James 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

TERRANCE A. JAMES,

Petitioner-Appellant,

v. No. 98-7139

GARY GIBSON, Warden; GARY
D. MAYNARD, Director, Oklahoma
Department of Corrections,

Respondents-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 92-CV-394-S)

Gloyd L. McCoy, Coyle & McCoy, Oklahoma City, Oklahoma, for
Petitioner-Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals
(W.A. Drew Edmondson, Attorney General of Oklahoma with her on the brief),
Oklahoma City, Oklahoma, for Respondents-Appellees.

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

SEYMOUR , Chief Judge.
 Petitioner Terrance A. James was convicted of first degree murder in

Oklahoma state court and sentenced to death. The Oklahoma Court of Criminal

Appeals affirmed the conviction and sentence, see James v. State , 736 P.2d 541

(Okla. Crim. App.), cert. denied , 484 U.S. 970 (1987), and the denial of

post-conviction relief, see James v. State , 818 P.2d 918 (Okla. Crim. App. 1991),

cert. denied , 502 U.S. 1111 (1992).

Mr. James filed his initial habeas corpus petition on July 1, 1992. Pursuant

to his motion, the federal district court held the habeas proceedings in abeyance

pending a decision in a somewhat related 28 U.S.C. § 2255 motion challenging a

federal sentence he had received for theft of government property. The district

court reopened the case on October 5, 1994, following this court’s affirmance of

the denial of § 2255 relief. After appointment of new counsel, Mr. James filed an

amended habeas petition. The district court denied habeas relief, but granted a

certificate of probable cause on all issues. We affirm the district court’s denial of

federal habeas corpus relief.

I.

Mr. James, Dennis Brown, and Mark Allen Berry, codefendants in a federal

case involving theft of government property, were incarcerated in the Muskogee

City/Federal Jail. All three had pled guilty. Mr. James and Mr. Brown believed

that Mr. Berry had snitched on them and was responsible for their arrest. As they

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discussed what to do to Mr. Berry, an inmate named Sammy Van Woudenberg

joined in the discussion and encouraged the two to strangle Mr. Berry with a wire

from a broom and then hang him to make it look like a suicide. Mr. James and

Mr. Brown planned to strangle Mr. Berry while Mr. Van Woudenberg acted as a

lookout.

Early the next morning, Mr. Van Woudenberg placed a piece of paper over

the lens of a surveillance camera and returned to his cell. Mr. Brown asked Mr.

Berry to play cards. While the two were playing, Mr. James approached Mr.

Berry from behind and wrapped the wire around his neck, strangling him while

Mr. Brown held Mr. Berry’s feet and placed his hand over Mr. Berry’s mouth.

Mr. Van Woudenberg warned Mr. James and Mr. Brown that someone was

coming. Mr. James dragged Mr. Berry into a cell and continued strangling him.

After his body went limp, the three hung Mr. Berry’s body in a shower stall.

Mr. James and Mr. Van Woudenberg were charged with and tried together

for the murder. 1
Mr. James testified at both stages of trial. At the guilt stage, he

admitted that he discussed killing Mr. Berry, strangled him with a wire, dragged

his body into a cell and continued to strangle him, and then helped hang the body

in the shower. The jury rejected Mr. James’ defense of intoxication and found

1
Mr. Brown pleaded guilty to second degree murder and testified for the
state.

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him guilty of first degree murder. At the second stage of trial, Mr. James

presented mitigating evidence of his remorse, his troubled childhood, and his use

of drugs. The state presented evidence of three aggravating circumstances: the

murder was committed while Mr. James was imprisoned on conviction of a

felony; he would be a continuing threat to society; and the murder was especially

heinous, atrocious, or cruel. The jury found all three aggravators and fixed

punishment at death. 2

On appeal from the district court’s denial of habeas, Mr. James asserts the

following constitutional issues he believes entitle him to relief: (1) the trial court

used an unconstitutional burden of proof at the competency hearing; (2) under Ake

v. Oklahoma , 470 U.S. 68 (1985), he was improperly denied psychiatric

assistance; (3) the trial court’s failure to give an instruction on the lesser included

offense of second degree murder denied him due process; (4) he was denied

effective assistance of counsel at the sentencing stage; and (5) there was

insufficient evidence to support two of the aggravators. We address each of these

arguments in turn.

2
The jury also found Mr. Van Woudenberg guilty of first degree murder and
fixed his sentence at death.

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 II.

