jury from considering his mitigating evidence, Grant framed his argument more or less as

I do above. The state’s key error, he explained, was that it “argued to the jury not to even

consider his proffered evidence as mitigating under the law given to them.” Aplt. Br. at

79, Grant v. State, 205 P.3d 1 (Okla. Crim. App. 2009). Thus, he posited, “[t]hough none

of [Grant’s] ten mitigating circumstances excused his crime or reduced his moral or legal

culpability or blame, they may have given a reasonable juror a reason to exercise

sympathy and mercy upon . . . Grant and spare his life.” Id. But, “in light of the

prosecutor’s persistent emphasis upon what ‘the law sa[id],’ [Grant’s] jury could

not . . . give effect to . . . Grant’s mitigating [factors].” Id. (citation omitted).

The OCCA misunderstood this argument as merely “claim[ing] the prosecutor

misstated the law by telling the jurors that the evidence [Grant] had presented as

‘mitigating’ did nothing to justify a sentence less than death.” Grant, 205 P.3d at 21. It

then rejected this argument, explaining, “While there is no restriction whatsoever on what

17
information might be considered mitigating, no juror is bound to accept it as such, and

the State is free to try to persuade the jury to that end.” Id.

The majority accepts this faulty characterization of Grant’s argument. See Maj.

Op. 101–02. But a look to Grant’s briefing on direct appeal reveals that Grant never

asserted that the state erred by arguing the mitigating evidence did nothing to justify a

sentence less than death. Instead, Grant quite clearly argued the state improperly told the

jury that unless his evidence reduced his culpability or blame, then the evidence, as a

matter of law, wasn’t mitigating even if the jury thought it might justify a sentence less

than death.3

3
The majority’s framing of the OCCA’s reasoning certainly better aligns with the
claim that Grant actually asserted. The majority says the OCCA concluded that “it was
not reasonably likely that the jury read the [prosecution’s] comments as doing anything
more than vigorously—but permissibly—attacking the veracity, credibility, and weight of
. . . Grant’s mitigating evidence . . . . Indeed, in essence, this is precisely what the OCCA
held.” Maj. Op. 116-17 (internal citations omitted). But the OCCA—in the two
paragraphs it devoted to this issue on direct appeal—said nothing whatsoever about how
the jury might have interpreted the prosecutor’s comments. See Grant 205 P.3d at 20–21.
I realize that AEDPA is highly deferential, but nothing in AEDPA or our case law
authorizes us to retroactively correct a state court’s fundamental misunderstanding of
“the nature of a properly exhausted claim.” Chadwick, 312 F.3d at 606.

The majority insists that “the precise nature of . . . Grant’s claim was crystal clear
to the OCCA.” Maj. Op. 111-112 n.22. Yet the majority doesn’t dispute my conclusion
that the OCCA misconstrued Grant’s argument when it said, “[Grant] claims the
prosecutor misstated the law by telling the jurors that the evidence he had presented as
‘mitigating’ did nothing to justify a sentence less than death.” Grant, 205 P.3d at 21.
Instead, the majority points to other language introducing the issue that it reads as more
properly paraphrasing Grant’s argument. But regardless of how the OCCA might have
initially framed Grant’s argument, the OCCA’s actual analysis shows that it never
addressed that argument. That is, the OCCA didn’t address whether the jury likely felt
precluded, as a matter of law, from considering Grant’s evidence. Instead, it only
addressed whether “the [s]tate [was] free to try to persuade the jury” that it wasn’t
18
 I won’t build on this strawman. And I certainly won’t defer to it. “[I]f an

examination of the opinions of the state courts shows that they misunderstood the nature

of a properly exhausted claim and thus failed to adjudicate that claim on the merits, the

deferential standards of review in AEDPA do not apply.” Chadwick, 312 F.3d at 606; see

also Campbell v. Bradshaw, 674 F.3d 578, 596 (6th Cir. 2012) (reviewing habeas claim

de novo because “[i]t appear[ed] that, when considering the trial court’s ruling, the Ohio

Supreme Court misconstrued [the defendant’s] argument”); DeBerry v. Portuondo, 403

F.3d 57, 71–72 (2d Cir. 2005) (explaining that “habeas claims may be reviewed without

AEDPA deference” when “a properly preserved claim, recognized as such, was

misconstrued by the state court and hence not decided ‘on the merits’” (quoting

§ 2254(d)); Davis v. Sec’y for Dep’t of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003)

(explaining that “controversy [fell] outside of § 2254(d)(1)’s [deference] requirement”

because state court misconstrued defendant’s claim and thus “failed to resolve [it]” on the

merits); Henderson v. Cockrell, 333 F.3d 592, 600–601 (5th Cir. 2003) (holding that

“AEDPA’s standards of review [were] inapplicable” because state court misconstrued

defendant’s claim).

