Hain v. Gibson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 20 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

SCOTT ALLEN HAIN,

Petitioner-Appellant,

v. No. 01-5014

GARY E. GIBSON, Warden,

Respondent-Appellee.

Appeal from United States District Court
for the Northern District of Oklahoma
(D.C. No. 98-CV-331-BU)

Steven Michael Presson (Robert W. Jackson with him on the brief), Jackson & Presson,
P.C., Norman, Oklahoma, for the appellant.

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

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge

Petitioner Scott Allen Hain, an Oklahoma state prisoner sentenced to death for two

counts of first degree murder, appeals the district court’s denial of his 28 U.S.C. § 2254
petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and affirm.

I.

The following is a summary of the facts as set forth by the Oklahoma Court of

Criminal Appeals (OCCA) in disposing of Hain’s initial direct appeal:

During the early morning hours of October 6, 1987, Laura Lee
Sanders and Michael Houghton were seated in Sanders’ car outside a Tulsa
bar when they were approached by two men, later determined to be Scott
Allen Hain and Robert Wayne Lambert. Hain and Lambert were in the
parking lot, waiting to rob a nearby house when they saw Sanders and
Houghton talking in the car. Appellant and Lambert forced their way into
the car by threatening Houghton with a knife.
Hain drove the car away from the bar, then stopped and robbed
Houghton at gunpoint. When Houghton resisted the robbery, Appellant
forced him into the trunk of the car. A short while later, Appellant and
Lambert stopped and put Sanders in the trunk as well.
After robbing Houghton and getting the keys to his truck, the two
men decided to go back to the bar where the incident began and take
Houghton’s truck as well as Sanders car. Lambert drove the truck away
from Tulsa toward Sand Springs. He stopped after driving down a rural
Creek County roadway. Appellant followed in Sanders’ car with Sanders
and Houghton in the trunk.
The two men took Sanders’ things, including some clothes, out of
her car and put them in the truck. One of them cut the gas line to the car
and set it on fire by putting lighted newspaper and a blanket under the
dripping fuel line. Houghton and Sanders were banging on the trunk and
yelling. Appellant and Lambert left the area, however, returned a short time
later to see if the fire was burning well.
The two men stopped at a friend’s house in Jennings and left a bag
of things belonging to the victims in the garage. They traveled to Wichita,
Kansas in Houghton’s truck. After spending the five hundred and sixty-five
($565.00) dollars which they got from Houghton and Sanders, the two
returned to Tulsa, where they were apprehended on the evening of October
9, 1987.

2
Hain v. State, 852 P.2d 744, 746-47 (Okla. Crim. App. 1993) (Hain I).

On October 13, 1987, Hain was charged by complaint and information in the

District Court of Creek County, Oklahoma, with two counts of first degree murder, two

counts of kidnapping, two counts of robbery with firearms, one count of arson in the third

degree, and two counts of larceny of an automobile. The State subsequently filed a bill of

particulars alleging the existence of three aggravating factors: (1) that Hain knowingly

created a great risk of death to more than one person; (2) that the murders were especially

heinous, atrocious or cruel; and (3) the existence of a probability that Hain would commit

criminal acts of violence that would constitute a continuing threat to society.

The case proceeded to trial in May 1988. At the conclusion of the first-stage

proceedings, the jury found Hain guilty as charged. At the conclusion of the second-stage

proceedings, the jury, having found the existence of all three aggravating factors alleged

by the prosecution, sentenced Hain to death on both of the first degree murder counts.

The jury also sentenced Hain to ten years on each kidnapping count, one hundred years on

each robbery with firearms count, twenty years on each larceny of an automobile count,

and fifteen years on the third degree arson count.

On direct appeal, the OCCA affirmed Hain’s convictions for murder, kidnapping,

larceny of an automobile, and third degree arson. Hain I, 852 P.2d at 753. Because of the

possibility that the jury convicted Hain under a theory of felony murder, the OCCA

reversed on double jeopardy grounds Hain’s convictions for robbery with firearms. Id. at

3
752. Lastly, because the trial court failed to instruct the jury with respect to the potential

punishment alternative of life without parole, the OCCA vacated Hain’s death sentences

and remanded for new sentencing proceedings. Id. at 753.

The resentencing proceedings commenced on September 22, 1994. The

prosecution alleged the existence of the same three aggravating factors alleged in the

original second stage proceedings, i.e., that Hain knowingly created a great risk of death

to more than one person, that the murders were especially heinous, atrocious or cruel, and

the existence of a probability that Hain would commit criminal acts of violence that

would constitute a continuing threat to society. To establish the first two factors, the

prosecution presented evidence outlining the nature of the murders. To support the third

factor, the prosecution presented evidence indicating that Hain and his co-defendant

Lambert had engaged in three violent crimes in the months leading up to the murders (the

assault and rape of a woman in her rural Kansas home, the kidnapping and rape of a

Wichita woman, and the robbery and attempted murder of a Tulsa couple, which included

the kidnapping and rape of the woman). In addition, the prosecution presented expert

psychiatric testimony indicating that Hain’s personality and psychological make-up made

him prone to violence. Lastly, the prosecution presented evidence indicating that Hain

had escaped from his jail cell while awaiting resentencing.

Hain attempted to counter the prosecution’s evidence by presenting expert

testimony from two psychologists and a social worker, all of whom opined that Hain was

4
not prone to violence. In addition, Hain alleged and attempted to prove the following

mitigating circumstances: (1) his youth at the time of the crime; (2) his emotional,

psychological and mental age; (3) his blameworthiness; (4) the fact that he was dominated

by Lambert, his co-defendant; (5) his history of drug usage; (6) the State of Oklahoma’s

failure to provide appropriate treatment at earlier stages of his development; (7) a “[f]ear

reaction to finding himself in a fugitive/captive situation”; (8) the lack of personal

participation in the actual criminal acts (in comparison to the alleged participation of his

co-defendant); (9) his attempts to physically absent himself from the scene of the crime as

much as possible; (10) the lack of violence involved in his alleged escape attempt from

jail; (11) his attained educational level; and (12) his family history. State Record, Vol. 2

at 182 (resentencing proposed instr. No. 16). At the conclusion of the resentencing

proceedings, the jury found, with respect to both murder counts, the existence of all three

aggravating factors alleged by the prosecution and Hain was sentenced to death on both

counts.

Following his resentencing, Hain again filed a direct appeal with the OCCA. The

OCCA affirmed Hain’s death sentences. Hain v. State, 919 P.2d 1130 (Okla. Crim. App.

1996) (Hain II). Hain filed a petition for writ of certiorari which was denied by the

Supreme Court. Hain v. Oklahoma, 519 U.S. 1031 (1996). Hain filed an application for

post-conviction relief and the OCCA denied relief on May 1, 1998. Hain v. State, 962

P.2d 649 (Okla. Crim. App. 1998) (Hain III).

