Johnson v. Martin

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 2, 2021

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

ALONZO CORTEZ JOHNSON,

Petitioner - Appellant,

v. No. 19-5091

JIMMY MARTIN, Warden,

Respondent - Appellee.
_________________________________

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:16-CV-00433-JED-FHM)
_________________________________

James L. Hankins, Edmond, Oklahoma, for Petitioner – Appellant.

Tessa Henry, Assistant Attorney General (Mike Hunter, Attorney General, and Julia
Pittman, Assistant Attorney General, on the brief), Oklahoma City, Oklahoma, for
Respondent – Appellee.
_________________________________

Before MORITZ, SEYMOUR, and BRISCOE, Circuit Judges.
_________________________________

MORITZ, Circuit Judge.
_________________________________

An Oklahoma jury convicted Alonzo Johnson of murder and conspiracy to

commit murder. After unsuccessfully challenging his convictions in state court,

Johnson filed a 28 U.S.C § 2254 petition seeking federal habeas relief. As relevant

here, he asserted that the prosecution exercised its peremptory strikes in a racially
discriminatory manner to exclude minorities from the jury, in violation of his

Fourteenth Amendment rights as set forth in Batson v. Kentucky, 476 U.S. 79 (1986).

Johnson also asserted, in relevant part, that gruesome evidence, juror misconduct,

and cumulative error rendered his trial fundamentally unfair. The district court denied

relief.

For the reasons explained below, we affirm the denial of relief on Johnson’s

gruesome-evidence, juror-misconduct, and cumulative-error claims. But because we

conclude that the Oklahoma Court of Criminal Appeals (OCCA) relied on an

unreasonable factual determination and unreasonably applied Batson to reject

Johnson’s Batson claim and further determine that Johnson raised a prima facie case

of discrimination under the first step of Batson, we reverse the district court’s denial

of habeas relief on Johnson’s Batson claim and remand for further proceedings

consistent with this opinion.

Background

Although we will add more facts as needed to our analysis below, we begin by

briefly setting the scene. 1 This appeal arises from a murder-for-hire plot involving

five individuals: Mohammed Aziz, Allen Shields (Allen), Fred Shields (Fred),

Terrico Bethel, and Johnson. The victim was Neal Sweeney, a fuel supplier.

Sweeney’s fuel marketing company supplied fuel to convenience stores,

including stores owned by Aziz. As a result of a dispute involving Aziz’s

1
We take these undisputed facts from the district court’s decision below.
2
nonpayment of bills, Sweeney obtained a default judgment against Aziz. Aziz, who

had “developed an ‘intense hatred’ toward Sweeney,” approached Allen and asked if

Allen knew anyone who could kill someone for him. App. 30 (quoting R. vol. 1, 62).

Allen spoke to his brother, Fred, about finding someone to do the job. Fred set the

price for the murder at $10,000 and recruited Bethel to carry it out.

Fred also recruited Johnson, a cousin of the Shields brothers. Johnson

“purportedly obtained the getaway car and helped coordinate with Aziz.” Id. Bethel

drove the car to Sweeney’s office and shot Sweeney at close range, in the head.

Later, law enforcement apprehended Fred “on a different crime[,] and [he] exposed

the conspiracy” to kill Sweeney “in an effort to make a deal.” Id. at 30–31.

The State charged Johnson with first-degree murder and conspiracy to commit

first-degree murder. 2 His defense at trial centered on arguments that his involvement

in the murder plot was minimal and that his coconspirators’ testimony against him

was unreliable (Aziz testified at Johnson’s trial, and the State introduced Allen’s

preliminary-hearing testimony). The jury convicted Johnson on both counts. The trial

court sentenced him to life imprisonment on each count, to run consecutively.

Johnson filed a direct appeal, raising eighteen issues, and the OCCA affirmed.

Johnson v. State, No. F-2013-173 (Okla. Crim. App. July 17, 2014) (unpublished)

(Johnson I). Johnson then sought postconviction relief, which the state trial court

2
The other men faced similar charges. A jury convicted Fred and Bethel of
first-degree murder, among other things, and both received life sentences. Allen
faced a conspiracy charge but died before Johnson’s trial. Aziz pleaded guilty to
solicitation of murder and was sentenced to 35 years in prison.
3
denied. Johnson v. State, No. CF-2009-2738 (Tulsa Cnty. Dist. Ct. Oct. 6, 2015)

(unpublished) (Johnson II). The OCCA affirmed the denial of postconviction relief.

Johnson v. State, No. PC-2015-923 (Okla. Crim. App. Apr. 7, 2016) (unpublished)

(Johnson III).

Johnson then filed the § 2254 petition underlying this appeal, raising seven

claims. The district court denied the petition and declined to issue a certificate of

appealability (COA). See 28 U.S.C. § 2253(c)(1)(A). Johnson sought to appeal to this

court and filed a combined opening brief and request for a COA. We granted him a

partial COA to appeal the district court’s resolution of four of his seven claims: the

Batson claim, the gruesome-evidence claim, the juror-misconduct claim, and the

cumulative-error claim. 3 See § 2253(c)(3).

Analysis

We review the district court’s legal analysis de novo. Smith v. Duckworth, 824

F.3d 1233, 1241–42 (10th Cir. 2016). In so doing, we remain bound by the

constraints of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.

3
The COA order does not expressly deny a COA on Johnson’s three remaining
claims: (1) that the admission of Bethel’s recorded statements and Allen’s
preliminary-hearing testimony violated his rights under the Confrontation Clause,
(2) that the evidence was insufficient to support his conviction, and (3) that he was
denied the right to present a defense. Perhaps recognizing the partial COA grant as an
implicit denial of a COA on his remaining claims, Johnson does not reassert his
desire for a COA on these claims in his reply brief. In the interest of clarity, we now
expressly deny a COA on these three remaining claims, concluding that reasonable
jurists could not debate the district court’s resolution of them. See Slack v. McDaniel,
529 U.S. 473, 484 (2000) (holding that to obtain COA, “petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong”).
4
Id. at 1240–41. AEDPA requires a state prisoner seeking federal habeas relief to

show that the state court’s resolution of his or her claims (1) “was contrary to, or

involved an unreasonable application of, clearly established [f]ederal law” or

(2) “was based on an unreasonable determination of the facts in light of the evidence

presented in the [s]tate[-]court proceeding.” § 2254(d). The two prongs of § 2254(d)

thus impose “a formidable barrier to federal habeas relief for prisoners whose claims

have been adjudicated in state court.” Smith, 824 F.3d at 1241 (quoting Burt v.

Titlow, 571 U.S. 12, 19–20 (2013)).

Under § 2254(d)(1), “[w]hether the law is clearly established is the threshold

question.” House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008). “[W]ithout clearly

established federal law, a federal habeas court need not assess whether a state court’s

decision was ‘contrary to’ or involved an ‘unreasonable application’ of such law.” Id.

at 1017 (quoting § 2254(d)(1)). But if such clearly established law exists, a state-

court decision is contrary to it if the state court “applies a rule that contradicts the

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

materially indistinguishable from a decision of the Supreme Court and nevertheless

arrives at a result different from that precedent.” Smith, 824 F.3d at 1241 (quoting

Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016)). And a state-

court decision is an unreasonable application of clearly established federal law if it

“correctly identifies the governing legal rule but applies it unreasonably to the facts

of a particular prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407–08 (2000).

5
 Under § 2254(d)(2), “[w]e will not conclude a state court’s factual findings are

unreasonable ‘merely because we would have reached a different conclusion in the

first instance.’” Smith, 824 F.3d at 1241 (quoting Brumfield v. Cain, 576 U.S. 305,

313–14 (2015)). Instead, we “defer to the state court’s factual determinations so long

as ‘reasonable minds reviewing the record might disagree about the finding in

question.’” Id. (quoting Brumfield, 576 U.S. at 314). In line with this deference, we

presume that a state court’s factual findings are correct, “and the petitioner bears the

burden of rebutting that presumption by ‘clear and convincing evidence.’” Id.

(quoting § 2254(e)(1)). 4 But “‘deference does not imply abandonment or abdication

of judicial review,’ and ‘does not by definition preclude relief.’” Brumfield, 576 U.S.

at 314 (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (Miller-El I)).

