Van Woudenberg Ex Rel. Foor v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 2 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

SAMUEL RAYMOND
VAN WOUDENBERG, #86881, by
and through his Special Guardian
CHARLES V. FOOR,

Petitioner-Appellant, No. 98-7167

v.

GARY GIBSON, Warden, Oklahoma
State Penitentiary; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,

Respondents-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 97-CV-80-P)

Gary M. Chubbuck (John Dexter Marble with him on the briefs), of Chubbuck
Smith & Rhodes, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson,
Attorney General of Oklahoma, with him on the brief), Oklahoma City,
Oklahoma, for Respondents-Appellees.

Before SEYMOUR , Chief Judge, ANDERSON , and MURPHY , Circuit Judges.
SEYMOUR , Chief Judge.

Petitioner Samuel Raymond Van Woudenberg was convicted of first degree

murder and sentenced to death in Oklahoma. The Oklahoma Court of Criminal

Appeals affirmed the conviction and death sentence. See VanWoundenberg [sic]

v. State , 1 720 P.2d 328 (Okla. Crim. App.), cert. denied , 479 U.S. 956 (1986).

That court also affirmed the denial of three applications for post-conviction relief.

See VanWoundenberg [sic] v. State , No. PC-87-633 (Okla. Crim. App. Sept. 24,

1987) (unpublished opinion), cert. denied , 484 U.S. 1036 (1988);

VanWoundenberg [sic] v. State , 818 P.2d 913 (Okla. Crim. App. 1991), cert.

denied , 503 U.S. 993 (1992); Van Woudenberg v. State , 942 P.2d 224 (Okla.

Crim. App. 1997).

Mr. Van Woudenberg filed a petition for writ of habeas corpus in federal

district court, and subsequently filed a third application for state post-conviction

relief. The federal district court dismissed the habeas petition without prejudice

to allow for exhaustion of state court remedies. The state trial court denied relief

on the third application after holding an evidentiary hearing. Mr. Van

1
There is a discrepancy between and within state and federal filings with
respect to whether petitioner’s last name consists of one or two words.
Additionally, the Oklahoma Court of Criminal Appeals appears to have misspelled
petitioner’s last name in its 1986, 1987, and 1991 opinions.

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Woudenberg then filed another petition for writ of habeas corpus. Thereafter, the

Oklahoma Court of Criminal Appeals affirmed the trial court’s denial of the third

application for post-conviction relief. See Van Woudenberg v. State , 942 P.2d

224 (Okla. Crim. App. 1997). The federal district court later denied habeas relief,

as well as a certificate of appealability (COA) on all issues.

This court granted a COA on the following issues: (1) the state

competency proceedings were unconstitutional; (2) the prosecution engaged in

misconduct by presenting coerced and false testimony, making improper closing

arguments, and withholding exculpatory evidence; (3) the trial court failed to

instruct on an accessory-after-the-fact defense; (4) Oklahoma appellate

resentencing is unconstitutional; and (5) the district court improperly upheld the

Oklahoma appellate court’s reweighing and harmless error analysis. 2
We affirm

the judgment of the district court.

2
This court denied a COA on the following issues: (1) denial of a second
preliminary hearing after a co-defendant became a witness violated Mr. Van
Woudenberg’s constitutional rights; (2) failure to sever the trial and sentencing
proceedings denied him a fair trial; (3) jury selection was unconstitutional; (4)
trial counsel was ineffective; (5) there was insufficient evidence of guilt;
(6) excessive security measures in view of the jury prejudiced Mr. Van
Woudenberg; (7) introduction of inflammatory and improper exhibits at the
sentencing proceeding was fundamental error; (8) there was insufficient evidence
that Mr. Van Woudenberg intended the victim be killed; and (9) racial prejudice
played a role in the conviction.

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 I

BACKGROUND

Mark Allen Berry, Terrance James, and Dennis Brown were co-defendants

in a federal case involving theft of government property. All three had pled

guilty to the federal charge and were incarcerated in the Muskogee City/Federal

Jail, where inmates had free access to all cells and to the common areas.

Mr. James and Mr. Brown believed Mr. Berry had snitched on them and

they decided to get revenge. Mr. Brown testified that while they were discussing

what to do to Mr. Berry, Mr. Van Woudenberg entered their cell, joined in the

discussion, and suggested they kill Mr. Berry. According to Mr. Brown, Mr. Van

Woudenberg removed a wire from a broom and demonstrated how it could be

used to strangle Mr. Berry. Mr. Van Woudenberg also suggested hanging Mr.