Because the original habeas petition was filed before the effective date of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), AEDPA’s

standards do not apply to this appeal. See Lindh v. Murphy , 521 U.S. 320, 322-23

(1997). Under pre-AEDPA law, Mr. James is entitled to relief if state court error

deprived him of fundamental rights guaranteed by the Constitution of the United

States. See Fowler v. Ward , 200 F.3d 1302, 1307 (10th Cir. 2000) (quotations

and citations omitted). “We review legal issues de novo, affording deference to

the state court’s construction of state law. We review the federal district court’s

factual findings for clear error, while presuming that the state court’s findings of

fact are correct unless they are not fairly supported by the record.” Id. “When

the district court’s findings are based merely on a review of the state record, we

do not give them the benefit of the clearly erroneous standard but instead conduct

an independent review.” Smallwood v. Gibson , 191 F.3d 1257, 1264 n.1 (10th

Cir. 1999).

A. UNCONSTITUTIONAL BURDEN OF PROOF AT COMPETENCY
HEARING

Mr. James first contends the trial court denied him procedural due process

by applying at his competency hearing the “clear and convincing” evidence

burden of proof found unconstitutional in Cooper v. Oklahoma , 517 U.S. 348

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(1996). The state counters that Mr. James failed to exhaust this issue, that it is

procedurally barred, and that, in any event, there was no constitutional violation.

Mr. James attempted to raise this claim in a pro se second post-conviction

application. The Oklahoma Court of Criminal Appeals refused to accept the pro

se filing because Mr. James was represented by an attorney and the attorney was

required to submit the argument, see Okla. Stat. tit. 22, ch. 18, app., Rule 3.4(E).

Although the court dismissed the application without prejudice, Mr. James did not

attempt to refile with proper submission by an attorney. Thus, the state contends,

the claim was not exhausted.

Exhaustion is not required if an attempt to exhaust would be futile. See

Clayton v. Gibson , 199 F.3d 1162, 1170 (10th Cir. 1999). If Mr. James had

presented a successive post-conviction application, the Oklahoma courts would

have deemed the claim procedurally barred. Oklahoma bars Cooper claims

presented for the first time in a successive post-conviction application even if, as

is the case here, the direct appeal and first post-conviction application were final

before Cooper was decided. In 1995 Oklahoma amended its post-conviction

procedures to bar post-conviction relief where the claim was not raised on direct

appeal unless the petitioner can show the issue “could not have been raised in a

direct appeal.” Okla. Stat. 22, § 1089(c)(1). Applying this standard, the

Oklahoma Court of Criminal Appeals reasoned that the challenge to the clear and

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convincing burden of proof could have been raised by a petitioner on direct

appeal, even though Cooper had not been decided, because the legal basis for the

challenge pre-dated the Supreme Court’s decision. See, e.g. , Scott v. State , 942

P.2d 755, 758 (Okla. Crim. App. 1997); Walker v. State , 940 P.2d 509, 510 (Okla.

Crim. App. 1997); Walker v. State , 933 P.2d 327, 338-39 (Okla. Crim. App.

1997). Presentation of this claim to the Oklahoma courts would thus have been

futile, and Mr. James’ failure to exhaust should be excused. See Clayton , 199

F.3d at 1170.

Even if failure to exhaust is excused, however, procedural competency

claims may otherwise be procedurally barred. See Rogers v. Gibson , 173 F.3d

1278, 1289 (10th Cir. 1999), cert. denied 120 S. Ct. 944 (2000). Thus, a claim

that has been defaulted in state court on an adequate and independent state ground

will be considered on federal habeas review only if the petitioner shows cause and

prejudice to excuse the default or shows a fundamental miscarriage of justice will

result if the claim is not considered. See Clayton , 199 F.3d at 1170-71. “To be

adequate, a state’s procedural rule must have been firmly established and

regularly followed when the purported default occurred.” Id. at 1171.

The 1995 Oklahoma statutory amendments “greatly circumscribed” the

court’s power to apply intervening changes in the law to post-conviction

applicants. Valdez v. State , 933 P.2d 931, 933 n.7 (Okla. Crim. App. 1997).

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Prior to the amendments, Oklahoma law would not have barred Mr. James from

challenging the clear and convincing standard for the first time in a post-

conviction application. See Rogers , 173 F.3d at 1290. Mr. James filed his direct

appeal and application for post-conviction relief in the state courts in the 1980s.

Therefore, his purported default occurred well before the 1995 amendments. We

have made clear that a defendant cannot be expected to comply with a procedural

rule that did not exist at the time of the purported default. See Walker v. Attorney

General , 167 F.3d 1339, 1343-44 (10th Cir.), cert. denied , 120 S. Ct. 449 (1999);

see also Rogers , 173 F.3d at 1290. Consequently, the 1995 amendments are not

an adequate state ground in this case for procedural default, and Mr. James’

failure to challenge the clear and convincing evidence standard on direct appeal

or in his first post-conviction application does not bar federal habeas review of

the claim. See id.

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

establish a “‘bona fide doubt as to his competency’” at the time of trial. Wallace ,

191 F.3d at 1242 (quoting Barnett , 174 F.3d at 1135). 3
Mr. James was not

competent to stand trial if he lacked “sufficient present ability to consult with his

Although the trial court held a competency hearing, its competency
3

determination is not entitled to a presumption of correctness because it used an
unconstitutional standard of proof; 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 , 167 F.3d at 1345.