Accordingly, “if the petitioner can show that ‘the state courts plainly

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

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

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

resulting factual finding unreasonable.’” Smith, 824 F.3d at 1241 (alterations in

original) (quoting Ryder, 810 F.3d at 739).

4
The Supreme Court has “not yet ‘defined the precise relationship between
§ 2254(d)(2) and § 2254(e)(1).’” Brumfield, 576 U.S. at 322 (quoting Titlow, 571
U.S. at 18). Accordingly, it is “not entirely clear whether § 2254(e)(1)’s presumption
applies to our § 2254(d)(2) analysis.” Vreeland v. Zupan, 906 F.3d 866, 880 n.3 (10th
Cir. 2018). But because Johnson “appears to concede it does, we need not resolve this
‘open question’” here. Id. (quoting Sharp v. Rohling, 793 F.3d 1216, 1228 n.10 (10th
Cir. 2015)).
6
I. Batson Claim

Johnson—who is African American—argues that the district court erred in

denying his claim that the prosecution used its peremptory challenges to

systematically exclude racial minorities from the jury in violation of Batson. Batson

held that the “Equal Protection Clause prohibits the prosecution’s use of peremptory

challenges to exclude potential jurors on the basis of their race.” Saiz v. Ortiz, 392

F.3d 1166, 1171 (10th Cir. 2004). In other words, Batson recognized “the right to be

tried by a jury whose members are selected pursuant to nondiscriminatory criteria.”

476 U.S. at 85–86.

A trial court faced with a Batson challenge must apply a three-step burden-

shifting analysis. See id. at 96–98. “First, the trial court must determine whether the

defendant has made a prima facie showing that the prosecutor exercised a peremptory

challenge on the basis of race. Second, . . . the burden shifts to the prosecutor to

present a race-neutral explanation for striking the juror in question.” Rice v. Collins,

546 U.S. 333, 338 (2006) (citation omitted). “Third, the court must then determine

whether the defendant has carried his burden of proving purposeful discrimination.”

Id.

A. Additional Facts and Procedural Background

At Johnson’s trial, the prosecutor exercised his first six peremptory challenges

in the following order: (1) Dr. Tawil, (2) Mr. Dickens, (3) Ms. Aramburo de

Wassom, (4) Ms. Wilson, (5) Ms. Carranza, and (6) Ms. Martinez. When the

prosecutor moved to dismiss Mr. Dickens, an African American, from the jury pool,

7
the trial court asked: “Your race neutral reason?” R. vol. 3, 449. The prosecutor

responded: “Judge, he has a Ph.D., [and] we’re concerned about him being a

professor of liberal arts. It’s been my practice to not keep those types of educated

people, Ph.D.s in liberal arts, on the jury. We think they’re too exacting at times, too

liberal.” Id. The trial court then stated: “Well, I’ll determine there’s a race[-]neutral

reason. There are other prospective African Americans on the jury.” Id.

After the prosecutor moved to dismiss Ms. Martinez with his sixth strike,

defense counsel stated:

Your honor, I’d like to point out at this point that I think every
peremptory challenge . . . so far[,] except Ms. Wilson[,] has been of a
minority[:] Dr. Tawil, Ms. Carranza, Ms. Aramburo de Wassom, [Ms.
Martinez], 5 and Mr. Dickens. And there’s a pattern here, Your Honor, of
striking all minorities off this jury. 6

Id. at 450. The trial court responded:

Well, I don’t think that this establishes a pattern. Again, in terms of—
Ms. Martinez, I won’t state their reasons for them, but Ms. Martinez
was patently—she was hardly involved in the process. Ms. Carranza has
indicated she has difficulty with English, Ms. Aramburo de Wassom
told us the same. So I do not see a pattern here.

Id. at 450–51.

5
Defense counsel repeated “Ms. Carranza,” but it appears that he intended to
say “Ms. Martinez”: she was the other minority female excused, and the court
referred to “Ms. Martinez” in its response to defense counsel. R. vol. 3, 450.
6
The record does not reveal the specific race of any of these six jurors except
for Mr. Dickens, who the court identified as African American. But when defense
counsel identified five of these six jurors as minorities, neither the trial court nor the
prosecutor disputed that characterization.
8
 The prosecutor next sought to excuse Ms. Williams, stating—without being

prompted by either a defense objection or a question from the trial court—that

although Ms. Williams was “African American, . . . [the] race[-]neutral reason for her

is she’s a pastor. I think pastors traditionally are very, very forgiving, [and] have

trouble with judgment. She’s worked with drug addicts and counseled them in the

past[,] showing . . . a propensity towards treatment rather than judgment.” Id. at 452.

The trial court interrupted this explanation and said, “Well, you would have

effectively eliminated all the African Americans[,] and I’m not going to do that.” Id.

Later, at sentencing, the trial court stated that it “probably made an error

during the voir dire to the detriment . . . of the State when” the prosecutor sought to

excuse Ms. Williams. R. vol. 5, 758. Specifically, the trial court explained that it had

recently been reminded that the absence of any minorities on the jury “was not a

basis to prevent a strike”; instead, “there needed to be a finding that there was either

[a] systematic or [a] specific discriminatory practice.” Id. at 759. Thus, because the

absence of any minorities was the rationale for the trial court’s decision to reject the

prosecutor’s peremptory challenge to Ms. Williams, the trial court acknowledged that

it “made an error.” Id.

Johnson then raised his Batson challenge on direct appeal, arguing that the

“prosecutor systematically removed minorities from the jury.” R. vol. 1, 181.

Rejecting this argument in a single paragraph, the OCCA first stated “the trial court

did not abuse its discretion when it found that the State did not engage in systemic or

specific discrimination.” Johnson I, slip op. at 3. The OCCA then acknowledged the

9
trial court’s error in refusing to allow the prosecutor to excuse Ms. Williams and

further noted that “the trial court’s determination that the State’s explanations for

excusing each of the minority jurors were legitimate race-neutral reasons is not

clearly against the logic and effects of the facts presented.” Id. Last, the OCCA

concluded that Johnson was not entitled to relief because he had “failed to establish

purposeful discrimination on the part of the State.” Id.

Johnson again asserted his Batson claim in his state-court application for

postconviction relief. Both the state trial court and the OCCA held that because

Johnson brought his Batson claim on direct appeal, consideration of its merits in

postconviction proceedings was barred by res judicata. Johnson II, slip op. at 7;

Johnson III, slip op. at 3.

Reviewing the OCCA’s adjudication of this claim, the district court began with

the proposition that “[b]ecause the OCCA applied Batson, relief is only available if it

‘was unreasonable to credit the prosecutor’s race-neutral explanations for the Batson

challenge.’” App. 35 (quoting Collins, 546 U.S. at 338). Additionally, the district

court relied on Black v. Workman for the proposition that a habeas court must “defer

to the state trial judge’s finding of no racial motivation ‘in the absence of exceptional

circumstances.’” 682 F.3d 880, 897 (10th Cir. 2012) (quoting Snyder v. Louisiana,

552 U.S. 472, 477 (2008)). The district court then determined that no exceptional

circumstances existed here. In so doing, the district court specifically noted the

prosecutor’s explanation for striking Mr. Dickens (he had a Ph.D.). It also determined

that the record supported the explanations provided by the trial court for the dismissal

10
of the other minority jurors. Accordingly, it found no evidence of racial motivation

and declined to “disturb the OCCA’s application of Batson.” App. 36.

B. Discussion

On appeal, Johnson contends that the district court erred by mischaracterizing

his Batson claim as arising under step three of Batson. In so doing, Johnson renews

the second-step Batson argument he raised in his habeas petition. And he further

asserts—as required by the barrier imposed by § 2254(d)—that the OCCA

(1) unreasonably applied Batson in finding the second step satisfied where the trial

court, rather than the prosecutor, supplied race-neutral reasons for the strikes at issue

and (2) found and relied on an unreasonable fact when it determined that the

prosecutor supplied race-neutral reasons for the challenged strikes.

