Appellate Case: 22-5027 Document: 010110728320 Date Filed: 08/23/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 23, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
RANDLE RAYMOND LOCKETT,
Petitioner - Appellant,
v. No. 22-5027
(D.C. No. 4:19-CV-00046-GFK-JFJ)
JANET DOWLING, Warden, (N.D. Okla.)
Respondent - Appellee.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HARTZ, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
Petitioner Randle Raymond Lockett, a prisoner in Oklahoma state custody
proceeding pro se,1 seeks a certificate of appealability (“COA”) to challenge the district
court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Because
reasonable jurists could not debate the proposition that Mr. Lockett has failed to
demonstrate a substantial showing of the denial of a constitutional right based on
ineffective assistance of counsel or prosecutorial misconduct, we deny a COA and
dismiss this matter.
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.
1
Because Mr. Lockett is proceeding pro se, “we liberally construe his filings, but
we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
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I. BACKGROUND
On September 21, 2013, Mr. Lockett shot and killed Charles Johnson at the
McKinley Apartments in Tulsa, Oklahoma. The night prior, Mr. Lockett was partying at
his friend Amanda “Sheila” Gilstrap’s apartment. At the request of party attendees,
Mr. Johnson went to Ms. Gilstrap’s apartment to sell drugs on two separate occasions that
night. During Mr. Johnson’s second visit to the apartment, Mr. Lockett pawned a
necklace for fifty dollars’ worth of crack cocaine, with the expectation that Mr. Johnson
would return the necklace for payment in cash the next day.
When the time came for Mr. Johnson to return Mr. Lockett’s necklace, however,
Mr. Johnson would not answer Mr. Lockett’s telephone calls. Mr. Lockett then enlisted
Ms. Gilstrap, who called Mr. Johnson and told him that Mr. Lockett wanted to buy more
drugs and to get his necklace back. Mr. Johnson agreed but told Ms. Gilstrap the price of
the necklace had increased, and it would now cost Mr. Lockett $300 to get it back.
Mr. Johnson arrived at the McKinley Apartments about thirty minutes after
Ms. Gilstrap’s call and proceeded up the stairs to her apartment. Mr. Lockett was waiting
in his car when Mr. Johnson arrived. Mr. Lockett ran up the stairs after Mr. Johnson, hit
him in the head with a pistol, and then shot at him multiple times. Mr. Johnson died from
a bullet wound to the chest.
According to Mr. Lockett, he shot and killed Mr. Johnson in self-defense. After he
hit Mr. Johnson in the head with the pistol, Mr. Lockett claimed he dropped the gun. As
he was attempting to retrieve the pistol, Mr. Lockett asserted Mr. Johnson raised his arm
to hit Mr. Lockett with a “little [green] plexiglass vase” full of marbles. ROA Vol. III
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at 109–10. Mr. Lockett maintained he shot Mr. Johnson in the chest in response. After the
first shot, Mr. Lockett admitted Mr. Johnson started running away, but said he continued
to shoot at Mr. Johnson in an attempt to get the necklace back.
The State of Oklahoma charged Mr. Lockett with first-degree murder and
possession of a firearm by a felon.2 During the four-day trial, an Oklahoma jury heard
testimony from Mr. Lockett and several witnesses, including Ms. Gilstrap and a
responding police officer. The court instructed the jury on self-defense and the lesser
included offense of first-degree manslaughter. The jury found Mr. Lockett guilty of each
charge. Consistent with the jury recommendation, the trial court sentenced Mr. Lockett to
life imprisonment with the possibility of parole for the charge of first-degree murder, and
ten years imprisonment for the charge of possession of a firearm by a felon, with the
sentences to run concurrently.
Mr. Lockett directly appealed his conviction, raising four issues: (1) prosecutorial
misconduct during voir dire and closing argument, (2) prejudicial error based on the
district court’s admission of evidence without proper authentication, (3) ineffective
assistance of counsel based on trial counsel’s failure to present evidence in support of his
theory of self-defense and failure to object to prosecutorial misconduct, and
(4) cumulative error. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed
Mr. Lockett’s conviction. The OCCA concluded the prosecutor’s challenged voir dire
2
Mr. Lockett was also charged with one count of assault and battery with a
dangerous weapon and one count of feloniously pointing a firearm. The State later
dismissed these charges.
3
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statements were not improper and further did not prejudice Mr. Lockett’s right to a fair
trial considering the entire circumstances of the proceedings. It similarly concluded the
prosecutor’s comments during closing argument were, for the most part, proper. For the
one comment it deemed improper—thanking the jury on behalf of the victim—the OCCA
concluded Mr. Lockett had failed to demonstrate the comment prejudiced his right to a
fair trial. Because the OCCA determined the prosecutor’s comments did not deprive
Mr. Lockett of a fair trial, it also concluded his trial counsel “was not ineffective for
failing to make meritless objections.” ROA Vol. I at 283. The OCCA also rejected
Mr. Lockett’s authentication challenge and cumulative error claim.