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lawyer with a reasonable degree of rational understanding,” and did not have “a

rational as well as factual understanding of the proceedings against him.” Dusky

v. United States , 362 U.S. 402, 402 (1960) (quotation omitted). “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 at

1243.

The record does not persuade us there was a bona fide doubt regarding Mr.

James’ competence to stand trial. The defense’s own witness, Dr. Garcia,

testified that he had observed and evaluated Mr. James over a seventeen day

period during which Mr. James was a patient at Eastern State Hospital. Dr.

Garcia observed no organic brain syndrome at the time and diagnosed Mr. James

with a schizoid personality disorder which only slightly affected his decision

making ability. In Dr. Garcia’s opinion, Mr. James was competent, able to

comprehend the nature of the charges and proceedings against him, and capable of

assisting his legal defense. Based on Dr. Garcia’s testimony, the trial court found

Mr. James competent. Dr. Ruedi, who did not testify but who examined Mr.

James for competency, also concluded he had an adequate factual and rational

understanding of the charges and the possible outcome of a guilty verdict, could

assist in the preparation of his defense, and was competent.

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 There was no evidence that Mr. James’ competency changed from the time

of the competency hearing to the time of trial, at which he testified during both

stages. See Drope v. Missouri , 420 U.S. 162, 181 (1975). Mr. James was lucid,

understood the charges against him, and participated in his own defense. See

Nguyen v. Reynolds , 131 F.3d 1340, 1346 (10th Cir. 1997). The record indicates

he responded 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). He did not engage in the sort of irrational or unusual behavior

during trial which would lead the court to question his competency. See Bryson v.

Ward , 187 F.3d 1193, 1204 (10th Cir. 1999), cert. denied , No. 99-8086, 2000 WL

157210 (U.S. Apr. 3, 2000). Moreover, the trial court, having ample opportunity

to assess Mr. James’ ability to understand the proceedings and assist counsel, did

not indicate any concerns about his competency. See Foster , 182 F.3d at 1191.

Because Mr. James has failed to show a bona fide doubt regarding his

competence, his procedural competency claim fails.

B. PSYCHIATRIC ASSISTANCE

Mr. James relies on Ake v. Oklahoma , 470 U.S. 68 (1985), to argue he

should have been provided psychiatric assistance to aid his defense at trial with

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regard to competency, insanity, and mitigation of punishment. 4
He believes his

mental condition and neurological dysfunctions were relevant to intent at the first

stage of the trial and to mitigation at the second stage.

On direct appeal, the Oklahoma Court of Criminal Appeals addressed this

issue only as to the first stage, although Mr. James raised it as to both stages. The

court determined Mr. James’ case was distinguishable from Ake because he failed

to demonstrate to the trial judge that his sanity at the time of the offense would be

a significant factor at trial, instead relying on the contention he was under the

influence of drugs at the time of the offense. See James , 736 P.2d at 543. The

federal district court denied relief on this issue because Mr. James did not

formally request psychiatric assistance, and because he did not make an initial

showing that his sanity was at issue. The district court also found nothing in the

record indicating a need for psychiatric testimony to rebut the aggravating

evidence.

Mr. James first contends he did make a request for psychiatric assistance,

but it was turned down by the trial court. Mr. James’ trial counsel testified at the

post-conviction evidentiary hearing that he talked to the trial judge ex parte about

Because the Supreme Court decided
4
Ake while Mr. James’ case was
pending on appeal, application of Ake presents no retroactivity problem. See
Johnson v. Gibson , 169 F.3d 1239, 1245 (10th Cir.), cert. denied , 120 S. Ct. 415
(1999).

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obtaining expert assistance, but he did not file a formal motion because there was

no legal entitlement to an expert prior to Ake . Because it was futile to make such

a motion, we assume counsel’s ex parte request was sufficient.

In a case such as this where Ake was not available at trial but was available

at the time of direct appeal, the proper standard to determine whether a petitioner

is entitled to psychiatric assistance is whether he could have made a showing that

his sanity or mental state at the time of the offense would be a significant factor

at trial. See Castro v. Oklahoma , 71 F.3d 1502, 1513 (10th Cir. 1995); Liles v.