1. The State’s Arguments

Before turning to Johnson’s arguments, we first address and reject two points

raised by the State.

i. Procedural Bar

The State suggests in passing 7 that this court should not consider Johnson’s

Batson claim because he failed to raise it in his direct appeal to the OCCA. In so

7
Specifically, the State devotes two sentences to this argument, asserting that
because Johnson “did not make this argument to the OCCA on direct appeal,” it
“would be improper” for us to consider it now. Aplee. Br. 19. In support, the State
cites only Sexton v. Beaudreaux, a case that did not concern procedural bar. 138 S.
Ct. 2555, 2560 (2018) (per curiam) (noting in passing that Ninth Circuit erred when it
“considered arguments against the state court’s decision that [petitioner] never even
made in his state habeas petition”).
11
doing, the State appears to be asserting a two-part procedural-bar argument:

(1) Johnson did not raise his specific step-two Batson argument in his direct appeal,

and (2) when he raised it in his application for postconviction relief, the OCCA

implicitly rejected it on waiver grounds as an argument that could have been but was

not raised on direct appeal. See Harmon v. Sharp, 936 F.3d 1044, 1060 (10th Cir.

2019) (noting that “[o]n habeas review, this court does not address issues that have

been defaulted in state court on an independent and adequate state procedural

ground” (quoting English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998))); Logan v.

State, 293 P.3d 969, 973 (Okla. Crim. App. 2013) (providing that in Oklahoma

postconviction proceedings, “issues that were not raised previously on direct appeal,

but which could have been raised, are waived”).

We reject this argument because, according to both the state trial court and the

OCCA, Johnson did raise his Batson claim on direct appeal. See Johnson II, slip op.

at 7; Johnson III, slip op. at 3. Indeed, the State acknowledged as much below, noting

that (1) Johnson “raised this claim on direct appeal to the OCCA” and “[t]he OCCA

addressed the claim on the merits and denied . . . relief,” and (2) Johnson “also raised

this claim in his post[]conviction proceeding[,] but the OCCA, noting the claim had

been previously raised and addressed in [Johnson]’s direct appeal, declined to again

address the claim as it was ‘barred as res judicata.’” R. vol. 1, 127 & n.7 (emphases

added) (quoting Johnson III, slip op. at 3). Given that the state courts determined this

particular argument was raised on direct appeal, we reject the State’s procedural-bar

argument.

12
 ii. Type of Batson Error

The State next contends that Johnson is not entitled to habeas relief because he

alleges trial-court error at the second step of Batson, but the trial court’s ruling

stopped at the first step of Batson. In other words, the State contends that the trial

court’s response to defense counsel’s objection about a pattern of striking minorities

amounted to a ruling that defense counsel failed to establish a prima facie case of

discrimination. Thus, continues the State, the Batson inquiry never proceeded to the

second step, and no second-step error could have occurred.

Although the State’s interpretation may be plausible, we ultimately reject it.

Recall that after the State’s sixth peremptory challenge, defense counsel objected that

“there’s a pattern here . . . of striking all minorities off this jury.” R. vol. 3, 450. The

trial court responded:

Well, I don’t think that this establishes a pattern. Again, in terms of—
Ms. Martinez, I won’t state their reasons for them, but Ms. Martinez
was patently—she was hardly involved in the process. Ms. Carranza has
indicated she has difficulty with English, Ms. Aramburo de Wassom
told us the same. So I do not see a pattern here.

Id. at 450–51. In these four sentences, the trial court stated at the beginning and at the

end that there was no pattern of discrimination. The State contends that this

conclusion, combined with the trial court’s decision not to ask the prosecutor for

race-neutral reasons, “was an implicit ruling that [Johnson] failed to make a prima

facie showing that the State’s use of peremptory challenges . . . showed a pattern of

discrimination.” Aplee. Br. 20; see also Saiz, 392 F.3d at 1177–78 (noting that

“initial obligation under Batson [is] to make a prima facie showing that the

13
prosecution’s peremptory strikes were discriminatory” and “infer[ring] from the trial

court’s decision not to go on to step two of the Batson analysis (asking the

prosecution to explain its peremptory strike) that it concluded that [the defendant]

had failed to establish a prima facie case of discrimination”).

But critically, the State’s proposed interpretation of the trial court’s ruling is

contrary to the OCCA’s interpretation. In rejecting Johnson’s Batson claim, the

OCCA specifically approved the trial court’s procedure at the second (and third) step

of Batson when it stated the “trial court’s determination that the State’s explanations

for excusing each of the minority jurors were legitimate race-neutral reasons is not

clearly against the logic and effects of the facts presented.” Johnson I, slip op. at 3.

Because the OCCA treated the trial court’s ruling as going beyond the first step of

Batson, we reject the State’s proposed interpretation of the trial court’s ruling as

limited to Batson’s first step.

2. Johnson’s Arguments

Having rejected the State’s overarching arguments in favor of affirming the

district court’s denial of habeas relief on Johnson’s Batson claim, we now turn to

Johnson’s arguments in favor of reversal.

i. The District Court’s Decision

As an initial matter, we agree with Johnson that the district court erred by

treating his Batson claim as aimed at the third step of Batson. Johnson plainly

asserted in his habeas petition that the trial court erred at the second step of Batson

by failing to ask the prosecutor for race-neutral reasons. But to reject his claim, the

14
district court relied on Black and Snyder, which addressed challenges to rulings at the

third step of the Batson analysis. See Black, 682 F.3d at 895–96 (noting that “the

prosecutor’s explanation satisfied step two of the Batson three-step process” and

moving on to “determine whether ‘it was unreasonable to credit the prosecutor’s

race-neutral explanations’” (quoting Collins, 546 U.S. at 338)); Snyder, 552 U.S. at

479, 484–85 (considering plausibility of “the prosecution’s two proffered grounds for

striking” juror and noting that “the question presented at the third stage of the Batson

inquiry is ‘whether the defendant has shown purposeful discrimination’” (quoting

Miller-El v. Dretke, 545 U.S. 231, 277 (2005) (Miller-El II) (Thomas, J.,

dissenting))). Accordingly, in our de novo review of the district court’s legal

analysis, we depart from the district court’s step-three analysis and focus specifically

on Johnson’s step-two argument. See Smith, 824 F.3d at 1241–42.

ii. § 2254(d)

To obtain habeas relief, Johnson must first pass through the barrier imposed by

§ 2254(d). On this point, Johnson advances arguments under both prongs, asserting

that the OCCA denied relief based on an unreasonable application of Batson under

subsection (d)(1) and an unreasonable determination of the facts under subsection

(d)(2). See § 2254(d). Recall, again, that the OCCA’s discussion of Johnson’s Batson

claim spanned only three substantive sentences:

We find that the trial court did not abuse its discretion when it found
that the State did not engage in systemic or specific discrimination.
Although the trial court erred to the detriment of the State when it
refused to permit the prosecutor to excuse an African-American juror
because it would have left the jury without any African-Americans, we

15
 find that the trial court’s determination that the State’s explanations for
excusing each of the minority jurors were legitimate race-neutral
reasons is not clearly against the logic and effects of the facts presented.
As [Johnson] ultimately failed to establish purposeful discrimination on
the part of the State[,] no relief is required.

Johnson I, slip op. at 3 (emphasis added) (citations omitted). Clearly, in the second of

these three sentences, the OCCA expressly approved of the trial court’s

determination that the prosecutor’s “explanations for excusing each of the minority

jurors were legitimate race-neutral reasons.” Id. (emphases added).

But this conclusion is factually incorrect. The record plainly shows that the

trial court only determined that one explanation offered by the prosecutor for

excusing one minority juror was a legitimate race-neutral reason: it accepted that the

prosecutor struck Mr. Dickens because he had a Ph.D. The prosecutor did not offer

any reasons for his next set of strikes. Instead, the trial court provided its own reasons

for the strikes, speculating as to what the prosecutor’s reasons might have been. And

paradoxically, it did so after declaring that it would not “state [the prosecutor’s]

reasons.” R. vol. 3, 450. The trial court also later rejected the prosecutor’s proffered

reason for striking Ms. Williams. 8

Accordingly, Johnson has shown by clear and convincing evidence that the

OCCA “plainly misapprehend[ed] or misstate[d] the record” when it purported to

8
The trial court eventually concluded that it could have and perhaps should
have accepted the prosecutor’s reason for striking Ms. Williams. But such belated
recognition does not change what happened during jury selection, which was that the
trial court rejected the prosecutor’s proffered reason and did not allow the prosecutor
to strike Ms. Williams.
16
approve the trial court’s acceptance of the prosecutor’s multiple race-neutral reasons

for his strikes—in reality, the trial court accepted only one such reason from the

prosecutor and merely speculated as to the other reasons, which it supplied itself.

