Bland v. Sirmons

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 3, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

JIM M Y D A LE B LA N D ,

Petitioner-A ppellant,
v. No. 05-6013
M ARTY SIRM ONS, W arden,
Oklahoma State Penitentiary, *

Respondent-Appellee.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FO R TH E W ESTERN DISTRICT O F O K LAH O M A
(D.C. NO . CIV-01-718-L)

David Autry, Oklahoma City, Oklahoma, for Petitioner-A ppellant.

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

Before KELLY, BR ISC OE, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.

*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), M arty Sirmons
is substituted for M ike M ullin as W arden of the Oklahoma State Penitentiary.
 Jimmy Dale B land, an inmate on death row in the Oklahoma State

Penitentiary, appeals the district court’s denial of his petition for a writ of habeas

corpus filed pursuant to 28 U.S.C. § 2254. M r. Bland was convicted of one count

of first-degree malice-aforethought murder. The jury found the existence of two

aggravating factors and recommended that he be sentenced to death. The trial

court adopted the jury’s recommendation, and the Oklahoma Court of Criminal

Appeals affirmed. Bland v. State, 4 P.3d 702, 709 (Okla. Crim. App. 2000). The

state courts denied his requests for post-conviction relief. M r. Bland now appeals

the district court’s denial of his habeas petition, challenging aspects of both the

guilt and sentencing phases of his trial. For the reasons set forth below, we

affirm the decision of the district court.

I. Background

A. The Crim e

On November 14, 1996, Jimmy Dale B land shot and killed Doyle W indle

Rains in M r. Rains’s garage in M anitou, Tillman County, Oklahoma. Bland, 4

P.3d at 709. He had been out of prison less than a year. He had served almost

twenty years of a 60-year sentence for killing a man and kidnapping the victim’s

wife and son. Tr. Jury Trial, Day Seven, at 39-45, 55, 62-64, 107. At trial, M r.

Bland admitted killing M r. Rains, but defended on the ground that the killing was

neither malice-aforethought murder nor felony murder. Bland, 4 P.3d at 710.

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 According to the government’s evidence, M r. Bland worked for M r. Rains

doing miscellaneous construction and handyman jobs. Id. at 709; Tr. Jury Trial,

Day Five, at 33. M r. Rains was romantically involved with M r. Bland’s mother.

Tr. Jury Trial, Day Five, at 26. Although M r. Bland testified that the two men

were “pretty good friends,” id. at 27, their financial relations, as w ell as M r.

Rains’s relationship w ith M r. Bland’s mother, were sources of friction. M r.

Bland was chronically short of money, which he used to feed his drug habit. See

id. at 79. M r. Rains would allocate their earnings between the two of them,

usually keeping well more than half for himself. See id. at 35-36. On at least one

occasion, M r. Bland told his girlfriend, Connie Lord, that he planned to kill M r.

Rains, and said that he would dispose of the body by placing it in a well and

putting cement on it. Tr. Jury Trial, Day Four, at 68, 73-74.

On November 14, 1996, M r. Rains lent M r. Bland his Cadillac so that M r.

Bland could drive to Oklahoma City and visit M s. Lord. Bland, 4 P.3d at 709.

During the visit, M r. Bland spent nearly all of the cash he brought with him, most

of it on drugs, which he and M s. Lord immediately ingested. Id. M s. Lord gave

M r. Bland $10.00 so that he could return home. Id. On the way home, M r. Bland

stopped and consumed the remaining drugs he had purchased in Oklahoma City.

Tr. Jury Trial, Day Five, at 41. On his return to M anitou, before going home, M r.

Bland drove to M r. Rains’s home to return the Cadillac. Bland, 4 P.3d at 709.

He brought a .22-caliber bolt-action rifle, concealed in a roll of coveralls. Id.

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Angry with M r. Rains and desperate for cash, M r. Bland shot M r. Rains in the

back of the head. Id. M r. Bland then loaded M r. Rains’s body into a pickup

truck, washed out the garage area where the killing had occurred, drove to a rural

area, and “[d]umped [the] body in a creek and covered it up,” hoping that no one

would find it. Tr. Jury Trial, Day Five, at 67-68; Bland, 4 P.3d at 709.

M r. Bland offers a slightly different story. According to his testimony at

trial, he had taken the rifle with him on his trip to Oklahoma City, in accordance

with his usual practice. Tr. Jury Trial, Day Five, at 53. It was still with him in

the Cadillac when he arrived at M r. Rains’s home. Id. Although M r. Rains had

given M r. Bland the gun to “[s]hoot frogs or snakes or whatever,” M r. Bland did

not want M r. Rains to know that he “was carrying it around driving [M r. Rains’s]

car.” Id. at 54. To ensure that M r. Rains did not see the weapon, M r. Bland

removed it from the vehicle, rolled it into a pair of coveralls, and carried it under

his arm. Id. at 53-54. The two men got into a fight over a damaged hubcap on

the Cadillac. Id. at 60. W hile in M r. Rains’s garage, M r. Rains took a swing at

M r. Bland, and M r. Bland then “leaned back and kicked [M r. Rains’s] leg out

from under him,” at which point both men fell down. Id. at 62-63; Bland, 4 P.3d

at 710. W hen M r. Bland fell, “the coveralls fell out from under [his] arm,” then

“[t]he gun fell out and [he] just picked it up and fired.” Tr. Jury Trial, Day Five,

at 63; Bland, 4 P.3d at 710.

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 W hatever the precise sequence of events at M r. Rains’s home, M r. Bland

admits that he loaded the body into a pickup truck, drove to a remote area,

dumped the body into a creek, and covered it w ith logs. Bland, 4 P.3d at 710.

W hen he was apprehended by law enforcement several days later, he had over

$300 in cash on his person, presumably taken from M r. Rains. Id. He then

returned to M r. Rains’s home and spent the night there. Bland, 4 P.3d at 709. H e

told his mother the next day that he had gone to work with M r. Rains. Id.

It was several days before M r. Bland was apprehended. On a tip from M s.

Lord, conveyed through her sister, Tillman County law enforcement officials

visited and searched M r. Rains’s home, discovered that M r. Rains and his pickup

were missing, and observed blood on the garage floor and on a spray washer they

found in the garage. Id.; Tr. Jury Trial, Day Three, at 75. They listed M r. Rains

and his pickup on the NCIC register of missing persons. Bland, 4 P.3d at 709-10.

On November 16, M r. Bland drove M r. Rains’s truck off the side of the road

betw een Stroud and C handler, O klahoma. Tr. Jury Trial, Day Four, at 29-30. H e

was arrested for driving under the influence, and released on bond. Bland, 4 P.3d

at 710.

At this point, law-enforcement officials had drawn no connection between

M r. Bland and the disappearance of M r. Rains. Shortly thereafter, however, the

sheriff in Chandler contacted the sheriff’s office in Tillman County regarding the

NCIC listing for the missing truck. Tr. Jury Trial, D ay Three, at 81-82. A

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warrant was issued for the arrest of M r. Bland for the unauthorized use of a motor

vehicle. Id. at 83. On November 20, law enforcement officials located and

arrested M r. Bland at a friend’s home, where he was hiding in a closet. Id. at

116-20. Neither then, nor during his previous encounter with law enforcement in

connection with the drunk-driving accident, nor in an earlier conversation with

his mother, did M r. Bland explain the circumstances of M r. Rains’s death.

M r. Bland was taken to the Tillman County sheriff’s office, where he

confessed to killing M r. Rains. Bland, 4 P.3d at 710. M r. Bland took officers to

the creek where he had dumped M r. Rains’s body. Id. Although the body was

badly decomposed, an autopsy established that the cause of death was a bullet

wound to the back of the head. Id.

B. Judicial Proceedings

At trial, M r. Bland admitted that he shot M r. Rains, but claimed that he

never intended to kill him. Id. The State argued that M r. Bland committed the

murder with malice aforethought and as part of the commission of a felony,

namely robbery. The State’s theory was that M r. Bland killed M r. Rains to obtain

money to purchase drugs, or alternatively that M r. Bland intended to kill M r.

Rains for several months prior to the actual murder because M r. Bland was

displeased with his employment arrangement and troubled by M r. Rains’s

romantic relationship with his mother. Defense counsel stipulated that M r. Bland

was guilty of first-degree heat-of-passion manslaughter. Defense counsel also

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contended that M r. Bland was under the influence of drugs when he killed M r.

Rains.