5
 On July 30, 1998, Hain filed a petition for writ of habeas corpus asserting fourteen

grounds for relief, and the district court subsequently authorized Hain’s counsel to add an

additional claim to the petition. The district court denied Hain’s petition on December

18, 2000. The district court granted Hain a certificate of appealability (COA) with

respect to three of the issues raised in his habeas petition: (1) the propriety of the trial

court’s decision to instruct on alternative theories of malice aforethought and felony

murder; (2) ineffective assistance of counsel; and (3) whether the International Covenant

on Civil and Political Rights prohibited the execution of juveniles. This court granted a

COA on two additional issues: whether the trial court erred in admitting victim impact

testimony and whether the trial court violated Hain’s right against self-incrimination by

ordering him to answer the prosecutor’s questions about unadjudicated crimes that

occurred in the State of Kansas.

II.

Because Hain’s federal habeas petition was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the

provisions of the AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert.

denied, 530 U.S. 1216 (2000). Under the AEDPA, the appropriate standard of review for

a particular claim is dictated by the treatment of that claim by the state courts. If a claim

was not decided on the merits by the state courts (and is not otherwise procedurally

barred), we may exercise our independent judgment in deciding the claim. See LaFevers

6
v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999). In doing so, we review the federal district

court’s conclusions of law de novo and its findings of fact, if any, for clear error. Id. If a

claim was adjudicated on its merits by the state courts, the petitioner will be entitled to

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

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

by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” Id. § 2254(d)(2). “Thus, we may grant the writ if we find the state

court arrived at a conclusion opposite to that reached by the Supreme Court on a question

of law; decided the case differently than the Supreme Court has on a set of materially

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

of the prisoner’s case.” Van Woudenberg v. Gibson, 211 F.3d 560, 566 (10th Cir. 2000)

(citing Williams v. Taylor, 529 U.S. 362, 413 (2000)), cert. denied, 531 U.S. 1161 (2001).

III.

Felony murder instructions

Hain contends his due process rights were violated during the first-stage

proceedings because, even though he was charged with malice aforethought murder, the

trial court instructed the jury on alternative theories of malice aforethought and felony

murder. Hain argues that the trial court’s actions resulted in a constructive amendment of

the complaint and information and deprived him of fair notice and an opportunity to

7
defend against the charges of felony murder.

As noted by Hain, the complaint and information charged him, in pertinent part,

with two counts of first degree malice aforethought murder.1 The complaint and

information did not specifically allege or otherwise mention first degree felony murder,

but did allege other crimes, including kidnapping and armed robbery. During the first

stage proceedings, the district court proposed instructing the jury on alternative theories

of first degree malice aforethought murder and first degree felony murder. Defense

counsel objected, arguing the State should be required to elect one theory or the other.

The prosecution argued that the court should instruct on any theory of the law that was

applicable to the evidence presented at trial. Defense counsel argued, in response, that

the killings were not an anticipated end to the robbery, and thus the theory of felony

murder was inapplicable. The trial court overruled defense counsel’s objections and

1
Count One, for example, charged as follows:
That the said defendants in the County and State aforesaid, on
the day and year aforesaid, while acting in concert each with
the other, with malice aforethought, did then and there
wilfully, unlawfully and feloniously, without authority of law,
effect the death of LAURA LEE SANDERS, by means of
burning, to-wit: by placing the victim in the trunk of a vehicle
and by means of a flammable substance setting fire to the said
vehicle, then and thereby inflicting mortal wounds in the body
of said LAURA LEE SANDERS, from which mortal wounds
the same LAURA LEE SANDERS did languish and die.
State Record, Doc. 1.

8
instructed the jury on both theories.2 Because the trial court used only general verdict

forms, it is unclear which theory the jury ultimately relied on in finding Hain guilty of the

two murder counts.

Hain first asserted the argument now raised in his application for post-conviction

relief.3 The OCCA concluded the argument was waived due to Hain’s failure to assert it

on direct appeal. Hain III, 962 P.2d at 651-52. The OCCA also rejected Hain’s argument

that appellate counsel was ineffective for failing to raise the issue on direct appeal. Id. at

653.

Hain does not contest the fact that the OCCA’s procedural bar ruling rests on an

independent and adequate state procedural ground. See Hale v. Gibson, 227 F.3d 1298,

1328 (10th Cir. 2000) (holding that Oklahoma’s procedural bar rule, applicable to most

2
For example, Instruction Number 10 stated:
You are instructed that the statutes of the State of Oklahoma
provide in pertinent part:
A. A person commits murder in the first degree when he
unlawfully and with malice aforethought causes the death of another
human being.
B. A person also commits the crime of murder in the first degree
when he takes the life of a human being, regardless of malice, in the
commission of robbery with a dangerous weapon or in the
commission of kidnapping.
State trial record at 557. Other instructions set forth the specific elements of each theory.
3
In his initial direct appeal, Hain argued that “error occurred when the jury was
not required to specify whether the guilty verdict was based on malice aforethought
murder or felony murder.” Hain I, 852 P.2d at 752. The OCCA rejected that argument,
concluding “[t]he verdict was proper” and “there [wa]s no error with regard to the murder
conviction.” Id.

9
claims not raised on direct appeal, is independent and adequate default rule), cert. denied,

121 S. Ct. 2608 (2001). Instead, he attempts to establish cause and prejudice excusing the

procedural default by arguing that his appellate counsel was ineffective for failing to

assert the issue on direct appeal. See Coleman v. Thompson, 501 U.S. 722, 750 (1991)

(holding constitutionally ineffective assistance can establish cause excusing procedural

default).

Hain’s claim of ineffective assistance is governed by the familiar two-part test

announced in Strickland v. Washington, 466 U.S. 668 (1984). Under that test, Hain must

establish that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s errors, the

outcome of the proceedings would have been different. Id. at 688, 694; see also

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). More specifically, in the context of

this appeal, Hain must establish that appellate counsel was “objectively unreasonable” in

failing to assert the claim on direct appeal, and that there is a reasonable probability that,

but for counsel’s failure to raise the issue, Hain would have prevailed in challenging his

murder convictions on direct appeal. See Neill v. Gibson, 278 F.3d 1044, 2001 WL

1584819 at *8 (10th Cir. 2001). In order to properly address these issues, we must “‘look

to the merits of the omitted issue.’” Id. (quoting Hooks v. Ward, 184 F.3d 1206, 1221

(10th Cir. 1999)).

Before turning to the merits of the omitted issue, we note that our resolution of

10
Hain’s ineffective assistance claim is circumscribed by the OCCA’s own resolution of

that claim. As previously noted, Hain asserted the identical ineffective assistance claim in

his application for post-conviction relief, and the OCCA resolved it against him on the

grounds that appellate counsel’s performance was not deficient. Hain III, 962 P.2d at

653. Under the AEDPA standards of review, we are bound by that determination unless

we conclude the OCCA unreasonably applied Strickland in reaching this determination.