Smith, 824 F.3d at 1241 (alterations in original) (quoting Ryder, 810 F.3d at 739); see

also § 2254(d)(2), (e)(1). The OCCA then relied on this unreasonable factual

determination to reject Johnson’s Batson challenge and find no purposeful

discrimination. See Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011)

(emphasizing that “to receive relief under [§ 2254(d)(2)], the petitioner must show

that the state court’s adjudication of the claim ‘resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented’”

(quoting § 2254(d)(2))).

Moreover, to the extent that the OCCA considered the trial court’s sua sponte

speculation about potential race-neutral reasons as part of the Batson analysis, doing

so was an unreasonable application of Batson. The second step of Batson specifically

requires “[t]he prosecutor . . . [to] articulate a neutral explanation related to the

particular case to be tried.” 476 U.S. at 97–98 (emphasis added); see also Flowers v.

Mississippi, 139 S. Ct. 2228, 2243 (2019) (“As the Batson Court explained and as the

Court later reiterated, once a prima facie case of racial discrimination has been

established, the prosecutor must provide race-neutral reasons for the strikes.”

(emphasis added)). And Batson means what it says: the court must ask the prosecutor

to provide reasons, rather than merely speculating about what such reasons might be.

See Johnson v. California, 545 U.S. 162, 172 (2005) (“The inherent uncertainty

17
present in inquiries of discriminatory purpose counsels against engaging in needless

and imperfect speculation when a direct answer can be obtained by asking a simple

question.”); Flowers, 139 S. Ct. at 2244 (“The Court has explained that ‘the best

evidence of discriminatory intent often will be the demeanor of the attorney who

exercises the challenge.’” (quoting Snyder, 552 U.S. at 477)); Holloway v. Horn, 355

F.3d 707, 725 (3d Cir. 2004) (noting that speculation “does not aid our inquiry into

the reasons the prosecutor actually harbored” for peremptory strike).

Thus, when a trial court offers its own speculation as to the prosecutor’s

reasons for striking minority jurors, it essentially disregards its own core function

under Batson—to evaluate the reasons offered by the prosecutor, including the

prosecutor’s demeanor and other contextual information, in order to determine the

prosecutor’s true intent. See Flowers, 139 S. Ct. at 2243–44. And in that regard, it

matters not a whit that the trial court may have offered perfectly good reasons for

striking the minority jurors. As the Ninth Circuit explained in a factually analogous

case, “it does not matter that the prosecutor might have had good reasons to strike the

prospective jurors. What matters is the real reason they were stricken.” Paulino v.

Castro, 371 F.3d 1083, 1090 (9th Cir. 2004) (Paulino I); see also id. at 1089–90

(finding that trial court “clearly contravened” Batson when it “offered, sua sponte, its

speculation as to why the prosecutor may have struck the five potential jurors in

question”). Similarly, the Third Circuit faulted a state appellate court for

“conflat[ing] steps one and two of the Batson analysis in the sense that it identified

and then analyzed potential justifications for the challenged strikes—something that

18
should not occur until step two—in its step[-]one analysis of whether [petitioner] had

successfully established a prima facie case.” Hardcastle v. Horn, 368 F.3d 246, 256

(3d Cir. 2004); see also id. at 261 (noting “the Batson Court’s emphasis on the

subjective intent of the prosecutor”).

In line with these authorities, we hold that the OCCA’s reliance on the trial

court’s sua sponte speculation about the prosecutor’s reasons was an unreasonable

application of Batson to Johnson’s claim of discriminatory peremptory strikes. See

Brinson v. Vaughn, 398 F.3d 225, 233 (3d Cir. 2005) (finding that state court

unreasonably applied Batson to reject claim of discriminatory strikes where “the trial

judge did not follow the three-step process outlined in Batson,” including by “not

call[ing] upon the prosecutor to state his reasons for the contested strikes”). Simply

put, because Batson mandates that the prosecutor supply the race-neutral reasons, it

was not reasonable for the OCCA to accept the trial court’s speculation about those

reasons in lieu of the prosecutor’s actual reasons.

iii. The Batson Test

Because the OCCA based its decision on an unreasonable factual finding and

also unreasonably applied Batson, we review Johnson’s Batson claim de novo,

without deferring to the OCCA. See Milton v. Miller, 744 F.3d 660, 670–71 (10th

Cir. 2014) (explaining that if petitioner satisfies § 2254(d)(1), federal habeas court

reviews petitioner’s claim de novo, “rather than deferring to the OCCA’s resolution

of that claim”); Byrd, 645 F.3d at 1172 (explaining that if petitioner satisfies

§ 2254(d)(2), we review claim de novo and without AEDPA deference).

19
 Under the first step of Batson, Johnson “must make out a prima facie case ‘by

showing that the totality of the relevant facts gives rise to an inference of

discriminatory purpose.’” Johnson, 545 U.S. at 168 (quoting Batson, 476 U.S. at 93–

94). This step is not “so onerous that a defendant would have to persuade the judge—

on the basis of all the facts, some of which are impossible for the defendant to know

with certainty—that the challenge was more likely than not the product of purposeful

discrimination.” Id. at 170. On the contrary, “a defendant satisfies the requirements

of Batson’s first step by producing evidence sufficient to permit the trial judge to

draw an inference that discrimination has occurred.” Id. And “the methods by which

prima facie cases c[an] be proved” are “permissive.” Id. at 169 n.5.

Here, to establish an inference of discrimination, Johnson primarily alleges a

pattern of discrimination in which the prosecutor used five of his first six peremptory

strikes to excuse minority jurors. 9 And a prosecutor’s pattern of strikes against

minority jurors is enough, on its own, to establish a prima facie case of

discrimination. See Batson, 476 U.S. at 97; Paulino I, 371 F.3d at 1092 (finding that

“the excusal of five out of six black jurors by means of five out of six peremptories”

was sufficient “pattern of strikes t[o] raise[] a plausible inference of discrimination”);

9
Johnson further supports his position by noting the prosecutor’s later failed
attempt to remove Ms. Williams, the last remaining African American, from the jury.
Although this attempt might support an inference of discrimination, we do not
consider it here because we are concerned with the facts as they existed at the time of
Johnson’s objection and before the prosecutor’s attempt to strike Ms. Williams. See
Paulino I, 371 F.3d at 1091 (evaluating prima facie case of discrimination by
“looking at the pattern of strikes only at the time of [the] objection”).
20
Brinson, 398 F.3d at 234–35 (concluding that “[t]he pattern of strikes alleged by the

defense is alone sufficient to establish a prima facie case” when prosecutor “used 13

of 14 strikes against African Americans”); Holloway, 355 F.3d at 722 (finding prima

facie case established when prosecutor used 11 of 12 strikes against African

Americans).

Nevertheless, the State contends that there is no inference of discrimination

here because Johnson “did not even make a record as to the races” of each of the

jurors at issue. Aplee. Br. 21. But as Johnson replies, neither the trial court nor the

prosecutor objected to defense counsel’s representation that the prosecutor had used

five of six strikes against minorities. On the contrary, the trial court implicitly

accepted that representation by responding with its own race-neutral reasons for why

the prosecutor might have struck three of the jurors at issue. Moreover, as the State

acknowledges, “racial identity between the defendant and the excused prospective

juror is not necessary for a Batson claim.” Id. (emphasis omitted); see also Powers v.

Ohio, 499 U.S. 400, 416 (1991) (holding that Batson does not require racial identity

between defendant and prospective juror). Thus, the absence of a record as to the

specific racial makeup of the five minority jurors is not fatal to Johnson’s prima facie

case of discrimination.