The jury convicted M r. Bland only of first-degree malice-aforethought

murder. Id. at 709; O.R. Vol. II, Doc. 383-84. At the sentencing phase, the Bill

of Particulars charged that the crime committed by M r. Bland should be punished

by death due to the existence of three aggravating circumstances: (1) M r. Bland

“was previously convicted of a felony involving the use or threat of violence to

the person”; (2) the “murder was comm itted for the purpose of avoiding or

preventing a law ful arrest or prosecution”; and (3) the “existence of a probability

that the defendant would commit criminal acts of violence that would constitute a

continuing threat to society.” O .R. Vol. I, Doc. 7.

To establish these aggravating factors, the prosecution presented evidence

about the circumstances of M r. Bland’s prior kidnapping and manslaughter

convictions. The prosecution showed that M r. Bland, while intoxicated, arrived at

Raymond Prentice’s home, waited for M r. Prentice to appear on the front porch,

and shot M r. Prentice three times. Tr. Jury Trial, Day Seven, at 63-64. M r.

Bland then went inside, found M rs. Prentice and her three-year old son, and

ordered them into a car. Id. at 38, 45, 64. Before they could leave the Prentice

home, however, M rs. Prentice’s brother came to the door. Id. at 44. M r. Bland

fired numerous shots at her brother, but did not kill him. Id. M r. Bland then

kidnapped M rs. Prentice and her son. Id. at 45. The ordeal ended in a shootout

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betw een M r. Bland and the police. Id. at 48. The prosecution also focused on the

heinous nature of both crimes and the short period of time between M r. Bland’s

release and his second killing. See id. at 158, 191.

After evidence was presented at the sentencing phase, the court struck the

“committed for the purpose of avoiding or preventing a lawful arrest” aggravating

circumstance. Id. at 145. The jury found the existence of the remaining two

aggravating circumstances and sentenced him to death. Id. at 206; O.R. Vol. III,

at 411-12.

The OCCA affirmed M r. Bland’s conviction and sentence. Bland, 4 P.3d at

735. The United States Supreme Court denied M r. Bland’s petition for writ of

certiorari on January 8, 2001, Bland v. Oklahoma, 531 U.S. 1099 (2001) (mem.),

and the OCCA denied post-conviction relief in an unpublished opinion on June

26, 2000, Bland v. State, No. PCD-99-1200 (June 26, 2000). On November 26,

2001, M r. Bland filed a petition for w rit of habeas corpus pursuant to 28 U.S.C. §

2254 in the United States District Court for the W estern District of Oklahoma.

The district court denied the petition on December 14, 2004, but granted a

certificate of appealability on six grounds: (1) jury instructions and prosecutorial

argument regarding the lesser included offense of first-degree manslaughter; (2)

prosecutorial argument diminishing the jury’s sense of responsibility for a death

verdict; (3) M r. Bland’s absence from a portion of voir dire; (4) prosecutorial

comm ents on M r. Bland’s post-arrest silence; (5) prosecutorial misconduct; and

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(6) ineffective assistance of counsel. R. Docs. 61, 71; Br. of Pet./A plt. A ttach. 5.

On M arch 17, 2005, in a case management order, this Court granted a certificate

of appealability as to two additional issues: (1) whether the state court deprived

M r. Bland of “a fair trial by refusing to submit an instruction on the offense of

‘manslaughter by resisting criminal [attempt]’”; and (2) w hether the district court

should have granted an evidentiary hearing on whether M r. Bland was denied the

effective assistance of counsel. Case M gmt. Order, M ar. 17, 2005, at 1-2; Br. of

Pet./A plt. A ttach. 6.

II. Standard of Review

Because M r. Bland filed his habeas corpus petition after the effective date

of the Antiterrorism and Effective Death Penalty Act of 1996 (A EDPA), its

standards apply to claims in this appeal adjudicated on the merits by the state

courts. See Turrentine v. M ullin, 390 F.3d 1181, 1188 (10th Cir. 2004);

Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir. 1999). U nder A EDPA, a

petitioner is entitled to federal habeas relief only if 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,” or “was

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

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). In

evaluating a state prisoner’s habeas petition, we presume that the factual findings

of the state court are correct and place the burden on the petitioner to rebut that

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presumption by clear and convincing evidence. Id. § 2254(e)(1); Smith v. M ullin,

379 F.3d 919, 924-25 (10th Cir. 2004). W e review the district court’s legal

analysis of the state court decision de novo. Turrentine, 390 F.3d at 1189.

In applying § 2254(d), we first determine whether the principle of federal

law on which the petitioner’s claim is based was clearly established by the

Supreme Court at the time of the state court judgment. Id. If so, we then

consider w hether the state court decision was “contrary to” or an “unreasonable

application of” that clearly established federal law. A decision is “contrary to”

clearly established federal law for purposes of § 2254 if “the state court applies a

rule that contradicts the governing law set forth in [Supreme Court] cases” or if

“the state court confronts a set of facts that are materially indistinguishable from

a decision of [the Supreme Court] and nevertheless arrives at a result different

from” the result reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362,

405-06 (2000). It is not enough that the state court decided an issue contrary to a

lower federal court’s conception of how the rule should be applied; the state court

decision must be “diametrically different” and “mutually opposed” to the

Supreme Court decision itself. Id. at 406. A state court decision involves an

“unreasonable application” of federal law if “the state court identifies the correct

governing legal principle from [Supreme Court] decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. at 413.

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 Even if the state court decision was contrary to, or involved an

unreasonable application of, clearly established federal law, our analysis is not

complete. Unless the error is a structural defect in the trial that defies harmless-

error analysis, we must apply the harmless-error standard of Brecht v.

Abrahamson, 507 U.S. 619 (1993), and O’Neal v. M cAninch, 513 U.S. 432

(1995). Turrentine, 390 F.3d at 1189. Under Brecht, habeas relief is proper only

if the error had a “‘substantial and injurious effect or influence in determining the

jury’s verdict.’” Brecht, 507 U.S. at 623 (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)). Under O’Neal, a “substantial and injurious effect” exists

when the court finds itself in “grave doubt” about the effect of the error on the

jury’s verdict. O’Neal, 513 U.S. at 435. “Grave doubt” exists where the issue of

harmlessness is “so evenly balanced that [the court] feels [itself] in virtual

equipoise as to the harmlessness of the error.” Id.

The § 2254(d) standard does not apply to issues not decided on the merits

by the state court. Turrentine, 390 F.3d at 1189; see Aycox v. Lytle, 196 F.3d

1174, 1177 (10th Cir. 1999) (noting that the § 2254 standard does not apply to a

decision disposing of a claim on procedural grounds). For those claims, we

review the district court’s legal conclusions de novo and its factual findings for

clear error. M itchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001). However,

if the district court based its factual findings entirely on the state court record, w e

review that record independently. Turrentine, 390 F.3d at 1189.

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 III. Issues for Review

A. H eat of Passion M anslaughter Instruction

M r. Bland first argues that his right to due process of law under the

Fourteenth Amendment was violated through jury instructions and prosecutorial

argument that prevented the jury from considering his affirmative defense of heat

of passion manslaughter. Specifically, he argues that the jury instructions failed

to require the State to disprove heat of passion beyond a reasonable doubt, in

violation of the Supreme Court’s decision in M ullaney v. Wilbur, 421 U.S. 684,

704 (1975). He also contends that the prosecution improperly argued to the jury

that manslaughter could not be considered unless a reasonable doubt existed as to

the murder charge. The State argues that he failed to exhaust his M ullaney claim,

and also defends the decision on the merits.

In his brief on direct appeal to the O CCA, M r. Bland conceded that the jury

was instructed in accordance with M cCorm ick v. State, 845 P.2d 896, 900-01

(Okla. Crim. App. 1993), which upheld Oklahoma’s instructions on heat-of-

passion manslaughter against a M ullaney challenge. Instead, he focused his

argument on the prosecution’s closing arguments. Br. of A ppellant, OCCA Case

No. F-98-152, at 34. He argued that “[t]he trial court erred in allowing the

prosecution to instruct the jury to not consider M r. Bland’s affirmative defense of

first degree manslaughter unless the jury had first found reasonable doubt for first

degree murder.” Id. at 33 (emphasis omitted). In making this argument, M r.

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Bland cited both M ullaney and United States v. Lofton, 776 F.2d 918, 921 (10th

Cir. 1985), a decision from this Court interpreting M ullaney to require the

government to prove, beyond a reasonable doubt, the absence of heat of passion

to obtain a murder conviction. Br. of Appellant, OCCA Case No. F-98-152, at

33-34. Essentially, he argued that the prosecution’s decision to “specifically

t[ell] the jury that it could not consider defendant’s affirmative defense of first

degree manslaughter unless the jury first found reasonable doubt for the offense

of first degree murder” effectively modified the instructions such that they

violated M cCormick, Lofton, and M ullaney. Br. of Appellant, OCC A Case No. F-

98-152, at 34. M r. Bland concluded this argument with a one-sentence citation to

M ullaney, stating that his “right to due process was violated because the State was

exempted from its duty to prove first degree murder beyond a reasonable doubt.”