Berry to make the death look like a suicide. However, Mr. James testified that

Mr. Van Woudenberg did not help plan the murder, because there was no plan.

Mr. Brown testified that on the morning of the murder, Mr. Van

Woudenberg approached Mr. James and Mr. Brown and asked them if they were

ready. He also testified that Mr. Van Woudenberg placed a piece of paper over

the lens of a surveillance camera and served as a lookout. Mr. James testified to

the contrary, stating Mr. Van Woudenberg assumed no role.

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 The following facts are undisputed. Mr. Brown asked Mr. Berry to play

cards. As they were doing so, Mr. James walked behind Mr. Berry and wrapped

the wire around his neck, strangling him while Mr. Brown held him and covered

his mouth. During the strangling someone, who two witnesses identified as Mr.

Van Woudenberg, warned that someone else was coming. Mr. James then

dragged Mr. Berry into a cell and continued strangling him. After Mr. Berry’s

body went limp, Mr. Brown, Mr. James, and Mr. Van Woudenberg hung Mr.

Berry’s body in a shower stall.

The jury found Mr. Van Woudenberg guilty of first degree murder. 3
At the

sentencing stage of trial, the State sought the death penalty on the basis of three

aggravating factors: the murder was especially heinous, atrocious, or cruel; Mr.

Van Woudenberg would constitute a continuing threat to society; and the murder

was committed while Mr. Van Woudenberg was serving a sentence after

conviction of a felony. In addition to the evidence introduced at the guilt stage,

the State offered as aggravating evidence the fact that Mr. Van Woudenberg was

serving a life sentence for a murder conviction; had escaped from prison,

kidnaped two women, and subsequently been convicted of kidnaping; had pried

vents from the jail ceiling and used them to make weapons; and was found with

3
The jury also found Mr. James guilty of first degree murder. He was
sentenced to death. Mr. Brown entered a plea of guilty to second degree murder
and received a thirty-five year sentence.

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hacksaw blades in his shoe at the preliminary hearing. In mitigation, Mr. Van

Woudenberg testified that he did not discuss or have the idea for the murder, did

not act as a lookout, did not demonstrate anything with the wire or take the wire

off the broom, and did not keep any weapons made from the vents. Mr. Van

Woudenberg also presented evidence of his turbulent and abusive childhood and

history of drug problems. The jury found all three aggravating factors,

determined they outweighed the mitigating factors, and fixed Mr. Van

Woudenberg’s punishment at death.

Because Mr. Van Woudenberg filed his most recent habeas petition after

the effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), our appeal is governed by the provisions of AEDPA. See Hooks v.

Ward , 184 F.3d 1206, 1213 (10th Cir. 1999). The appropriate standard of review

depends on whether a claim was decided on the merits in state court. “If the

claim was not heard on the merits by the state courts, and the federal district court

made its own determination in the first instance, we review the district court’s

conclusions of law de novo and its findings of fact, if any, for clear error.”

LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999). If a claim was

adjudicated on its merits by the state courts, a petitioner will be entitled to federal

habeas relief only if he can establish that the state court decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id. § 2254(d)(2). Thus, we

may grant the writ if we find the state court arrived at a conclusion opposite to

that reached by the Supreme Court on a question of law; decided the case

differently than the Supreme Court has on a set of materially indistinguishable

facts; or unreasonably applied the governing legal principle to the facts of the

prisoner’s case. 4
Williams v. Taylor , 98-8384, 2000 WL 385369, at *28.

II

COMPETENCY

A petitioner is competent to stand trial if he “has sufficient present ability

to consult with his lawyer with a reasonable degree of rational understanding [and

if] he has a rational as well as factual understanding of the proceedings against

him.” Dusky v. United States , 362 U.S. 402, 402 (1960) (quotation omitted). Mr.

Van Woudenberg claims the state deprived him of procedural due process when it

found him competent to stand trial using an improper burden of proof standard.

We may not issue the writ simply because we conclude in our independent
4

judgment that the state court applied the law erroneously or incorrectly. Rather,
we must be convinced that the application was also objectively unreasonable.
Williams , 2000 WL 385369, at *26-27.

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He also claims he was denied substantive due process because he was

incompetent at the time of his trial.