Mr. Lockett subsequently filed an application for post-conviction relief in
Oklahoma state court. Mr. Lockett raised three claims: (1) failure to prove the charged
offenses beyond a reasonable doubt, (2) police misconduct based on the failure to
investigate Ms. Gilstrap’s apartment, and (3) police misconduct based on the failure to
provide the medical examiner with the victim’s clothing. The Oklahoma state court
construed these claims as raising ineffective assistance of appellate counsel and denied
Mr. Lockett’s application. Id. at 316–28; see also id. at 318 (noting “[i]n total, th[is]
Application[] raise[s] the proposition that [Mr. Lockett] received ineffective assistance of
appellate counsel”). Agreeing with the construction of his post-conviction claims as
ineffective assistance of appellate counsel claims, Mr. Lockett appealed the denial of his
application to the OCCA. The OCCA affirmed the denial.3 As to the first claim based on
3
Mr. Lockett subsequently filed a second application for post-conviction relief,
claiming new evidence supported his police misconduct argument. The Oklahoma state
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sufficiency of the evidence, the OCCA affirmed because Mr. Lockett’s arguments did not
demonstrate any error in the jury’s finding of each element for first-degree murder or its
rejection of his self-defense theory. The OCCA next addressed Mr. Lockett’s claim based
on the failure to search Ms. Gilstrap’s apartment, concluding it was “unfounded” where
he neither demonstrated the evidence that may have been found had exculpatory value,
nor that the police failed to search her apartment in bad faith. Id. at 373. As to his third
claim, the OCCA concluded Mr. Lockett’s contention that testing the victim’s clothing
would have yielded a favorable result for his defense was based only on speculation and,
without more, failed to demonstrate deficient performance on behalf of his appellate
counsel.
Turning to the federal courts, Mr. Lockett then filed a pro se habeas petition
pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District
of Oklahoma. Mr. Lockett amended his habeas petition and raised several claims:
(1) sufficiency of the evidence supporting his conviction for first-degree murder,
(2) police misconduct based on the failure to investigate inside Ms. Gilstrap’s apartment,
(3) police misconduct based on the failure to provide the medical examiner with
Mr. Johnson’s clothing, (4) prosecutorial misconduct based on the prosecutor’s
hypotheticals during voir dire and comments during closing argument, and (5) ineffective
assistance of counsel during both his trial and appeal.
court denied Mr. Lockett’s second application and the OCCA dismissed his subsequent
appeal as untimely. Because Mr. Lockett did not raise any claim from his second
application in his request for a COA, we do not address it here.
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The federal district court concluded the petition should be denied on the merits of
each claim. The district court considered the first three claims under the umbrella of
Mr. Lockett’s fifth claim—ineffective assistance of appellate counsel—because they
were exhausted as ineffective assistance claims in his state application for post-
conviction relief. The district court then considered the merits of each claim and
concluded Mr. Lockett had failed to demonstrate the OCCA’s determinations were
contrary to, or involved an unreasonable application of, federal law. After considering the
remaining claim of prosecutorial misconduct and arriving at the same conclusion, the
district court denied Mr. Lockett’s petition and denied a COA. Mr. Lockett now seeks a
COA from this court as to each of the five claims raised in his habeas petition.
II. DISCUSSION
A. Standard Governing § 2254 Proceedings and Petitions for a COA
“When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits
in the absence of any indication . . . to the contrary.” Harrington v. Richter, 562 U.S. 86,
99 (2011). Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
when a state court has adjudicated a federal claim on the merits, a federal court can grant
habeas relief only if the petitioner establishes the state court decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or was “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Pursuant to § 2254(d)(1), a state-court decision
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is “contrary to” the Supreme Court’s clearly established precedent if it “applies a rule that
contradicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set
of facts that are materially indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [that] precedent.” Williams v. Taylor, 529
U.S. 362, 405–06 (2000). A state-court decision is an “unreasonable application” of
Supreme Court law if it “correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.” Id. at 407–08. A federal court
may not grant relief simply because it concludes in its “‘independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly,’” but may grant relief only where “the ruling [is] ‘objectively unreasonable,
not merely wrong; even clear error will not suffice.’” Gipson v. Jordan, 376 F.3d 1193,
1196 (10th Cir. 2004) (quoting Williams, 529 U.S. at 411); Virginia v. LeBlanc, 137 S.
Ct. 1726, 1728 (2017) (per curiam) (quoting Woods v. Donald, 575 U.S. 312, 316
(2015)).
Without a COA, we do not possess jurisdiction to review the denial of a petition
for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Where a
district court denies relief on the merits and denies a COA, an appellate court will issue a
COA “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a demonstration that
. . . includes showing 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.’” Slack v.
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McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 &
n.4 (1983)).
