Humphreys v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 21 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JACKIE EUGENE HUMPHREYS,

Petitioner-Appellant,

v. No. 00-7061

GARY GIBSON, Warden, Oklahoma
State Penitentiary,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-98-568-S)

Chris Eulberg, Eulberg Law Offices, Oklahoma City, Oklahoma, for
Petitioner-Appellant.

Seth S. Branham, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for
Respondent-Appellee.

Before SEYMOUR , BALDOCK , and MURPHY , Circuit Judges.

BALDOCK , Circuit Judge.
 Petitioner-appellant Jackie Eugene Humphreys appeals the denial of habeas

relief, see 28 U.S.C. § 2254, from his Oklahoma death sentence. A jury convicted

Humphreys of first degree malice aforethought murder, resulting from the 1987

stabbing death of his estranged common law wife. The Oklahoma Court of

Criminal Appeals affirmed the conviction, but remanded for a new capital

sentencing proceeding because the trial court had failed to instruct the jury on the

life-without-parole sentencing option. Humphrey 1 v. State , 864 P.2d 343 (Okla.

Crim. App. 1993). In this appeal, Humphreys challenges only that 1995

resentencing, arguing 1) his attorney provided ineffective representation;

2) evidentiary errors warrant habeas relief; and 3) Oklahoma’s aggravating factor

applicable to individuals who murder while serving a “sentence of imprisonment”

is unconstitutionally vague and overbroad. We affirm.

I. Ineffective sentencing representation. Humphreys claims his attorney

should have investigated and presented at resentencing additional, better prepared

psychiatric evidence, as well as evidence that Humphreys aided an injured jail

guard. To warrant habeas relief, Humphreys must establish both that counsel’s

performance was deficient and Humphreys’ defense was thereby prejudiced. See

Strickland v. Washington , 466 U.S. 668, 687 (1984). Here, we need only focus on

1
The record refers to petitioner as both Humphrey and Humphreys. The
various published opinions reflect this confusion.

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the prejudice inquiry. See id. at 697. Applying Strickland , the state appellate

court held that Humphreys had failed to establish that any deficient representation

had prejudiced his defense. Humphreys v. State , 947 P.2d 565, 578 (Okla. Crim.

App. 1997). This determination was not contrary to, nor an unreasonable

application of, clearly established Supreme Court precedent. See 28 U.S.C.

§ 2254(d)(1).

In this capital sentencing context, the relevant 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.” Strickland , 466 U.S. at 695. In making this determination,

we consider the strength of the State’s case, the aggravating factors the jury

found, and the mitigating evidence defense counsel did present at resentencing, as

well as any additional mitigating evidence defense counsel could have presented.

See, e.g., Walker v. Gibson , 228 F.3d 1217, 1234 (10th Cir. 2000), cert. denied ,

121 S. Ct. 2560 (2001).

At the 1995 resentencing, the State charged, and the jury found, three

aggravating factors: 1) Humphreys had previously been convicted of a violent

felony; 2) he was serving a felony prison sentence at the time of the murder; and

3) he was a continuing threat to society. As to the first and second aggravators,

undisputed evidence established both that Humphreys had previously suffered an

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assault and battery conviction and was on house arrest for that conviction at the

time of the murder.

In addition, the State’s evidence supporting the continuing threat

aggravator included the following: Humphreys and the victim, Bessie Phipps, had

had a violent and turbulent relationship. Humphreys had once threatened to kill

her if she ever left him and he admitted that, on occasion, he had “roughed up”

Ms. Phipps. Several witnesses further testified to seeing Ms. Phipps on several

occasions with bruises and black eyes. Humphreys, who had previously been

married several times, also admitted having hit his other wives.

In 1986, Humphreys beat Ms. Phipps’ former boyfriend with a shovel

handle and stabbed him with a screwdriver, resulting in the assault and battery

conviction. Three months later, in September 1986, Oklahoma officials released

Humphreys to house arrest. Humphreys returned to prison in November 1986,

after Ms. Phipps filed assault charges against him. According to Humphreys, he

voluntarily turned himself in at this time because he was afraid he would kill

Ms. Phipps. Upon his next release to house arrest, on December 18, 1986,

thirteen days before the murder, he and Ms. Phipps remained separated.

An acquaintance testified that, for several days preceding the murder,

Humphreys would sharpen his knife and alternately profess his love for Ms.

