Smith v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 23 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

PHILLIP DEWITT SMITH,

Petitioner-Appellant,

v. No. 98-7066

GARY E. 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. CV-95-79-S)

Randy Bauman, Assistant Federal Public Defender, Death Penalty Federal Habeas
Corpus Division, Oklahoma City, Oklahoma, for Petitioner-Appellant.

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

Before BALDOCK , PORFILIO , and MURPHY , Circuit Judges.

BALDOCK , Circuit Judge.
 Petitioner-appellant Phillip DeWitt Smith appeals from the district court’s

denial of his petition for habeas relief, see 28 U.S.C. § 2254, from his Oklahoma

first degree murder conviction and death sentence. On appeal, he raises seven

grounds for relief: 1) prosecutorial misconduct; 2) an evidentiary harpoon

resulting from a witness volunteering that petitioner had kidnaped his daughter;

3) the lack of a cautionary instruction regarding an informant’s testimony;

4) ineffective representation at sentencing; 5) the trial court’s failure to instruct

the jury on lesser included offenses; 6) double counting of aggravating

circumstances; and 7) the unconstitutionality of the continuing threat aggravating

circumstance. We affirm the denial of habeas relief.

I. FACTS

Petitioner was convicted of bludgeoning to death an acquaintance, Matthew

Taylor. Taylor was murdered in his apartment during the early morning hours of

November 4, 1983. He had been beaten with a blunt object, most likely a

hammer. When he was found the following afternoon, the victim’s front pants

pockets had been turned inside out.

During a party at the victim’s home the previous evening, petitioner had

agreed with the victim to share some marijuana. The victim had taken a twenty

dollar bill from his front pants pocket, noting it was the smallest bill he had, and

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gave it to petitioner to go purchase the marijuana. Petitioner never returned to the

party.

At approximately midnight, petitioner borrowed a hammer from another

acquaintance, indicating he was helping a friend fix a car. Petitioner then had

Victor Hickman drive him to the victim’s apartment. Petitioner told Hickman that

he was trying to collect money people owed him because he wanted to purchase a

bus ticket to California. According to Hickman, petitioner went into the victim’s

apartment, while Hickman waited in the car. When petitioner returned, he had a

small stain of what appeared to be blood on his shirt.

In addition to this evidence, petitioner’s cellmate, Billy Joe Dickson, 1

testified that petitioner admitted to him that petitioner had killed the victim. The

jury convicted petitioner of first degree murder.

During sentencing, the jury found the existence of three aggravating

circumstances: 1) petitioner had been convicted of a prior violent felony; 2) the

murder was especially heinous, atrocious or cruel; and 3) petitioner was a

continuing threat to society. After weighing those aggravating circumstances

with petitioner’s mitigating evidence, the jury sentenced petitioner to death.

1
Although the trial transcript refers to this witness as Dickson,
elsewhere in the record he is referred to as Dixon.

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 The Oklahoma Court of Criminal Appeals affirmed his conviction and

sentence on direct appeal. See Smith v. State , 737 P.2d 1206 (Okla. Crim. App.),

cert. denied , 484 U.S. 959 (1987). The Oklahoma appellate court also affirmed

the denial of two applications for state post-conviction relief. See Smith v. State ,

826 P.2d 615 (Okla. Crim. App.), cert. denied , 506 U.S. 952 (1992); Smith v.

State , 878 P.2d 375 (Okla. Crim. App.), cert. denied , 513 U.S. 1061 (1994).

Petitioner filed his federal habeas petition February 21, 1995, prior to the

enactment of the Antiterrorism and Effective Death Penalty Act (AEDPA). That

Act, therefore, does not apply in this case. See Lindh v. Murphy , 521 U.S. 320,

322-23 (1997).

II. PROSECUTORIAL MISCONDUCT

Petitioner alleges the prosecutor knowingly misled the jury into believing

Dickson was not testifying pursuant to a deal with prosecutors, when in fact he

was. See Gray v. Netherland , 518 U.S. 152, 165 (1996) (noting prosecution is

forbidden from deliberately deceiving court and jury, citing Mooney v. Holohan ,

294 U.S. 103, 112 (1935)); see also Giglio v. United States , 405 U.S. 150, 153

(1972); Napue v. Illinois , 360 U.S. 264, 269 (1959). Petitioner bears the burden

of establishing this claim, which this court reviews de novo. See Foster v. Ward ,

182 F.3d 1177, 1191-92 (10th Cir. 1999).

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 At the time he testified against petitioner, Dickson had been charged, in an

unrelated case, with burglary, after former conviction of a felony. If convicted,

he faced a possible twenty year prison sentence. In his testimony at petitioner’s

trial, Dickson asserted that he had no deal with prosecutors in exchange for his

testimony, but that he was testifying against petitioner because petitioner had

threatened Dickson while the two were jailed together. A few days after

petitioner’s trial, the State dropped the after former conviction of a felony portion

of Dickson’s pending burglary charge. He pled guilty and was released based on

time already served.