Saffle , 945 F.2d 333, 336 (10th Cir. 1991). This standard applies both to the guilt

and penalty phases of a capital trial. See Rogers, 173 F.3d at 1284. If mental

capacity or insanity defenses are asserted at the first stage, a petitioner must

clearly establish the defense as a genuine and real issue. See Liles , 945 F.2d at

336; see also Castro v. Ward , 138 F.3d 810, 826 (10th Cir. 1998) (“An indigent

defendant requesting appointment of an . . . expert bears the burden of

demonstrating with particularity that such services are necessary to an adequate

defense.”) (quotations omitted) . A petitioner’s mental state must be in doubt,

debatable, or a close question. See Liles , 945 F.2d at 336. At the sentencing

phase, an expert must be appointed if the state presents any evidence of the

defendant’s continuing threat to society and the defendant establishes that his

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mental state could be a significant mitigating factor. See Rogers , 173 F.3d at

1284; Castro, 71 F.3d at 1513.

We analyze this issue by looking at the evidence available both at the time

of trial and thereafter. See Moore v. Reynolds , 153 F.3d 1086, 1109 (10th Cir.

1998). Nothing in the trial record indicated Mr. James’ sanity at the time of the

offense would be a significant factor at the guilt phase of trial. While the failure

to assert an insanity defense will not alone defeat an Ake claim, it is relevant

when considering whether a trial court should have recognized insanity was

likely to be a significant factor at trial. See Rogers , 173 F.3d at 1285.

Oklahoma follows the M’Naghten test of legal insanity, requiring the

defendant to show that at the time of the crime he suffered from “a mental

disease or defect rendering him unable to differentiate between right and wrong,

or unable to understand the nature and consequences of his actions.” Jones v.

State , 648 P.2d 1251, 1254 (Okla. Crim. App. 1982). The record does not show

Mr. James was unable to understand the nature and consequences of his acts or

differentiate between right and wrong. The bulk of the evidence regarding Mr.

James’ mental state at the time of the crime went to the fact that he was

intoxicated because he had taken several pills of at least two types of prescription

drugs. This alleged temporary, voluntary intoxication does not constitute the

mental defect required for a valid insanity defense. See id. Mr. James’ behavior

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during the court proceedings was normal and gave no indication that he might be

suffering from psychiatric problems.

Mr. James’ application for determination of competency did not indicate

that sanity would be an issue. His medical records from Eastern State Hospital,

where he was admitted for a competency evaluation, do not indicate he was

insane at the time of the murder. Dr. Garcia, who examined Mr. James for

competency, did not find him incompetent to stand trial, nor did he mention any

issue regarding sanity. Dr. Ruedi, a clinical psychologist, noted Mr. James had

difficulty concentrating and tremulousness consistent with withdrawal from

substances. She also concluded Mr. James was competent to stand trial.

Dr. Rice, a defense expert witness, testified that the ingestion of the

particular drugs could have caused Mr. James to remain conscious with impaired

thought processes, judgment, and motor coordination. However, three State’s

witnesses testified that at the time of the murder Mr. James was not stumbling or

staggering, did not have slurred speech, and did not appear to be intoxicated by

drugs. Moreover, this testimony regarding intoxication is not relevant to Mr.

James’ sanity.

Nor does the new evidence available after trial assist Mr. James with

respect to this claim. Although he testified at trial that he did not remember

much of the murder because of his intoxication, he later testified at the post-

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conviction evidentiary hearing that he did not black out during the murder and

that he knew what happened but was not in control of his mind. Trial counsel

testified at the post-conviction hearing that he did not raise an insanity defense

based on Dr. Garcia’s opinion that Mr. James did not have organic brain

syndrome. Counsel testified it would have been helpful to have had a psychiatric

expert (apparently in addition to Dr. Rice) testify on Mr. James’ behalf, but did

not indicate in retrospect that he would have raised an insanity defense.

An affidavit of Dr. Phillip Murphy, Ph.D., prepared more than nine years

after the murder, indicated there was “reason to believe” Mr. James suffered from

brain damage at the time of the crime, had significant intellectual deterioration

and memory disorder, and had temporal lobe epilepsy while under the influence

of drugs. Dr. Murphy believed there was “evidence” Mr. James was under the

influence of drugs at the time of the murder and because of “possible” brain

damage was unable to comprehend his actions totally. Dr. Murphy also believed

a full neuropsychological evaluation would provide evidence indicating whether

the brain damage could have influenced Mr. James’ culpability for the crime. Dr.

Murphy’s carefully worded affidavit does not create a serious doubt regarding

Mr. James’ sanity at the time of the murder more than nine years earlier.

A deposition of Joy Carol Lee Keithley, Mr. James’ ex-mother-in-law,

indicated that the day after the murder his words were slurred and she could not

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understand what he was saying. She believed he acted as if he was on drugs.

This is not persuasive evidence in light of Dr. Murphy’s testimony that Mr. James

would have been under the influence of the drugs for approximately thirteen

hours. Ms. Keithley talked with Mr. James more than twenty-four hours after he

took the medication, so his alleged state of intoxication at that time is not

relevant.

Considering all of the evidence, we do not believe Mr. James could have

made a showing that insanity or his mental state would be a significant factor at

the first stage of trial. Consequently, he was not entitled to expert assistance at

the guilt stage.