Phipps and then threaten “to rip her all to pieces,” Resentencing Tr. vol. III at

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414. On New Years Day 1987, Humphreys called a friend’s house and

Ms. Phipps answered. He professed his love to her, after which she purportedly

laughed. He then went to the friend’s home looking for Ms. Phipps. There,

Humphreys threatened several individuals with a knife, cut the telephone line and

took the friend’s car. He then drove to the Cuban Bar, where he found

Ms. Phipps and stabbed her five times. As police took him into custody, he stated

that he had meant to do this to her, he was glad he had done it, he hoped she died,

see id. at 481-82, 506, and that if police would “turn him loose . . . he would

finish the job,” id. at 489. Ms. Phipps bled to death on the way to the hospital.

While in jail after Ms. Phipps’ murder, Humphreys planned to escape and kill

three men with whom he believed Ms. Phipps had had sexual relations.

In addition to these facts underlying Humphreys’ murder conviction, other

evidence indicated the following: In 1985, during a routine traffic stop,

Humphreys punched a police officer, breaking his nose, ripped the officer’s radio

out of his patrol car and tried to grab the officer’s revolver. When that same

officer was called into Humphreys’ neighborhood in 1986, Humphreys stood on

his porch, yelling the officer’s name and making stabbing motions with a butcher

knife. While in jail after Ms. Phipps’ murder, Humphreys got into a fight in

1987, “menaced” another inmate in 1988, and possessed a homemade knife in

1993. Several prison officials also testified they believed Humphreys presented a

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threat to act violently in the future. Based on this evidence, the jury found

Humphreys was a continuing threat to society. Strong evidence, therefore,

supported all three aggravating factors.

At resentencing, the defense did prepare and present mitigating evidence to

counter these aggravators. A jail guard, who was also Humphreys’ longtime

acquaintance, testified that he had seen Humphreys a few hours before the

murder. At that time, Humphreys was either drunk or on drugs and was crying

and scared because he had lost everything and did not know what he was going to

do. This guard also testified that, while in jail, Humphreys would voluntarily

remain locked down in his cell in order to avoid altercations with other inmates.

And Humphreys’ sister and niece testified concerning Humphreys’

background, including his numerous back surgeries when he was a teenager and

the resulting need for strong pain medication, his excessive drinking and drug

usage, and his mean and abusive disposition when he drank. In addition, evidence

indicated Humphreys had two children, served in the Marines Corps, had held

various jobs driving trucks and had operated a tire repair service. Humphreys

testified he is an alcoholic and has struggled all his life with drugs and alcohol.

Several witnesses testified to Humphreys’ remorse for killing Ms. Phipps,

including his two suicide attempts after jail officials told him she had died, and

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the support and aid Humphreys had provided other inmates during his

incarceration.

Dr. Ferguson, Ph.D., testified that Humphreys suffers from major

depression, severe alcohol abuse and a borderline personality disorder. His

personality disorder makes him unable to handle strong emotions or to form

long-term relationships, and causes obsessive and erratic behavior. Dr. Ferguson

also testified that Humphreys had been affected by, among other things, the fact

that his grandfather had raped him when he was a small child; he had a cystic

growth from his tail bone, for which his schoolmates ridiculed him; an adult gave

Humphreys moonshine when he was fifteen and, during that episode, Humphreys

got drunk and pointed a gun at a police officer who had been summoned to break

up a fight; as a result, Humphreys spent time in a juvenile boys’ home, where he

was frequently beaten; and, after his mother’s death, relatives told Humphreys his

father was not his biological parent. According to Dr. Ferguson, Humphreys

possesses average intelligence, is creative and sensitive, and very remorseful for

the murder.

Humphreys now asserts that his defense attorney should have also presented

mitigating evidence concerning his aiding an injured jail guard. The guard, as he

was unlocking a cell occupied by two belligerent inmates, either slipped or was

pushed, fell and broke his leg. The testimony concerning the extent to which

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Humphreys aided this guard was controverted. Following an evidentiary hearing,

the state trial court found that the evidence “was conflicting and did not show an

‘heroic’ action on [Humphreys’] part[;] rather, he helped but did not rush into

harm[’]s way . . . .” Post-conviction O.R. at 98. Even viewing the conflicting

evidence most favorably to Humphreys, it established only that Humphreys kept

the two belligerent inmates inside their unlocked cell until he could shut the door

and then help carry the guard to safety. While this evidence is mitigating, see

Williams v. Taylor , 529 U.S. 362, 396 (2000), there is no reasonable probability

that, had defense counsel presented this testimony, at least one juror would have

voted against imposing a death sentence, in light of the facts of Ms. Phipps’

murder itself, the three well-supported aggravators, and Humphreys’ past violent

conduct.