See 28 U.S.C. § 2254(d)(1).

Hain bases his substantive argument on the Supreme Court’s statement in Jackson

v. Virginia, 443 U.S. 307, 314 (1979), “that a conviction upon a charge not made . . .

constitutes a denial of due process.” This principle in turn rests on the “broader premise”

that “a person cannot incur the loss of liberty for an offense without notice and a

meaningful opportunity to defend.” Id.; see Stirone v. United States, 361 U.S. 212, 217

(1960) (noting that a “court cannot permit a defendant to be tried on charges that are not

made in the indictment against him”); Cole v. Arkansas, 333 U.S. 196, 201 (1948)

(holding “that notice of the specific charge, and a chance to be heard in a trial of the

issues raised by that charge, if desired, are among the constitutional rights of every

accused in a criminal proceeding in all courts, state or federal”); Johnson v. Gibson, 169

F.3d 1239, 1252 (10th Cir. 1999) (“A charging instrument may violate the Sixth

Amendment by failing to provide a defendant with adequate notice of the nature and

cause of the accusations filed against him.”); Hunter v. State of New Mexico, 916 F.2d

11
595, 599 (10th Cir. 1990) (noting that the “specific inquiry” in deciding whether a

constructive amendment of the indictment has occurred “is whether the jury was

permitted to convict the defendant upon a set of facts distinctly different from that set

forth in the indictment”) (internal quotation omitted). To determine whether a state

habeas petitioner has been convicted of a crime not set forth in the charging instrument,

courts look to the law of the state where the petitioner was convicted. See Jones v. Smith,

231 F.3d 1227, 1233 (9th Cir. 2001) (noting that the “difference between a constructive

amendment and a mere variance . . . hinge[s] on whether the crime specified in the

indictment/information and the crime for which the defendant was convicted are separate

offenses under state law”); Jenkins v. Nelson, 157 F.3d 485, 498-99 (7th Cir. 1998);

Cokeley v. Lockhart, 951 F.2d 916, 919 (8th Cir. 1991).

Oklahoma statutes have long defined the offense of “murder”4 or “first degree

murder” as encompassing both malice aforethought murder and felony murder. E.g.,

Tucker v. State, 92 P.2d 595, 597 (Okla. Crim. App. 1939) (outlining the provisions of

the 1931 version of the Oklahoma murder statute). Consistent therewith, the OCCA has

characterized malice aforethought murder and felony murder as different theories for the

4
The 1931 version (as well as earlier versions) of the Oklahoma murder statute
did not distinguish between degrees of murder. Instead, malice aforethought, felony
murder, and what would now be characterized as second degree murder all fell within the
single offense of “murder.” This was consistent with the common-law crime of murder.
See Schad v. Arizona, 501 U.S. 624, 648 (1991) (Scalia, J., concurring).

12
same general offense of first degree murder,5 and has held that a defendant charged with

malice aforethought murder can be convicted at trial of felony murder if the evidence

supports such a conviction. E.g., Wilson v. State, 983 P.2d 448, 463 (Okla. Crim. App.

1998) (referring to different “theories” of first degree murder); Munson v. State, 758 P.2d

324, 332 (Okla. Crim. App. 1988) (noting long-standing Oklahoma law that “where an

information charges first degree malice aforethought murder, a conviction may be had for

felony-murder if supported by the evidence”); Evinger v. State, 45 P.2d 552, 559 (Okla.

Crim. App. 1935) (noting that where an information charges first degree malice

aforethought murder, a conviction may be had, if warranted by the evidence, under the

other subdivisions of the first degree murder statute); Ware v. State, 288 P. 374, 383

(Okla. Crim. App. 1930) (noting “the accused may be charged with the crime of murder

alleged to have been committed with premeditated design to effect death under the first

subdivision of the [1931 murder] statute, and a conviction had under the proof of killing,

in the commission of a felony as proved under the third subdivision of the statute”); see

also Easley v. State, 143 P.2d 166, 167 (Okla. Crim. App. 1943) (noting “[t]hat when an

information for murder charges that the homicide was unlawfully committed with a

5
This view appears to be consistent with that embraced by at least a plurality of
the Supreme Court. See Schad, 501 U.S. at 649 (Scalia, J., concurring) (noting that “most
States [now] have a single crime of first-degree murder that can be committed by killing
in the course of a robbery as well as premeditated killing” and rejecting the notion that
“the Due Process Clause of the Fourteenth Amendment requires the subdivision of that
crime into (at least) premeditated murder and felony murder”).

13
premeditated design to effect the death of the deceased, it includes every character and

degree of unlawful homicide”).

In light of this authority, we conclude the information filed against Hain

reasonably placed him on notice that he could be convicted at trial of first degree felony

murder. As noted, the information alleged that he and co-defendant Lambert effected the

death of the two victims by placing them in the trunk of a vehicle and setting fire to the

vehicle. The information further alleged that Hain and Lambert committed seven

additional felonies, all of which occurred on the same date and were part of a common

scheme. Under Oklahoma law, we believe these allegations were sufficient to reasonably

place Hain on notice that he could be convicted at trial under alternative theories of

malice aforethought or felony murder.

Several additional factors bolster our conclusion that Hain’s due process rights

were not violated. First, after examining the trial transcript, we note that the evidence

presented by the prosecution at trial was entirely consistent with the set of facts alleged in

the information. In other words, it is clear from the record that Hain’s murder convictions

were not “based on an entirely separate uncharged set of facts.” Jenkins, 157 F.3d at 498.

Second, Hain’s trial counsel did not argue lack of notice or prejudice at the time the trial

court proposed instructing the jury on the theory of felony murder, nor is there any

indication in the trial transcript that trial counsel attempted to defend Hain under the

assumption that felony murder would not be at issue. Indeed, we note that trial counsel

14
relied primarily on an insanity defense,6 which, under Oklahoma law, is applicable to both

malice aforethought and felony murder. See Ullery v. State, 988 P.2d 332, 351 (Okla.

Crim. App. 1999). Third, our review of the record leads us to conclude the evidence

presented at trial was more than sufficient to support Hain’s convictions under either

theory of first degree murder.

Although Hain attempts to draw support from the OCCA’s resolution of his co-

defendant’s direct appeal, we conclude the two cases are not, as Hain suggests, identical.

Hain’s co-defendant was tried separately before the same trial judge. As in Hain’s trial,

the trial court instructed the jury on alternate theories of malice aforethought murder and

felony murder, even though the complaint and information charged Lambert only with

malice aforethought murder. Lambert was found guilty of the murder charges but, as

with defendant Hain, the use of general verdict forms prevented a determination of the

specific theory relied on by the jury in reaching its verdicts. On direct appeal, the OCCA

reversed Lambert’s murder convictions. Lambert v. State, 888 P.2d 494, 504 (Okla.