Id. at 35.

Noting M r. Bland’s concession that the jury instructions were proper under

Oklahoma law, the OCCA construed M r. Bland’s argument solely as one of

prosecutorial misconduct. Bland, 4 P.3d at 726. Because defense counsel did not

object to the prosecution’s argument at trial, the O CCA reviewed M r. Bland’s

claim for plain error. Id. The OCCA concluded that because the jury was

properly instructed as to the manner in which the murder and manslaughter

charges should be considered, and there was no evidence that the jury failed to

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follow their written instructions, any misstatements by the prosecutor “could not

have affected the outcome of the trial.” Id.

In his habeas petition in the district court, M r. Bland argued both that the

trial court “should have given an instruction that unless the State disproved the

affirmative defense of ‘heat of passion’ it could not convict of murder,” and that

the prosecution improperly argued that the jury must decide M r. Bland’s guilt on

the murder charge before it could consider the manslaughter charge. R. Doc. 18,

at 27. In response, the State argued that M r. Bland did not exhaust state remedies

for his challenge to the jury instructions. M r. Bland replied that the jury

instruction argument was exhausted because it is the “substantial equivalent” to,

“arose under the same federal constitutional provision” as, and “was a logical

extension” of, the argument made to the OCCA. R. Doc. 33, at 2. The district

court agreed, and found that M r. Bland “fairly raise[d] the issue of whether the

jury instructions given, combined with [the] prosecutorial argument made, misled

the jury concerning the prosecution’s burden of proof.” R. Doc. 61, at 9. The

district court nonetheless denied relief because the jury instructions clearly set

forth the various offenses for which M r. Bland could have been convicted, and the

prosecutor’s comments did not infringe on a particular constitutional right. Id. at

10-11. On appeal, the State reasserts its claim that M r. Bland failed to present his

jury instruction claim to the O CCA.

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 1. Exhaustion

A state prisoner generally must exhaust available state-court remedies

before a federal court can consider a habeas corpus petition. See 28 U.S.C. §

2254(b)(1)(A ); Hawkins v. M ullin, 291 F.3d 658, 668 (10th Cir. 2002). A claim

has been exhausted when it has been “fairly presented” to the state court. Picard

v. Connor, 404 U.S. 270, 275 (1971). “Fair presentation” requires more than

presenting “all the facts necessary to support the federal claim” to the state court

or articulating a “somewhat similar state-law claim.” Anderson v. Harless, 459

U.S. 4, 6 (1982) (per curiam). “Fair presentation” means that the petitioner has

raised the “substance” of the federal claim in state court. Picard, 404 U.S. at

278. The petitioner need not cite “‘book and verse on the federal constitution,’”

id. (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)), but the

petitioner cannot assert entirely different arguments from those raised before the

state court. For example, in Hawkins, 291 F.3d at 669, the defendant argued on

direct appeal that the trial court erred in not considering whether he knowingly

and voluntarily waived the opportunity to present mitigating evidence. In his

request for federal habeas corpus relief, however, he argued that trial counsel was

ineffective in failing to investigate possible mitigating evidence. Id. W e held

that he had failed to exhaust that claim because “[w]hile [the defendant’s] state-

court claims focused on the trial court’s actions” his federal habeas claims

“specifically challenge[d] only defense counsel’s failings.” Id. (emphasis added).

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 M r. Bland’s arguments on direct appeal were limited to objections to the

prosecution’s mischaracterization of jury instructions directing the jury to

consider the murder and manslaughter charges simultaneously. In the course of

that argument, M r. Bland not only neglected to argue that the trial court’s

instructions were erroneous, but explicitly conceded that the instructions

comported with M cCormick. His due process argument before the OCCA was

limited to “misinformation presented by the prosecution” and did not mention any

errors by the court in issuing its written jury instructions. Br. of Appellant,

OCCA Case No. F-98-152, at 35.

M r. Bland contends that the OCCA examined the jury instructions and held

that the instructions satisfied M ullaney, and that because the court addressed the

claim it w as exhausted. See Abdus-Samad v. Bell, 420 F.3d 614, 623 (6th Cir.

2005) (“A claim is exhausted if the state court addressed the substance of the

asserted claim.”). We do not agree. Although the O CCA did note that “[t]he jury

was properly instructed as to the manner in which the offenses were to be

considered,” this comment was in connection with the court’s consideration of

whether the prosecutor’s comments had the effect of preventing the jury from

following the trial court’s instructions. See id. A challenge to the actions of the

prosecution differs significantly from a challenge to the instructions given by the

court. See Hawkins, 291 F.3d at 669. Because presentation of a “somewhat

similar” claim is insufficient to “fairly present” a federal claim before the state

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courts, we conclude, contrary to the district court, that M r. Bland failed to

exhaust his M ullaney claim.

Generally, a federal court should dismiss unexhausted claims without

prejudice so that the petitioner can pursue available state-court remedies. See

Demarest v. Price, 130 F.3d 929, 939 (10th Cir. 1997). However, “if the court to

which Petitioner must present his claims in order to meet the exhaustion

requirement would now find those claims procedurally barred, there is a

procedural default for the purposes of federal habeas review.” Dulin v. Cook, 957

F.2d 758, 759 (10th Cir. 1992). There is no question that Oklahoma w ould deem

M r. B land’s due process claim regarding the jury instructions procedurally barred.

Oklahoma’s Uniform Post-Conviction Procedure Act requires that “[a]ll grounds

for relief available to an applicant under this act must be raised in his original,

supplemental or amended application. Any ground finally adjudicated or not so

raised . . . may not be the basis for a subsequent application.” Okla. Stat. tit. 22,

§ 1086; see also M edlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000)

(“Oklahoma deems waived claims that were not raised in an initial application for

post-conviction relief in a death penalty case.”).

A petitioner may overcome the procedural bar only if he can “demonstrate

cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thom pson, 501 U.S. 722, 750

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(1991). M r. Bland has neither asserted cause and prejudice excusing this default,

nor suggested that this Court must review the merits of his claim to prevent a

fundamental miscarriage of justice. Accordingly, M r. Bland failed to exhaust his

claim that the jury instructions violated M ullaney and he is now procedurally

barred from raising that claim in this Court.

2. The Instructions

Even were we to agree with the district court that M r. Bland raised his

M ullaney claim before the OCCA, he would not be entitled to relief. In arguing

that he exhausted this claim, M r. Bland takes the position that “the state court

confronted squarely the appropriateness of the written jury instructions

challenged here.” Reply Br. of Pet./Aplt. 5. If he is correct, then the OCCA

rejected M r. Bland’s M ullaney claim on the merits, the standard of review in §

2254 applies, and we could reverse only if the OCCA’s decision was contrary to,

or involved an unreasonable application of, clearly established federal law as

determined by the Supreme Court.

M ullaney involved a challenge to a M aine murder statute that allowed any

intentional or criminally reckless killing to be punished as murder “unless the

defendant proves by a fair preponderance of the evidence that it was committed in

the heat of passion on sudden provocation, in which case it is punished as

manslaughter.” M ullaney, 421 U.S. at 691-92. The Court declared the statute

unconstitutional because “the Due Process Clause requires the prosecution to

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prove beyond a reasonable doubt the absence of the heat of passion on sudden

provocation when the issue is properly presented in a homicide case.” Id. at 704.

Two years after issuing the decision in M ullaney, however, the Supreme Court

clarified that its holding should be narrowly construed. In Patterson v. New York,

432 U.S. 197, 214 (1977), the defendant argued that M ullaney prohibited a state

from permitting guilt or punishment “to depend on the presence or absence of an

identified fact without assuming the burden of proving the presence or absence of

that fact, as the case may be, beyond a reasonable doubt.” The Court rejected that

interpretation. Although it acknowledged that M ullaney requires a state to prove

“every ingredient of an offense beyond a reasonable doubt” and prohibits a state

from “shift[ing] the burden of proof to the defendant by presuming that ingredient

upon proof of the other elements of the offense,” the Court declared it

“unnecessary” to have gone further in M ullaney. Id. at 215. Patterson thereby

limited M ullaney to situations w here a fact is presumed or implied against a

defendant. See id. at 216; United States v. M olina-Uribe, 853 F.2d 1193, 1203-04

(5th Cir. 1988), overruled in part on other grounds by United States v.