Humphreys further asserts that his attorney should have obtained and

presented additional psychiatric evidence indicating that he has suffered brain

damage. Dr. Philip Murphy, Ph.D., a neuropsychologist, and Dr. Shreekumar

Vinekar, M.D., a psychiatrist, testified at a state post-trial evidentiary hearing.

Like Dr. Ferguson, both these doctors thought Humphreys suffered from

depression, severe alcohol abuse and a personality disorder. They did believe

Humphreys was at times likely psychotic. Further, Dr. Murphy would elevate

Dr. Ferguson’s diagnosis of severe alcohol abuse to an addiction. Although

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Drs. Murphy and Vinekar, thus, disagreed with discrete points within

Dr. Ferguson’s diagnosis and thought she could have better presented this

evidence, their testimony is essentially cumulative of Dr. Ferguson’s resentencing

testimony. As such, this “evidence would not have caused the jury to reach a

different result.” Walker , 228 F.3d at 1234; see also, e.g., James v. Gibson , 211

F.3d 543, 557 (10th Cir. 2000), cert. denied , 121 S. Ct. 886 (2001).

Drs. Murphy’s and Vinekar’s testimony also included several new

diagnoses, which Dr. Ferguson had not mentioned at the resentencing.

Dr. Murphy testified that Humphreys had a methamphetamine addiction. And

neurological tests indicated that Humphreys had organic brain damage, probably

due primarily to chronic alcohol and methamphetamine abuse. Dr. Vinekar also

testified that Humphreys showed symptoms of brain seizures, which could affect

his behavior, including producing horrendous rage reactions and dissociative,

dream-like states, as Humphreys had described on the day of the murder. These

seizures could be treated with medication.

While these experts’ opinions, therefore, did offer some new mitigating

information, there is again no reasonable probability that, had defense counsel

obtained and presented these later opinions, at least one juror would have voted

against a death sentence. See, e.g., Smith v. Massey , 235 F.3d 1259, 1282 (10th

Cir. 2000) (holding that, although petitioner’s organic brain damage was proper

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mitigating evidence that might help explain crime to some degree, its absence did

not prejudice petitioner’s defense because it would not have changed capital

sentencing outcome), petition for cert. filed , (U.S. June 29, 2001) (No. 01-5117);

Smith v. Gibson , 197 F.3d 454, 463 (10th Cir. 1999) (noting that, while such

evidence would be mitigating, this court has, “on numerous occasions determined

that . . . evidence of low I.Q. and/or organic brain damage does not outweigh

evidence supporting . . . multiple aggravating circumstances”) (quotations

omitted), cert. denied , 531 U.S. 839 (2000). And even considered cumulatively

with the testimony of Humphreys’ aid to the jail guard, see Gonzales v. McKune ,

247 F.3d 1066, 1078 n.4 (10th Cir. 2001), there is not a reasonable probability

that this omitted mitigating evidence would have changed the sentencing result.

Lastly, Humphreys argues that defense counsel should have better prepared

Dr. Ferguson to withstand the State’s impeaching her testimony. The state

appellate court, however, again determined Humphreys’ defense had suffered no

prejudice. See Humphreys , 947 P.2d at 577-78. This, too, was a reasonable

application of Strickland .

During resentencing, the State attempted to impeach Dr. Ferguson’s

testimony with an unsigned 1987 psychiatric evaluation. That evaluation,

however, actually corroborated much of Dr. Ferguson’s testimony, including the

fact that Humphreys experienced an agitated depression, characterized by

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obsessive thinking and feelings of inadequacy; he was a chronic alcoholic; he

suffered from a mixed personality disorder which contains both paranoid and

antisocial features; and he has been profoundly affected by his actions.

Cross-examination further elicited that Dr. Ferguson agreed with the 1987

evaluation’s indication that stress from impending legal proceedings could

exaggerate Humphreys’ symptoms, and Humphreys is highly rebellious,

nonconforming, does not profit from experience, and is impulsive and overly

sensitive. Dr. Ferguson also agreed that Humphreys “‘does not appear to have the

internal controls necessary to keep his behavior within acceptable limits,’” when

he was abusing alcohol. Resentencing tr. vol. V at 918-19 (quoting 1987

evaluation). Dr. Ferguson did interpret several scales on Humphreys’ Minnesota

Multiphasic Personality Inventory (MMPI) differently than the 1987 evaluation.