Mr. Lockett argues he is entitled to a COA because prosecutorial misconduct
deprived him of his right to a fair trial and he received ineffective assistance from his trial
and appellate counsel. Mr. Lockett raised the prosecutorial misconduct claim on direct
appeal before the OCCA and raised the ineffective assistance of counsel claims in post-
conviction proceedings. Because the OCCA denied relief on the merits of Mr. Lockett’s
claims, the district court’s review of his claims was subject to AEDPA deference.
Liberally construing Mr. Lockett’s pro se arguments, we consider each of his claims and
conclude that reasonable jurists could not debate the district court’s denial of his habeas
petition.
B. Analysis
1. Prosecutorial Misconduct
Prosecutorial misconduct rises to the level of a constitutional error when the
prosecutor’s conduct renders the “petitioner’s trial ‘so fundamentally unfair as to deny
him due process.’” Littlejohn v. Trammell, 704 F.3d 817, 837 (10th Cir. 2013) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)). We ask two questions to
determine whether a defendant’s trial was fundamentally unfair because of a prosecutor’s
comments: (1) were the prosecutor’s comments improper, and (2) if so, did the improper
comments likely affect the jury’s verdict? United States v. Christy, 916 F.3d 814, 824
(10th Cir. 2019). This second question requires an “examination of the entire
proceedings” in the case, Donnelly, 416 U.S. at 643, and the court must take “notice of all
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the surrounding circumstances, including the strength of the state’s case,” Patton v.
Mullin, 425 F.3d 788, 811 (10th Cir. 2005). Mr. Lockett argues the prosecutor’s
comments during voir dire and closing argument were improper and violated his
Fourteenth Amendment right to a fundamentally fair trial. We first address Mr. Lockett’s
claim based on the voir dire hypotheticals before turning to the challenged closing
argument comments.
a. Voir dire hypotheticals
Mr. Lockett argues that three of the prosecutor’s hypotheticals and questions
during voir dire about malice aforethought, reasonable doubt, and witness testimony
created confusion for the jury and were designed to lower the prosecution’s burden of
proof. We discuss the three hypotheticals in turn.
First, Mr. Lockett argues the prosecutor’s hypothetical about a cheating spouse
confused the jury as to the difference between first-degree murder and first-degree
manslaughter. During voir dire, the prosecutor asked the potential jurors if any of them
would shoot a man if they found him in bed with their spouse before explaining, “[t]hat’s
oftentimes what we call . . . manslaughter, the difference being you became so enraged
seeing your wife in bed with another person that you just shot him. You had your gun on
your person and you just shot him.” ROA Vol. II at 501–03.
Because Mr. Lockett’s trial counsel did not object to this hypothetical, the OCCA
reviewed the claim for plain error, and found none. The OCCA cited Thompson v. State,
169 P.3d 1198, 1209 (Okla. Crim. App. 2007), for the proposition that a prosecutor’s
hypothetical during voir dire may violate a defendant’s right to a fair trial where it is “an
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effort to get them to commit to any particular verdict based upon hypothetical facts which
parallel those expected to be presented at trial.” ROA Vol. I at 278–79. Where
Mr. Lockett agreed the facts in the prosecutor’s cheating spouse hypothetical used during
his trial did not “parallel those expected to be presented,” the OCCA concluded “there
was no plain or obvious error arising from this exchange which affected [Mr. Lockett’s]
substantial rights.” Id. at 278–79. The OCCA also rejected Mr. Lockett’s argument that
this hypothetical prejudiced his trial because it was a misstatement of the law. The OCCA
cited federal law for the proposition that “[j]urors are presumed to follow their
instructions” and concluded Mr. Lockett did not overcome that presumption. Id. at 279
(citing Blueford v. Arkansas, 566 U.S. 599, 606 (2012)). We agree Mr. Lockett has not
shown the prosecutor’s hypothetical misstated the law such that it prejudiced his right to
a fair trial. Here, the jury was instructed as to the difference between first-degree murder
and the lesser included offense of first-degree manslaughter. Mr. Lockett does not argue
these jury instructions were improper or contrary to the prosecutor’s cheating spouse
hypothetical. Where the OCCA’s conclusion affirming on this basis was neither contrary
to, nor involved an unreasonable application of, clearly established federal law,
reasonable jurists could not debate the district court’s denial of this claim. Accordingly,
we deny a COA on this claim.
Second, Mr. Lockett argues the prosecutor’s hypothetical about witnesses refusing
to testify implied there were other witnesses who could vouch for the prosecution’s
eyewitness, Ms. Gilstrap, but refused to testify. During voir dire, the prosecutor presented
the jurors with the following story about a murder at a restaurant:
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There were, they say, a hundred people having chicken [at the restaurant]
that night. . . . . And someone shot and killed someone really very close to
the window where you pick up your food. It happened with a hundred
people around and nobody saw a thing. Multiple [people] refused to testify.
No one talked.