A. Procedural Competency Claim

A petitioner can assert a procedural competency claim by alleging that the

trial court either failed to hold a competency hearing after the defendant’s mental

competence was put in issue, see Walker v. Attorney Gen. , 167 F.3d 1339, 1343

(10th Cir.), cert. denied , 120 S. Ct. 449 (1999), or held a competency hearing but

employed an unconstitutional burden of proof, see Rogers v. Gibson , 173 F.3d

1278, 1290 (10th Cir. 1999), cert. denied , 120 S. Ct. 944 (2000). In this case, the

state trial court held a competency hearing for Mr. Van Woudenberg but it

required him to prove incompetence by “clear and convincing evidence,” a

standard which has since been found unconstitutional by the Supreme Court. See

Cooper v. Oklahoma , 517 U.S. 348, 369 (1996) (holding standard “incompatible

with the dictates of due process,” because it “allow[ed] the State to put to trial a

defendant who is more likely than not incompetent.”) 5
Thus, Mr. Van

5
Because the state trial court held Mr. Van Woudenberg to an
unconstitutional standard for proving incompetency, its decision is not entitled to
a presumption of correctness and it is as if no competency hearing was held at all.
See Wallace v. Ward , 191 F.3d 1235, 1242 (10th Cir. 1999) (citing Barnett v.
Hargett , 174 F.3d 1128, 1135 (10th Cir. 1999)); Walker v. Attorney Gen. , 167
F.3d 1339, 1345 (10th Cir.), cert. denied , 120 S. Ct. 449 (1999)).

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Woudenberg has a valid procedural incompetency claim based on this deficiency

in his competency hearing.

The government argues Mr. Van Woudenberg has not exhausted his

procedural competency claim, and thus urges us to find it procedurally barred.

The government’s exhaustion argument is correct. Although Mr. Van

Woudenberg raised this claim in his first post-conviction application, he did not

appeal the state court’s denial of relief on this issue to the Oklahoma Court of

Criminal Appeals. Although a procedural competency claim may be procedurally

barred, Rogers , 173 F.3d at 1289, AEDPA also permits a federal court to deny

habeas relief on the merits of an unexhausted claim instead of applying the bar.

See 28 U.S.C. § 2254(b)(2). Accordingly, we proceed to the merits.

In order to prevail on a procedural competency claim, a petitioner must

establish that the state trial judge ignored facts raising a “bona fide doubt”

regarding the petitioner’s competence to stand trial. See Walker , 167 F.3d at

1343. “Evidence of irrational behavior, demeanor at trial, and prior medical

opinion regarding competence are relevant to a bona fide doubt inquiry.”

Wallace , 191 F.3d 1243.

The record does not show a bona fide doubt regarding Mr. Van

Woudenberg’s competency. Mr. Van Woudenberg was evaluated by Dr. Ganaden,

a psychiatrist at Eastern State Hospital. Dr. Ganaden testified at the competency

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hearing that Mr. Van Woudenberg was not suffering from a psychotic disorder

and his conversation was coherent, sequential, connected, and relevant. Dr.

Ganaden concluded that Mr. Van Woudenberg understood the nature of the

charges against him, was capable of assisting counsel in defending against those

charges, and was therefore competent.

Mr. Van Woudenberg submits Dr. Ganaden’s evaluation did not comport

with reasonable psychological and psychiatric standards for determining

competency because the evaluation lasted only one hour; it involved no

consideration of organic brain damage or major mental illnesses; Dr. Ganaden did

not obtain Mr. Van Woudenberg’s medical and social history from independent

sources; Dr. Ganaden failed to review information concerning Mr. Van

Woudenberg’s past and present physical condition; and Dr. Ganaden conducted no

testing, other than an IQ test, and failed to review prior testing results. Even if

we had doubts about the adequacy of the evaluation, however, Mr. Van

Woudenberg points to no evidence at the time of trial raising a doubt as to his

competency.

Testifying in his own defense during the second stage of trial, Mr. Van

Woudenberg responded rationally, coherently, logically, and responsively to the

questions asked. See Foster v. Ward , 182 F.3d 1177, 1191 (10th Cir. 1999), cert.

denied , 120 S. Ct. 1438 (2000). The trial judge, who had ample opportunity to

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assess Mr. Van Woudenberg’s ability to understand the proceedings and assist

counsel during the trial, did not indicate any concerns about his competency. See

id. at 1191. From our reading of the record, moreover, it does not appear that Mr.

Van Woudenberg engaged in any irrational or unusual behavior during trial which

would have alerted the court to question his competency. See Bryson , 187 F.3d at

1204.