The resentencing transcript, however, fails to establish that Dr. Ferguson was

“destroyed” on cross-examination, as Humphreys’ expert witness later opined at

the post-conviction hearing, 1997 hr’g, vol. II at 372.

II. Resentencing evidentiary issues. Oklahoma law provides that, upon

remand for capital resentencing, “[a]ll exhibits and a transcript of all testimony

and other evidence properly admitted in the prior trial and sentencing shall be

admissible in the new sentencing proceeding; additional relevant evidence may be

admitted including testimony of witnesses who testified at the previous trial.”

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Okla. Stat. tit. 21, § 701.10a(4). Relying on this statute, the trial court refused to

permit Humphreys to challenge, at resentencing, the admissibility of any evidence

that the original trial court had admitted. On direct appeal from resentencing,

however, the Oklahoma Court of Criminal Appeals held that,

[b]ecause the parties are litigating anew the issue of punishment, the
trial court must entertain objections to evidence from both parties.
This necessarily includes objections that evidence was erroneously
admitted in the original trial because [§ 701.10a(4)] specifically
limits the admission of evidence from the original trial to that
evidence which was “properly admitted.”

Humphreys , 947 P.2d at 573 (quoting Okla. Stat. tit. 21, § 701.10a). Nonetheless,

the state appellate court further held that the trial court’s error in not permitting

Humphreys to challenge previously admitted evidence did not warrant relief. See

id. at 573-74. Humphreys now asserts the following three habeas claims, based

upon the resentencing court’s evidentiary rulings and its erroneous application of

§ 701.10a(4).

A. Resentencing jury’s considering inadmissible evidence. A federal

habeas court reviews state evidentiary rulings only to determine whether they

resulted in a fundamentally unfair trial. See, e.g., Elliott v. Williams , 248 F.3d

1205, 1214 (10th Cir. 2001), petition for cert. filed , (U.S. July 30, 2001)

(No. 01-5508); see also Estelle v. McGuire , 502 U.S. 62, 67-68 (1991).

Humphreys first argues that the resentencing court’s blanket refusal to permit

defense counsel to object to evidence previously admitted during the first trial

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resulted, per se, in a fundamentally unfair resentencing proceeding. 2
Upon review

of the entire record, however, we are convinced it did not.

Humphreys also challenges the resentencing court’s permitting the State,

during resentencing, to present unavailable witnesses’ testimony by reading their

complete testimony from the original trial. This included testimony to which

defense counsel successfully objected at the original trial. This, however,

occurred in only a very few instances and did not result in a fundamentally unfair

resentencing proceeding.

B. Privilege against self-incrimination. Although he did so during his

first trial’s guilt stage, Humphreys chose not to testify at resentencing. The

resentencing court then permitted the State to read Humphreys’ first-trial

testimony to the resentencing jury. Humphreys claims this violated his Fifth

Amendment privilege against self-incrimination, relying on Harrison v. United

States , 392 U.S. 219 (1968). Harrison recognized, however,

the general evidentiary rule that a defendant’s testimony at a former
trial is admissible in evidence against him in later proceedings. A
defendant who chooses to testify waives his privilege against
compulsory self-incrimination with respect to the testimony he gives,

2
Humphreys also asserts, without further discussion, that the resentencing
court’s erroneous refusal to hear new evidentiary objections deprived him of
effective trial representation and an impartial jury. See Appellant’s Opening Br.
at 31, 34. These conclusory allegations, however, are insufficient to warrant
habeas relief. See Walker , 228 F.3d at 1239-40 (declining to address
“unsupported and undeveloped” habeas claims) (further quotation omitted).

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 and that waiver is no less effective or complete because the
defendant may have been motivated to take the witness stand in the
first place only by reason of the strength of the lawful evidence
adduced against him.

Id. at 222 (footnote omitted). Nonetheless, in Harrison , the defendant had

testified at his first trial because the State had introduced his confessions, which

the appellate court later determined to have been inadmissible. See id. at 220,

222. The Court, thus, held that “the same principle that prohibits the use of

confessions so procured also prohibits the use of any testimony impelled

thereby--the fruit of the poisonous tree.” Id. at 222.

Harrison does not directly address Humphreys’ situation. See Oregon v.

Elstad , 470 U.S. 298, 316-17 (1985) (noting Harrison applies where prosecution

violated defendant’s Fifth Amendment rights by introducing inadmissible

confession). Humphreys, nonetheless, argues that, like Harrison, he was

compelled to testify after the trial court refused to instruct on first degree

manslaughter. See Appellant’s Opening Br. at 37-38. Humphreys may have

testified to support his manslaughter theory, but he could not have testified in

response to the trial court’s refusal to instruct on that lesser offense because the

trial court did not refuse to give a manslaughter instruction until after

Humphreys’ testimony. See United States v. Bohle , 475 F.2d 872, 875-76 (2d Cir.