In order to be entitled to appointment of a psychiatric expert at the

sentencing phase, Mr. James must establish his mental condition was likely to be

a significant mitigating factor. See Rogers , 173 F.3d at 1285. Although the State

presented evidence that Mr. James was a continuing threat to society, it did not

present psychiatric evidence to support this aggravating circumstance. The State

instead focused on the circumstances of the murder, on Mr. James’ threats to

inmates who witnessed the murder, and on the fact that Mr. James possessed a

homemade weapon in jail. Psychiatric evidence was not needed to rebut this

continuing threat evidence.

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 Mr. James’ second stage defense did not rely on mental health evidence.

Rather, he presented evidence of his remorse, his troubled childhood, his prior

use of drugs, and Mr. Van Woudenberg’s influence on him. Trial counsel

testified at the post-conviction evidentiary hearing that his strategy did not

include introduction of mental health evidence because there was no evidence

Mr. James suffered from organic brain syndrome at the time of the murder. 5
Dr.

Murphy’s affidavit did not address whether Mr. James would be a continuing

threat. We hold that Mr. James has failed to meet the threshold showing his

mental condition could have been a significant factor at sentencing.

Even if Mr. James was entitled to psychiatric assistance, failure to provide

that assistance is subject to harmless error analysis. See id. ; Castro , 71 F.3d at

1515-16. Error is harmless if it did not have a substantial or injurious effect or

influence on the jury’s verdict. See Castro , 138 F.3d at 829 (citing Kotteakos v.

United States , 328 U.S. 750, 776 (1946)). The error was not harmless at the

second stage if we are left with a significant doubt that the evidence would have

caused at least one juror to choose life rather than death. See Moore , 153 F.3d at

1110.

5
There was some evidence that Mr. James had suffered from such a
syndrome in 1974, but doctors found no evidence that he continued to suffer from
it at the time of the murder.

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 Any error with respect to the first stage of Mr. James’ trial is harmless

because no evidence suggested he could have asserted an insanity defense. In the

second stage, the jury was presented with evidence of the callous nature of the

murder as well as Mr. James’ threats, possession of a weapon, and felony

conviction. At best, a psychiatric expert may have testified to the possibility that

Mr. James may have suffered from some type of neurological dysfunction that

may have impaired his judgment. However, none of the doctors who examined

Mr. James at the time of trial came to this conclusion, even those secured by the

defense. We are not left with significant doubt that this potential evidence would

have outweighed the significant evidence in support of the continuing threat

aggravator such that even one juror would have voted against imposing the death

sentence.

C. LESSER INCLUDED OFFENSE INSTRUCTIONS

Mr. James cites Beck v. Alabama , 447 U.S. 625 (1980), to support his claim

that he was denied a fair trial and due process because the trial court failed to

instruct the jury on the lesser included offense of second degree murder. Beck

held that a trial court must 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. The Beck requirement is satisfied so long as the jury had the option of

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at least one lesser included offense, even if there are other lesser included

offenses also supported by the evidence. See Schad v. Arizona , 501 U.S. 624,

645-46 (1991); Paxton v. Ward , 199 F.3d 1197, 1205 (10th Cir. 1999) (citing

Hooks , 184 F.3d at 1225). Because the trial court here instructed the jury on the

lesser included offense of first degree manslaughter, the Beck requirement was

satisfied.

Mr. James also argues that Oklahoma decisional law required the trial court

to instruct the jury on all degrees of homicide which the evidence tended to

prove, even when such instructions were not requested. See , e.g. , Walton v.

State , 744 P.2d 977, 978 (Okla. Crim. App. 1987); Mayberry v. State , 238 P.2d

362, 366-67 (Okla. Crim. App., 1951). A federal court may not issue the writ of

habeas corpus on the basis of a perceived error of state law, see Pulley v. Harris ,

465 U.S. 37, 41 (1984), absent a determination that the state law violation

rendered the trial fundamentally unfair, see Boyd v. Ward , 179 F.2d 904, 916

(10th Cir.1999). Oklahoma law defines second degree murder as a killing

“evincing a depraved mind . . . although without any premeditated design . . . .”

Okla. Stat. tit. 21, § 701.8(1). The evidence introduced at trial, including Mr.

James’ own testimony, indicated that Mr. James, Mr. Brown, and Mr. Van

Woudenberg discussed the killing in advance, obtained the murder weapon in

advance, and arranged for Mr. Brown to lure Mr. Berry out of his cell by asking

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him to play cards. Under these circumstances, it was not fundamentally unfair

for the trial court to conclude an instruction on second degree murder was

unwarranted. See Boyd v. State , 839 P.2d 1363, 1367 (Okla. Crim. App. 1992).