Bachynsky, 934 F.2d 1349 (5th Cir. 1991) (en banc). Because the written

instructions did not permit the jury to presume malice aforethought, required the

State to prove malice aforethought beyond a reasonable doubt, and defined malice

and heat of passion as mutually exclusive, the instructions provided to the jury in

M r. Bland’s case did not violate Patterson. See D avis v. M aynard, 869 F.2d

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1401, 1406-07 (10th Cir. 1989) (rejecting a M ullaney challenge to substantially

similar jury instructions), vacated sub nom., Saffle v. Parks, 494 U.S. 484 (1990),

opinion reinstated in part, 911 F.3d 415 (10th Cir. 1990) (per curiam).

M r. Bland relies on our decision in Lofton, 776 F.2d at 920, to claim that he

was entitled to an instruction that the prosecution had the burden to prove the

absence of heat of passion beyond a reasonable doubt. In Lofton, we described

Patterson as preserving, not limiting, M ullaney’s holding that the government

must prove beyond a reasonable doubt the absence of any defense that serves to

negate an element of the crime. See id. (noting that under the statute in

Patterson, malice was not an element of second-degree murder, and the

affirmative defense of extreme emotional disturbance therefore did not negate an

element of the offense). W e held that where malice is an element of murder and a

heat-of-passion defense would negate that element, as in M ullaney, the defendant

“is entitled to instructions informing the jury of . . . the Government’s duty to

prove beyond a reasonable doubt the absence of heat of passion in order to obtain

a murder conviction.” Id.

If this Court’s decision in Lofton were controlling, M r. Bland might well be

entitled to relief. Under the AEDPA standard of review, however, a habeas

petition shall not be granted unless 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)

-20-
(emphasis added). The decisions of lower federal courts applying Supreme Court

precedent are not determinative, see Williams, 529 U .S. at 406, and in this case

the lower federal courts have in fact divided as to the proper scope of M ullaney

after Patterson. Compare Lofton, 776 F.2d at 920-21, with M olina-Uribe, 853

F.2d at 1203-04. Because the OCCA’s decision reasonably applies the correct

legal rule from M ullaney, as the Supreme Court construed that rule in Patterson,

the OCCA decision is neither contrary to, nor an unreasonable application of,

clearly established Supreme Court precedent, notwithstanding the interpretation

of that rule in this Circuit.

3. Prosecutorial M isstatem ents

W e turn now to M r. Bland’s argument that the prosecutors misstated the

jury instruction regarding the lesser included offense, and thus violated due

process. To prevail on a claim based on improper remarks by the prosecutor, a

petitioner generally must demonstrate that the remarks “so infected the trial w ith

unfairness as to make the resulting conviction a denial of due process.” Donnelly

v. DeChristophoro, 416 U.S. 637, 643 (1974); see also Le v. M ullin, 311 F.3d

1002, 1013, 1018 (10th Cir. 2002) (requiring a showing that the trial was

“fundamentally unfair” where the prosecutor’s comments appeared to contradict

the jury instructions). Because the OCC A considered this claim, AED PA

standards of review apply, and we may reverse only if the OCCA’s decision was

-21-
“legally or factually unreasonable.” Gipson v. Jordan, 376 F.3d 1193, 1197 (10th

Cir. 2004) (internal quotation marks omitted).

During closing argument, the prosecution argued that the jury need not

consider the lesser included offense of first-degree manslaughter if the jury found

beyond a reasonable doubt that the defendant is guilty of first-degree murder. Tr.

Jury Trial, Day Six, at 8, 10. The defense did not object to the argument at trial,

but M r. Bland now contends that the argument violated Oklahoma law and

misstated the jury instructions by inviting the jury first to consider the murder

charges and “then only look at the manslaughter” if the jury was unable to find

murder beyond a reasonable doubt. Id. at 106.

Reviewing for plain error, the OCCA found none. Both defense counsel

and the prosecution reminded the jury to refer to the written instructions during

deliberations. See id. at 9 (State’s closing argument) (“Read the Instructions,

study them.”); id. at 59 (Defendant’s closing argument) (“I want you back in the

jury room[,] as I know you will[,] to read all of the instructions.”). M r. Bland has

conceded that the written instructions provided to the jury were in accord with

M cCormick, the controlling OCCA precedent. See Bland, 4 P.3d at 726; Br. of

Appellant, OCCA Case No. F-98-152, at 34. One instruction provided that “[i]f

you have a reasonable doubt of the defendant’s guilt of the charges of M UR DER

FIRST DEG REE (PREM EDITATED ) AN D M UR DER FIRST DEG REE

(FELONY M UR DER), you must then consider the charge of M AN SLAUGH TER

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FIRST DEGREE BY DAN GEROUS W EAPON (HEAT OF PASSION).” O.R.

Vol. II, at 374. Another instruction explained:

If you have a reasonable doubt as to which offense the defendant
may be guilty of, M urder First Degree (Premeditated), and/or M urder
First Degree (Felony M urder), or M anslaughter First Degree by
Dangerous W eapon (Heat of Passion), you may find him guilty only
of the lesser offense, M anslaughter First Degree by Dangerous
W eapon (H eat of Passion).

* * *

If you find the defendant guilty of one or both of the charges of
M urder First Degree . . . , then you may not also render a verdict on
the lesser offense of M anslaughter First Degree by Dangerous
W eapon (Heat of Passion).

Id. at 381. Based on its review of the record, the OCCA found no evidence that

the jury did not follow the written instructions. Bland, 4 P.3d at 726. M oreover,

the OCCA concluded that the prosecutor’s comments “were not so egregious as to

have denied [M r. Bland] a fair trial or to have affected the outcome of the trial.”

Id.

W e have carefully examined the record in light of petitioner’s arguments,

and cannot say that the OCCA’s decision was contrary to, or involved an

unreasonable application of, clearly established federal law, as reflected in the

decisions of the United States Supreme Court. Although the prosecutor in this

case did misstate the jury instructions, both defense counsel and the prosecution

reminded the jury that it should refer to the written instructions during

deliberations. The jury is presumed to follow its instructions, Weeks v. Angelone,

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528 U.S. 225, 234 (2000), even when there has been misleading argument. See

Boyde v. California, 494 U.S. 370, 384 (1990) (explaining that “arguments of

counsel generally carry less weight with a jury than do instructions from the

court”); Lingar v. Bowersox, 176 F.3d 453, 460-61 (8th Cir. 1999) (“W hen

counsel misstates the law , the misstatement is harmless error if the court properly

instructs the jury on that point of law or instructs that the attorneys’ statements

and arguments are not evidence.”). Furthermore, there was strong evidence that

M r. Bland was guilty of malice-aforethought murder rather than heat-of-passion

manslaughter: that M r. Bland’s grievances against the victim were long-standing,

that he told his girlfriend he was going to murder M r. Rains months before doing

so, that he went to M r. Rains’s home with a .22-caliber rifle hidden in his

coveralls, that he shot M r. Rains in the back of the head, that he stole money from

M r. Rains, and that he took elaborate steps to hide the body, much as he had told

his girlfriend he would. In light of these considerations, the OCCA’s decision

w as not an unreasonable application of clearly established federal law.

B. Jury Instruction on M anslaughter by Resisting a Crim inal Attem pt

Oklahoma provides three definitions for first-degree manslaughter:

misdemeanor-manslaughter, heat of passion manslaughter, and manslaughter by

resisting a criminal attempt. Okla. Stat. tit. 21, § 711. M anslaughter by resisting

a criminal attempt occurs when a homicide is “perpetrated unnecessarily either

while resisting an attempt by the person killed to comm it a crime, or after such

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attempt shall have failed.” Id. § 711(3). The defense did not request such an

instruction at trial, but M r. Bland now contends that there was sufficient evidence

to support such an instruction and that the trial court’s failure to give it sua

sponte violated his right to due process as defined by Beck v. Alabama, 447 U.S.

625, 627 (1980). He also argues that the OCCA improperly applied a new and

more exacting standard to determine whether he was entitled to this instruction.

M r. Bland raised the trial court’s failure to issue an instruction for

manslaughter by resisting a criminal attempt on direct appeal of his conviction to

the OCCA. The OCCA rejected the argument. Clarifying prior holdings of that

court, which had been in disarray, the OCCA held that a jury instruction on a

lesser included offense is warranted only when prim a facie evidence has been

presented to support the lesser offense. Bland, 4 P.3d at 719-20. It then found

that there was insufficient evidence in this case to warrant such an instruction.