The State further argues that Johnson fails to establish a prima facie case of

discrimination because “there were obvious reasons for . . . dismissal that prevented a

prima facie showing,” including that two of the excused jurors had difficulty with

English and that one did not want to be a juror. Aplee. Br. 21. But even if we can

21
consider such allegedly obvious reasons in assessing Johnson’s prima facie case,

those reasons do not significantly undermine Johnson’s prima facie case as they did

in the cases the State relies on. For example, in Johnson v. Campbell, the Ninth

Circuit found no prima facie showing of discrimination based in part on “an obvious

neutral reason for the challenge.” 92 F.3d 951, 953 (9th Cir. 1996). But that “obvious

neutral reason” played a significant role in undoing any inference of discrimination

because of the weakness of the prima facie case to begin with: the Batson challenge

involved only a single juror allegedly struck because of his sexual orientation. Id.

Here, by contrast, Johnson has pointed to a pattern of striking five of six minority

prospective jurors. 10 Accordingly, we reject the State’s arguments and conclude that

the clear pattern of strikes against five of six minority jurors establishes an inference

of discrimination.

Thus, Johnson has made a prima facie showing of racial discrimination under

Batson. See 476 U.S. at 97. Although such a showing “does not necessarily establish

racial discrimination,” it “is more than sufficient to require a trial court to proceed to

step two of the Batson procedure.” Brinson, 398 F.3d at 235. Yet the trial court did

not do so, “relying instead on its own speculation as to what might have been the

10
The State also cites Capers v. Singletary, 989 F.2d 442 (11th Cir. 1993), and
United States v. Dennis, 804 F.2d 1208 (11th Cir. 1986) (per curiam). We find
Capers unpersuasive here because it applied Swain v. Alabama, 380 U.S. 202 (1965),
which Batson overruled. See Capers, 989 F.2d at 444 & n.2. And the court in Dennis
did not, contrary to the State’s assertion, consider any obvious neutral reasons at the
prima facie stage. See 804 F.2d at 1211. It therefore does not support the State’s
argument on this point.
22
prosecutor’s reasons.” Paulino I, 371 F.3d at 1092. We therefore conclude that the

trial court erred.

iv. Remedy

But this error does not automatically entitle Johnson to habeas relief. Because

no court later held an evidentiary hearing, the State has never presented evidence of

the prosecutor’s actual, nondiscriminatory reasons for striking the five minority

jurors. See id. In this circumstance, it is not “appropriate to take the extraordinary

step of granting habeas corpus relief without first providing the [S]tate with a hearing

at which it could offer evidence in support of the challenged strikes.” Hardcastle,

368 F.3d at 261. Instead, the better path is to remand for an evidentiary hearing to

provide the State with “a chance to present evidence in support of its peremptory

strikes.” Id. at 250; see also Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d 1333,

1339 (11th Cir. 2012) (Madison I) (finding unreasonable application of Batson and

prima facie case of discrimination; “remand[ing] the case for the district court to

complete the final two steps of the Batson proceedings”).

We therefore reverse the district court’s ruling on Johnson’s Batson claim and

remand to the district court for a Batson reconstruction hearing. See Paulino v.

Harrison, 542 F.3d 692, 700 (9th Cir. 2008) (Paulino II); cf. United States v. Chalan,

812 F.2d 1302, 1314 (10th Cir. 1987) (remanding for district court to conduct hearing

on prosecutor’s reasons for strike where defendant was convicted pre-Batson such

that “neither the trial court nor the parties were aware of the standards to be used in

evaluating the . . . proffered reasons for striking [the juror]”). A Batson

23
reconstruction hearing is “an evidentiary hearing that takes place some[]time after the

trial, where the prosecutor testifies to [his or] her actual reasons for striking the

venire[ ]members in question, or the State presents circumstantial evidence of those

reasons.” Paulino II, 542 F.2d at 1314; see also Madison v. Comm’r, Ala. Dep’t of

Corr., 761 F.3d 1240, 1249–50 (11th Cir. 2014) (Madison II) (explaining that Batson

reconstruction hearing is proper and not contrary to anything in Cullen v. Pinholster,

563 U.S. 170 (2011), “or any other principle of habeas corpus”).

Before conducting such a hearing, the district court should consider whether

the passage of over eight years since Johnson’s trial or any other circumstances have

made such an inquiry “impossible or unsatisfactory.” Jordan v. Lefevre, 206 F.3d

196, 202 (2d Cir. 2000). If the district court concludes that a Batson reconstruction

hearing is impossible or unsatisfactory, it must grant habeas relief in the form of an

order that Johnson be released from custody unless the State grants him a new trial

within 120 days from the entry of the district court’s order. See id. (noting that if

district court decides Batson reconstruction hearing is not possible, it should “order

that the state grant [petitioner] a new trial”); Miller-El II, 545 U.S. at 266 (granting

relief on Batson claim and “remand[ing] for entry of judgment for petitioner together

with orders of appropriate relief”), decision on remand, 142 F. App’x 802, 803 (5th

Cir. 2005) (unpublished) (remanding to district court to enter order directing

petitioner’s release “from custody unless the State grants [him] a new trial within 120

days from the date of the entry of the district court’s order”).

24
 If the district court determines that a Batson reconstruction hearing will not be

impossible or unsatisfactory, it shall conduct one, thereby providing the State with an

opportunity to present evidence as to the prosecutor’s race-neutral reasons for the

challenged strikes. See Brinson, 398 F.3d at 235; Paulino I, 371 F.3d at 1092;

Hardcastle, 368 F.3d at 250; Jordan, 206 F.3d at 202; Madison I, 677 F.3d at 1339.

The district court should then make findings at the third step of Batson as to whether

the strikes were based on race. See Brinson, 398 F.3d at 235; Paulino II, 542 F.3d at

702 (holding that even if prosecutor fails to come forward with step-two reason, trial

court must complete step three). If the district court concludes that Johnson has not

met his ultimate burden of showing purposeful discrimination, it should deny

Johnson’s claim. But if Johnson can show purposeful discrimination, the district

court should grant habeas relief as described above, ordering Johnson released unless

retried within a limited period of time. 11

11
Although the parties do not discuss as much, there appears to be some
dispute about where a Batson reconstruction hearing can or should take place. The
Second Circuit, without explanation, has said that the district court may either
conduct the hearing itself or remand the case to state court via a conditional writ to
hold the hearing. See, e.g., Galarza v. Keane, 252 F.3d 630, 640–41 (2d Cir. 2001);
Tankleff v. Senkowski, 135 F.3d 235, 250 (2d Cir. 1998). But at this point, Johnson
has established only a prima facie case of discrimination. In this situation, we cannot
grant a writ of habeas corpus, even conditionally, “because we cannot hold as a
matter of law, on the undeveloped record in this case, that [Johnson] is entitled to
habeas relief.” Keller v. Petsock, 853 F.2d 1122, 1129–30 (3d Cir. 1988); see also
§ 2254(a) (providing that state prisoner may obtain writ in federal court “only on the
ground that he [or she] is in custody in violation of the Constitution or laws or
treaties of the United States”); Billiot v. Puckett, 135 F.3d 311, 316 n.5 (5th Cir.
1998) (explaining “that a federal habeas court cannot ‘remand’ a case to the state
courts”; it can only grant writ of habeas corpus, conditionally or otherwise). As such,
we agree with the Third Circuit that in these circumstances, § 2254 does not
25
II. Gruesome Evidence

Johnson next argues that the introduction of gruesome evidence about the

murder and crime scene prejudiced him and resulted in a fundamentally unfair trial.