6
During the first-stage proceedings, Hain’s trial counsel presented testimony from
a clinical psychologist who opined that Hain, due to his emotional problems and
personality make-up, “was very likely not conscious of any potential consequences of his
behavior or actions” during the crime, Tr. at 734, and could “be seen as not understanding
the nature nor the consequences of any acts or acts of omission.” Id. at 736. During first-
stage closing arguments, Hain’s trial counsel addressed both theories of first degree
murder, arguing that Hain did not intend to kill anybody and that the deaths of the victims
were not the approximate or expected result of the other charged felonies. Id. at 919, 921.
Ultimately, however, Hain’s trial counsel asked the jury to find Hain not guilty by reason
of insanity. Id. at 930.

15
Crim. App. 1994). In doing so, the OCCA concluded that Lambert was prejudiced by the

failure to charge felony murder in the information because he had testified at trial that he

committed the robbery and kidnapping but never intended to kill anyone and that he

objected when Hain allegedly set fire to the vehicle. More specifically, the OCCA agreed

with Lambert that he had demonstrated prejudice resulting from the failure to specify

felony murder in the information, in that “he would never have willingly admitted to the

jury that he committed a crime which would have resulted in his receiving the death

penalty.”7 Id.

Notably, in reversing Lambert’s murder convictions, the OCCA specifically stated

that Hain was not entitled to relief on the same issue:

We find it necessary to clarify that the same problem did not arise in the
case of [Lambert’s] co-defendant, Scott Allen Hain, F-88-466. Mr. Hain
did not testify at trial, and is therefore unable to show any prejudice from
the failure to charge felony murder in the information, as is present in
[Lambert’s] case.

Id. at 504 n.1.

For these reasons, we believe the OCCA reasonably applied Strickland in

concluding Hain’s appellate counsel did not perform deficiently by failing to raise the

7
In Lambert, the OCCA stated, in part, that the trial “court instructed on a crime
[felony murder] not charged in the information.” 888 P.2d at 503. This statement
appears to be clearly inconsistent with the Oklahoma criminal statutes and the pre- and
post-Lambert authority outlined above. In any event, it appears clear that the controlling
factor in Lambert was that Lambert demonstrated, to the OCCA’s satisfaction, that the
information misled him in the presentation of his defense.

16
issue on direct appeal. Not only does the record fail to establish a violation of Hain’s due

process rights, we are confident the OCCA would not have granted relief on the issue had

it been raised by Hain’s appellate counsel. Thus, we in turn conclude that Hain cannot

establish cause and prejudice sufficient to overcome the OCCA’s procedural bar ruling on

the merits of his substantive due process claim.

Admission of victim impact testimony

Hain contends the admission of victim impact testimony during the resentencing

proceedings “was so far out of permissible constitutional bounds . . . as to deprive him of

a fair sentencing hearing and due process of law.” Hain’s Opening Br. at 33. To properly

address Hain’s contention, we begin by reviewing the relevant events that transpired

during the sentencing proceedings.

Prior to trial, five of the victims’ family members prepared written victim impact

statements. Those statements were reviewed and redacted in part by the prosecution and

the trial court. During the resentencing proceedings, the prosecution, over the objection

of defense counsel, presented each of the five family members and had them read their

redacted statements to the jury.

William Sanders, the brother of victim Laura Lee Sanders, testified in pertinent

part:

The extremely violent nature of this crime and the total lack of
respect for human life have shocked – shocked me. Absolutely everyone is

17
 brought up knowing the difference between right and wrong, and murder is
wrong. Once a crime of this magnitude has been com – committed, a
person must expect to be punished to the fullest – full extent of the law.
Life, life without [parole], and death; these are the choices? All I can say
for sure is that I know my sister was not given a choice between life or
death. It has been seven years since my sister was murdered, and I’m still
looking forward to the time when I can remember who she was and not the
horrific images portrayed of her during these – during the various court
proceedings.
The guilt has been established, and I feel strongly that the
punishment should reflect the severity of the crime.

Vol. I of Resentencing Proceedings (9/26/94) at 211-12. Carol Lee Sanders, Laura Lee

Sanders’ mother, testified in pertinent part:

It is very difficult for me to find words to express the horror, anger
and disbelief that we felt and still feel, knowing that Laura Lee was put in
the trunk of a car and burned alive while the ones who lit the fire listened to
their screams for help, and yet only made sure that the car was burning good
before they left. Add to that the fact that Laura Lee and Mike had done
nothing to deserve this and had no idea who the people were that took it
upon themselves to murder them. It is hard for us to imagine that anyone
could have that much hate and meanness in them. These things make it
even more difficult for us to accept her death.
In the past seven years, we have been trying to deal with not only the
loss of Laura Lee, but also with the heinous manner in which she was
murdered. We know how very scared she must have been from the time she
was kidnapped and put in the trunk of her car. It hurts every time I think of
the horror that she must have felt during her last minutes on this earth with
the smell of gasoline, followed by the smoke, and then the heat of the
flames, and having no way to escape. Every time I see a picture of a
burning car on television or in a movie, it feels like someone has just kicked
me in the stomach.
Several months ago, I had to have both of our dogs put to sleep. As I
held them while the doctor gave them a shot, I saw them die very peacefully
in my arms. I couldn’t help but think of Laura Lee and Mike again and
wish that they had been able to die that peacefully.
***
In order for true justice to be done in this case, I feel that Scott Hain

18
 should also be sentenced to death. Somebody with his mind-set should not
be allowed to get off with anything less than the death penalty. There is
absolutely no reason why anyone else should ever be subjected to his
heinous acts of violence and to go through the pain and suffering that our
families have had to endure for the past seven years.

Id. at 214-17.

Tena Houghton, victim Michael Houghton’s wife, testified in pertinent part:

I cannot watch a t.v. show or a movie with a fire scene in it, without
closing my eyes or turning away, because these scenes bring back the
pictures in my mind of Michael’s body kicking and struggling and
searching for a way out of that trunk. The heat, the fear, the pain that
Michael suffered, I can’t even begin to comprehend. The mental pictures of
this man that I loved so deeply being burnt alive to the point of being
unrecognizable are almost unbearable.

Id. at 220.

Scott Hain was fully aware that he was taking the life of two young
and beautiful people, so aware, in fact, that he went back to the burning car,
not to stop this horrible thing but to make sure it was going to do the job
and make sure that Michael and Laura Lee would die. He heard Michael
and Laura Lee screaming with pain and terror, saw the car burning, but still
did nothing to stop the horrible set of events which he had set into motion.

Id. at 223. Delma Houghton, Michael Houghton’s mother, testified: “I’ve tried holding a

lighted match to my finger, but I jerked it away. I tried touching the electric element in

my stove, but I couldn’t. I wanted to hurt myself and take away some of Mike’s pain.”