Id. at 720. The OCCA noted that the only evidence supporting the instruction

was self-serving testimony by M r. Bland that he killed M r. Rains to prevent the

latter from assaulting him, and that testimony was inconsistent with other

evidence showing that M r. Rains was shot in the back of the head, “suggest[ing]

the victim had turned away from” M r. Bland. Id. M r. Bland filed a petition for

rehearing before the O CC A arguing that the new prim a facie evidence standard

violated the principles in Beck as well as longstanding Oklahoma law. District

Ct. App. Vol. I, at 464-67. The OCCA rejected this claim in its order denying

-25-
rehearing, holding that the prim a facie evidence standard “is not inconsistent”

with Beck or O klahoma case law. Id. at 37.

In his habeas petition before the district court, M r. Bland argued both that

the trial court’s failure to provide an instruction on manslaughter by resisting a

criminal attempt violated Beck, and that the OCCA’s adoption of the new prim a

facie standard violated M r. Bland’s due process rights as a judicial ex post facto

violation. R. Doc. 18, at 39, 82 (citing Devine v. N.M . Dep’t of Corr., 866 F.2d

339, 342 (10th Cir. 1989)). The district court did not consider M r. Bland’s claim

under Beck, but it rejected M r. Bland’s ex post facto argument on the ground that

it involved a matter of state law inappropriate for relief under § 2254. M r. Bland

renews both objections in his appeal to this Court.

In Beck, the Supreme Court held that “a sentence of death [may not]

constitutionally be imposed . . . when the jury was not permitted to consider a

verdict of guilt of a lesser included non-capital offense, and when the evidence

would have supported such a verdict.” Beck, 447 U.S. at 627 (internal quotation

marks omitted). This rule is designed to eliminate the “distortion of the

factfinding process” that occurs “when the jury is forced into an all-or-nothing

choice between capital murder and innocence.” Spaziano v. Florida, 468 U.S.

447, 455 (1984). However, the Supreme Court has held that the rule is not

implicated w hen the court instructs the jury on one lesser included offense

supported by the evidence, even if instructions on other lesser included offenses

-26-
might have been warranted. Schad v. Arizona, 501 U.S. 624, 647-48 (1991); see

Willingham v. M ullin, 296 F.3d 917, 923-24 (10th Cir. 2002).

The jury at M r. Bland’s trial was instructed on the lesser included offense

of first-degree heat-of-passion manslaughter. M r. Bland does not dispute that

there was evidentiary support for heat-of-passion manslaughter. Accordingly,

even if the trial court’s failure to provide the additional manslaughter instruction

violated state law, which is an issue we lack jurisdiction to consider under 28

U.S.C. § 2254(a), it did not violate Beck, “as the jury had the option of at least

one lesser included offense.” James v. Gibson, 211 F.3d 543, 555 (10th Cir.

2000). Accordingly, the OCCA’s decision was not contrary to, and did not

involve an unreasonable application of, Beck.

W e turn now to M r. Bland’s ex post facto argument. Article I, Section 10,

Clause 1 of the United States Constitution prohibits states from passing any “ex

post facto Law.” An ex post facto law is any law that, among other things,

“deprives one charged with crime of any defense available according to law at the

time when the act was committed.” Beazell v. Ohio, 269 U.S. 167, 169-70

(1925). Although “[t]he Ex Post Facto Clause is a limitation upon the powers of

the Legislature and does not of its own force apply to the Judicial Branch,” M arks

v. United States, 430 U.S. 188, 191 (1977) (internal citation omitted), the

Supreme Court has applied this rule equally to state supreme courts through the

Due Process Clause of the Fourteenth Amendment, see Bouie v. City of Columbia,

-27-
378 U.S. 347, 353-54 (1964) (“If a state legislature is barred by the Ex Post Facto

Clause from passing such a law , it must follow that a State Supreme Court is

barred by the Due Process Clause from achieving precisely the same result by

judicial construction.”). In challenging the O CCA’s adoption of a new standard

for determining when a defendant is entitled to an instruction on a lesser included

offense, M r. Bland argues that the decision deprived him of a defense to which he

would have been entitled under the law as it existed at the time of his offense.

Prior to its decision upholding M r. Bland’s conviction, the OCCA had

enunciated somewhat different standards for determining whether evidence

warranted an instruction on a lesser homicide offense. See Bland, 4 P.3d at 719.

Initially, the standard was “whether there is any evidence that would tend to

reduce the degree of the offense.” Tarter v. State, 359 P.2d 596, 601 (Okla. Crim.

App. 1961) (original emphasis omitted, new emphasis added) (quoting Welborn v.

State, 105 P.2d 187 (Okla C rim. App. 1940)). In later cases, the OCCA gradually

tightened the standard, holding that the instruction was w arranted when “there is

evidence that tends to prove the lesser included offense,” Rawlings v. State, 740

P.2d 153, 160 (Okla. Crim. App. 1987) (emphasis added), whether “the evidence

in any reasonable view suggests” the lesser offense, Boyd v. State, 839 P.2d 1363,

1367 (Okla. Crim. App. 1992) (emphasis added), or whether “the evidence would

permit the jury rationally to find . . . the lesser offense,” M alone v. State, 876

P.2d 707, 711-12 (Okla. Crim. App. 1994) (emphasis added). Finally, in Bland, 4

-28-
P.3d at 719-20, the O CCA “clear[ed] up any confusion caused by this prior case

law” and announced that the trial judge must determine “whether prim a facie

evidence of the lesser offense has been presented to warrant the instruction.” It

defined prim a facie evidence as “[e]vidence good and sufficient on its face,” such

that the evidence “is sufficient to establish a given fact . . . and which if not

rebutted or contradicted, will remain sufficient . . . to sustain a judgment in favor

of the issue which it supports.” Id. (internal quotation marks omitted).

M r. B land claims that this new prim a facie evidence standard is more

stringent than the previous standards, and that it therefore deprived him of the

opportunity to provide the jury with an additional non-capital offense on which to

convict. W e need not delve into this argument because, even under the earlier

standard of M alone, 876 P.2d at 711-12, the evidence in the record did not

support providing instruction on manslaughter by resisting a criminal attempt.

The only evidence supporting such an instruction was M r. Bland’s own testimony

that M r. Rains assaulted him. That testimony was contradicted by the fact that

M r. Rains was shot in the back of the head, eliminating any rational inference that

M r. Bland was resisting assault at the time he shot M r. Rains. It therefore did not

matter w hether the O CCA applied its earlier M alone standard or its new prima

facie evidence standard; M r. Bland was not entitled to the defense under either

standard. The O CCA’s rejection of M r. Bland’s ex post facto argument therefore

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was not contrary to, and did not involve an unreasonable application of, clearly

established Supreme Court precedent.

C. Argum ent Dim inishing the Jury’s Sense of Responsibility

M r. Bland next claims that comments made during the prosecution’s

closing argument at the sentencing phase of the trial diminished the jury’s sense

of responsibility for imposing the death penalty, in violation of Caldwell v.

M ississippi, 472 U .S. 320, 328-29 (1985). He points in particular to two

arguments. During his closing argument, one prosecutor argued:

Their attorney tells you that we want you to kill him. Let’s get one
thing straight. I didn’t ask to be here, you didn’t ask to be here. If
he gets the death penalty you don’t kill him and I don’t kill him.
He’s put himself in that position by what he’s done and by what he’s
done in the past. He’s forced me, he’s forced [the other prosecutor],
he’s forced you and I because of what he did and who he is to decide
under the law whether he qualifies for and deserves the death
penalty. There is nothing sinister or shameful about that. The death
penalty is perfectly legal and a [sic] appropriate punishment under
the State law s, you have to decided [sic] whether this case and this
Defendant merit the death penalty. If you so decide then you haven’t
killed anybody, you’ve simply followed the law that the Court set out
for you.

Tr. Jury Trial, Day Seven, at 160. In a separate closing argument another

prosecutor argued:

If the Defendant gets the death penalty it’s not you or I that kill him.
. . . He’s the one that’s forced you and I because of what he did and
who he is to be in this position that we’re in today. . . . Ladies and
gentlemen, there is nothing shameful about that, about having to
make that decision. The death penalty is a perfectly legal and
appropriate sentence under the laws of the State of Oklahoma. And
you must decide whether this case and this Defendant merits [sic] the

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 death penalty. And if you so decide that then you are here in this
position not because of anything that you or I have done, but because
this Defendant chooses not to live by the rules of society and the
laws of the State of Oklahoma. You will not have killed anyone.
You will simply have followed the law that the Court has given you,
nothing more and nothing less.

Id. at 192-94. The defense did not object to either argument at trial, but M r.

Bland contended on direct appeal that these arguments violated Caldwell.

Reviewing for plain error, the OCCA rejected this argument because “the

prosecutor never intimated in any way that the ultimate responsibility for

determining the proper sentence rested anywhere other [than] the jury.” Bland, 4

P.3d at 727. The district court likewise denied M r. Bland’s request for habeas

corpus relief on this claim, finding that the prosecutor’s comments, viewed as a

whole, did not mislead jurors or attempt to diminish their responsibility for a

death sentence.