At trial, Johnson unsuccessfully objected to the introduction of this evidence, which

included: (1) testimony from a witness who explained that she used a jacket to stem

the blood from Sweeney’s head while waiting for the paramedics to arrive, as well as

a photograph of the jacket; (2) testimony describing the crime scene, including the

statement that “there was blood everywhere, and . . . some of [Sweeney’s] brains

were on the floor,” R. vol. 3, 548; (3) testimony from a paramedic describing the

wound as involving “a lot of hair and blood, [and] also gray matter or brains” and

further stating that “there were pieces of both those things, blood clots, gray matter

authorize us “to remand a habeas corpus petition to a state court for an evidentiary
hearing.” Hardcastle, 368 F.3d at 261 (quoting Keller, 853 F.2d at 1129). We further
agree that “even if we were able to remand directly to the state court, neither this
[c]ourt nor the Supreme Court has held ‘that the state courts should, after having
foregone the opportunity to hold an evidentiary hearing and resolve the issue, be
given another opportunity to do so.’” Hardcastle, 368 F.3d at 261 (quoting Keller,
853 F.2d at 1129); see also Rose v. Lee, 252 F.3d 676, 688 & n.11, 689–91 (4th Cir.
2001) (finding state court’s adjudication contrary to clearly established federal law
but “disagree[ing] with the district court’s conclusion that a federal court lacks
authority to conduct an independent review of the claim” and rejecting district court’s
remand of claim to state court). Indeed, in at least one case, even the Second Circuit
remanded for a Batson reconstruction hearing in the district court without mentioning
the option of remanding the case to state court. See Jordan, 206 F.3d at 202.
Moreover, other circuits have simply remanded for Batson reconstruction hearings at
the district court as a matter of course, without discussing whether to return the case
to state court. See, e.g., Paulino I, 371 F.3d at 1092; Madison I, 677 F.3d at 1339;
Harris v. Haeberlin, 752 F.3d 1054, 1055 (6th Cir. 2014); Holder v. Welborn, 60
F.3d 383, 385 (7th Cir. 1995). Accordingly, we remand to the district court, not the
state court.
26
on the floor, all consistent with a high-velocity type wound,” id. at 589; and

(4) various photographs of the crime scene, including “an area of blood” and “blood

clots and some gray matter seen in [an] area on the floor,” id. at 593; “the interior

side of the wall [showing] what appears to be human tissues and hair,” id. at 636–37;

and a telephone and a power strip with red stains that appeared to be blood.

On direct appeal, Johnson argued that the trial court erred in admitting this

evidence because it was more prejudicial than probative and violated his right to a

fair trial under the Sixth Amendment and to due process under the Fourteenth

Amendment. The OCCA did not explicitly address the constitutional aspect of this

argument and rejected the claim overall in a single sentence: “[T]he trial court did

not abuse its discretion when it admitted the testimony and photographs depicting the

crime scene and the nature, extent[,] and location of the victim’s injury.” Johnson I,

slip op. at 9. In support, the OCCA cited state cases finding no abuse of discretion in

admitting crime-scene evidence in similar circumstances. Id.

In his habeas petition, Johnson reasserted his constitutional claim that the

admission of this evidence “resulted in a fundamentally unfair” trial. R. vol. 1, 81.

Specifically, Johnson pointed out both that the State refused defense counsel’s offer

to stipulate to the manner of death and that it was undisputed Johnson did not shoot

Sweeney. Johnson therefore asserted that this “evidence was unfairly prejudicial,

designed by the State to appeal to the emotions of the jury, and resulted in a

fundamentally unfair adjudicatory process.” Id.

27
 The district court rejected Johnson’s claim. It acknowledged that when

“habeas petitioners challenge the admission of [graphic] evidence as violative of the

Constitution,” courts must consider “whether the admission of evidence so infected

the trial with unfairness as to [violate] due process.” App. 44–45 (alterations in

original) (quoting Spears v. Mullin, 343 F.3d 1215, 1226 (10th Cir. 2003)); see also

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

inquiry . . . is whether the admission of the photographs rendered the proceedings

fundamentally unfair.”). And the district court found no unfairness rising to level of a

due-process violation here because the evidence described and corroborated the

nature of the murder and the State presented strong evidence of Johnson’s guilt.

On appeal, Johnson reiterates the argument he made below. In response, the

State first argues that this court should decline to consider whether the OCCA’s

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

law because, as a threshold matter, there is no clearly established federal law

governing “the admission of allegedly gruesome testimony and photographs.” Aplee.

Br. 31; see also House, 527 F.3d at 1018. Specifically, the State contends that

Johnson’s citation to Darden v. Wainwright, 477 U.S. 168 (1986), “is unconvincing”

and fails to provide clearly established federal law. Aplee. Br. 32. In Darden, the

Supreme Court considered “whether the prosecutors’ [admittedly improper]

comments ‘so infected the trial with unfairness as to make the resulting conviction a

denial of due process.’” 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)). And the State insists that because Darden involved

28
prosecutorial misconduct, rather than evidentiary errors, it “is not an on-point case,

and it far from establishes clearly established federal law in regard to this issue.”

Aplee. Br. 32.

In support, the State cites Estelle v. McGuire, 502 U.S. 62 (1991). There,

having found the challenged evidence to be relevant, the Court stated that it “need

not explore further the apparent assumption of the Court of Appeals that it is a

violation of the due process guaranteed by the Fourteenth Amendment for evidence

that is not relevant to be received in a criminal trial.” Estelle, 502 U.S. at 70

(emphases added). But importantly, at the outset of its discussion of this claim, the

Court described its overall inquiry as “whether the admission of the evidence violated

[petitioner’s] federal constitutional rights.” Id. at 68. And Johnson raised the same

inquiry in his habeas petition: Did the admission of gruesome crime-scene evidence

violate his constitutional right to due process?

Indeed, the Supreme Court has expressly considered whether “the introduction

of . . . evidence . . . violated the Due Process Clause of the Fourteenth Amendment”

by using the “analytical framework” provided by the prosecutorial-misconduct

inquiry in Donnelly (which Darden followed). Romano v. Oklahoma, 512 U.S. 1, 12

(1994). We have done the same, even after House’s holding clarifying the role of

clearly established federal law under AEDPA. Specifically, in Hooks v. Workman, we

reached the merits of the petitioner’s due-process claim alleging admission of

prejudicial and irrelevant evidence without questioning the existence of clearly

established federal law. 689 F.3d 1148, 1180 (10th Cir. 2012); see also id.

29
(explaining that petitioner “is entitled to relief only if an alleged state-law error . . .

‘was so grossly prejudicial that it fatally infected the trial and denied the fundamental

fairness that is the essence of due process’” (quoting Revilla v. Gibson, 283 F.3d

1203, 1212 (10th Cir. 2002))). And we did so despite noting the absence of clearly

established federal law supporting several of the petitioner’s other claims. See id. at

1170 (finding no clearly established law requiring OCCA “to account for and apply”

particular statistical theory to evidence of petitioner’s IQ score), id. at 1175 (noting

no clearly established federal law for claim arising from removal of juror for cause).

Thus, we reject the State’s argument that Johnson’s claim fails for want of clearly

established federal law.

Turning to the merits, Johnson argues the OCCA unreasonably concluded that

the admission of the crime-scene evidence did not render the proceedings

fundamentally unfair. See Smallwood, 191 F.3d at 1275. “[B]ecause a fundamental-

fairness analysis is not subject to clearly definable legal elements, when engaged in

such an endeavor a federal court must tread gingerly and exercise considerable self-

restraint.” Spears, 343 F.3d at 1226 (alteration in original) (quoting Duckett v.

Mullin, 306 F.3d 982, 999 (10th Cir. 2002)). At the same time, “the fundamental-

fairness inquiry requires us to look at the effect of the admission of the [evidence]

within the context of the entire” trial. Id. Doing so requires weighing the relevance of

the challenged evidence against its prejudicial value, in light of the other evidence

against the petitioner. See id.

30
 The OCCA did not explain what the evidence at issue here tended to prove or

how its probative value outweighed its prejudicial impact. See Johnson I, slip op. at

9. The district court, for its part, concluded that “[t]he challenged evidence . . .

corroborated testimony that the victim sustained a high[-]velocity gunshot wound

when a shooter entered his office[] and was discovered with his head against the

window.” App. 45.

And indeed, to obtain the murder conviction, the State had to show (1) the

unlawful death of a human, (2) caused by the defendant, (3) with malice

aforethought. See Okla. Stat. tit. 21, § 701.7(A). That Johnson was indisputably not

the shooter does not change what the State had to prove because an individual who

aids and abets in the commission of a crime is “equally culpable with other

princip[als].” Conover v. State, 933 P.2d 904, 910 (Okla. Crim. App. 1997),

abrogated on other grounds by Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (per curiam);

see also Glossip v. State, 157 P.3d 143, 151 (Okla. Crim. App. 2007) (explaining that

aiding and abetting includes “advis[ing] or encourag[ing] the commission of the

crime” (quoting Spears v. State, 900 P.2d 431, 438 (Okla. Crim. App. 1995))); Okla.

Stat. tit. 21, § 172. Thus, to prove that Johnson was guilty of murder, the State had to

establish not only Johnson’s involvement in the murder plot, but also the fact of the

murder itself.