ROA Vol. II at 537. The prosecutor explained to the jury, “[w]e call that in the
courthouse the no-snitch mentality.” Id. at 539. He then asked if the jury would fault him
if he did not present a witness:
Ultimately, if I can’t get someone to testify, your question is still the same,
. . . did the State, prove its case beyond a reasonable doubt? [If] [t]he
answer is, yes, [will] you still f[i]nd [him] guilty. . . . [E]ven if you didn’t
hear from this witness and you’re wondering why didn’t the State call
them. Because I can’t tell you, oh, by the way, Judge, so and so is refusing
to testify. Here’s what he would have said. You’re not going to get to hear
that. You’ll just hear a blank. Will you promise not to hold that blank or
that missing piece against me, assuming, obviously, that I prove my case
beyond a reasonable doubt[?]
Id. at 540–41.
The OCCA generally reviewed this hypothetical along with other challenged voir
dire questions, concluding it did not “affect[] [Mr. Lockett’s] substantial rights.” ROA
Vol. I at 279. The OCCA first reasoned the hypothetical was a permissible “attempt by
the prosecutor to determine potential biases by the panelists based on issues which would
arise in the case.” ROA Vol. I at 279. Next, the OCCA determined the hypothetical likely
did not affect the verdict because the jurors were properly instructed as to “the factors
[they] may consider in evaluating the weight and credibility of testimony,” and the
prosecutor’s hypothetical did not contradict this instruction. Id. Based on these
considerations the OCCA determined “the record does not reveal plain or obvious error
which affected [Mr. Lockett’s] substantial rights.” Id.
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The district court concluded the OCCA’s decision was not an unreasonable
application of federal law because the hypothetical, even if improper, did not likely affect
the jury’s verdict based on the strength of the evidence against Mr. Lockett and the
proper instructions provided to the jury. Mr. Lockett has not demonstrated reasonable
jurists could debate this conclusion. The State’s case against Mr. Lockett was strong. As
the district court recognized, Mr. Lockett did not dispute that he shot Mr. Johnson and
argued instead that the shooting was justified. He further did not dispute that he and
Mr. Johnson had a disagreement about a necklace, he followed Mr. Johnson up to
Ms. Gilstrap’s apartment, and he hit Mr. Johnson with a pistol. Moreover, the court
properly instructed the jury as to how they should evaluate the credibility of the witnesses
and that they should consider only evidence introduced at trial to make that
determination.4 Mr. Lockett has not shown the voir dire hypothetical about the refusal to
testify likely affected the jury’s verdict when considering the entire proceedings
4
The jury instruction as to witness credibility stated,
It is your responsibility to determine the credibility of each witness
and the weight to be given the testimony of each witness. In
determining such weight or credibility, you may properly consider:
the interest, if any, which the witness may have in the result of the
trial; the relation of the witness to the parties; the bias or prejudice of
the witness, if any has been apparent; the candor, fairness,
intelligence, and demeanor of the witness; the ability of the witness
to remember and relate past occurrences, the means of observation,
and the opportunity of knowing the matters about which the witness
has testified. . . .
ROA Vol. III at 463. The jury was also instructed to “consider only the evidence
introduced while the court is in session,” id. at 466, and that “[a]rguments of counsel are
not evidence in the case,” Id. at 506.
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including the strength of the State’s case against Mr. Lockett and the proper jury
instructions related to witness credibility. Accordingly, reasonable jurists could not
debate the district court’s denial and we deny a COA on this claim.
Last, Mr. Lockett argues the prosecutor used a jigsaw puzzle hypothetical to lower
the State’s burden of proof. During voir dire, the prosecutor posed the following
hypothetical to potential jurors after describing a jigsaw puzzle with no reference picture
and several pieces missing:
The puzzle appears to be complete except right in the middle where you see
from around the jungle . . . a big hairy golden mane. You see a golden fur
of a body. You see a big golden tail. He appears to be standing on a rock in
a very manly jungle scene, but you just don’t have the snout. Could you try
to make out what that is?
ROA Vol. II at 530. Comparing this hypothetical to “a homicide case,” the prosecutor
told the jury, “I will always have a missing piece. I cannot give you the testimony of a
person who died, period, so you’re always going to have one or two pieces of that lion
missing.” ROA Vol. II at 531–32. The OCCA evaluated this claim along with other voir
dire hypotheticals, explaining it was also used as “an attempt by the prosecutor to
determine potential biases by the panelists based on issues which would arise in the
case.” ROA Vol. I at 279. The OCCA determined this use was permissible and the
hypothetical did not prejudice Mr. Lockett’s trial because the jury was properly instructed
as to the prosecutor’s burden of proof.