Under Caldwell, a death sentence is unconstitutional if the determination

was “made by a sentencer who has been led to believe that the responsibility for

determining the appropriateness of the defendant’s death rests elsewhere.”

Caldwell, 472 U.S. at 328-29. In review ing a prosecutor’s closing argument,

however, we place isolated comments within the context of the entire closing

argument to determine whether the jury has been misled about its role in

rendering a death verdict. See Neill v. Gibson, 278 F.3d 1044, 1059 (10th Cir.

2001). It is therefore significant that, in addition to the remarks quoted above,

-31-
the first prosecutor also said: “You, the Jury, have the final say. You’re the

people on whether [sic] this unsuspecting world is kept safe from Jimmy Dale

Bland. It’s a sobering thought considering having to assess the death penalty.”

Id. at 164. The second prosecutor reminded the jury, “[y]ou decide what the price

is for shooting a defenseless sixty two year old man in the back of the head,” id.

at 197, and clarified that “[y]ou have the final say on whether Tillman County and

the world is [sic] kept safe from Jimmy Bland in the future,” id. at 198.

Viewing the prosecutors’ arguments in context, we do not believe that they

violated Caldwell— let alone that the OCCA’s conclusion was contrary to, or

involved an unreasonable application of, Caldwell. At worst, the prosecutors’

com ments may have suggested that M r. Bland was responsible for his own

predicament. That was not the vice of Caldwell: in that case, the jury was

induced to believe that some other governmental decisionmaker would ultimately

decide, and bear the responsibility for deciding, whether the defendant should be

executed. See Caldwell, 472 U.S. at 325-26. Nothing in Caldwell suggests that

there is anything wrong with a jury being reminded that capital punishment is

ultimately a result of the defendant’s own actions. See Coleman v. Brown, 802

F.2d 1227, 1240-41 (10th Cir. 1986) (distinguishing between the argument in

Caldwell, which suggested to the jury that “someone else now has control over

the defendant’s fate,” and an argument that brings into focus “that defendant is

responsible for his own plight”). Likewise, the prosecutor’s comment that the

-32-
jury, in rendering a death verdict, would “simply have followed the law” did not

alleviate the jury’s ultimate responsibility for rendering a death verdict. See

Parks v. Brown, 860 F.2d 1545, 1549 (10th Cir. 1988) (en banc) (finding that the

prosecution’s statement that “[s]o all you are doing is you’re just following the

law, and what the law says . . . . The law does all of these things, so it’s not on

your conscience” did not reduce the jury’s sense of responsibility for rendering a

death sentence), rev’d on other grounds sub nom., Saffle v. Parks, 494 U.S. 484

(1990).

That the prosecutors’ remarks did not diminish the jury’s sense of ultimate

responsibility is especially evident when these statements are placed in the

context of the entire sentencing phase. See id. at 1550 (“In evaluating the

challenged statements, it is necessary to examine the context in w hich they were

made.”). The prosecution’s opening statement emphasized to the jurors that they

could “assess a penalty of death if you feel it is the appropriate punishment for

what the D efendant did.” Tr. Jury Trial, Day Seven, at 19. Defense counsel also

argued that the decision to impose a death sentence fell to the jury and that jurors

“can’t ever say the law made [them] do or the Judge made [them] do it, or the

prosecution made [them] do it.” Id. at 181. Even the prosecutors’ closing

arguments had an underlying theme that the jury, and no one else, must make the

decision to impose a death sentence. See id. at 164, 197-98. Finally, the

instructions provided to the jury underscored the jury’s responsibility in rendering

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a verdict: “It is now your duty to determine the penalty to be imposed for this

offense.” O.R. Vol. III, at 394. Given these constant reminders that the jury was

solely responsible for the sentence imposed, we cannot find that the prosecutors’

isolated remarks diminished the jurors’ sense of ultimate responsibility for the

sentencing decision. The OCCA decision therefore was not contrary to, and did

not involve an unreasonable application of, Caldwell.

D. M r. Bland’s Absence from Individual Voir Dire

On the second day of jury selection, the trial court conducted a limited voir

dire of thirty-two individual jurors in chambers. Bland, 4 P.3d at 712. Initially,

questioning focused on five potential jurors who had expressed personal concerns

about serving on the jury. Id. Of those five potential jurors, one was excused for

cause because he was going through a divorce and did not think that he could

concentrate on the case, and another was excused due to illness. Tr. Jury Trial,

Day Two, at 4-7, 15. W hile in chambers, defense counsel expressed concern

regarding potential jurors’ awareness of pretrial publicity regarding M r. Bland’s

previous conviction, which had aired on the local news the preceding evening.

The court agreed to question the potential jurors individually, and inquired

whether M r. Bland’s presence was required. Id. at 17. Defense counsel stated

that M r. Bland’s presence was not required. Potential jurors w ere individually

called into chambers and questioned as to whether they watched the new s or heard

about any news reports involving the case. See Bland, 4 P.3d at 712. Only one

-34-
potential juror was excused because he learned, from an inaccurate news report,

that M r. Bland had a prior murder conviction. Id. at 712-13. The remaining

potential jurors returned to the courtroom and voir dire was conducted in open

court, with M r. Bland present and able to exercise his peremptory challenges. Id.

at 713.

Despite defense counsel’s explicit statement to the trial court that M r.

Bland’s presence was not required during the in-chambers questioning, M r. Bland

now contends that his absence violated his right to be present at all critical stages

of the trial under Snyder v. M assachusetts, 291 U.S. 97, 105-06 (1934), overruled

in part on other grounds by M alloy v. Hogan, 378 U.S. 1 (1964). M r. Bland

raised this argument on direct appeal to the OCCA, which rejected it on the

ground that M r. Bland’s “absence from the brief, limited, individual voir dire was

neither a due process nor statutory violation,” and that even if there was error,

“[a]ny error in conducting the individual voir dire in [his] absence was harmless

beyond a reasonable doubt.” Bland, 4 P.3d at 713. The district court, deferring

to the OCCA’s decision, likewise rejected M r. Bland’s challenge.

Although a defendant has a due process right “to be present . . . whenever

his presence has a relation, reasonably substantial, to the fullness of his

opportunity to defend against the charge,” this right does not require that a

defendant be present at all proceedings. Snyder, 291 U.S. at 105-06. Instead, the

constitutional right to be present exists “to the extent that a fair and just hearing

-35-
would be thwarted by his absence, and to that extent only.” Id. at 107-08. For

example, a defendant need not be present during all communications between a

judge and a juror. See United States v. Gagnon, 470 U.S. 522, 526 (1985) (per

curiam) (holding that a defendant’s absence during an in camera discussion

between the judge and a juror to ascertain bias did not violate the defendant’s

right to due process). W hen the defendant’s “presence would be useless, or the

benefit but a shadow,” due process does not require the defendant’s presence at a

trial proceeding. Snyder, 291 U.S. at 106-07. In determining whether exclusion

of a defendant from a proceeding violated due process, we consider the

proceedings “in light of the whole record.” Gagnon, 470 U.S. at 526-27.

Because in this individual voir dire the judge conducted all questioning himself

and personally determined whether each juror should be excused for cause, M r.

Bland’s presence could not have had any effect on the outcome, rendering his

presence “useless” or a mere “shadow.” See Snyder, 291 U.S. at 106-07; Gagnon,

470 U.S. at 527.

M r. Bland also contends that he was prejudiced because he was unable to

observe potential jurors and challenge them “simply on the basis of sudden

impressions or personal knowledge indispensable to the selection of an impartial

jury.” Bland, 4 P.3d at 712. This is not enough to establish a constitutional

violation. See Gagnon, 470 U.S. at 527; United States v. Santiago, 977 F.2d 517,

522-23 (10th Cir. 1992) (finding that a defendant’s absence from an ex parte

-36-
discussion with a juror was not fundamentally unfair even though the defendant

could not observe juror’s potential bias). Considering M r. Bland’s absence from

individual voir dire in light of the entire jury selection process, M r. Bland had

ample opportunity to observe jurors during voir dire and exercise peremptory

challenges accordingly. His absence during these limited proceedings did not

infringe on his right to due process, and the OCCA’s decision was therefore not

contrary to, and did not involve an unreasonable application of, clearly

established federal law .

E. Com m ents on Post-Arrest Silence

M r. Bland also challenges several prosecutorial comments on his post-

arrest silence, which were introduced to impeach his story that he committed the

murder in the heat of passion. During cross-examination the prosecutor engaged

in the following dialogue with M r. Bland:

Q: Do you remember when Agent Briggs came and arrested you
in the, M ike Baker’s house, don’t you?