At least some of the evidence Johnson complains of was relevant to proving

the murder, such as the testimony from the paramedic describing the victim’s head

wound and the crime scene. Further, at least some of the photographs were relevant

31
to corroborate the paramedic’s testimony. Thus, this case is similar to Thornburg v.

Mullin, where the petitioner challenged the admission of “six photographs depicting

the charred remains of the victims’ bodies” on the basis “that he had no plans to

dispute the manner of death.” 422 F.3d 1113, 1128 (10th Cir. 2005). We declined to

grant habeas relief, noting that “[e]ven if [the defendant] did not dispute the manner

of death, the [S]tate still bore the burden to convince the jury that its witnesses . . .

provided an accurate account of events.” Id. at 1129.

Additionally, this case is not like Spears, where we found fundamental

unfairness and granted habeas relief based on the admission at sentencing in a capital

trial of photographs depicting the victim with 50 to 60 stab wounds. 343 F.3d at

1227–28. There, the photographs were not probative to prove conscious physical

suffering because uncontradicted evidence showed that the victim died or lost

consciousness early in the beating, so “there was no logical connection between the

photographs and the proposition they were offered to prove.” Thornburg, 422 F.3d at

1129 (distinguishing Spears). Here, by contrast, there was a connection between the

crime-scene evidence and the murder charge against Johnson.

Moreover, even if some of the challenged evidence was cumulative, that

accumulation does not rise to the level of rendering Johnson’s trial fundamentally

unfair in violation of due process when considered in light of the strong evidence of

Johnson’s guilt. Where evidence against a defendant is strong, the likelihood that

erroneously admitted evidence will have an unduly prejudicial impact is lessened.

Compare Wilson v. Sirmons, 536 F.3d 1064, 1115 (10th Cir. 2008) (noting that “the

32
evidence at the guilt phase was particularly strong” before “conclud[ing] that the

admission [of relevant but gruesome photographs] did not make the proceeding

fundamentally unfair”), with Spears, 343 F.3d at 1228 (granting habeas relief based

on prejudicial photographs in part because, in addition to having little to no probative

value, they “were the primary aggravating evidence specifically presented at the

second stage” and “constitute[d] a major part of the State’s second-stage case”).

Here, the district court summarized the evidence against Johnson as follows:

Aziz—who ordered the murder—testified that [Fred] accepted the job
via his brother [Allen] and set a price of $10,000. According to [Allen],
he met [Fred] and [Johnson] at his (Allen’s) home in the days before the
murder. Allen testified Fred and [Johnson] left the house to travel to
Muskogee, and Aziz similarly recalled hearing that Fred was going to
steal a getaway van from Muskogee. Charles Billingsley, who was not a
defendant in the case, testified that he helped [Johnson] take a white
Ford van from the detail shop next to Billingsley’s business. On the
morning of the murder, [Allen] recalled that [Johnson] came to his
home. According to [Allen], [Johnson] wanted him to ask Aziz for the
money so the passenger riding with [Johnson] (Terrico Bethel) could
“get the murder done.” That same day, Aziz recalled [Johnson]
knocking on the window of his business and saying[,] “watch the news.”
[Johnson] never returned the white van, but Billingsley recalls seeing it
on television in connection with the murder. [Allen] testified that after
the murder, he collected the first $5,000 from Aziz and gave it to
[Johnson]. These facts are supported by phone records showing various
calls between the co[]conspirators in the time leading up to the murder.

App. 43 (citations omitted). This strong evidence of Johnson’s involvement in

Sweeney’s murder lessens the impact of possible prejudice flowing from the

admission of crime-scene evidence. Thornburg, 422 F.3d at 1129. Thus, “[r]eviewing

the record under AEDPA’s constraints,” in light of the probative value of the

challenged evidence and the strong evidence of Johnson’s guilt, we cannot “conclude

33
that the OCCA acted contrary to or unreasonably applied federal law in concluding

that [its] admission was proper.” Id.

III. Juror Misconduct

Next, Johnson argues that the district court erred in denying his juror-

misconduct claim. Johnson first raised this claim in a motion for a new trial, which

he filed after one of the jurors, Staci Petersen, contacted defense counsel and

“advised that she felt forced, intimidated[,] and threatened by the acts of the other

jurors into voting guilty.” R. vol. 1, 407. Johnson submitted an affidavit from

Petersen along with his motion for a new trial. In that affidavit, Peterson asserted that

she voted guilty in part because “[j]uror Faith Williams said, ‘do you really want

[Johnson] to be walking on the streets? He’s got other charges and won’t be getting

out of jail.’” Id. at 414–15 (emphasis added). Petersen further declared that the other

jurors wrongly informed her a guilty vote on the conspiracy charge necessitated a

guilty vote on the murder charge. She also reported that she saw one juror sleeping

through the trial.

Johnson attempted to corroborate Petersen’s statements with an affidavit from

another juror, Tony Perez, who confirmed Petersen’s intimidation allegations and

said that he, too, believed that a guilty vote on the conspiracy charge necessitated a

guilty vote on the murder charge. Petersen and Perez also expressed confusion

regarding the need for a unanimous decision. But Perez did not mention the comment

about Johnson’s other charges.

34
 In addition to her affidavit, Peterson wrote a letter to the trial court in which

she reported that she was ridiculed by the other jurors, pressured into voting with the

other jurors to convict, and confused about having to come to a unanimous decision.

She further said that she believed the jury convicted Johnson because he was African

American. This letter did not mention Williams’s statement about Johnson’s other

charges.

Moving for a new trial, Johnson asserted that there was nothing mentioned at

trial about other charges pending against him and therefore argued that “the jury

panel was tainted by outside information.” Id. at 411. The trial court denied the

motion without a hearing, stating that “[j]urors cannot impeach their verdicts after

they have been discharged.” Id. at 428.

On direct appeal, Johnson argued that this juror misconduct and the trial

court’s refusal to conduct an evidentiary hearing deprived him of a fair trial. The

OCCA rejected these claims. Johnson I, slip op. at 13. First, it noted that an

evidentiary hearing was not required because Johnson filed his motion outside the

ten-day window set forth in Oklahoma Rule of Criminal Procedure 2.1(A)(2). Id. And

it further found no abuse of discretion in the trial court’s decision not to conduct a

hearing. Id. Second, the OCCA determined that “[t]he trial court properly refused to

receive the juror’s post[]verdict letter and, later, the two jurors’ affidavits asserting

allegations concerning the motives, methods, and mental processes by which the jury

reached its verdicts because jurors are not permitted to impeach their verdicts.” Id. at

35
14. And Johnson “otherwise[] failed to establish juror misconduct by clear and

convincing evidence.” Id.

In his habeas petition, Johnson argued that the OCCA’s rulings were “an

unreasonable application of Remmer [v. United States, 347 U.S. 227 (1954)].” R. vol.

1, 84. The district court disagreed, explaining that “like Oklahoma law, federal law

‘prohibit[s] the admission of juror testimony to impeach a jury verdict.’” App. 46

(alteration in original) (quoting Tanner v. United States, 483 U.S. 107, 117 (1987));

see also Okla. Stat. tit. 12, § 2606(B); Fed. R. Evid. 606(b). And it noted that

although there was an exception to the no-impeachment rule “where external,

prejudicial information is improperly brought to the jury’s attention,” such exception

was not available here, where the reference to other charges was vague and where

Petersen did not mention the other charges in her letter to the trial court. App. 46.

On appeal, Johnson again argues that the OCCA’s decision is an unreasonable

application of Remmer. But Johnson misstates Remmer’s holding. Without a pinpoint

citation, Johnson suggests that Remmer stands for the proposition “that no extraneous

material is permitted in the jury room during deliberations.” Aplt. Br. 43. Yet the

Supreme Court made no such statement in Remmer, which did not involve the

introduction of extraneous material in the jury room. Instead, it involved private

communications with a juror: (1) someone outside of the jury suggested to a juror

during trial “that he could profit by bringing in a verdict favorable to petitioner”; and

(2) the trial court, the prosecutor, and the FBI investigated this potential bribe

situation without informing or including the defense. 347 U.S. at 228; see also

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Tanner, 483 U.S. at 117 (citing cases where jurors were allowed to testify about

“influence by outsiders” and describing Remmer as case involving “bribe offered to

juror”). Accordingly, we reject the argument that the OCCA unreasonably applied

Remmer when denying Johnson’s juror-misconduct claim.