The district court concluded the OCCA’s application was not unreasonable
because, even if the hypothetical was improper, Mr. Lockett had not shown his trial was
prejudiced by it. The district court compared the jigsaw puzzle hypothetical here with a
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hypothetical at issue in United States v. Bradley, 917 F.3d 493 (6th Cir. 2019). There, the
Sixth Circuit considered a prosecutor’s hypothetical of a jigsaw puzzle with missing
pieces to describe the beyond a reasonable doubt standard. Id. at 507–08. The prosecutor
in Bradley told the jurors, “if you can look at the parts of the puzzle that you have and say
that the picture, right, using your reason and your common sense, the picture being the
indictment, has been assembled before you, you can find the defendants guilty as
charged.” Id. at 508. Although the Sixth Circuit concluded this hypothetical was
improper because “jurors could understand the metaphor to describe a far less demanding
standard of proof than true proof beyond a reasonable doubt,” the court ultimately
determined the metaphor did not prejudice the defendant’s right to a fair trial because:
(1) the prosecutor did not intentionally “mislead jurors with it,” (2) the prosecutor used
the metaphor in one isolated instance, (3) the state’s case was strong, (4) the petitioner
failed to object to the metaphor, and (5) the trial court properly instructed the jury as to
the state’s burden of proof and the beyond a reasonable doubt standard. Id. Comparing
these reasons to the jigsaw hypothetical at hand, the district court concluded it did not
likely affect the jury’s verdict for six similar reasons: (1) the prosecutor used the analogy
to explain that the jury would not hear from the victim, (2) the prosecutor used the
hypothetical only during voir dire, (3) the evidence presented against Mr. Lockett was
strong, (4) trial counsel did not object, (5) the jury instructions included the requirement
that the prosecution prove the case beyond a reasonable doubt, and (6) the hypothetical
did not depict Mr. Lockett as a lion. “Based on the entire record, [the district court]
f[ound] ample support for the OCCA’s conclusion that [Mr.] Lockett failed to show he
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was denied a fundamentally fair trial from the prosecutor’s challenged comments.” ROA
Vol. I at 568 (internal quotation marks and brackets omitted).
In his request for a COA, Mr. Lockett has not shown how the prosecutor’s jigsaw
hypothetical likely affected the jury’s verdict. The evidence presented against
Mr. Lockett was strong, the prosecutor used this hypothetical only briefly in voir dire,
Mr. Lockett’s trial counsel did not object,5 and the jury was properly instructed as to the
prosecutor’s burden to prove each element beyond a reasonable doubt. Considering all
these factors, reasonable jurists could not debate whether the prosecutor’s jigsaw puzzle
hypothetical compromised the fundamental fairness of Mr. Lockett’s trial or that the
claim warrants further encouragement. We deny a COA on this claim.
b. Comments during closing argument
During closing argument, the prosecutor started by thanking the jury “on behalf of
Mr. Johnson’s family and the State of Oklahoma.” ROA Vol. III at 222. Later in its
argument, the prosecutor asked the jury to not “settle on manslaughter,” rather than first-
degree murder “for Mr. Johnson’s sake.” Id. at 234. The OCCA concluded these
comments were improper. But it ultimately did not find any plain error because
Mr. Lockett “fail[ed] to show [the comments] affected his substantial rights.” ROA Vol. I
at 280. The district court agreed with the OCCA and concluded Mr. Lockett had failed to
demonstrate prejudice based on these improper comments. The district court concluded
5
We have noted a trial “[c]ounsel’s failure to object to the comments, while not
dispositive, is also relevant to a fundamental fairness assessment.” Le v. Mullin, 311 F.3d
1002, 1013 (10th Cir. 2002).
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the error resulting from the prosecutor’s statements did not likely affect the verdict after
examining the entirety of the proceedings, including the strength of the evidence against
Mr. Lockett, the proper instructions provided to the jury, and the lack of objection by
Mr. Lockett’s trial counsel. Here, Mr. Lockett has failed to show that the prosecutor’s
comments were significant enough to cause the jury to base its verdict on sympathy
rather than reason. See DeRosa v. Workman, 679 F.3d 1196, 1233–34 (10th Cir. 2012)
(citing Gardner v. Florida, 430 U.S. 349, 358 (1977)) (rejecting a prosecutorial
misconduct claim based in part on a prosecutor “thanking the jury on behalf of the
victims’ family”). Accordingly, reasonable jurists could not debate the district court’s
denial of this claim. We therefore deny a COA.
Mr. Lockett next argues he was denied a fair trial due to the prosecutor’s
comments during closing argument calling Mr. Lockett a liar. According to Mr. Lockett,
the comments implicated his presumption of innocence and shifted the burden to him to
prove self-defense. In closing, the prosecutor recounted Mr. Lockett’s inconsistent
statements to the police and during his testimony. The prosecutor then directed the jury’s
attention to the jury instruction for evaluating evidence of Mr. Lockett’s inconsistent
statements and argued,
Instruction 18: Evidence has been presented at trial that the defendant made
a statement inconsistent with his testimony in this case. This is called
impeachment evidence, and it’s offered to show that defendant’s testimony
is not believable or truthful.
Nowhere in the Instruction 18 or anywhere in the 52 instructions that you
have will it say any of the State’s witnesses are inconsistent, period. The
defendant is the only person since September of 2013 that has made an
inconsistent statement. His statement is a lie, ultimately.