Our inquiry should thus begin and end by asking “whether there is a reasonable

likelihood that the jury . . . applied [Instruction 12] in a way that prevent[ed] the

consideration of constitutionally relevant evidence.” Boyde, 494 U.S. at 380. In light of

the prosecution’s insistence that the jury not consider Grant’s mitigating evidence, the

“bound to accept” Grant’s mitigating evidence as “successfully serv[ing] its intended
purpose.” Id. This is not what Grant argued.
19
answer to this question is an easy “yes.” Thus, applying de novo review, I would reverse

the district court’s order denying Grant’s habeas petition.

B. The Other Instructions and Comments

Alternatively, I would reverse under § 2254(d)’s deferential standard of review

because the OCCA would have been unreasonable to reject this claim on the merits, had

it hypothetically done so. The majority says that portions of the other jury instructions

and the prosecution’s closing argument-in-chief could have reasonably led the OCCA to

“conclude[e] that there was no reasonable likelihood that the jury was precluded by the

prosecution’s closing arguments from considering all of . . . Grant’s mitigation

evidence—including the evidence that did not extenuate or reduce his moral culpability

or blame.” Maj. Op. 132. I agree that the other jury instructions and the remainder of the

prosecution’s closing argument are relevant considerations. See Hanson, 797 F.3d at

851–52. But I can’t agree that either has ameliorative power here.

Before I address the majority’s specific arguments, I pause to clarify the standard

that the majority applies when it defers to the OCCA. Following § 2254(d)(1), the

majority asks whether the OCCA unreasonably applied clearly established Supreme

Court law—i.e., Lockett and its progeny. And recall that the Boyde inquiry is “whether

there is a reasonable likelihood that the jury . . . applied the challenged instruction in a

way that prevent[ed] the consideration of constitutionally relevant evidence.” 494 U.S. at

380. Combining these standards, we ask whether the OCCA reasonably concluded that

there is no “reasonable likelihood that the jury . . . applied the challenged instruction in a

way that prevents the consideration of constitutionally relevant evidence.” Id.

20
 It’s important not to lose sight of what this inquiry involves. We don’t ask whether

the OCCA could have reasonably concluded that the jury might have known it could

consider all of Grant’s mitigating evidence. I agree that the OCCA could have reasonably

reached such a conclusion. But I cannot agree that the OCCA could have reasonably

concluded that it’s unlikely that even a single juror felt precluded from considering

Grant’s evidence. And this is the applicable standard. See id.

1. Suggestions that the Jury Could Decide Whether the Evidence
was Mitigating

The majority makes much of the fact that both the jury instructions and the

prosecution emphasized that the jury could ultimately decide if Grant’s evidence was

actually mitigating. But this wouldn’t have corrected a juror’s misunderstanding of what

“mitigating” means. That’s because the jury received an erroneous definition of

“mitigating.” Thus, simply reminding the jury that it could decide whether the evidence

met that definition didn’t cure the error.

Accordingly, the portion of Instruction 12 telling the jury that “[t]he determination

of what circumstances [were] mitigating [was] for [the jury] to resolve under the facts

and circumstances in this case,” gave Grant no relief from the prosecution’s erroneous

definition of “mitigating.” Nor did the portion of Instruction 13 that told the jury that it

could “decide that other mitigating circumstances exist[ed].” O.R. 2351. And this is also

true for the prosecution’s comments that whether a fact is mitigating was “for [the jury]

to consider,” R. vol. 4, Trial Tr. 8, at 31, and that it was “up to [the jury] to determine

21
whether or not these mitigators—whether or not these circumstances somehow

mitigate[d] what . . . Grant did,” id. at 32.

The majority is quick to point out that in Hanson we concluded that the same

instructions and similar statements during closing argument alleviated the asserted error.

But as I explain above, this case isn’t Hanson. The prosecution in Hanson didn’t give the

jury an erroneous definition of “mitigating.” See 797 F.3d at 851–52. The prosecution in

that case certainly urged the jury not to give the defendant’s evidence any mitigating

weight unless it reduced the defendant’s culpability or blame. See id. at 851. But—unlike

the prosecutor in this case—the prosecution in Hanson didn’t tell the jury that the law

precluded it from doing so. Thus, in the absence of such of a misstatement from the

prosecutor, the OCCA could have reasonably concluded in Hanson that the jury read the

phrase “[t]he determination of what circumstances are mitigating is for you to resolve,”

O.R. 2349, to mean that the jury had discretion to consider anything to be mitigating. But

these instructions have no similar effect here, where the prosecutor instead urged the

jurors not to consider Grant’s evidence as mitigating at all. Cf. Eddings, 455 U.S. at 115

(explaining that capital sentencer may not “give [defendant’s mitigating evidence] no

weight by excluding such evidence from [its] consideration”).