D. INEFFECTIVE ASSISTANCE OF COUNSEL

Ineffective assistance of counsel claims are mixed questions of law and

fact. See, e.g. , Williamson v. Ward , 110 F.3d 1508, 1513 (10th Cir. 1997). To

obtain habeas relief on these claims, a petitioner must establish both that his

attorney’s representation was deficient and that he was prejudiced by that

deficiency. See Strickland v. Washington , 466 U.S. 668, 687 (1984). To succeed

on the deficiency prong, a petitioner “must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial

strategy.” Id. at 689 (quotation omitted). Judicial scrutiny of counsel’s

performance is highly deferential. See id. Where counsel’s alleged errors

occurred during a capital sentencing proceeding, the prejudice inquiry is

“whether there is a reasonable probability that, absent the 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) (reviewing court should consider strength of

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government’s case and aggravating circumstances along with mitigating factors

that might have been presented).

1. Dr. Garcia’s letter

Mr. James argues his trial counsel’s failure at the sentencing phase to

present a letter from Dr. Garcia, which indicated Mr. James would not be a

continuing threat to society, constituted ineffective assistance of counsel. Mr.

James first raised this claim in a post-conviction proceeding, and the Oklahoma

Court of Criminal Appeals determined it was procedurally barred. See James , 818

P.2d at 920.

As a matter of state law, “Oklahoma generally bars review in

postconviction proceedings of ineffective assistance of trial counsel claims not

raised on direct appeal.” Hooks v. Ward , 184 F.3d 1206, 1213 (10th Cir. 1999)

(citing Okla. Stat. Ann. tit. 22, § 1086). This particular state procedural bar is

adequate to preclude habeas review here because Mr. James had different

attorneys at trial and on direct appeal and his ineffective assistance claim could

have been reviewed from the trial record alone. See English v. Cody , 146 F.3d

1257, 1264 (10th Cir. 1998). We will therefore consider this claim only if Mr.

James demonstrates cause and prejudice or a fundamental miscarriage of justice.

See id. at 1259.

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 Without elaboration, Mr. James urges us to remand to the district court to

allow him to raise ineffective assistance of appellate counsel as cause excusing

this default. 6
Even if this request were somehow sufficient to show cause, Mr.

James has not shown prejudice by trial counsel’s failure to introduce the letter as

evidence. Introduction of the letter would have permitted the State to call Dr.

Garcia as a witness. Counsel did not want Dr. Garcia to testify at sentencing

because he believed Dr. Garcia would have made a strong statement there was

nothing wrong with Mr. James. This testimony would have conflicted with the

thrust of Mr. James’ defense at both stages of the proceedings that his emotional

problems, turbulent childhood, history of drug abuse, and voluntary intoxication

on the night of the murder diminished his culpability. The failure to introduce the

letter was thus sound, although unsuccessful, strategy. “To counteract the natural

tendency to fault an unsuccessful defense, a court reviewing a claim of ineffective

assistance must ‘indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.’” Nix v. Whiteside , 475

U.S. 157, 165 (1986) (quoting Strickland , 466 U.S. at 689). Mr. James does not

overcome this presumption. The jury was presented with ample evidence to

Mr. James also argues this claim cannot be procedurally barred because the
6

State did not cross-appeal from the district court’s ruling that it could consider the
claim on its merits. We recently rejected this argument in Jones v. Gibson , No.
98-6370, 2000 WL 161336, at *7 n.4 (10th Cir. Feb. 15, 2000).

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support the continuing threat aggravator. We cannot say that counsel’s tactical

decision not to admit the letter would have changed the outcome. Because Mr.

James has failed to show a fundamental miscarriage of justice, we conclude this

claim is procedurally barred.

2. Failure to investigate and present mitigating evidence

Mr. James argues his counsel was ineffective during the sentencing phase

for failing to investigate and present a proper case for mitigation. 7
The federal

district court found this claim procedurally barred but also considered it on its

merits and determined Mr. James failed to show counsel’s strategy at the

sentencing hearing was unreasonable. The State does not argue procedural bar,

even though the Oklahoma Court of Criminal Appeals held the claim barred, see

James , 818 P.2d at 920. In light of the State’s waiver, this court may consider

the claim on its merits without addressing procedural bar. See Moore , 195 F.3d

at 1178.

7
Mr. James also argues his attorney was ineffective for making a very brief
opening argument at the sentencing phase. In light of the scant mitigating
evidence presented, this short opening statement may have been a tactical
decision. Indeed, our cases establish that failure to make any opening statement
at this stage may be a tactical decision. See Nguyen , 131 F.3d at 1350. In any
event, Mr. James fails to assert how he was prejudiced by this allegedly deficient
performance.

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 Mr. James faults his attorney for failing to call several of his relatives to

testify about his turbulent childhood, his problems with drugs, and their love for

him. Counsel has a duty to conduct a 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, an attorney’s duty to investigate all possible lines of

defense is strictly observed. See Boyd v. Ward , 179 F.3d 904, 915 (10th Cir.