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ROA Vol. III at 233. When recounting the two different versions of events described
during trial, the prosecutor said,
I’ll tell you this, in order to say that [Mr. Lockett is] telling the truth in his
[testimony], you have to think that [Ms. Gilstrap] is completely lying when
the defendant is the only person that has been shown to be a liar by the
instructions.
ROA Vol. III at 236.
The OCCA reviewed these comments for plain error because Mr. Lockett’s trial
counsel did not object to either. Where the prosecutor’s comments “were based on the
record evidence and reasonable inferences from it,” the OCCA concluded Mr. Lockett
“fail[ed] to show an actual error which is plain or obvious which affected his substantial
rights.” ROA Vol. I at 281. Although referring to a defendant as a “liar” is often
“unnecessary” and “unwarranted,” United States v. Nichols, 21 F.3d 1016, 1019 (10th
Cir. 1994), we have held that labeling testimony as a lie is not per se prosecutorial
misconduct, United States v. Robinson, 978 F.2d 1554, 1567 (10th Cir.1992). Instead,
prosecutors may comment on the veracity of a defendant’s version of events. See United
States v. Hernandez–Muniz, 170 F.3d 1007, 1012 (10th Cir.1999). We have “rejected
claims of prosecutorial misconduct where the prosecution referred to a defendant as a liar
on account of irreconcilable discrepancies between the defendant’s testimony and other
evidence in the case.” Bland v. Sirmons, 459 F.3d 999, 1025 (10th Cir. 2006). Because
such a discrepancy was present here, the prosecutor’s statements that Mr. Lockett is a liar
were not improper. Accordingly, Mr. Lockett has failed to show that the OCCA
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unreasonably applied clearly established federal law, and reasonable jurists could not
debate the district court’s denial of this claim. We deny a COA on this claim.
2. Ineffective Assistance of Counsel
Mr. Lockett seeks a COA on claims stemming from the alleged ineffective
assistance of his trial and appellate counsel. To demonstrate that his Sixth Amendment
right to the effective assistance of counsel was violated, Mr. Lockett “must show both
that counsel’s performance ‘fell below an objective standard of reasonableness’ and that
‘the deficient performance prejudiced the defense.’” Barkell v. Crouse, 468 F.3d 684, 689
(10th Cir. 2006) (quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). “To
be deficient, the performance must be ‘outside the wide range of professionally
competent assistance.’” Id. (quoting Strickland, 466 U.S. at 690). “As for the prejudice
prong, the defendant must establish a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
(internal quotation marks omitted). Our review of the state court’s decision on these
claims is subject to the deferential AEDPA standard of review. Woods v. Etherton, 578
U.S. 113, 116 (2016) (per curiam).
a. Trial counsel
Mr. Lockett argues he received ineffective assistance of counsel in violation of the
Sixth Amendment based on his trial counsel’s failure to object to the voir dire
hypotheticals and closing argument comments addressed in the previous section.6 The
6
Mr. Lockett also seems to raise an argument as to his ineffective assistance of
trial counsel based on their “ignorance of the self-defense theory.” Aplt. Br. and COA
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OCCA applied the Strickland standard and concluded Mr. Lockett had failed to state a
claim for ineffective assistance of trial counsel based on the first prong, i.e., deficient
performance. Because the OCCA determined none of the challenged conduct amounted
to prosecutorial misconduct, it concluded Mr. Lockett’s trial counsel “was not ineffective
for failing to make meritless objections.” ROA Vol. I at 283. The district court denied
habeas relief based on the second prong of the Strickland standard, concluding that
Mr. Lockett had failed to demonstrate how the result of his trial would have been
different had his trial counsel objected and made a record on the grounds of the voir dire
hypotheticals and closing argument comments. As an initial matter, we note that the
OCCA’s decision is internally inconsistent because it earlier concluded some of the
prosecutor’s comments were improper and an objection from Mr. Lockett’s trial counsel
would not be “meritless” if he had objected to these improper comments. ROA Vol. I
at 280 (noting “[t]he prosecutor erred when he thanked the jury during closing argument
on behalf of the victims”). Nevertheless, as described in the previous section, reasonable
jurists could not debate that Mr. Lockett has failed to show prejudice based on the alleged
prosecutorial misconduct. Where the statements themselves did not likely affect the
verdict, Mr. Lockett has not shown the result of his trial would have been different had
his trial counsel objected to the statements. “We need not analyze both the performance
and prejudice prongs of the Strickland test if defendant fails to make a sufficient showing
at 8–9. But he has waived this argument by failing to assert it in his district court habeas
petition. See Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005) (noting petitioners
waive issues “by failing to assert them in [their] district court habeas petition”).