Nevertheless, Johnson is generally correct that an exception to the no-

impeachment rule exists, such that an evidentiary hearing—including juror

testimony—is required “where extrinsic influence or relationships have tainted the

deliberations.” Tanner, 483 U.S. at 120; see also Fed. R. Evid. 606(b)(2)(A)

(allowing juror testimony when “extraneous prejudicial information was improperly

brought to the jury’s attention”). But as the State persuasively argues, the OCCA did

not unreasonably apply any such rule in affirming both the refusal to conduct an

evidentiary hearing and the denial of Johnson’s motion for a new trial.

As an initial matter, everything included in Petersen’s letter to the trial court

and almost everything included in the jurors’ affidavits is inadmissible juror-

impeachment evidence: Petersen and Perez primarily describe Petersen’s mental state

as a result of being intimidated by the other jurors and their misunderstandings about

the relationship of the two counts and the requirement of unanimity. See Warger v.

Shauers, 574 U.S. 40, 51 (2014) (explaining that evidence does not fall into

exception for extraneous material if it is part of “the general body of experiences that

jurors are understood to bring with them to the jury room”); Tanner, 483 U.S. at 118

(describing jurors’ failure to understand instructions or mental incompetence as

internal matters about which jurors may not testify); Matthews v. Workman, 577 F.3d

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1175, 1181 (10th Cir. 2009) (noting Oklahoma evidentiary rule that “prohibits jurors

from testifying ‘as to the effect of anything upon his or another juror’s mind or

emotions as influencing him to assent to or dissent from the verdict’” (quoting

Matthews v. State, 45 P.3d 907, 914 (Okla. Crim. App. 2002))). And “[t]here is

nothing in clearly established Supreme Court law requiring states to take cognizance

of evidence excludable under such common evidentiary rules.” Matthews v.

Workman, 577 F.3d at 1182. Further, “in light of numerous other protections

designed to secure an impartial and competent jury . . . the Constitution does not

require a post[]verdict hearing in which such evidence is admissible.” Id. at 1183.

Critically, the inclusion of the reference to Johnson’s “other charges” does not

affect the inadmissibility of this juror-misconduct evidence. R. vol. 1, 414. Such a

statement—where the trial included no evidence of Johnson having other charges—

arguably falls outside the no-impeachment rule and into its exception for extrinsic

influence. See Warger, 574 U.S. at 51 (explaining that “information is deemed

‘extraneous’ if it derives from a source ‘external’ to the jury,” including “publicity

and information related specifically to the case the jurors are meant to decide”

(quoting Tanner, 483 U.S. at 117)). But we agree with the district court that this

single reference to other charges “is too vague to conclude extra-record facts

prejudiced the outcome at trial” or to trigger the need for an evidentiary hearing.

App. 47.

We reach this conclusion because when considering whether the jury

considered extraneous material, “the inquiry is not whether the jurors . . . discussed

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any matters not of record, but whether they discussed specific extra-record facts

relating to the defendant, and if they did, whether there was a significant possibility

that the defendant was prejudiced thereby.” Marquez v. City of Albuquerque, 399

F.3d 1216, 1223 (10th Cir. 2005) (emphasis added) (quoting United States ex rel.

Owen v. McMann, 435 F.2d 813, 818 n.5 (2d Cir. 1970)). And as to conducting a

hearing, a court confronted with a juror-misconduct claim “‘has wide discretion in

deciding how to proceed’ and appropriately denies a hearing when a party presents

‘only thin allegations of jury misconduct.’” United States v. Brooks, 569 F.3d 1284,

1288 (10th Cir. 2009) (quoting United States v. Easter, 981 F.2d 1549, 1553 (10th

Cir. 1992)). Thus, we conclude that the OCCA did not unreasonably apply any

clearly established federal law when it affirmed the trial court’s decisions to not

conduct an evidentiary hearing and to deny Johnson’s motion for a new trial. 12

12
Petersen’s letter to the trial court also alleged that the jury voted to convict
Johnson because he is African American. For the first time in his reply brief, Johnson
argues that this allegation should have triggered an evidentiary hearing and
substantive relief. See Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017)
(holding that “where a juror makes a clear statement that indicates he or she relied on
racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment
requires that the no-impeachment rule give way” so that trial court can “consider the
evidence of the juror’s statement and any resulting denial of the jury[-]trial
guarantee”). We decline to consider Johnson’s argument because he raises it for the
first time in his reply brief. See United States v. Leffler, 942 F.3d 1192, 1197 (10th
Cir. 2019). Moreover, Peña-Rodriguez was not decided until well after Johnson’s
conviction became final; it therefore does not provide clearly established federal law
applicable in Johnson’s habeas proceeding. See House, 527 F.3d at 1015 (stating that
“AEDPA ‘requires federal habeas courts to deny relief that is contingent upon a rule
of law not clearly established at the time the state[-]court conviction became final’”
(emphasis added) (quoting Williams, 529 U.S. at 380)).

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IV. Cumulative Error

Last, Johnson argues that the district court erred in denying relief on his

cumulative-error claim. He first raised a cumulative-error claim on direct appeal,

contending that various errors accumulated to deprive him of a fair trial in violation

of his due-process rights. The OCCA rejected this claim. Johnson I, slip op. at 18.

In his habeas petition, Johnson argued again that cumulative error rendered his

trial fundamentally unfair. The district court rejected this claim because cumulative

error only applies “where there are two or more actual errors,” and the district court

found none. App. 47 (quoting Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir.

1998)).

On appeal, Johnson first argues that AEDPA deference does not apply because

the OCCA did not adjudicate his cumulative-error claim on the merits. See Harris v.

Poppell, 411 F.3d 1189, 1195 (10th Cir. 2005). In support, Johnson points out that

although he asserted a cumulative-error claim related to his trial, the OCCA ruled

only that Johnson “was not denied a fair sentencing trial by cumulative error.”

Johnson I, slip op. at 18 (emphasis added). The State disputes this reading, arguing

that “the reference to a ‘sentencing trial’ was merely a typographical error” and

pointing out that the OCCA cited in support cases involving claims of cumulative

trial error. Aplee. Br. 51 (quoting Johnson I, slip op. at 18). We need not resolve this

dispute because Johnson’s cumulative-error claim fails even under de novo review.

In arguing that cumulative constitutional errors in his trial deprived him of his

due-process right to a fair trial, Johnson seeks to accumulate all six of the substantive

40
errors alleged in his habeas petition. But as he acknowledges and as the State argues,

Johnson cannot accumulate errors for which he does not have a COA. See Young v.

Sirmons, 551 F.3d 942, 972–73 (10th Cir. 2008). Accordingly, our analysis of

Johnson’s cumulative-error claim is limited to the three substantive claims for which

he has a COA. And because Johnson has not shown more than one error, he is not

entitled to habeas relief on his cumulative-error claim. See Ellis v. Raemisch, 872

F.3d 1064, 1090 (10th Cir. 2017) (“[T]here must be more than one error to conduct

cumulative-error analysis.”).

Conclusion

For the reasons explained above, we affirm the district court’s denial of habeas

relief on Johnson’s gruesome-evidence, juror-misconduct, and cumulative-error

claims. But we reverse and remand on Johnson’s Batson claim. The OCCA relied on

an unreasonable factual determination when it reviewed and approved of the

prosecutor’s race-neutral reasons for the challenged peremptory strikes of racial

minorities when in fact, the prosecutor offered only one such reason and the trial

court offered the others. It further unreasonably applied Batson by substituting the

trial court’s speculation for the prosecutor’s race-neutral reasons. Reviewing

Johnson’s Batson claim de novo, we conclude that Johnson established a prima facie

case of discrimination at Batson step one. But the trial court erred at Batson step two

by failing to request the prosecutor’s race neutral reasons and substituting its own

speculation for those reasons. We therefore reverse the district court’s order denying

relief on that claim and remand as previously instructed for the district court to either

41
conduct a Batson reconstruction hearing or to determine that such a hearing would be

impossible or unsatisfactory.

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