Petitioner, however, asserts no credible evidence that prosecutors ever

offered Dickson leniency in exchange for his testimony against petitioner. “The

mere fact that . . . [a] witness[] w[as] subsequently allowed to plead on favorable

terms is not evidence that . . . [a] plea agreement[] w[as] secretly reached prior to

the witness[’s] testimony . . ..” United States v. Molina , 75 F.3d 600, 602

(10th Cir. 1996) (direct criminal appeal).

At his state post-conviction hearing, two inmates did testify that Dickson

admitted to them that he had lied at petitioner’s trial, about both not having a deal

with prosecutors in exchange for his testimony and petitioner’s jailhouse

confession. Petitioner’s post-conviction counsel and his investigator also asserted

that Dickson had told them that his trial testimony was false and that he had

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testified against petitioner pursuant to an understanding with the district

attorney’s office.

Nonetheless, Dickson testified at that same evidentiary hearing, affirming

the truth of his trial testimony and denying any agreement with the prosecution in

exchange for his testimony. The district attorney also testified, acknowledging

that his office had a policy of offering lenient treatment in exchange for

testimony, but asserting that he had never spoken with Dickson about his

testimony prior to petitioner’s trial. 2

The Oklahoma Court of Criminal Appeals implicitly found Dickson’s

testimony credible. See Smith , 826 P.2d at 617. See generally Marshall v.

Lonberger , 459 U.S. 422, 433-34 (1983) (even though state court did not make

express credibility finding, federal court could assume state court found petitioner

not credible, in light of that court’s ruling); Newsted v. Gibson , 158 F.3d 1085,

1091 (10th Cir. 1998), cert. denied , 119 S. Ct. 1509 (1999) (deferring to implicit

findings underlying state appellate court’s determination that circumstances of

case did not warrant giving lesser included offense instruction). Generally, we

must presume that court’s factual findings are correct. See 28 U.S.C. § 2254(d)

2
We reject petitioner’s argument that the prosecutor thus deceived
jurors when he told them that his office did not have such a policy. The
prosecutor’s remarks, during closing argument, were focused solely on the lack of
any deal with Dickson, rather than the existence of a broader policy in general.

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(pre-AEDPA). See generally Sumner v. Mata , 455 U.S. 591, 592-93 (1982)

(affording presumption of correctness to state appellate court’s factfinding);

Sumner v. Mata , 449 U.S. 539, 545-47 (1981) (same).

Petitioner, nevertheless, argues this court should not presume that the state

court’s credibility determination is correct in this case because he had no

opportunity for discovery in the state post-conviction proceedings. See 28 U.S.C.

§ 2254(d) (pre-AEDPA). Review of the record, however, establishes that the

state trial court did permit discovery in the post-conviction proceeding. Petitioner

received all requested documents that existed, in addition to obtaining the state

trial court’s in camera inspection of the prosecutor’s file to determine if there was

any other relevant material that had not been produced. We, therefore, presume

the state appellate court’s credibility determination was correct.

Petitioner asserts that the district court erred in denying him further

discovery on this issue in federal court. A federal habeas petitioner, however,

will be entitled to discovery only “if, and to the extent that, the [district court]

judge in the exercise of his discretion and for good cause shown grants leave to

do so, but not otherwise.” Rule 6(a), Rules Governing Section 2254 Cases;

see, e.g. , Bracy v. Gramley , 520 U.S. 899, 908-09 (1997). Because petitioner

had discovery and an opportunity to develop this evidence during the state

post-conviction proceedings, the district court did not abuse it discretion in

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denying further discovery in this federal habeas action. See Bracy , 520 U.S.

at 909.