1973).

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 More to the point, the Oklahoma Court of Criminal Appeals, in Humphreys’

original direct appeal, upheld the trial court’s refusal to instruct on first degree

manslaughter because there was no evidence supporting his theory that he killed

the victim “‘without a design to effect death.’” Humphrey , 864 P.2d at 345

(quoting Okla. Stat. tit. 21, § 711). The federal district court, in these habeas

proceedings, also denied habeas relief on this claim, and Humphreys was not able

to obtain a certificate of appealability on this issue. See 28 U.S.C. § 2253(c).

There is, therefore, no support for Humphreys’ suggestion that the trial court’s

refusal to give a manslaughter instruction wrongfully impelled Humphreys to

testify at his first trial.

Humphreys further protests that the State, by having an assistant district

attorney read Humphreys’ prior testimony to the resentencing jury, improperly

commented on his Fifth Amendment privilege not to testify at resentencing. See

Griffin v. California , 380 U.S. 609, 615 (1965). That prior testimony, however,

was admissible at resentencing. See Harrison , 392 U.S. at 222. And, in

presenting Humphreys’ first-trial testimony through transcript, the State did not

unduly accentuate the fact that Humphreys had chosen not to testify at

resentencing. The prosecutor’s presentation was in no way “manifestly intended

or . . . of such character that the jury would naturally and necessarily take it to be

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a comment on the defendant’s right to remain silent.” Battenfield v. Gibson , 236

F.3d 1215, 1225 (10th Cir. 2001) (further quotation omitted).

C. Admission of Humphreys’ custodial statements. The resentencing

court admitted three custodial statements Humphreys made, through testimony

from probation and parole officer Donna Robertson, formerly Donna Loyd,

Oklahoma State Penitentiary case manager Kenneth Harris, and county jail

administrator Billy Plaster. Humphreys challenges the resentencing court’s

admitting this testimony without first conducting a Jackson v. Denno 3
hearing to

determine whether Humphreys voluntarily made those statements.

Initially, the State argues Humphreys procedurally defaulted these claims

by failing to request 1) a Jackson v. Denno hearing at resentencing on Harris’

testimony, and 2) a hearing during the original trial concerning Robertson’s and

Plaster’s testimony. The Oklahoma Court of Criminal Appeals held that

Humphreys had, thus, waived these claims. See Humphreys , 947 P.2d at 573, 574.

Nevertheless, rather than consider Humphreys’ possible procedural defaults, we

will instead address the merits because we can “more easily and succinctly

affirm[]” the denial of habeas relief by doing so. See Romero v. Furlong ,

215 F.3d 1107, 1111 (10th Cir.), cert. denied , 531 U.S. 982 (2000). Reviewing de

3
378 U.S. 368 (1964).

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novo, see Thomas v. Gibson , 218 F.3d 1213, 1220 (10th Cir. 2000), we conclude

Humphreys is not entitled to habeas relief.

Robertson testified that, on the day after the murder, she helped transport

Humphreys from a state correctional facility to county jail. During that trip,

Humphreys admitted to Robertson that

he had called [the victim] or gone to see her . . ., that he had told her
that he loved her and that she laughed. He . . . got to thinking about
it, and that is when he went to the bar. And he said that he thought
he was hitting her, but he guessed he was stabbing her.

Resentencing tr. vol. III at 546. When they drove passed the Cuban Bar,

Humphreys also remarked “‘[w]ell, I guess I’m famous now.’” Id. at 547. He

also acknowledged to Robertson his prior felony conviction.

Kenneth Harris testified that Humphreys had pled guilty to separate prison

disciplinary charges for menacing and possession of a homemade knife. Through

Harris, the State also admitted the prison disciplinary reports concerning these

incidents. Additionally, Billy Plaster testified that, during his investigation of a

jail altercation between Humphreys and another inmate, Humphreys had admitted

that he had planned to take revenge on that other inmate.

Humphreys does not specify why these custodial statements should be

deemed involuntary. See Appellant’s Opening Br. at 41-42; cf. Lucero v. Kerby ,

133 F.3d 1299, 1310-11 (10th Cir. 1998) (holding habeas petitioner, who argued

he was entitled to new Jackson v. Denno hearing, would not be entitled to habeas

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relief unless he could show both deficiencies during first hearing and that “‘his

version of events, if true, would require the conclusion that his confession was

involuntary,’” quoting Procunier v. Atchley , 400 U.S. 446, 451 (1971)).