2. Instruction 13’s List of Mitigating Evidence

I do recognize that other parts of Instruction 13 may have led some jurors to

correctly infer that they could consider all of Grant’s mitigating evidence. For instance,

Instruction 13 stated, “Evidence has been introduced as to the following mitigating

circumstances,” and then provided a summary of the various evidence that Grant

22
introduced. O.R. 2350. Certainly a juror might have inferred from this list that the jury

could legally consider these factors as mitigating even if it concluded that the factors

didn’t reduce Grant’s moral culpability or blame. But Boyde doesn’t require us to be

certain that the jury felt it couldn’t consider a relevant mitigating factor. See 494 U.S. at

380. Indeed, it doesn’t even require the defendant to “establish that the jury was more

likely than not to have been impermissibly inhibited.” Id. It merely requires a “reasonable

likelihood.” Id.

Even considering Instruction 13, Grant easily meets this burden. Instruction 13

might have led some jurors to disregard Instruction 12 and the prosecutor’s statements

and apply the proper law. But other jurors might have simply (1) read Instruction 13 as

summarizing the evidence that Grant presented and (2) concluded that the jury

nevertheless had to decide whether these factors reduced Grant’s culpability or blame. At

most, Instruction 13 gives skeptical jurors grounds to infer that the prosecutor misstated

the law. But nothing about Instruction 13 makes it unlikely that at least one juror would

have believed the prosecutor’s misstatements.

Further, to the extent that a juror could read Instruction 13 to say that the jury

could consider all of Grant’s mitigating evidence, regardless of whether it reduced his

moral culpability or blame, Instruction 13 conflicts with Instruction 12, which suggests

the opposite. And this conflict “inserted ‘an element of capriciousness’ into the

sentencing decision, ‘making the jurors’ power to avoid the death penalty dependent on

their willingness’ to elevate [Instruction 13] over [Instruction 12].” Penry v. Johnson

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(Penry II), 532 U.S. 782, 800 (2001) (quoting Roberts v. Louisiana, 428 U.S. 325, 335

(1976) (plurality opinion)).

3. The Lack of Objection to Grant’s Evidence

Finally, the majority speculates that the jury might have attached some

significance to the fact that Grant was allowed to present his mitigating evidence at all.

Essentially, the majority surmises, the jury might have expected the prosecution to object

to Grant’s evidence if the evidence was indeed legally irrelevant to the jury’s inquiry—

and for the trial court to sustain that objection. Ergo, these perceptive jurors would have

concluded that the evidence was not legally irrelevant.

I simply can’t subscribe to the speculation that all 12 members of a layperson jury

engaged in such spontaneous consideration of the rules regarding the admissibility of

irrelevant evidence. Frankly, I’m not even sure that 12 lawyers would make this

inference. But even if the jury contemplated such an approach, it doesn’t necessarily

follow that just because the evidence was admissible, the jury would consider it as

mitigating regardless of whether it thought the evidence reduced Grant’s culpability or

blame. Some jurors might have believed that they had leeway to determine that Grant’s

evidence did reduce his moral culpability or blame (for example, if they concluded that

Grant committed the crimes during a schizophrenic delusion). But then, if these jurors

decided that the evidence didn’t reduce Grant’s moral culpability or blame, they wouldn’t

have considered whether that evidence nevertheless justified sentencing Grant to a

sentence less than death, as Lockett and its progeny demand they be allowed to do. See

438 U.S. at 604. In any event, we need not say for certain what the jury might have

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thought as long as there’s a reasonable likelihood a juror could have been misled. There

undoubtedly is here.

C. The Jury’s Natural Impression

The dispute here can be boiled down to one question: Is it reasonably likely that at

least one juror believed the prosecutor when she purported to tell the jury what “the law

sa[id]?” R. vol. 4, Trial Tr. 8, at 75. The only reasonable answer is “yes.” We’ve warned

in the past that we must be “especially aware of the imprimatur of legitimacy that a

prosecutor’s comments may have in the eyes of the jury.” Le v. Mullin, 311 F.3d 1002,

1018 (10th Cir. 2002); see also Berger v. United States, 295 U.S. 78, 88 (1935)

(explaining that prosecution’s “interest . . . in a criminal prosecution is not that it shall

win a case, but that justice shall be done”; noting that “the average jury . . . has

confidence that these obligations . . . will be faithfully observed”; and concluding that

prosecution’s “improper suggestions” are therefore “apt to carry much weight against the

accused”).