In light of the evidence of Mr. Van Woudenberg’s competency at the time

of trial, Dr. Patricia Fleming’s opinion that Mr. Van Woudenberg was mentally

impaired based on her evaluation eleven years after trial does not establish a bona

fide doubt as to Mr. Van Woudenberg’s competency at the relevant time. See

Foster , 182 F.3d at 1191 (competence evaluation, made ten years after trial, does

not necessarily generate sufficient doubt). Likewise, Mr. Van Woudenberg’s

subsequent adjudication of incompetency on November 28, 1994, making him

currently ineligible for the death penalty, does not prove his incompetency at the

time of trial. Finally, given the evidence to the contrary, Mr. Van Woudenberg’s

history of mental illness, his low IQ, and his deprived and abusive background do

not raise a bona fide doubt that he was incompetent when he was tried.

The federal district court noted it had found Mr. Van Woudenberg

competent when it heard the federal kidnaping charges near the time of the

murder and one year prior to Mr. Van Woudenberg’s pretrial competency hearing

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in state court. Mr. Van Woudenberg contests the district court’s consideration of

these “extra-record” materials. We note, however, that the court is permitted to

take judicial notice of its own files and records, as well as facts which are a

matter of public record. See St. Louis Baptist Temple, Inc. v. FDIC , 605 F.2d

1169, 1172 (10th Cir. 1979). Contrary to Mr. Van Woudenberg’s assertions, he

had ample opportunity to question the accuracy of these materials, either at the

state or federal proceedings. In any event, he fails to indicate now what, if

anything, is inaccurate about them.

In light of the evidence of Mr. Van Woudenberg’s competency, including

his trial testimony, we conclude he has not raised a bona fide doubt regarding his

ability to understand the proceedings or to assist his counsel in preparing a

defense. See Smallwood v. Gibson , 191 F.3d 1257, 1279 (10th Cir. 1999).

B. Substantive Competency Claim

A petitioner may make a substantive competency claim by alleging he was,

in fact, tried and convicted while mentally incompetent. See Walker , 167 F.3d at

1344. A substantive mental competency claim may not be procedurally barred.

Rogers , 173 F.3d at 1289. In order to prevail on this claim, Mr. Van Woudenberg

must demonstrate by clear and convincing evidence a real, substantial and

legitimate doubt as to his competence to stand trial. Id. at 1291 & n.13 (quoting

Walker , 167 F.3d at 1343). Because Mr. Van Woudenberg does not meet the less

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rigorous “bona fide doubt” standard discussed above, a fortiori he fails to pass

this more stringent test. See id.

III

PROSECUTORIAL MISCONDUCT

A. Improperly Obtained Tainted Testimony

We next turn to Mr. Van Woudenberg’s argument that the prosecution

coerced, coached, and knowingly used false testimony from Mr. Brown that Mr.

Van Woudenberg was the source of the idea to kill Mr. Berry. Mr. Van

Woudenberg unsuccessfully raised this claim in his first application for

post-conviction relief and did not present it on appeal to the Oklahoma Court of

Criminal Appeals. Without addressing exhaustion or procedural bar, the federal

district court held Mr. Van Woudenberg failed to rebut by clear and convincing

evidence the state trial court’s findings of fact that Mr. Brown was not threatened

or coached by the prosecution. This unexhausted claim may be denied on its

merits. See 28 U.S.C. § 2254(b)(2).

The prosecution may not deliberately deceive the court or jury by

presenting false testimony. See Mooney v. Holohan , 294 U.S. 103, 112 (1935).

The petitioner bears the burden of proving the prosecutor knowingly presented

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false testimony. See Smith v. Gibson , 197 F.3d 454, 460 (10th Cir. 1999). Mr.

Van Woudenberg has failed to meet this burden.

First, there is no evidence that Mr. Brown’s testimony was false. Although

Mr. Brown subsequently signed an affidavit stating he was coerced into testifying

against Mr. Van Woudenberg to avoid the death penalty himself, the affidavit

does not state that his testimony was false. Nor does it negate or contradict the

facts of the crime. Second, even if there were indications that Mr. Brown had

perjured himself, Mr. Van Woudenberg has not pointed to any evidence that the

prosecutor was aware that the testimony might be false. See Medina v. Barnes , 71

F.3d 363, 367 (10th Cir. 1999). Accordingly, this claim fails.

B. Improper Closing Arguments

Mr. Van Woudenberg argues the prosecutor made various improper

comments that individually or cumulatively resulted in fundamental error. On

direct criminal appeal, the Oklahoma Court of Criminal Appeals determined this

claim was not properly preserved because counsel either failed to object or, when

he did object, failed to request the trial court to admonish the jury. The court

then summarily stated, without citing to state or federal law or referring to any

specific comments, that it had reviewed the comments and determined they did

not affect the verdict or sentence. See VanWoundenberg [sic], 720 P.2d at 334.