Lastly, petitioner challenges as false Dickson’s testimony at sentencing that

petitioner possessed a shank while in jail awaiting trial. In order to recover on

this claim, petitioner had to establish that the prosecutor knowingly presented

false testimony. See, e.g. , Medina v. Barnes , 71 F.3d 363, 367 (10th Cir. 1995);

see also Gray , 518 U.S. at 164-65 . Petitioner, however, fails to allege any

evidence tending to show that prosecutors knew this testimony was false.

III. EVIDENTIARY HARPOON

Within his prosecutorial misconduct argument, petitioner also challenges

the evidentiary “harpoon” resulting when Dickson, at trial, volunteered that

petitioner had been charged with kidnaping his daughter. The State had

previously agreed not to present evidence regarding this incident, in response to

petitioner’s motion in limine. At the close of the first stage, the trial court did

instruct the jury to limit its consideration of other crimes evidence to motive.

Petitioner asserts he suffered prejudice from this evidence at both the guilt and

sentencing stages of the proceeding.

Petitioner will be entitled to relief on this claim only if he can establish that

the admission of this testimony rendered the trial fundamentally unfair. See, e.g. ,

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Scrivner v. Tansy , 68 F.3d 1234, 1239-40 (10th Cir. 1995). It did not. See id.

(no constitutional error where government witness’s testimony concerning

defendant’s other crimes was unsolicited). Further, admission of unadjudicated

bad acts during a capital sentencing proceeding does not violate due process.

See, e.g. , LaFevers v. Gibson , 182 F.3d 705, 724 (10th Cir. 1999).

IV. CAUTIONARY INSTRUCTION

Petitioner asserts the trial court erred in failing, sua sponte, to instruct the

jurors to view Dickson’s testimony, as that of an informer, with caution and

distrust. Respondents contend this argument is procedurally barred. On direct

appeal, the Oklahoma Court of Criminal Appeals reviewed the merits of this

claim under a fundamental error analysis, holding that such an instruction was not

necessary under state law. See Smith , 737 P.2d at 1213-14. This claim,

therefore, is not barred. See, e.g. , Harris v. Reed , 489 U.S. 255, 266 & n.13

(1989); see also Hooks v. Ward , 184 F.3d 1206, 1215 (10th Cir. 1999) (if state

court decides issue on merits, state procedural bar will not preclude federal

habeas review).

Because petitioner has failed to assert a recognized federal constitutional

right to a cautionary jury instruction regarding an informant’s testimony, he will

be entitled to habeas relief on this claim only if the trial court’s refusal to give the

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instruction resulted in a fundamentally unfair trial. Cf. Foster , 182 F.3d at 1193

(addressing cautionary jury instruction concerning uncorroborated accomplice

testimony). Petitioner fails to make this showing. Defense counsel had ample

opportunity to attack Dickson’s credibility and was able to bring to the jury’s

attention the fact that Dickson was not a disinterested witness. See id. at

1193-94. In addition, the trial court instructed jurors that it remained their

responsibility to determine a witness’s credibility, after considering, among other

things, any bias, prejudice or interest the witness might have in the outcome of

the trial. See id. at 1194.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner asserts four ways in which his trial attorney was ineffective

during sentencing. Respondents do not argue to this court that these claims are

procedurally barred. See Hooks , 184 F.3d at 1216 (State must raise affirmative

defense of procedural bar or risk waiving it).

Petitioner will not be entitled to habeas relief on these claims unless he can

establish both that his attorney’s performance was deficient and that he was

thereby prejudiced. See Strickland v. Washington , 466 U.S. 668, 687 (1984).

Where counsel’s alleged errors occurred during a capital sentencing proceeding,

the prejudice inquiry is whether there is a “reasonable probability that, absent the

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errors, the sentencer . . . would have concluded that the balance of aggravating

and mitigating circumstances did not warrant death.” Id. at 695; see also Cooks

v. Ward , 165 F.3d 1283, 1296 (10th Cir. 1998) (requiring court to consider

strength of government’s case and aggravating factors jury found to exist, as well

as mitigating factors that might have been presented), cert. denied , 120 S. Ct. 94

(1999). Ineffective assistance claims are mixed questions of law and fact,

reviewed by this court de novo. See, e.g. , Williamson v. Ward , 110 F.3d 1508,

1513 (10th Cir. 1997).