1999), cert. denied , 120 S. Ct. 1188 (2000). “Where available mitigating

evidence is not presented, this court focuses on the reason for the decision not to

present the evidence.” Wallace , 191 F.3d at 1247. The reasonableness of

counsel’s actions not to present evidence may be determined or influenced by the

petitioner’s actions or statements. See Strickland , 466 U.S. at 691.

At the post-conviction hearings, counsel testified, contrary to Mr. James’

assertion, that he talked to Mr. James about his family and his background.

Although he spoke to Mr. James’ father and grandparents on several occasions,

he did not ask them to testify. Counsel testified that the father was antagonistic

toward Mr. James and would not have made a sympathetic witness. He also

testified that the grandfather was old and in poor health, and that Mr. James

requested he not be called as a witness. Counsel could not recall his reasons for

not calling the grandmother. He did ask Mr. James if there were other people

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who could testify in mitigation. Mr. James gave him no names, however, and

counsel left it up to Mr. James to decide what family members to call. Based

upon our independent review of the state court record, see Smallwood , 191 F.3d

at 1264 n.1, we conclude counsel’s failure to investigate or present other

evidence was directly influenced by Mr. James. The failure to present witnesses

to testify concerning a defendant’s childhood need not constitute deficient

performance. See Parks v. Brown , 840 F.2d 1496, 1509 (10th Cir. 1987), rev’d

on other grounds , 494 U.S. 484 (1990). Under the circumstances here, we

conclude counsel’s performance was not deficient.

Even if counsel’s performance was deficient in this regard, Mr. James has

not shown prejudice. Much of the evidence he now points to was already before

the jury. At the guilt stage, he testified regarding his problems with drugs. At

the punishment stage, he testified about his disruptive home life, his drug

problem since the age of twelve, his hospitalization for the drug problem, his

lack of prior felony convictions, his remorse, and his young son. Given the

aggravating evidence, there is no reasonable probability the additional and

largely cumulative mitigating evidence would have caused the jury to reach a

different result. See Castro , 138 F.3d at 832; Moore , 153 F.3d at 1099.

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E. SUFFICIENCY OF THE EVIDENCE TO SUPPORT
AGGRAVATING CIRCUMSTANCES

1. “Serving a sentence” aggravator

Mr. James contends there is insufficient evidence to support the

aggravating circumstance that “[t]he murder was committed by a person while

serving a sentence of imprisonment on conviction of a felony.” Okla. Stat. tit.

21, § 701.12(6). At the time of the murder, Mr. James had pled guilty to a

federal felony but had not been sentenced. He thus maintains he was not

“serving a sentence” as required by the statute.

The federal district court assumed the issue was not procedurally barred

and determined that a rational trier of fact could have found the existence of this

aggravator beyond a reasonable doubt. Citing Black’s Law Dictionary 301 (5th

ed. 1979) and Boykin v. Alabama , 395 U.S. 238, 242 (1969), the court pointed

out that a guilty plea is a conviction. Because Mr. James had pled guilty to a

federal offense, the district court determined he had been convicted of a felony.

Mr. James asserts the district court failed to consider whether he was “serving a

sentence.”

The State argues this claim is procedurally barred because it was first

raised on post-conviction review and the Oklahoma Court of Criminal Appeals

found it could have been raised on direct appeal. See James , 818 P.2d at 920.

Mr. James counters that the court actually addressed this issue on its merits when,

-26-
after invalidating the “heinous, atrocious or cruel” aggravating circumstance, it

stated “our 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 . . . .” Id. at 923. If the state court did address the issue on the

merits, state procedural bars will not preclude federal habeas review. See Hooks ,

184 F.3d at 1215.

Although we are uncertain of its exact review, the Oklahoma Court of

Criminal Appeals on both direct appeal and on post-conviction review considered

only very generally whether the evidence supported the aggravating factors. The

issues presented on mandatory sentence review and on reweighing are in a

different legal posture than a claim of insufficient evidence to support an

aggravator. Although mandatory sentence review applies in all capital cases, see

Okla. Stat. tit. 21, § 701.13(C), it does not take into consideration every possible

attack on the aggravating circumstances. Cf. Medlock v. Ward , 200 F.3d 1314,

1320 n.3 (10th Cir. 2000) (mandatory sentence review “does not represent a full

reweighing of aggravating and mitigating factors”). On post-conviction review,

the court expressly and unambiguously declined to address the issue as

procedurally barred. See Harris v. Reed , 489 U.S. 255, 263 (1989). We

conclude, contrary to Mr. James’ argument, that the Oklahoma Court of Criminal

-27-
Appeals did not address the merits of this issue on either direct appeal or post-

conviction review.