A: Yes, sir. I do.

Q: W hy were you hiding in the closet?

A: Because they were trying, they were knocking on the door and
they were saying it was a police officer and I was trying to
hide.

Q: You didn’t feel at that point that you needed to tell them how
this all happened and explain it?

A: No, sir. I was still scared.

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 Q: You were still running, weren’t you?

A: Yes, sir.

Q: W ell, I’m sure that when Agent Briggs got you out of the
closet the first thing you wanted to tell him was the
circumstances, why this happened, that you didn’t intend to
kill W indle?

Tr. Jury Trial, Day Five, at 72. In closing argument, the prosecutor referred to

M r. Bland’s silence on several occasions. He rhetorically inquired:

W hy didn’t he call the Sheriff, why didn’t he tell Trooper Fisher
when he found him in Chandler[?] . . . Did he ever call the cops and
tell them how W indle attacked him? . . . In Oklahoma City an
O.S.B.I. agent finally shows us and does he say, gosh, M r. Briggs, I
had this real important story to tell you about how this guy attacked
me. No . . . . Not for four hours he doesn’t say anything . . . .

Tr. Jury Trial, Day Six, at 31-32. The prosecutor also used M r. Bland’s silence to

label him a liar. See id. at 35-36 (“Now who do you think is lying? . . . It’s the

same person who’s been lying all along, he lied to his mother, he lied to Agent

Goss and who didn’t tell anything to Agent Briggs or to any of the other police

officers.”); id. at 39 (“He was still lying when he spoke with Inspector G oss.

Telling first nothing, then only a version that would help him make some self

defense claim.”); id. at 95-96 (“[I]f that’s really what happened, if that’s really

his story then how do you explain his silence once Agent Briggs arrested him?”).

Defense counsel objected to the prosecution’s use of post-arrest silence in

closing argument and requested a mistrial. Id. at 95-96. The trial court sustained

the objection and admonished the jury to disregard the “the comments of counsel

-38-
in regard to the Defendant’s silence or non-silence prior to his beginning to make

the voluntary statement to Agent Goss,” but overruled counsel’s request for a

mistrial. Id. at 96-97. In his direct appeal to the OCCA, M r. Bland argued that

the trial court erred in failing to grant a mistrial. The OCCA denied relief,

finding that the error w as cured by the trial court’s admonition to the jury. Bland,

4 P.3d at 730. The district court found that the OCCA’s decision was not

unreasonable due to the substantial evidence indicating guilt and the trial court’s

order sustaining the objection and issuing a curative instruction.

The State contends here, as it did in the district court, that the comments on

post-arrest silence were not only harmless but also that they did not violate M r.

Bland’s right to due process as defined by M iranda v. Arizona, 384 U.S. 436

(1966). W itnesses who testify in court, including criminal defendants, may

generally “be impeached by their previous failure to state a fact in circumstances

in which that fact naturally would have been asserted.” Jenkins v. Anderson, 447

U.S. 231, 239 (1980) (permitting prosecutorial comment on pre-arrest silence).

One exception to this rule is “where the government ha[s] induced silence by

implicitly assuring the defendant that his silence would not be used against him,”

such as after the issuance of M iranda warnings. Fletcher v. Weir, 455 U.S. 603,

606 (1982) (per curiam); see also Doyle v. Ohio, 426 U.S. 610, 618 (1976)

(holding that commenting on a defendant’s post-arrest, post-M iranda silence

violates due process). However, “[i]n the absence of the sort of affirmative

-39-
assurances embodied in the M iranda warnings,” the Supreme Court has held that

it does not “violate[] due process of law for a State to permit cross-examination

as to postarrest silence when a defendant chooses to take the stand.” Fletcher,

455 U.S. at 607.

M ost comments made by the prosecution at M r. Bland’s trial are analogous

to those made in Fletcher. In Fletcher, the defendant testified on his own behalf

that he did stab the victim, but claimed (for the first time) that he acted in self-

defense and that the stabbing was accidental. Id. at 603-04. On cross-

examination, the prosecutor asked why he had failed to assert his exculpatory

explanation upon arrest. Id. at 607. The Court found no due process error in the

prosecutor’s questions because the prosecution used only post-arrest, pre-M iranda

silence. Here, the prosecution repeatedly referred to M r. Bland’s pre-arrest and

post-arrest, pre-M iranda silence by asking M r. Bland why he did not tell his

mother, Trooper Fisher, or arresting officer Agent Briggs about his confrontation

with M r. Rains. Under Fletcher, those statements, and references to them in

closing argument, did not violate M r. Bland’s right to due process.

Only one comment made by the prosecution during closing argument

referred to M r. Bland’s post-M iranda silence, in violation of Doyle, 426 U.S. at

618. In an isolated remark, the prosecutor said, “He was still lying when he

spoke with Inspector Goss. Telling first nothing, then only a version that would

-40-
help him make some self defense claim.” Tr. Jury Trial, Day Six, at 39. The

OCCA found this error harmless. Bland, 4 P.3d at 730.

W hen reviewing a state court’s determination of harmlessness, we ask

whether the challenged comments had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507 U.S. at 638 (internal

quotation marks omitted). W e consider five factors in assessing harmlessness

under Brecht: “(1) the prosecutor’s use of the post-arrest silence; (2) whether the

defense or prosecution pursued this line of questioning; (3) the amount of

evidence indicating guilt; (4) the frequency and force of the reference; and (5) if

the defense requested a mistrial or curative instructions.” Sallahdin v. Gibson,

275 F.3d 1211, 1230-31 (10th Cir. 2002). Of these, the first and third factors are

the most important. Id. at 1231.

The prosecutor’s comment on M r. Bland’s post-M iranda silence in his

conversation with Inspector Goss was made not as an argument to establish M r.

Bland’s guilt, but to impeach M r. Bland’s story that he killed M r. Rains in the

heat of passion after an argument. Such use w as consistent with the prosecution’s

attempt to discredit M r. Bland’s story based on the lies he told to his mother and

his repeated failure to tell the police about the homicide, even before his arrest.

Furthermore, excluding commentary on M r. Bland’s post-M iranda silence, there

was substantial evidence establishing M r. Bland’s guilt on the first-degree malice

aforethought murder charge. M r. Bland shot M r. Rains in the back of the head,

-41-
suggesting that M r. Rains had turned away from M r. Bland at the time M r. Bland

fired. M r. Bland attempted to cover up the crime by meticulously cleaning the

crime scene and hiding M r. Rains’s body in a creek, covered with logs, so that no

one would find it. He lied to his mother about going to work with M r. Rains the

next day so that she would not suspect anything had happened to M r. Rains. The

single, isolated reference to M r. Bland’s post-M iranda silence could not have

affected the jury’s verdict, considering the substantial evidence supporting the

verdict and the trial court’s curative instruction directing the jury to disregard the

prosecutor’s comments on M r. Bland’s silence. Thus, we agree with the OCCA

that any error was harmless.

F. Claim s of Prosecutorial M isconduct

M r. Bland next argues that several of the prosecutors’ remarks deprived

him of a fair trial at both stages of his trial. In addition to the prosecution’s role

in the errors alleged above, he raises six additional claims of prosecutorial

misconduct: (1) improperly arguing that he is a liar; (2) demeaning and ridiculing

him; (3) demeaning his mitigating evidence; (4) telling the jury it had a civic and

moral duty to convict and sentence him to death; (5) urging a death sentence

based on sympathy for the victim; and (6) arguing facts not in evidence. M r.

Bland contends not only that each instance of misconduct is sufficient to violate

his right to due process, but that even if each comment is found to be harmless,

the cumulative effect of the errors warrants relief.

-42-
 The OCCA rejected each of M r. Bland’s claims of prosecutorial misconduct

on the merits. The court found that it was not improper for the prosecution to

comm ent on the veracity of M r. Bland’s testimony by calling him a liar, and that

the prosecution did not improperly demean the mitigating evidence, suggest that

the jury’s only moral course was to return a conviction, or evoke sympathy for the

victim. Bland, 4 P.3d at 727-28. Although the OCCA did note that the

prosecution inappropriately compared the plight of the victim to M r. Bland’s life

in prison and that the prosecutorial argument ridiculing M r. Bland “tested the

bounds of proper argument,” it deemed both errors harmless based on the

substantial evidence supporting the jury’s verdict. Id. at 728. Likewise, the

OCCA held that even if the prosecution did erroneously argue facts not in

evidence, “[a]ny misstatement could not have affected the outcome of the trial.”

Id.