A. Conceding Appropriateness of Death Penalty

Petitioner argues defense counsel, during his first-stage closing argument,

conceded that this crime was “cruel,” thus admitting the “especially heinous,

atrocious or cruel” aggravating circumstance, and that the crime warranted the

death penalty. Representative of the remarks petitioner challenges, defense

counsel told jurors not to “kid yourselves, ladies and gentlemen. If you find that

[petitioner] . . . brutally murdered [the victim] . . ., the penalty you’re going to

impose is going to be the very severe one.” Trial tr. at 767. Defense counsel also

suggested the murderer was an “animal” and he emphasized the gruesomeness of

the crime scene. The uncontroverted evidence, however, including a number of

gruesome photographs of the crime scene and the victim’s body, established that

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the victim was brutally murdered. Defense counsel could not have argued

otherwise credibly.

From the tenor of his entire argument, defense counsel made these remarks

for two reasons supporting his contention that petitioner was innocent. First,

counsel argued that, if petitioner had wanted to rob the victim, he would not have

needed to kill him, in light of the victim’s intoxicated state at the time of death.

Further, even if the robber thought murdering the victim was necessary, there was

no need to have committed such a brutal murder. This supported defense

counsel’s argument to the jury that robbery was not a sufficient explanation for

such a brutal slaying and that there must have been something more going on than

the purported robbery--perhaps the murderer was someone other than petitioner

who had a score to settle with the victim or to whom the victim owed drug money.

Secondly, defense counsel emphasized the bloodiness of the crime scene,

both in his cross-examination and closing argument, to support his contention that

the murderer would have had to have had blood all over him after the killing.

Only Hickman testified that petitioner had what appeared to be blood on him after

returning from the victim’s apartment, and that was only a single spot one to two

inches in diameter.

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 Petitioner argues both that trial counsel’s argument was per se ineffective

and, alternatively, was deficient performance prejudicial to petitioner under

Strickland . Considering the whole of his argument, however, counsel did not

“abandon[] his duty of loyalty to his client and effectively join[] the state in an

effort to attain a conviction or death sentence” such that counsel’s performance

could be deemed per se ineffective. Davis v. Executive Dir. of Dep’t of

Corrections , 100 F.3d 750, 756-57, & 757 n.3 (10th Cir. 1996) (further quotation

omitted); see also Osborn v. Shillinger , 861 F.2d 612, 625-26, 629 (10th Cir.

1988). Rather, he made these challenged references in support of his argument to

the jury, based upon the circumstantial nature of the evidence, that petitioner did

not commit this crime. He, thus, remained petitioner’s advocate. See United

States v. Williamson , 53 F.3d 1500, 1511-12 (10th Cir. 1995).

Further, counsel’s performance was not deficient under Strickland . These

remarks were reasonable trial strategy in light of the circumstantial nature of the

evidence against petitioner. See Moore v. Gibson , Nos. 98-6004, 98-6010,

1999 WL 765893, at *26 (10th Cir. Sept. 28, 1999). “[S]trategic choices made

after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable.” Strickland , 466 U.S. at 690.

Petitioner also challenges defense counsel’s second-stage closing argument,

asserting counsel continued to argue in this same vein, targeting any residual

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doubt the jurors might have had concerning petitioner’s guilt. But “residual doubt

has been recognized as an extremely effective argument for defendants in capital

cases.” Lockhart v. McCree , 476 U.S. 162, 181 (1986) (further quotation

omitted). Such strategy was reasonable under these circumstances. See, e.g. ,

Tarver v. Hopper , 169 F.3d 710, 715-16, 715 n.7 (11th Cir. 1999); Felker v.

Thomas , 52 F.3d 907, 912 (11th Cir.), opinion supplemented on denial of reh’g on

other grounds , 62 F.3d 342 (11th Cir. 1995).

B. Failure to Prepare Petitioner to Testify at Sentencing

Petitioner claims that his attorney failed to prepare petitioner to testify at

sentencing. Petitioner told jurors at sentencing that he had not committed the

crime and asked them not to sentence him to death so that he would have an

opportunity to prove his innocence.

In the state post-conviction proceedings, petitioner testified that counsel

did not ask him if he wanted to testify until immediately prior to sentencing and

did not advise him of the questions the attorney intended to ask, but rather told

petitioner just to tell the jurors what he wanted to tell them. On the other hand,

defense counsel testified at the post-conviction hearing that petitioner did not

decide to testify at sentencing until the last minute and that counsel did discuss

petitioner’s testimony with him, but would not tell him what to say. The state

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court did not make any factual findings or credibility determinations concerning

this inconsistent testimony.