“On habeas review, this court does not address issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” English , 146 F.3d at 1259 (citing Coleman v. Thompson ,

501 U.S. 722, 749-50 (1991)). Mr. James makes no attempt to demonstrate either

cause or a fundamental miscarriage of justice. Accordingly, we need not address

this claim.

In any event, we are not persuaded the claim has merit. In contending there

is insufficient evidence to support this aggravator, Mr. James faults the state court

for broadening the aggravator beyond the words of the statute to include a murder

committed by a prisoner after pleading guilty and while awaiting sentencing. Our

review of a challenge to the state’s interpretation of an aggravating factor is

quite limited. “As the Supreme Court has made clear, unless the aggravator is

unconstitutionally vague on its face, or otherwise impedes the requirement that

sentencing determinations be individualized, states are free to select whatever

substantive criteria they wish to determine who is eligible for the death penalty.”

Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 771 (10th Cir.

1996). A federal court is bound by a state court’s interpretation of the state’s

-28-
aggravator. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1991) (“it is not the

province of a federal habeas court to reexamine state-court determinations on

state-law questions”); see also Manlove v. Tansy , 981 F.2d 473, 478 (10th Cir.

1992).

This is not a case where the state court’s interpretation of the aggravator is

overbroad. See Cartwright v. Maynard , 822 F.2d 1477, 1485 (10th Cir. 1987)

(aggravator cannot be defined and applied so broadly that it conceivably could

cover every first degree murder), aff’d , 486 U.S. 356 (1988). Rather, the

interpretation sufficiently narrows the eligible class to those who are imprisoned,

and thereby satisfies constitutional requirements. Cf. Tucker v. Zant , 724 F.2d

882, 896-97 (11th Cir. 1984) (refusing to second-guess state court’s interpretation

which narrowed class of persons eligible for death penalty). Because Mr. James

cannot make a compelling argument that the Oklahoma court’s interpretation

violates constitutional requirements, we will not second-guess the interpretation.

The evidence here was uncontroverted that at the time of the murder Mr.

James was incarcerated after pleading guilty to a felony. Under the Oklahoma

court’s interpretation, therefore, a rational factfinder could have found this

aggravator beyond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307,

319 (1979) (“[A]fter viewing the evidence in the light most favorable to the

-29-
prosecution, any rational trier of fact could have found the aggravating

circumstance beyond a reasonable doubt.”).

2. Continuing threat aggravator

The existence of the “continuing threat” aggravator was supported by

evidence that Mr. James had a homemade weapon in prison, showed a lack of

remorse over the killing, and threatened other inmates. The jury was also

instructed to consider the callousness of the crime and Mr. James’ criminal

history. Mr. James contends this evidence is not sufficient to demonstrate a

propensity toward future violent conduct. He points out that he was originally

incarcerated for a nonviolent offense and has perpetrated no further violent acts

while in prison. We review this claim under the “rational factfinder” standard.

See id.

A defendant’s criminal history, the callousness of the crime, and his threats

against others are among the factors which may be considered in determining if

there was sufficient evidence to support the continuing threat aggravator. See

Medlock , 887 P.2d at 1349. The most compelling evidence supporting continuing

threat can come from the facts surrounding the murder itself. See Johnson v.

State , 928 P.2d 309, 317 (Okla. Crim. App. 1996); Cooks , 165 F.3d at 1289.

Because a person who acts with utter disregard for human life likely will do so

again, attitude is an important factor. See id. As the district court determined

-30-
here, there was evidence that the murder was callous. See Tr. vol. II at 1147

(admitting killing was “for the hell of it”); James , 736 P.2d at 546 (finding, on

direct appeal, that Mr. Berry’s death was painful and not swift).

Contrary to Mr. James’ contention, a pattern of criminal activity is not

required to prove this aggravator. See Malone v. State , 876 P.2d 707, 718 (Okla.

Crim. App. 1994) (citing cases upholding aggravator based on callousness of

murder alone without showing of pattern of conduct). In any event, the jury was

presented with evidence that Mr. James possessed homemade weapons and

threatened other inmates. These episodes could establish a pattern of or

propensity toward violent conduct. After viewing the evidence in the light most

favorable to the State, a rational trier of fact could have found the continuing

threat aggravator beyond a reasonable doubt. 8

III.

We have considered all of Mr. James’ arguments on appeal, including those

not specifically addressed, and are not persuaded constitutional error infected his

trial. We AFFIRM the district court’s denial of habeas corpus relief.

8
Mr. James also asserts the continuing threat aggravator is unconstitutional
on its face and as applied. We have repeatedly rejected this argument, see, e.g. ,
Hooks , 184 F.3d at 1238-39; Castro , 138 F.3d at 816-17; Nguyen , 131 F.3d at
1353-54, and we are bound by these decisions, s ee Foster , 182 F.3d at 1194.

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