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of one.” United States v. Hollis, 552 F.3d 1191, 1194 (10th Cir. 2009) (internal quotation
marks omitted). Because Mr. Lockett has not shown a Sixth Amendment violation based
on trial counsel’s failure to object to the prosecutor’s hypotheticals and comments, the
OCCA did not unreasonably apply Strickland, and reasonable jurists could not debate the
district court’s denial of this claim, we deny a COA.
b. Appellate counsel
When considering a claim of ineffective assistance of appellate counsel, “[t]he
very focus of a Strickland inquiry regarding performance of appellate counsel is upon the
merits of omitted issues.” Milton v. Miller, 744 F.3d 660, 670 (10th Cir. 2014) (internal
quotation marks omitted). Mr. Lockett claims his appellate counsel was ineffective for
failing to raise a claim challenging: (1) the sufficiency of the evidence against him
presented at trial, (2) police misconduct based on the failure to search Ms. Gilstrap’s
apartment, and (3) police misconduct based on the failure to provide the medical
examiner with the victim’s clothing.7 We address each argument in turn.
7
Mr. Lockett argues he is entitled to a COA because the district court applied the
incorrect legal standard to evaluate his police misconduct claims. He maintains the
district court should have reviewed these claims under the standard articulated in Brady v.
Maryland, 373 U.S. 83 (1963), rather than construing the claims as ineffective assistance
of appellate counsel claims and reviewing them under the Strickland standard. The
district court correctly construed Mr. Lockett’s police misconduct claims in his habeas
petition as ineffective assistance of appellate counsel claims because Mr. Lockett has
exhausted the claims as ineffective assistance of appellate counsel claims. See Miranda v.
Cooper, 967 F.2d 392, 398 (10th Cir. 1992) (noting exhaustion requires a showing that “a
state appellate court has had the opportunity to rule on the same claim presented in
federal court”). When reviewing his application for post-conviction relief, the state court
liberally construed his police misconduct claims as ineffective assistance of counsel
claims instead of concluding the claims were procedurally barred because he did not raise
the issues on direct appeal. See Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App.
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i. Sufficient evidence
Mr. Lockett asserts his appellate counsel was ineffective by failing to raise a claim
that the State did not meet its burden to prove the elements for first-degree murder. The
OCCA concluded the State presented a prima facie case of first-degree murder and
Mr. Lockett’s self-defense claim was a factual issue for the jury. Because he did not
argue or demonstrate any error in the jury’s verdict, the OCCA concluded his sufficiency
of the evidence claim was meritless. In arriving at this conclusion, the OCCA relied on
the sufficiency of the evidence standard articulated in Baird v. State, 400 P.3d 875 (Okla.
Crim. App. 2017). Baird applies the federal standard to state a claim for a violation of the
Fourteenth Amendment’s Due Process Clause based on insufficient evidence by asking
“whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Baird, 400 P.3d at 884; see also Jackson v. Virginia,
443 U.S. 307, 317–18 (1979) (concluding a state conviction violates the Fourteenth
Amendment “when it can be said that no rational trier of fact could find guilt beyond a
reasonable doubt”). Applying this standard, the OCCA concluded the State presented a
prima facie case of first-degree murder and “[w]hether [Mr. Lockett] was the aggressor or
was acting in self-defense was . . . a question for [his] jury.” ROA Vol. I at 371. Because
2013) (noting “issues that were not raised previously on direct appeal, but which could
have been raised, are waived for further review” but that “[c]laims of ineffective
assistance of appellate counsel may be raised for the first time on post-conviction,
because it is usually a petitioner’s first opportunity to allege and argue the issue.”).
Mr. Lockett relied on this construction of his claims when appealing to the OCCA.
Accordingly, Mr. Lockett’s police misconduct claims were exhausted only as ineffective
assistance of appellate counsel claims and appropriately reviewed by the district court
under the Strickland standard.
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Mr. Lockett did not argue there was an error in the jury’s verdict, the OCCA concluded
“he cannot show his appellate counsel was ineffective for not raising a sufficiency-of-the-
evidence claim on direct appeal.” Id.
After reviewing the evidence presented by the State at trial, the district court
concluded there was “sufficient evidence . . . adduced at trial to support the OCCA’s
findings.” Id. at 554. Because the OCCA’s conclusion that the State presented a prima
facie case of first-degree murder was not unreasonable, the district court further
determined Mr. Lockett could not meet the first Strickland prong. Id. We agree
Mr. Lockett has not made the required showing to demonstrate his appellate counsel was
ineffective for not raising a sufficiency of the evidence claim on appeal. As detailed by
the district court, the State presented sufficient evidence to permit a jury to find each of
the essential elements of first-degree murder beyond a reasonable doubt. See ROA Vol. I
at 553–54 (noting the record demonstrated “[Mr.] Johnson came to [Ms.] Gilstrap’s
apartment per her request, but when he arrived, [Mr.] Lockett ran up the stairs, hit
[Mr.] Johnson over the head with the gun, and then fired at [Mr.] Johnson as he ran
away” and “Johnson was shot once and died of a gunshot wound”). Without an adequate
demonstration of both Strickland prongs, Mr. Lockett has not shown a Sixth Amendment
violation. Hollis, 552 F.3d at 1194. Because the OCCA did not unreasonably apply
Strickland, and reasonable jurists could not debate the district court’s denial, we deny a
COA on this claim.