Nonetheless, even if we assume counsel’s performance was deficient,

petitioner has failed to establish any resulting prejudice. See Cooks , 165 F.3d at

1292-93 (court need not address both performance and prejudice if petitioner fails

to make sufficient showing as to one). Petitioner fails to allege how further

preparation would have enhanced his testimony. See United States v. Mealy ,

851 F.3d 890, 909 (7th Cir. 1988).

Petitioner also argues that trial counsel should have used petitioner’s

testimony to explore the facts of his prior rape conviction. At the state

post-conviction hearing, however, trial counsel testified that, as a matter of

strategy, he did not go into the details of the prior conviction in order to prevent

the prosecution from presenting the rebuttal testimony of the rape victim.

Petitioner has failed to overcome the presumption that this was reasonable

strategy under the circumstances. See Strickland , 466 U.S. at 689.

C. Failure to Request Mental Health Expert

Petitioner argues that trial counsel was ineffective for failing to request the

assistance of a mental health expert, both to rebut the State’s allegation of

petitioner’s future dangerousness and to assist in presenting mitigating evidence.

Because the State presented evidence of petitioner’s future dangerousness,

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petitioner would have been entitled to appointed psychiatric assistance for

sentencing if he could have established the likelihood that his mental condition

was a significant mitigating factor. See Rogers v. Gibson , 173 F.3d 1278, 1284 &

n.2 (10th Cir. 1999), petition for cert. filed (U.S. Nov. 5, 1999) (No. 99-6954).

At the post-conviction hearing, trial counsel asserted that there was nothing

that led him to believe petitioner was not competent. Further, the trial record

does not contain any suggestion that petitioner’s mental condition could have

been a significant mitigating factor. Counsel’s failure to request a psychiatric

expert, therefore, was not deficient. See, e.g. , Wilson v. Henry , 185 F.3d 986,

990 (9th Cir. 1999); cf. Roll v. Bowersox , 177 F.3d 697, 699, 701 (8th Cir. 1999)

(addressing counsel’s failure to investigate and establish petitioner’s mental

condition at time of crime), petition for cert. filed (U.S. Sept. 23, 1999)

(No. 99-6356).

Even if counsel’s performance was deficient, however, petitioner has not

shown that this deficiency prejudiced him. A 1995 post-conviction psychological

evaluation indicated only that petitioner possesses low average intelligence and

suffers from organic brain damage which impairs his judgment and causes him to

act impulsively. While this evaluation would have been proper mitigating

evidence, this court has, “on numerous occasions determined that . . . evidence of

low I.Q. and/or organic brain damage” “does not outweigh evidence

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supporting . . . multiple aggravating circumstances,” Foster , 182 F.3d at 1189,

citing cases. The same is true here, in light of the strength of the evidence

supporting the aggravating circumstances, the nature of the crime and the limited

mitigating effect of this psychiatric evidence.

D. Failure to Investigate Mitigating Evidence Adequately

Petitioner contends that defense counsel was ineffective for failing to

investigate other possible mitigating evidence. Counsel has a duty to conduct

reasonable investigation for mitigating evidence or to make a reasonable decision

that particular investigation is unnecessary. See, e.g. , Stouffer v. Reynolds ,

168 F.3d 1155, 1167 (10th Cir. 1999). “In a capital case the attorney’s duty to

investigate all possible lines of defense is strictly observed.” Id. (further

quotation omitted); see also Boyd v. Ward , 179 F.3d 904, 915 (10th Cir. 1999).

That duty includes investigating petitioner’s background. See Duvall v.

Reynolds , 139 F.3d 768, 778 (10th Cir.), cert. denied , 119 S. Ct. 345 (1998).

Even assuming counsel’s investigation and preparation of mitigating

evidence was deficient, petitioner is unable to show prejudice. Petitioner submits

the affidavits and deposition testimony of a number of people indicating that, had

they been asked, they would have testified in petitioner’s behalf at sentencing.

Those witnesses include a number of family members, the mothers of petitioner’s

two children, friends, his childhood pastor, a coach and a former boss. These

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witnesses assert they could have offered testimony concerning petitioner’s close

family; the effect of his mother’s death on him; his love and care for his children

and his family; his reliability and good attitude at work; his easy going, likable

personality; his school and athletic activities; his church attendance as a youth;

his politeness and respect for others; and his history of nonviolence. Petitioner

also asserts that the testimony of the mother of his child living in California could

have ameliorated the earlier evidence concerning his kidnaping his daughter.