And we cannot ignore that the trial court overruled Grant’s objection when the

prosecutor said that Grant’s evidence, “in order to be mitigating,” had to “reduce his

moral culpability or blame.” Id. at 74. Far from it, we’ve explained that when a trial court

overrules defense counsel’s objections in a case like this, “[t]he official imprimatur

thereby placed upon the prosecution’s misstatements of law obviously amplifie[s] their

potential prejudicial effect on the jury.” Mahorney v. Wallman, 917 F.2d 469, 473 (10th

Cir. 1990).

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 In sum, the jury had no reason to doubt the prosecutor when she said, “[T]he law

tells you . . . that mitigating circumstances are those which reduce the moral culpability

or blame of the defendant.” R. vol. 4, Trial Tr. 8, at 73–74. It had no reason to doubt her

when she said, “[Grant’s evidence] in order to be mitigating, must reduce his

moral culpability or blame.” Id. at 74. It had no reason to doubt her when she said,

“[What] the law says, not Sandra Elliott [the prosecutor], not what the defense attorneys

say, but what the [c]ourt tells you and what the law says is that before something can be

mitigating it must reduce the moral culpability or blame of the defendant.” Id. at 75. And

it had no reason to doubt her when she said, “[Y]ou have to look at whether or not it

reduces his moral culpability or blame. That is what the law says that you must do.” Id. at

79.

On the contrary, all three sources that the jury would have looked to for an

accurate statement of the law—Instruction 12, the prosecution, and the trial court itself—

gave the jury good reason to believe that it couldn’t consider Grant’s mitigating evidence

if that evidence didn’t reduce Grant’s culpability or blame, as the defense conceded it

didn’t. The only thing that would have led the jurors to believe otherwise is an inference

that they could have made from Instruction 13. It’s thus clear that “[i]n light of the

prosecutor’s argument, and in the absence of appropriate jury instructions, a reasonable

juror could well have believed that there was no vehicle for expressing the view that

[Grant] did not deserve to be sentenced to death based upon his mitigating evidence.”

Penry I, 492 U.S. at 326. And to the extent that the OCCA concluded otherwise on the

merits—and again, I’m confident that it did not—that conclusion was unreasonable.

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III. Harmless Error

Because the majority doesn’t believe that AEDPA allows us to reach the trial

court’s error, it has no opportunity to consider whether this error was harmless. I would

find that it plainly is not.

An error is only reversible on habeas review if it “had substantial and injurious

effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.

619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). We’ve

elaborated that this means we must grant habeas relief if we find ourselves “in ‘grave

doubt’ about the effect of the error on the jury’s verdict.” Welch v. Workman, 639 F.3d

980, 992 (10th Cir. 2011) (quoting O’Neal v. McAninch, 513 U.S. 432, 435 (1995)); see

also McAninch, 513 U.S. at 435 (“By ‘grave doubt’ we mean that, in the judge’s mind,

the matter is so evenly balanced that he feels himself in virtual equipoise as to the

harmlessness of the error.”).

I find myself in grave doubt here, especially considering the theme of the

defense’s closing argument. Essentially, the defense (1) admitted to the jury that the

factors it asserted as mitigating didn’t reduce Grant’s culpability or blame but (2) argued

those factors nevertheless warranted the jury’s sympathy. For the prosecution to rebut

this by telling the jury it couldn’t actually consider the evidence as mitigating unless it

reduced Grant’s culpability or blame gutted the defense’s argument and left the jury with

no room to decide whether the factors that Grant identified as mitigating—and the

powerful evidence he offered to prove those factors—warranted a sentence other than

death. Because wholly denying Grant his opportunity to present his case in mitigation had

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a substantial and injurious effect on the jury’s determination that the death penalty was

warranted in this case, the error wasn’t harmless under Brecht.

* * *

Grant’s crimes were abhorrent. But even the worst offenders have an absolute

right to ask for mercy. It is disturbingly clear to me that Grant never had that opportunity.

I would not allow Grant’s execution to proceed without giving Grant an opportunity to

explain to a jury why he doesn’t deserve to die. I would thus reverse the district court’s

order denying Grant’s habeas petition.

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