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 While its treatment of the issue was cursory, the state court indicated it was

disposing of the claim on the merits. See Aycox v. Lytle , 196 F.3d 1174, 1177

(10th Cir. 1999) (summary decision can constitute adjudication on the merits if

decision was reached on substantive rather than procedural grounds). Contrary to

the state’s assertions, where a claim has been considered on the merits, a state

procedural bar will not preclude federal habeas review. See Hooks v. Ward , 184

F.3d 1206, 1215 (10th Cir. 1999) (citing Ylst v. Nunnemaker , 501 U.S. 797, 801-

03 (1991)). Because the state court’s decision was on the merits, we apply the

post-AEDPA standard of review. Thus, we must uphold the Oklahoma Court of

Criminal Appeals’ decision if our independent review persuades us it is not

contrary to or an unreasonable application of clearly established federal law, or

based on an unreasonable determination of the facts in light of the evidence

presented. See Lytle , 196 F.3d at 1178. “[W]e owe deference to the state court’s

result , even if its reasoning is not expressly stated.” Id. at 1177.

Generally, a prosecutor’s improper remark will require reversal of a state

conviction only where the remark sufficiently infected the trial to make it

fundamentally unfair and, therefore, a denial of due process. See Donnelly v.

DeChristoforo , 416 U.S. 637, 643, 645 (1974). Inquiry into the fundamental

fairness of a trial can be made only after examining the entire proceedings, see id.

at 643, and reviewing the strength of the evidence against the petitioner, see Fero

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v. Kerby , 39 F.3d 1462, 1474 (10th Cir. 1994). Ultimately, we must consider the

jury’s ability to judge the evidence fairly in light of the prosecutor’s conduct. See

id. If the alleged prosecutorial misconduct denied the petitioner a specific

constitutional right, however, a habeas claim may be established without requiring

proof the entire trial was rendered fundamentally unfair. See Paxton v. Ward , 199

F.3d 1197, 1217 (10th Cir. 1999); Brecheen v. Reynolds , 41 F.3d 1343, 1355

(10th Cir. 1994).

The prosecutor stated it was “absolutely uncontradicted” that Mr. Van

Woudenberg, Mr. Brown, and Mr. James met and discussed killing Mr. Berry.

Mr. Van Woudenberg argues this was an improper comment on his failure to

testify during the first stage of trial. A prosecutor’s comment on a criminal

defendant’s failure to testify implicates a specific constitutional right. See Griffin

v. California , 380 U.S. 609, 613-15 (1965). The prosecutor may, however,

comment on the defendant’s failure to present evidence or call witnesses. See

Trice v. Ward , 196 F.3d 1151, 1167 (10th Cir. 1999). The challenged comment

falls into the latter category. The prosecutor merely indicated, correctly, that

there was no evidence contrary to the state’s evidence regarding the conversation

between the three men. The comment did not improperly call attention to Mr.

Van Woudenberg’s failure to testify. See Nguyen v. Reynolds , 131 F.3d 1340,

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1358 (10th Cir. 1997) (comments did not clearly point out petitioner’s failure to

testify or create impression only petitioner could rebut statement).

The rest of the comments Mr. Van Woudenberg challenges do not implicate

specific constitutional rights. Mr. Van Woudenberg objects to the prosecutor’s

statements characterizing him as a “dangerous person,” and implying that he had

threatened Mr. James into giving false testimony. These comments were

inaccurate at best and deceptive at worst. There was no evidence that Mr. Van

Woudenberg threatened Mr. James or that Mr. James was afraid of him. While

we disapprove of these tactics, we do not find the comments rendered the trial

fundamentally unfair.

The prosecutor also told the jury in his closing argument: “The only drug

that Terrence James was under on February 6, 1983, was Sammy Van

Woudenberg. And I’ll deal with that drug in a minute.” Although this type of

name-calling is undesirable, it did not impede the jury’s ability to judge the

evidence fairly. See Darden v. Wainwright , 477 U.S. 168, 181 (1986) (“[I]t is not

enough that the prosecutor’s remarks were undesirable or even universally

condemned.”).