Petitioner, however, is unable to show that this mitigating evidence would

have resulted in the jury sentencing him to life in prison, in light of the brutal and

senseless nature of this crime and the strength of the State’s evidence supporting

the three aggravating circumstances, including evidence of a prior rape

conviction, his threatening a cellmate, and his possession of a weapon in jail.

See Boyd , 179 F.3d at 918. (“Even if we assume the failure to present mitigating

evidence in the form of testimony from childhood acquaintances and family

members is deficient performance,” petitioner was unable to establish prejudice in

light of existence of minimal other mitigating evidence and overall strength of

State’s case against petitioner, including facts of crime itself); see also Foster ,

182 F.3d at 1189.

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VI. LESSER INCLUDED OFFENSE INSTRUCTION

Petitioner argues that the trial court erred in not instructing the jury on

second degree felony murder or first degree manslaughter, in violation of Beck v.

Alabama , 447 U.S. 625 (1980). Beck requires the trial court to instruct the jury in

a capital case on a lesser included noncapital offense if the evidence would

support giving such an instruction. See id. at 627; see also Hopper v. Evans ,

456 U.S. 605, 610-12 (1982); Hooks , 184 F.3d at 1223.

Because petitioner did not request the trial court instruct the jury on any

lesser included offense, however, he cannot prevail on this claim. See Hooks ,

184 F.3d at 1234. This court, relying in part on Beck , has noted that “in the

context of instructions on lesser included offenses, we see particular strategy

reasons why a defendant might not want to present the jury with a compromise

opportunity.” Id. Therefore,

[w]here a state has in place a system by which a criminal defendant
has a right to an instruction on lesser included offenses supported by
the evidence, as Oklahoma does, and the defendant chooses not to
request an instruction -- thereby failing to alert the court to the
propriety of such an instruction -- Beck does not require reversal on
federal habeas.

Id. at 1235.

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VII. DUPLICATIVE AGGRAVATING CIRCUMSTANCES

Petitioner argues that all three aggravating circumstances found by the

jury--that the murder was especially heinous, atrocious or cruel, petitioner had

a prior violent felony conviction, and he presented a continuing threat to

society--unconstitutionally overlap. “‘[D]ouble counting of aggravating factors,

especially under a weighing scheme, [such as Oklahoma’s capital procedure,]

has a tendency to skew the weighing process and creates the risk that the death

sentence will be imposed arbitrarily and thus, unconstitutionally.’” Id. at 1239

(quoting United States v. McCullah , 76 F.3d 1087, 1111 (10th Cir. 1996)). The

applicable test “is not whether certain evidence is relevant to both aggravators,

but rather, whether one aggravating circumstance ‘necessarily subsumes’ the

other[s].” Cooks , 165 F.3d at 1289 (quoting McCullah , 76 F.3d at 1111); see also

Johnson v. Gibson , 169 F.3d 1239, 1252 (10th Cir.), cert. denied , 1999 WL

688740 (U.S. Nov. 1, 1999) (No. 99-5964) (U.S. July 26, 1999) (No. 99-5964).

None of the aggravating circumstances in this case “necessarily subsumes” either

of the other aggravators. See Hooks , 184 F.3d at 1239; see also Johnson ,

169 F.3d at 1252; Cooks , 165 F.3d at 1289.

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VIII. CONTINUING THREAT AGGRAVATING CIRCUMSTANCE

Petitioner argues that Oklahoma’s “continuing threat” aggravating

circumstance is unconstitutionally vague and overbroad because it fails to narrow

the class of murderers eligible for a death sentence. This court has previously

rejected this argument. See, e.g. , Castro v. Ward , 138 F.3d 810, 816-17

(10th Cir.), cert. denied , 119 S. Ct. 422 (1998); see also, e.g. , Moore , 1999 WL

765893, at *23; Hooks , 184 F.3d at 1238-39; Foster , 182 F.3d at 1194; LaFevers ,

182 F.3d at 720.

IX. CONCLUSION

Having carefully considered the record and the parties arguments asserted

on appeal, we AFFIRM the district court’s denial of § 2254 relief. The court also

denies petitioner’s “Motion to Remand,” filed with this court November 16, 1999.

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