Humphreys’ assertion that “the record is otherwise insufficient to determine

‘whether the confession was voluntary or involuntary,’” Appellant’s Opening Br.

at 42, is insufficient. Cf. Lucero , 133 F.3d at 1312 (rejecting argument that

“unanswered” questions as to circumstances of custodial statements required new

hearing).

Moreover, any erroneous admission of an involuntary confession is subject

to harmless-error analysis. See Arizona v. Fulminante , 499 U.S. 279, 295 (1991);

see also, e.g., Castro v. Ward , 138 F.3d 810, 823 (10th Cir. 1998). In this

procedural posture, we must then determine whether admitting these custodial

statements had a substantial and injurious effect or influence on the jury’s verdict.

See, e.g., Walker , 228 F.3d at 1225, 1235-36 (under Antiterrorism and Effective

Death Penalty Act, applying Brecht v. Abrahamson , 507 U.S. 619, 637 (1993),

harmless error analysis, where state court itself did not address harmless error).

In doing so, we “review[] the remainder of the evidence against the defendant to

determine whether the admission of the confession was harmless.” Fulminante ,

499 U.S. at 310. Even assuming the trial court did err in admitting Humphreys’

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custodial statements, therefore, we conclude those errors were harmless. See

Castro , 138 F.3d at 823.

There was still overwhelming evidence, without Humphreys’ statement to

Robertson, that Humphreys killed Ms. Phipps and had previously suffered a

violent felony conviction. And there was evidence, in addition to Plaster’s

testimony, indicating Humphreys had committed the prison misconduct charged in

the disciplinary reports. Moreover, apart from this challenged testimony, there

was substantial evidence supporting the jury’s finding that Humphreys was a

continuing threat to society. Humphreys, therefore, is not entitled to habeas relief

based upon the trial court’s admitting these custodial statements. See id.

III. “Serving sentence of imprisonment” aggravating factor. The State

charged, and the jury found, that Humphreys murdered Ms. Phipps while he was

“serving a [felony] sentence of imprisonment,” Okla. Stat. tit. 21, § 701.12(6),

because he was on house arrest at the time. The Oklahoma Court of Criminal

Appeals upheld applying this aggravating factor to Humphreys because, under

house arrest, he remained in Department of Corrections’ custody and was, thus,

still serving his sentence. See Humphreys , 947 P.2d at 575-76. Generally, “[a]

federal court is bound by a state court’s interpretation of the state’s aggravator.”

James , 211 F.3d at 558 (in dicta ).

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 Humphreys argues, however, that Oklahoma’s expansive interpretation

makes this aggravating factor unconstitutionally vague and overbroad. This

interpretation, however, is not unconstitutionally overbroad because the

aggravator does narrow the class of murderers eligible for a death sentence. See

id. at 558-59; see also, e.g., Jones v. United States , 527 U.S. 373, 401 (1999).

Further, this aggravator’s meaning is not vague. See, e.g., United States v.

Chanthadara , 230 F.3d 1237, 1262 (10th Cir. 2000) (direct criminal appeal;

noting vague aggravator fails to inform juries what they must find to impose death

sentence), petition for cert. filed, (U.S. May 2, 2001) (No. 00-9757); see also,

e.g., Maynard v. Cartwright , 486 U.S. 356, 361-62 (1988). Because this

“aggravating factor has a core meaning that criminal juries should be capable of

understanding, it . . . pass[es] constitutional muster.” Jones , 527 U.S. at 400.

Furthermore, the Oklahoma Court of Criminal Appeals’ determination that

there was sufficient evidence to support the jury’s finding this aggravating factor

was reasonable under either 28 U.S.C. § 2254(d)(1) or (2). 4
See Romano v.

Gibson , 239 F.3d 1156, 1178 (10th Cir. 2001).

4
Although this court has not yet resolved whether the state appellate court’s
sufficiency-of-the-evidence inquiry involves a legal or factual determination, we
would reject Humphreys’ claim here under either standard. See Hale v. Gibson ,
227 F.3d 1298, 1335 & n.17 (10th Cir. 2000), cert. denied, 121 S. Ct. 2608
(2001).

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IV. CONCLUSION

For these reasons, we AFFIRM the district court’s denial of habeas relief

from Humphreys’ death sentence.

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