In his second stage closing argument, the prosecutor stated that Mr. Van

Woudenberg told Mr. Brown and Mr. James not to stab Mr. Berry because they

would get caught. Mr. Van Woudenberg correctly argues there was no evidence

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that such an exchange took place or that the two men ever considered stabbing

Mr. Berry. The trial court sustained defense counsel’s objection to this comment

and admonished the jury to disregard it. In light of this, plus the strong

aggravating and weak mitigating evidence presented at the second stage, we are

not persuaded this comment rendered the second stage fundamentally unfair.

Finally, Mr. Van Woudenberg believes the cumulative effect of these

comments constitutes fundamental error. A cumulative-error analysis aggregates

all the errors that individually have been found to be harmless and analyzes

whether their cumulative effect on the outcome of the trial is such that

collectively they are not harmless. United States v. Rivera , 900 F.2d 1462, 1470

(10th Cir. 1990). “Cumulative error analysis applies where there are two or more

actual errors; it does not apply to the cumulative effect of non-errors.” Moore v.

Reynolds , 153 F.3d 1086, 1113 (10th Cir. 1989), cert. denied , 526 U.S. 1025

(1999). As stated previously, not all of the comments Mr. Van Woudenberg

objects to were in error. Those that were do not render the trial fundamentally

unfair, even when they are taken together. The Oklahoma Court of Criminal

Appeals’ determination was not contrary to or an unreasonable interpretation of

clearly established Supreme Court precedent.

C. Withholding Exculpatory Evidence

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 Mr. Van Woudenberg argues the prosecutor failed to provide him with

exculpatory and material second statements from witnesses Clem Edward Garvin

and Hunter Odell Rose in violation of the rule set forth in Brady v. Maryland , 373

U.S. 83 (1963). On appeal, this argument is conclusory and unsupported. For

this reason alone, the argument could be rejected. See Moore , 195 F.3d at 1180

n.17. Nevertheless, because this is a capital case, we will address the claim.

“To establish a Brady violation, petitioner bears the burden of showing that

the prosecution suppressed material evidence favorable to petitioner.” Moore ,

195 F.3d at 1164. Suppressed exculpatory evidence is material “only if there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. A ‘reasonable probability’ is

a probability sufficient to undermine confidence in the outcome.” Pennsylvania

v. Ritchie , 480 U.S. 39, 57 (1987) (citation omitted). “The question is not

whether the defendant would more likely than not have received a different

verdict with the evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.” Kyles v.

Whitley , 514 U.S. 419, 434 (1995).

On review of the denial of Mr. Van Woudenberg’s third application for

post-conviction relief, the Oklahoma Court of Criminal Appeals analyzed the

Brady claim under these standards. See Van Woudenberg , 942 P.2d at 227-28.

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Relying on the trial transcripts, the court first found that Mr. Van Woudenberg

had not put forth sufficient evidence indicating the statements had been

suppressed. The trial transcript contains references to the fact that Mr. Garvin

and Mr. Rose had made more than one statement. Moreover, at the post-

conviction evidentiary hearing, trial counsel could not state for a fact that he had

not received copies of the second statements. 6
The Oklahoma Court of Criminal

Appeals pointed out that at trial counsel never objected or indicated that he was

unaware of these statements, and concluded that the statements had not been

withheld. Id. at 227. We will not second-guess this finding. We agree with the

federal district court that Mr. Van Woudenberg has not rebutted by clear and

convincing evidence the presumption of correctness afforded to the Oklahoma

Court of Criminal Appeals’ finding. See 28 U.S.C. § 2254(e)(1).

The state appellate court also concluded the statements were not

exculpatory and, in the context of the entire record, were not material:

Taking this case as a whole, the statements in question cannot be deemed
exculpatory as they are less complete and less conclusive than those
statements produced at trial. Petitioner has not established that the subject
evidence, if separately admitted, would have created a reasonable doubt
that did not otherwise exist. The jury had sufficient evidence before it to
discredit the testimony of Garvin and Rose, as well as the key witness
against Petitioner, Dennis Brown. Petitioner has not shown that the
absence of this evidence denied him a fair trial.

Apparently trial counsel’s files were destroyed in a flood and there was
6

some confusion as to which documents he had at the time of trial.

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Van Woudenberg , 942 P.2d at 228. Based on the record, we agree. Even if Mr.

Van Woudenberg could prove the prosecution withheld evidence, we are not

persuaded the evidence would create “a reasonable doubt that did not otherwise

exist.” United States v. Agurs , 427 U.S. 97, 112 (1976); see also Foster , 182 F.3d

at 1192. The state court’s decision on this issue was not an unreasonable

determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d)(2).