Id. at 226. She further testified

I never had a chance to say goodbye to Mike. His body was so
charred, he had to be buried in a plastic bag. His beautiful hair was burned
off, his nimble fingers were burned off. The medical examiner says his
sparkly and gentle eyes were like hardboiled eggs, and he tried until he
could try no more to beat the trunk open.

19
Id. at 228.

I do want justice for all of us who loved him, but mostly for Michael
and Laura Lee, who are not here to speak for themselves. I believe Scott
Allen Hain should be sentenced to death. He did not know Mike or Laura
Lee, nor did he care who they were. He wanted to kill someone. We had to
have our 10-year-old Golden Retriever put to sleep. I held her while the
lethal injection was administered. She quivered a little and went gently to
sleep. All I could think of was that I wished Mike and Laura Lee could
have met death so gently.
Until the death penalty is carried out, there is always the chance he
could be released. I believe if you take a life, your life should be taken
unless it is self-defense or to save the life of another. The only true justice
would be to have Mike and Laura Lee returned to us. We know that cannot
be. I feel our families have been serving a death sentence for almost seven
years. Mike and Laura Lee received the death penalty without a trial, with
no appeals, with no mercy and for no reason; they had committed no crime.

Id. at 229. Ashley Houghton, Michael Houghton’s father, testified in part:

All that I, Michael and his family want is justice. I believe that the
death sentence is deserved. The brutal way Michael was murdered, the
brutal way the murder was carried out and the suffering that Michael and
Laura Lee went through in the trunk of the car shows the total disregard for
– for life that Scott Hain has. He deserves the death penalty.

Id. at 234.

Hain challenged the admission of this testimony in his direct appeal following the

resentencing proceedings.8 The OCCA concluded that two portions of the challenged

8
Hain specifically highlighted only three of these statements: “Delma Houghton’s
statement she wished her son could have died a gentle death, as the family dog had
experienced who was given a lethal injection, quivered a little and went to sleep;
[William] Sanders’ opinion death was the only appropriate punishment for Appellant and
Tena Houghton’s references to the unbearable pain of burning to death.” Hain II, 919
P.2d at 1144.

20
testimony should not have been admitted, but were nevertheless harmless:

Title 22 O.S.Supp.1993, § 984 provides victim impact evidence
should be limited to the “financial, emotional, psychological, and physical
effects,” or impact of the crime itself on the victim's survivors; as well as
some personal characteristics of the victim. As long as these personal
characteristics show how the loss of the victim will financially, emotionally,
psychologically, or physically impact on those affected, it is relevant, as it
gives the jury a “glimpse of the life” which the defendant “chose to
extinguish.” However, these personal characteristics should constitute a
“quick” glimpse, and its use should be limited to showing how the victim’s
death is affecting or might affect the victim’s survivors, and why the victim
should not have been killed. At trial, objections to victim impact evidence
are to be based upon its relevance to the guidelines set forth in § 984.
Objections such as those made in the present case, while legitimate
concerns, are not proper and do not provide sufficient ground to exclude
any evidence.
Reviewing the challenged comments, we find only one improper.
Section 984(1) defines victim impact statements and allows for the victim’s
opinion of a recommended sentence. We find this includes the opinion of a
member of the victim’s immediate family as defined in 22 O.S.Supp.1993,
§ 984(2) regarding a recommended sentence. Therefore, Mr. Sanders’
opinion of the appropriateness of the death penalty was in accordance with
the statutory provisions. (Footnote omitted.)9
Section 984(1) also provides for information about the manner in
which the crime was committed. Tena Houghton’s statement was therefore
relevant. However, Delma Houghton’s comment was not relevant to the
manner in which the crime was perpetrated, nor was it relevant to the
financial, emotional, psychological, or physical impact of the crime on the
victim's survivors. It was purely an emotional plea which is not statutorily
permitted. The consequences of the improper admission of this statement is
addressed in the Mandatory Sentence Review.

9
In the omitted footnote, the OCCA acknowledged that the “evidence may not
pass scrutiny by the United States Supreme Court” in light of its decision in Payne v.
Tennessee, 501 U.S. 808, 830 (1991). Hain II, 919 P.2d at 1144 n.3. The OCCA
nevertheless concluded that “[a]ny error in the admission of the evidence [wa]s
harmless.” Id.

21
Hain II, 919 P.2d at 1144 (internal citations omitted).

Upon our review of the record and careful weighing of the
aggravating circumstances and the mitigating evidence, we find the
sentence of death to be factually substantiated and appropriate. Under the
record before this Court, we cannot say the jury was influenced by passion,
prejudice, or any other arbitrary factor contrary to 21 O.S. Supp. 1987,
§ 701.13(C), in finding that the aggravating circumstances outweighed the
mitigating evidence. Any improper victim impact evidence admitted was
harmless beyond a reasonable doubt. There was sufficient evidence,
independent of the victim impact evidence, to support the aggravating
circumstances.

Id. at 1149.

In Booth v. Maryland, 482 U.S. 496, 501-02 (1987), the Supreme Court addressed

the question of “whether the Eighth Amendment prohibits a capital sentencing jury from

considering victim impact evidence.” The petitioner in Booth had been convicted of two

counts of first-degree murder and sentenced to death. During the sentencing phase of his

trial, the prosecution, consistent with Maryland law, presented a written victim impact

statement (VIS) that “provided the jury with two types of information. First, it described

the personal characteristics of the victims and the emotional impact of the crimes on the

family. Second, it set forth the family members’ opinions and characterizations of the

crimes and the defendant.” Id. at 502. The Supreme Court, by a 5-4 majority, concluded

that victim impact evidence was per se inadmissible during the sentencing phase of a

capital trial, except to the extent that it related “directly to the circumstances of the

crime.” Id. at 507 n.10. With respect to the first type of information contained in the

VIS, the Court determined it might “be wholly unrelated to the blameworthiness of a

22
particular defendant,” id. at 504, and, in any event, “create[d] an impermissible risk that

the capital sentencing decision w[ould] be made in an arbitrary manner.” Id. at 505. As

for the second type of information contained in the VIS (family members’ opinions and

characterizations of the crimes), the Court concluded it could “serve no other purpose

than to inflame the jury and divert it from deciding the case on the relevant evidence

concerning the crime and the defendant.” Id. at 508.

In 1989, the Court extended the rule announced in Booth to statements made by a

prosecutor to a capital sentencing jury regarding the personal qualities of the victim. See

South Carolina v. Gathers, 490 U.S. 805 (1989).

In 1991, the Court revisited these issues, and partially reversed course, in Payne v.