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ii. Police misconduct based on the failure to investigate
Next, Mr. Lockett argues his appellate counsel was ineffective for failing to raise a
claim for police misconduct based on the failure to obtain a search warrant allowing a
search of Ms. Gilstrap’s apartment for signs of a struggle, blood splatter, or other DNA
evidence to support his theory of self-defense. Relying on Cuesta-Rodriguez v. State,
241 P.3d 214, 425 (Okla. Crim. App. 2010), the OCCA concluded Mr. Lockett’s “claim
of police misconduct” based on the failure to search Ms. Gilstrap’s apartment “is
unfounded.” ROA Vol. I at 373. The case cited by the OCCA applies the standard to
demonstrate a violation of the Due Process Clause of the Fourteenth Amendment based
on the failure to preserve evidence articulated in California v. Trombetta, 467 U.S. 479
(1984) and Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988), stating:
The State has a duty under the Due Process Clause of the Fourteenth
Amendment to preserve evidence that might be expected to play a
significant role in the suspect’s defense. Such evidence “must both possess
an exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.” . . . “Unless a
defendant can show bad faith by the police, destruction of potentially useful
evidence does not constitute a due process violation.”
Cuesta-Rodriguez, 241 P.3d at 225 (quoting Trombetta, 467 U.S. at 488–89 and Torres v.
State, 962 P.2d 3, 13 (Okla. Crim. App. 1998) (citing Youngblood, 488 U.S. at 58)). The
OCCA concluded Mr. Lockett failed to demonstrate that any of the evidence that “might
have been found within the apartment” met this standard. ROA Vol. I at 373. Because it
concluded Mr. Lockett’s police misconduct claim was meritless, the OCCA determined
his appellate counsel was not ineffective for failing to raise it. The district court
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concluded the OCCA did not unreasonably apply federal law, noting one of the
responding officers testified about the condition of Ms. Gilstrap’s apartment shortly after
the incident, stating the apartment “was clean, put together. It didn’t appear that anything
was disturbed. The only thing [the officer] noticed was a couch cushion . . . pulled out
and kind of cockeyed. Everything else was pushed back.” ROA Vol. II at 671. The
officer also testified she did not see any signs of a struggle, a green plexiglass vase, or
broken glass. Id. at 671–72. We agree Mr. Lockett has neither made the required showing
that the evidence in Ms. Gilstrap’s apartment had exculpatory value, that he was unable
to obtain comparable evidence by other means, nor that the police failed to search
Ms. Gilstrap’s apartment in bad faith. He therefore cannot establish the first prong of
Strickland. Thus, the OCCA did not unreasonably apply the federal standard and
reasonable jurists could not debate the district court’s denial of this claim. Accordingly,
we deny a COA on this claim.
iii. Police misconduct based on the victim’s clothing
Mr. Lockett claims his appellate counsel was ineffective for failing to raise a claim
of police misconduct because the police did not provide the medical examiner with the
victim’s clothing to test for gun powder residue. If provided with the clothing,
Mr. Lockett argues, the medical examiner could have determined how close Mr. Johnson
was to Mr. Lockett when he fired the first shot. He further maintains this determination
would have supported Mr. Lockett’s claim of self-defense. The OCCA concluded
Mr. Lockett’s “speculat[ion] that testing would have yielded a result beneficial to his
defense . . . d[id] not meet [his] burden to show that he suffered prejudice from his
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counsel’s alleged deficient performance.” ROA Vol. I at 368–69. Mr. Lockett does not
demonstrate how the distance between Mr. Johnson and himself would have yielded a
different result, especially given Mr. Lockett testified that he instigated the situation by
hitting Mr. Johnson with a pistol. Moreover, the jury was presented with testimony
supporting Mr. Lockett’s theory of self-defense and was provided with proper
instructions to determine if the defense was applicable. Because Mr. Lockett has not
demonstrated a reasonable probability that but for his appellate counsel’s failure to raise a
claim of police misconduct based on the lack of testing of the victim’s clothing, the result
of the proceeding would have been different, we agree with the OCCA. Mr. Lockett has
not established the prejudice prong of the Strickland standard for his appellate counsel’s
failure to raise a claim based on this alleged misconduct. Again, “[w]e need not analyze
both the performance and prejudice prongs of the Strickland test if defendant fails to
make a sufficient showing of one.” Hollis, 552 F.3d at 1194 (internal quotation marks
omitted). Because Mr. Lockett has not shown a Sixth Amendment violation, the OCCA
did not unreasonably apply Strickland, and reasonable jurists could not debate the district
court’s denial of this claim, we deny a COA.
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III. CONCLUSION
Because Mr. Lockett fails to make a substantial showing of the denial of a
constitutional right, we DENY his request for a COA and DISMISS this matter.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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