IV

FAILURE TO INSTRUCT ON THEORY OF DEFENSE

Mr. Van Woudenberg claims the trial court’s failure to instruct on his

defense that he was merely an accessory after the fact to the murder deprived him

of his Fourteenth Amendment right to due process. On direct appeal, the

Oklahoma Court of Criminal Appeals held “[t]he trial court correctly ruled that

being an accessory to a felony is a separate substantive offense, and is not a lesser

offense included within the felony. Williams v. State , 620 P.2d 421 (Okla. Cr[im.

App]. 1980). The trial court would have erred in giving such an instruction.”

VanWoundenberg [sic], 720 P.2d at 335. The federal district court agreed and

further noted that Mr. Van Woudenberg was not precluded from arguing his

theory of defense to the jury.

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 Mr. Van Woudenberg submits the Oklahoma Court of Criminal Appeals and

federal district court misapplied Williams because the defendant in Williams did

not present an accessory after the fact defense at trial and never requested such an

instruction. Mr. Van Woudenberg also maintains he was not requesting the trial

court to characterize accessory after the fact as a lesser included offense of first

degree murder, but rather to instruct the jury that participation as an accessory

after the fact precluded a finding of first degree murder.

State trial courts are not constitutionally required to instruct on offenses

that are not lesser included offenses of the charged crime. See Hopkins v. Reeves ,

524 U.S. 88 (1998). Mr. Van Woudenberg is thus arguing a violation of state

law. Federal habeas relief is not permitted for state law errors. See Rose v.

Hodges , 423 U.S. 19, 22 (1976). Moreover, nothing precluded Mr. Van

Woudenberg from presenting his defense, and the jury was free to find him not

guilty of first degree murder. It is clear the jury rejected his defense and found

the State had proved the elements of first degree murder.

V

DEPRIVATION OF RIGHT TO
JURY BY APPELLATE RESENTENCING

Mr. Van Woudenberg argues Oklahoma’s appellate resentencing procedure

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violates due process because he is guaranteed a right to trial by jury under the

Oklahoma Constitution. See Okla. Const. art. II, § 19. According to Mr. Van

Woudenberg, the Oklahoma Court of Criminal Appeals has never determined that

the Oklahoma Constitution permits the reweighing of facts in appellate

resentencing. Respondents correctly argue that this claim was never presented to

the federal district court. We therefore need not consider it. See Moore , 195 F.3d

at 1181.

Even if Mr. Van Woudenberg’s argument were properly before us, it would

not succeed. The Oklahoma Court of Criminal Appeals has endorsed appellate

resentencing, see , e.g. , Castro v. State , 749 P.2d 1146, 1148 (Okla. Crim. App.

1988), and we are bound by that court’s interpretation of state law, see Mullaney

v. Wilbur , 421 U.S. 684, 691 (1975).

VI

REWEIGHING AND HARMLESS ERROR ANALYSIS

In reviewing the denial of the second application for post-conviction relief,

the Oklahoma appellate court recognized that the trial court had instructed the

jury on the “especially heinous, atrocious, or cruel” aggravating circumstance in a

manner which was later found by Maynard v. Cartwright , 486 U.S. 256 (1988), to

be unconstitutionally vague. See VanWoundenberg [sic], 818 P.2d at 915. It then

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held it had “the authority to review any remaining aggravating circumstances and

the mitigating evidence to determine the validity of the death sentence.” Id. at

916.

In Clemons v. Mississippi , 494 U.S. 738, 741 (1990), the Supreme Court

held that a petitioner’s constitutional rights are not “infringed where an appellate

court invalidates one of two or more aggravating circumstances found by the jury,

but affirms the death sentence after itself finding that the one or more valid

remaining aggravating factors outweigh the mitigating evidence.” Alternatively,

the appellate court may engage in harmless error review. See id. at 745. The

Oklahoma Court of Criminal Appeals therefore correctly determined it had the

authority to review the remaining aggravating circumstances and mitigating

evidence to determine the validity of the death sentence. It upheld the jury’s

decision, and the federal district court declined to grant habeas relief on this

issue.

Mr. Van Woudenberg asserts the Oklahoma Court of Criminal Appeals’

decision is contrary to and an unreasonable application of Clemons . He faults the

Oklahoma Court of Criminal Appeals for failing to analyze whether the remaining

aggravators outweighed the mitigating circumstances. He also argues the court

did not find beyond a reasonable doubt that the jury would have imposed the

death sentence absent the unconstitutional aggravator. Mr. Van Woudenberg

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maintains the Oklahoma appellate court committed constitutional error when it

failed either to mention the mitigating evidence or to discuss the prosecutor’s

reliance on the unconstitutional aggravator and the jury’s reluctance to impose the

death sentence.