Tennessee, 501 U.S. 808 (1991). The petitioner in Payne was sentenced to death for the

murders of a 28-year-old woman and her 2-year-old daughter. During the sentencing

phase of trial, the prosecution presented testimony from the adult victim’s mother, who

testified about the physical and emotional impact the murders had on the adult victim’s 3-

year-old son (who had also been assaulted by the defendant but had survived). The

prosecutor commented on this testimony during closing arguments in the sentencing

phase and emphasized the continuing effects of the boy’s experience. The Court,

expressly overruling its decisions in Booth and Gathers, held that “if the State chooses to

permit the admission of victim impact evidence and prosecutorial argument on that

23
subject, the Eighth Amendment erects no per se bar.” Id. at 827.10 Instead, the Court

held, the only constitutional limitation on such evidence is if it “is so unduly prejudicial

that it renders the trial fundamentally unfair.” Id. at 825. In such an event, the Court

indicated, “the Due Process Clause of the Fourteenth Amendment provides a mechanism

for relief.” Id.

Importantly, Payne left one significant portion of Booth untouched. Unlike Booth,

Payne did not involve any testimony or statements from the victim’s family members

regarding their “opinions and characterizations of the crimes and the defendant.” Booth,

482 U.S. at 502. Thus, although the Court expressly overruled Booth, it stated in a

footnote:

10
In reaching this conclusion, the Court specifically outlined why victim impact
evidence was relevant to a capital jury’s sentencing decision:
We are now of the view that a State may properly conclude that for the jury
to assess meaningfully the defendant’s moral culpability and
blameworthiness, it should have before it at the sentencing phase evidence
of the specific harm caused by the defendant. “[T]he State has a legitimate
interest in counteracting the mitigating evidence which the defendant is
entitled to put in, by reminding the sentencer that just as the murderer
should be considered as an individual, so too the victim is an individual
whose death represents a unique loss to society and in particular to his
family.” Booth, 482 U.S., at 517, 107 S. Ct. at 2540 (WHITE, J.,
dissenting). By turning the victim into a “faceless stranger at the penalty
phase of a capital trial,” Gathers, 490 U.S., at 821, 109 S. Ct. at 2216
(O'CONNOR, J., dissenting), Booth deprives the State of the full moral
force of its evidence and may prevent the jury from having before it all the
information necessary to determine the proper punishment for a first-degree
murder.
Id. at 825.

24
 Our holding today is limited to the holding[] in Booth . . . that evidence . . .
relating to the victim and the impact of the victim’s death on the victim’s
family [is] inadmissible at a capital sentencing hearing. Booth also held
that the admission of a victim’s family members’ characterizations and
opinions about the crime, the defendant, and the appropriate sentence
violates the Eighth Amendment. No evidence of the latter sort was
presented at the trial in this case.

Payne, 501 U.S. at 830 n.2. To date, three circuits, including our own, have expressly

recognized that the portion of Booth prohibiting family members of a victim from stating

“characterizations and opinions about the crime, the defendant, and the appropriate

sentence” during the penalty phase of a capital trial survived the holding in Payne and

remains valid. See Parker v. Bowersox, 188 F.3d 923, 931 (8th Cir. 1999), cert. denied,

529 U.S. 1038 (2000); United States v. McVeigh, 153 F.3d 1166, 1217 (10th Cir. 1998);

Woods v. Johnson, 75 F.3d 1017, 1038 (5th Cir. 1996); Robison v. Maynard, 943 F.2d

1216, 1217 (10th Cir. 1991); but see Alley v. Bell, 101 F. Supp. 2d 588, 648 n.46 (W.D.

Tenn. 2000) (“Petitioner argues that Payne left portions of Booth intact, but this Court

does not read Payne as so limited.”).

Turning to Hain’s arguments, we agree that some of the testimony he now

challenges was improperly admitted and resulted in the violation of his Eighth

Amendment rights. Most significantly, four of the five witnesses (William Sanders, Carol

Lee Sanders, Delma Houghton and Ashley Houghton) expressed their views of the

appropriate punishment for Hain, all stating (or at least strongly implying) they thought he

should receive the death penalty. This testimony was clearly contrary to Payne and Booth

25
and resulted in a violation of Hain’s Eighth Amendment rights. Further, four of the

witnesses (Carol Lee Sanders, Tena Houghton, Delma Houghton and Ashley Houghton)

commented in one way or another on Hain and the crime (e.g., stating it was hard “to

imagine that anyone could have that much hate and meanness in them,” criticizing Hain

for being “fully aware that he was taking the life of two young and beautiful people,” for

returning to the car “to make sure it was going to do the job and make sure that Michael

and Laura Lee would die,” and for failing to do anything “to stop the horrible set of

events which he had set into motion”). Again, this testimony was contrary to Payne and

Booth, and violated Hain’s Eighth Amendment rights.

The remaining question is whether the error was harmless, or instead requires the

reversal of Hain’s death sentences. The OCCA addressed this point in disposing of

Hain’s direct appeal following resentencing, concluding that any constitutional errors

arising out of the admission of the victim impact testimony were “harmless.” Hain II, 919

P.2d at 1144 n.3. Under the AEDPA, our task is to decide whether the OCCA’s

conclusion was reasonable.11 See 28 U.S.C. § 2254(d)(1).

11
The decision in Booth does not expressly indicate whether the Court believed
such errors to be trial errors subject to harmless error review, or structural error requiring
automatic reversal. Further, the Court’s language remanding the case to the Maryland
state courts is somewhat cryptic and could conceivably be construed either way. See 482
U.S. at 509 (“The decision of the Maryland Court of Appeals is vacated to the extent that
it affirmed the capital sentence. The case is remanded for further proceedings not
inconsistent with this opinion.”). Nevertheless, we do not believe the OCCA
unreasonably applied Booth in concluding that such errors are subject to harmless error
review. See Clemons v. Mississippi, 494 U.S. 738, 754 (1990) (indicating it is

26
 After carefully examining the transcript of the resentencing proceedings, three

factors convince us that the OCCA’s conclusion was reasonable under § 2254(d)(1).

First, the horrific nature of the murders was uncontroverted. Indeed, Hain’s defense

counsel conceded, and the jury specifically found, that the murders were especially

heinous, atrocious or cruel under Oklahoma law. Second, the evidence of Hain’s guilt

was substantial. At best, Hain was a knowing and willing participant in a robbery and

kidnapping scheme that resulted in the arson of a stolen vehicle and the deaths of two

victims. At worst, Hain intended to cause the deaths of the two victims, and not only

assisted in setting fire to the stolen vehicle, but stood by and watched as the victims

screamed for help, and subsequently returned to the scene of the crime to ensure that the

vehicle was still burning. Finally, substantial evidence supports the jury’s finding that

Hain was a continuing threat to society. In particular, the prosecution presented evidence

that Hain and co-defendant Lambert committed a string of violent crimes, including

rapes, sexual assault, kidnapping, and attempted murder, between July and September

1987. In sum, we conclude beyond a reasonable doubt that the jury would have imposed

a sentence of death even absent the improper victim impact testimony.

constitutionally permissible for a state appellate court to engage in reweighing or
harmless-error analysis when errors have occurred in a capital sentencing proceeding);
Rose v. Clark, 478 U.S. 570, 579 (1986) (“[I]f the defendant had counsel and was tried by
an impartial adjudicator, there is a strong presumption that any other [constitutional]
errors that may have occurred are subject to harmless-error analysis.”); United States v.
McVeigh, 153 F.3d 1166, 1203 (10th Cir. 1998) (applying harmless error review where
trial court may have abused its discretion in admitting certain victim impact testimony).