The portion of the opinion in which the Oklahoma Court of Criminal

Appeals purports to set forth both its reweighing and harmless error analyses is as

follows:

[O]ur appellate review, including a reweighing of the
remaining valid aggravating circumstances and the mitigating evidence, reveals
that sufficient evidence existed to support the remaining aggravating
circumstances beyond a reasonable doubt and the imposition of the death penalty
as a result.

VanWoundenberg [sic], 818 P.2d at 917.

Although we are troubled that the Oklahoma Court of Criminal Appeals’

opinion contains such a cursory reweighing analysis, we conclude that the

reweighing is constitutionally sufficient. This court rejected arguments similar to

Mr. Van Woudenberg’s in Ross v. Ward , 165 F.3d 793, 801-02 (10th Cir.), cert.

denied , 120 S. Ct. 208 (1999). We considered there whether the Oklahoma

district and appellate courts adequately discussed their reweighing of Mr. Ross’

aggravating and mitigating factors. Mr. Ross claimed that the reweighing done in

that case by the state district court was brief and conclusory, did not list or

discuss the mitigating evidence, and failed to note the emphasis placed on the

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invalid aggravator by the prosecutor. He also asserted that the state appellate

court affirmed the reweighing without analysis. See id . at 801. We concluded

that a reviewing court need only determine that the state court actually reweighed,

see id. at 802, and that failing to mention mitigating evidence alone did not make

the reweighing unconstitutional, see id. at 801 (citing Richmond v. Lewis , 506

U.S. 40, 49 (1992)).

In the present case, it is clear that the Oklahoma Court of Criminal Appeals

recognized the proper standard for reweighing. Significantly, it noted:

This approach of reweighing the aggravating
circumstances against the mitigating evidence to
determine the validity of the death sentence focuses on
the individual circumstances of the homicide and the
characteristics of each defendant. It ensures that the
death penalty will not be “wantonly” or “freakishly”
imposed. Furman v. Georgia , 408 U.S. at 310, 92 S. Ct.
at 2762.

VanWoundenberg [sic], 818 P.2d at 917. The court then stated without analysis

that it had reweighed the remaining valid aggravating circumstances and

mitigating evidence. Id. Although it failed to mention the mitigating evidence

and did not discuss the emphasis the prosecution may have placed on the invalid

aggravator, we are persuaded by its opinion that the Oklahoma Court of Criminal

Appeals “actually reweighed.” We stress, however, that this treatment of the

issue by the Oklahoma Court of Criminal Appeals scrapes at the very bottom of

what is required by Richmond and Clemons . Reweighing courts would better

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serve the interests of justice in reaching “an individualized and reliable

sentencing determination based on the defendant’s circumstances, his background,

and the crime” by setting forth their reasoning. Clemons , 494 U.S. at 749.

Nevertheless, we conclude here that the Oklahoma Court of Criminal Appeals’

reweighing process was not contrary to the Supreme Court precedent established

in Clemons . See 28 U.S.C. § 2254(d)(1).

Having concluded that the Oklahoma Court of Criminal Appeals actually

reweighed, we review the court’s determination under the narrow standard set

forth in AEDPA. See 28 U.S.C. § 2254(d)(1)-(2). It is uncontroverted that Mr.

Van Woudenberg was serving a sentence after conviction of a felony. The facts

of the murder along with other evidence of Mr. Van Woudenberg’s dangerous and

criminal behavior, including his escape from prison, support the jury’s conclusion

that he is a continuing threat to society. Thus, the record amply supports the

remaining two aggravating factors. The mitigating evidence Mr. Van

Woudenberg presented included a turbulent and abusive childhood, a history of

drug and alcohol abuse, and psychiatric and behavioral problems. Mr. Van

Woudenberg also testified to his limited involvement in the crime. Viewing this

evidence as a whole, we conclude the Oklahoma Court of Criminal Appeals

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decision did not involve an unreasonable application of clearly established federal

law or an unreasonable determination of the facts. 7

We AFFIRM the district court’s denial of Mr. Van Woudenberg’s petition

for habeas relief.

7
Because the state appellate court properly reweighed, it was unnecessary
under Clemons for it also to have conducted a harmless error analysis. See Trice
v. Ward , 196 F.3d 1151, 1172 (10th Cir. 1999). For the purposes of our review,
therefore, any deficiencies in the harmless error analysis are irrelevant.

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