27
 Hain also argues that the trial court erred in failing to instruct the jury regarding

the proper use of the victim impact testimony. Hain’s defense counsel did not raise this

issue at trial, however, and it does not appear that Hain attempted to present the issue to

the OCCA. Because the claim is unexhausted and would be procedurally barred under

Oklahoma law if Hain now attempted to present it to the OCCA, see Okla. Stat. tit. 22,

§ 1086, we need not address it as no cause and prejudice has been alleged, and Hain

cannot establish that a fundamental miscarriage of justice would occur if the claim is not

addressed. See Coleman, 501 U.S. at 735 n.1.

Violation of Hain’s Fifth Amendment rights

Hain contends the trial court violated his Fifth Amendment rights when, during his

sentencing phase testimony, it compelled him to answer questions from the prosecutor

regarding unadjudicated crimes he may have committed in the State of Kansas. In

seeking to establish the continuing threat aggravator, the prosecution presented evidence

of both adjudicated and unadjudicated crimes committed by Hain. With respect to

adjudicated crimes, the prosecution presented evidence that, on September 24, 1987, in

the City of Tulsa, Hain and Lambert robbed, kidnapped and attempted to murder Derek

Wunsch and Heather Rogers (Hain pled guilty to these crimes). With respect to

unadjudicated crimes, the prosecution presented evidence of two offenses committed by

Hain and Lambert in the State of Kansas. The first of these was the July 10, 1987,

28
abduction, rape and sodomy of Wichita resident Mary Hofford. The second was the

September 5, 1987, assault and rape by instrumentation of Goddard resident Phyllis

Comstock. In all three of these instances, the prosecution presented testimony from the

victims of the crimes.

The OCCA described Hain’s response to this evidence and the subsequent chain of

events:

Prior to the introduction of this evidence, Appellant objected,
arguing that such evidence forced him either to let the evidence go
unanswered or give up his Fifth Amendment right to silence and respond to
the evidence. The trial court ruled that if Appellant needed to respond to
the evidence, he would be granted immunity from prosecution for the
unadjudicated offenses.
During the defense case-in-chief, Appellant took the witness stand.
He testified to his childhood, the 1987 robbery, kidnaping and attempted
murder of Derek Wunsch and Heather Rogers (crimes for which Appellant
pled guilty), and the circumstances surrounding the Houghton and Sanders
murders. On cross-examination, the prosecution asked Appellant if he had
committed a rape and burglary against Ms. Comstock. Appellant denied
committing the offenses. There was not a timely objection to this first
question. However, after Appellant’s response, defense counsel objected
on grounds the evidence was an unadjudicated offense, and Appellant was
being forced to give up his Fifth Amendment right to silence. Counsel
informed the court he was going to advise Appellant not to answer the
question and not to answer any questions pertaining to the Comstock and
Hofford matters. The trial court overruled the defense objection, granted
Appellant immunity from prosecution in the Comstock and Hofford matters
and directed Appellant to answer questions on those matters or be held in
contempt of court. When asked about the rape and sodomy committed
against Ms. Hofford, Appellant denied commission of those offenses.

Hain II, 919 P.2d at 1140-41.

In his direct appeal following resentencing, Hain complained about the trial court

29
forcing him to respond to the prosecution’s questions. The OCCA agreed that the trial

court’s actions were improper, but concluded the resulting error was harmless:

[W]e find the trial court erred in granting Appellant immunity in exchange
for his testimony concerning the unadjudicated offenses. The trial court had
no authority to grant Appellant immunity from the prosecution of offenses
committed in the State of Kansas. The legal authority of judges in the State
of Oklahoma extends only to offenses committed in the State of Oklahoma.
20 O.S. 1991, § 91.1. Criminal offenses committed in other states [are]
beyond the purview of the Oklahoma state judicial system.
This erroneous grant of immunity resulted in the admission of
testimony in violation of the Fifth Amendment Self-Incrimination Clause.
This error, albeit constitutional, is subject to a harmless error analysis as it
was an error in the trial process itself, and not a defect affecting the entire
framework of the trial. . . .
***
In the present case, evidence of the unadjudicated offenses, as
testified to by Ms. Hofford and Ms. Comstock, was properly admitted.
When asked about those unadjudicated offenses at trial, Appellant denied
them. The jury had no more information before it in deciding the existence
of the “continuing threat” aggravator than if Appellant had remained silent
on the issue. In fact, Appellant’s denial may have been more to his benefit
since his silence could have invited negative inferences from the jury.
Appellant’s testimony on the unadjudicated offenses had little if any impact
on the jury’s consideration of the “continuing threat” aggravator.
Therefore, we find admission of Appellant’s testimony concerning the
unadjudicated offenses harmless beyond a reasonable doubt. This
assignment of error is denied.

Hain II, 919 P.2d at 1141-42.

“The Fifth Amendment provides that ‘[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.’” Ohio v. Reiner, 532 U.S. 17, 121 S. Ct.

1252, 1254 (2001) (quoting U.S. Const., Amdt. 5). “[T]his privilege extends not only ‘to

answers that would in themselves support a conviction . . . but likewise embraces those

30
which would furnish a link in the chain of evidence needed to prosecute the claimant.’”

Id. (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)). “‘[I]t need only be

evident from the implications of the question, in the setting in which it is asked, that a

responsive answer to the question or an explanation of why it cannot be answered might

be dangerous because injurious disclosure could result.’” Id. (quoting Hoffman, 341 U.S.

at 486-487). The Supreme Court has given the privilege a broad scope, explaining that “it

protects against any disclosures which the witness reasonably believes could be used in a

criminal prosecution or could lead to other evidence that might be so used.” Kastigar v.

United States, 406 U.S. 441, 444-45 (1972) (footnote omitted). Consistent with this

broad interpretation, the Court has held that “this privilege serves to protect the innocent

who otherwise might be ensnared by ambiguous circumstances.” Slochower v. Board of

Higher Ed. of New York City, 350 U.S. 551, 557-558 (1956).

Despite the Court’s broad interpretation of the privilege, it has long been held that

a criminal defendant can waive the privilege by taking the stand in his own behalf. See

McGautha v. California, 402 U.S. 183, 215 (1971). In such circumstances, the defendant

is subject to cross-examination “on matters reasonably related to the subject matter of his

direct examination.” Id.

Here, the OCCA was clearly correct in concluding that the trial court exceeded its

authority when it purportedly granted Hain immunity from prosecution on the

unadjudicated crimes. Although the OCCA in turn concluded that this resulted in a

31
violation of Hain’s Fifth Amendment rights, we disagree. We instead agree with the

federal district court that Hain made at least two remarks during his direct examination

that “opened the door” for the prosecution to cross-examine him regarding the two

unadjudicated Kansas crimes. First, Hain testified on direct examination that he did not

meet Lambert until early September 1987. Resentencing Tr., Vol. II at 370. Obviously,

this testimony contradicted Hofford’s testimony that she was abducted, kidnapped, and

sexually assaulted by Hain and Lambert in Wichita on July 10, 1987. Second, and

perhaps most importantly, Hain testified on direct exam that he had never committed a

violent act prior to the September 24, 1987, attack on Wunsch and Rogers. Id. at 383.

Clearly, this testimony was contradictory to the testimony of both Hofford and Comstock.

Thus, the prosecution’s questions to Hain regarding whether he was involved in the

Comstock and Hofford crimes was reasonably related to the subject matter of Hain’s

direct examination, and no violation of Hain’s Fifth Amendment rights occurred as a

result of those questions.

Propriety of imposing death sentence on juvenile offender

Hain argues that, because the murders for which he was convicted occurred when

he was seventeen years old, the International Covenant on Civil and Political Rights

(ICCPR), which the United States ratified on September 8, 1992, prohibits him from

being put to death for those crimes. Although Hain acknowledges that the United States

32
Senate, in ratifying the ICCPR, placed a reservation on the specific provision (Article 6

paragraph 5) prohibiting imposition of the death penalty on juveniles, he argues this

purported reservation was invalid and ineffective because the Constitution does not give

the Senate authority to make reservations to treaties, the reservation is specifically

prohibited by the terms of the ICCPR itself, the reservation violates the object and

purpose of the ICCPR, and in any event the prohibition against executing juveniles is a

peremptory norm of international law, or jus cogens, that is accepted and recognized by

the international community and that cannot be derogated.

It is debatable whether Hain sufficiently presented these arguments to the

Oklahoma courts. In his direct appeal following resentencing, Hain asserted generally

that the imposition of the death penalty for juveniles was an international human rights

issue and that the United States was “a signatory to the Geneva Convention and two other

treaties which prohibit[ed] the execution of persons under the age of 18.” See Hain’s Br.

filed 9/18/95, at p.18. Hain did not, however, specifically cite the ICCPR. In rejecting

Hain’s direct appeal, the OCCA did not address Hain’s arguments. The district court, in

considering Hain’s federal habeas petition, concluded that Hain had fairly presented his

arguments to the OCCA and thus had satisfied the exhaustion requirements.

Assuming, arguendo, that Hain adequately presented his arguments to the OCCA,

we find no merit to them. “In 1992, the United States Senate ratified the ICCPR with

various reservations, understandings, [and] declarations.” Beazley v. Johnson, 242 F.3d

33
248, 263 (5th Cir.), cert. denied, 122 S. Ct. 329 (2001); see Buell v. Mitchell, 274 F.3d

337, 371 (6th Cir. 2001) (same). Included among these was the following proviso:

[T]he United States reserves the right, subject to its Constitutional
constraints, to impose capital punishment on any person (other than a
pregnant woman) duly convicted under existing or future laws permitting
the imposition of capital punishment, including such punishment for crimes
committed by persons below eighteen years of age.

138 Cong. Rec. S4783 (1992). Thus, contrary to Hain’s arguments, Article 6 paragraph 5

of the ICCPR does not prohibit Oklahoma from imposing capital punishment for crimes

committed by a person under eighteen years of age.

Even if, as suggested by Hain, the above-quoted reservation were void (for any of

the reasons suggested by Hain), it is clear that the ICCPR is not binding on the federal

courts. See Buell, 274 F.3d at 372. “‘Courts in the United States are bound to give effect

to international law and to international agreements, except that a ‘non-self-executing’

agreement will not be given effect as law in the absence of necessary authority.’” Id.

(quoting Restatement (Third) of Foreign Relations Law § 111 (1987)). When the Senate

ratified the ICCPR, it specifically declared that the provisions thereof were “not self-

executing.” 138 Cong. Rec. S4784. And, since that time, Congress has never “enacted

implementing legislation for” the ICCPR. Buell, 274 F.3d at 372; see Beazley, 242 F.3d

at 267-68 (citing cases and other sources indicating that the ICCPR is not self-executing).

Finally, there appears to be no basis for granting Hain federal habeas relief on the

grounds that imposition of the death penalty for crimes committed while a juvenile would

34
violate jus cogens norms of international law. It is far from certain that abolition of the

death penalty for juveniles is a customary norm of international law that has “risen to the

level that the international community as a whole recognizes it as jus cogens, or a norm

from which no derogation is permitted.” Buell, 274 F.3d at 373. Instead, it appears the

countries that have abolished the death penalty in these instances have done so for

“moral” or “political” reasons (as opposed to any “sense of legal obligation”). Id. Even

if the abolition of the death penalty for juveniles could be considered a “customary norm

of international law” or “jus cogens,” this does not appear to be a sufficient basis to

invalidate Hain’s death sentences. Id. In Stanford v. Kentucky, 492 U.S. 361, 380

(1989), a majority of the Supreme Court held that the imposition of capital punishment on

an individual for a crime committed at sixteen or seventeen years of age does not

constitute cruel and unusual punishment under the Eighth Amendment. Although the

dissent in Stanford argued that, “[w]ithin the world community, the imposition of the

death penalty for juvenile crimes appears to be overwhelmingly disapproved,” id. at 390

(Brennan, J., dissenting), the majority implicitly rejected this argument in holding the

practice constitutional and in noting that “no modern societal consensus” forbids the

imposition of the death penalty on individuals age sixteen or seventeen. In light of

Stanford, which essentially authorizes the imposition of the death penalty upon a criminal

defendant such as Hain, “the determination of whether customary international law

prevents [the] State [of Oklahoma] from carrying out the death penalty . . . is a question

35
that is [properly] reserved to the executive and legislative branches of the United States

government, as it [is] their constitutional role to determine the extent of this country’s

international obligations and how best to carry them out.” Buell, 274 F.3d at 376.

Cumulative error

Although Hain has asserted a cumulative error argument, it is without merit since

he has failed to identify multiple constitutional violations arising at trial. See Moore v.

Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998) (“Cumulative error analysis applies

where there are two or more actual errors; it does not apply to the cumulative effect of

non-errors.”).

The judgment of the district court is AFFIRMED.

36