In rejecting M r. Bland’s claim of prosecutorial misconduct, the OCCA

applied the standard for adjudicating allegations of prosecutorial misconduct set

forth in its prior decisions. Id. at 729 (citing Duckett v. State, 919 P.2d 7, 19

(Okla. Crim. App. 1995), for the proposition that “[a]llegations of prosecutorial

misconduct do not warrant reversal of a conviction unless the cumulative effect

was such [as] to deprive the defendant of a fair trial”) (internal quotation marks

omitted). B ecause this standard is the same as that under federal law, see Patton

v. M ullin, 425 F.3d 788, 811 (10th Cir. 2005), we apply the deferential AED PA

-43-
standard of review, and examine whether the OCCA’s decision was an

unreasonable application of the standard.

W here prosecutorial misconduct does not implicate a specific constitutional

right, improper remarks require reversal of a state conviction only if the remarks

“so infected the trial with unfairness as to make the resulting conviction a denial

of due process.” Donnelly, 416 U.S. at 643. To determine whether a trial is

rendered fundamentally unfair, we examine the entire proceeding, “including the

strength of the evidence against the petitioner, both as to guilt at that stage of the

trial and as to moral culpability at the sentencing phase” as well as “[a]ny

cautionary steps— such as instructions to the jury— offered by the court to

counteract improper remarks.” Le, 311 F.3d at 1013. “[I]t is not enough that the

prosecutors’ remarks were undesirable or even universally condemned.” Darden

v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted). The

ultimate question is whether the jury was able to fairly judge the evidence in light

of the prosecutors’ conduct. Having already considered those claims of

prosecutorial misconduct that infringed on a specific constitutional right and were

not subject to the fundamental fairness test, see Paxton v. Ward, 199 F.3d 1197,

1217 (10th Cir. 1999), we now consider whether the other allegations of

prosecutorial misconduct, individually or cumulatively, deprived M r. Bland of a

fair trial.

1. Characterizing M r. Bland as a Liar

-44-
 M r. Bland argues that it was inappropriate for the prosecution during

closing argument in the guilt phase of trial to refer to him as a liar. Although

labeling a defendant a “liar” is often “unnecessary” and “unwarranted,” United

States v. Nichols, 21 F.3d 1016, 1019 (10th Cir. 1994), we have held that

referring to testimony as a lie is not per se prosecutorial misconduct, United

States v. Robinson, 978 F.2d 1554, 1567 (10th Cir. 1992). On the contrary, it is

permissible for the prosecution to comment on the veracity of a defendant’s story.

United States v. Hernandez-M uniz, 170 F.3d 1007, 1012 (10th Cir. 1999). W e

have therefore rejected claims of prosecutorial misconduct where the prosecution

referred to a defendant as a liar on account of irreconcilable discrepancies

betw een the defendant’s testimony and other evidence in the case. See id.;

Nichols, 21 F.3d at 1019.

Here, the prosecution did not derive its characterization of M r. Bland as a

liar through inferences, but instead reminded the jury that M r. Bland admitted

during cross-examination that he lied to his mother and the authorities before

putting forth the story he told in court. For example, in response to M r. Bland’s

testimony that he did not take M r. Rains’s billfold, the prosecution argued:

Simmons found him with a brown billfold with the money in it. Now
who do you think is lying? I think you know. It’s the same person
who’s been lying all along, he lied to his mother, he lied to Agent
Goss and who didn’t tell anything to Agent Briggs or to any of the
other police officers. He’s admitted he’s lied. He got up here and
told you he’s lied. And now he’s still lying about the billfold.

-45-
Tr. Jury Trial, Day Six, at 35-36. The prosecution also challenged the credibility

of M r. Bland’s testimony, arguing that M r. Bland has “got a motive or reason to

lie” to spare himself the death penalty. Id. at 93. These references to M r.

B land’s veracity, even if excessive, were permissible in light of M r. Bland’s own

testimony. The OCCA’s rejection of this claim of prosecutorial misconduct

therefore w as not an unreasonable application of clearly established federal law .

2. Demeaning and Ridiculing M r. Bland

During closing argument at both phases of trial, the prosecution referred to

M r. Bland as a “sniffling . . . coward[],” a “heartless and vicious killer,” and a

“violent and evil man.” Tr. Jury Trial Day Six, at 38; Tr. Jury Trial, Day Seven,

at 165, 199. These pejoratives were unnecessary and inappropriate. See Le, 311

F.3d at 1021 (“Personal attacks by a prosecutor are improper.”). Nonetheless, in

light of the overwhelming evidence supporting both aggravating factors and the

relative dearth of evidence on mitigating circumstances, we agree with the OCCA

that the comments did not deprive M r. Bland of a fair trial.

In his closing argument, M r. Bland conceded one aggravator— that he was

previously convicted of a violent felony, namely kidnaping and first-degree

manslaughter. Tr. Jury Trial, Day Seven, at 179. M r. Bland has spent all but one

year of his adult life in prison, and during that time he perpetrated two homicides.

There was evidence that M r. Bland abuses drugs and alcohol, and his expert

psychiatrist, Dr. Sally Church, testified that substance abuse contributes to his

-46-
violent tendencies. Id. at 137. Although M r. Bland presented testimony that he

was never violent or threatening during his previous twenty years in jail, the

prosecution revealed on cross-examination that the prison guard and prison

counselor testifying were not very familiar with M r. Bland’s conduct in prison.

Id. at 86, 93. Furthermore, there was evidence that M r. Bland abused cocaine

while in prison, id. at 93, which, as noted, contributes to his violent tendencies.

In contrast, M r. Bland’s mitigating evidence w as weak. Although the defense

attempted to establish that M r. Bland would be a good, non-violent prisoner, and

sought to attribute his violence to unfortunate childhood events, there was little

positive testimony regarding M r. Bland’s character because he had been out of

prison for such a short period of time w hen he killed M r. Bland. The O CCA’s

decision therefore did not unreasonably apply clearly established federal law.

3. Demeaning the M itigating Evidence

M r. Bland next claims that the prosecution improperly demeaned his

mitigating evidence by suggesting that the jury ignore mitigating evidence and by

recharacterizing the mitigating evidence as evidence in aggravation. Referring to

various mitigating evidence, the prosecutor rhetorically asked, “Do w e as a

society or as a system of justice let those things act a [sic] shield from accepting

the full responsibility for his actions[?]” Tr. Jury Trial, Day Seven, at 163. The

prosecutor also referred to M r. Bland’s mitigating evidence as “excuses,” and

suggested that the difficulties in M r. Bland’s life, about which an expert testified,

-47-
were the “kind of things that make criminals out of ordinary citizens.” Id. at

187.

As long as the jury is properly instructed on the use of mitigating evidence,

the prosecution is free to comment on the weight the jury should accord to it. See

Fox v. Ward, 200 F.3d 1286, 1299 (10th Cir. 2000). M r. Bland does not contest

the propriety of the mitigating evidence instruction, which provided, in pertinent

part, that “[t]he determination of what circumstances are mitigating is for you to

resolve under the facts and circumstances of this case.” O.R. Vol. III, at 401.

The prosecutors, while critical of M r. Bland’s mitigating evidence, never told the

jury it could not consider M r. Bland’s mitigating evidence. The challenged

prosecutorial argument was consistent with the jury instructions and bore only on

the weight of the evidence.

Nor was it misconduct for the prosecution to suggest that some mitigating

evidence helped to establish that M r. Bland would pose a continuing threat to

society. Evidence can be both mitigating and aggravating, and the prosecution is

free to explain to the jury how mitigating evidence tends to prove the existence of

an aggravating factor. See Penry v. Lynaugh, 492 U.S. 302, 324 (1989),

overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); M ann v.

Scott, 41 F.3d 968, 979-80 (5th Cir. 1994). The prosecutor’s remarks on M r.

Bland’s mitigating evidence therefore did not constitute misconduct that deprived

M r. Bland of a fair trial.

-48-
 4. Appeal to Civic and M oral Duty

M r. Bland next challenges the prosecutor’s argument about the jury’s civic

duty. He claims that in the guilt phase, the prosecutor argued in closing that the

jury had a civic duty to convict M r. Bland. Our review of the record, and

especially the portion of the transcript to which M r. Bland refers, does not

indicate any such argument in the first phase of trial. However, in the second

phase, the prosecutor argued:

If you give him anything other than the death penalty you don’t know
what will happen to him or what opportunities he w ill get to hurt
other people. You have one sentence option available to you that
you will know, you’ve got one option and one option only that
guarantees that he’s not going to hurt anybody else or kill anybody
else. You, the Jury, have the final say. You’re the people on
whether [sic] this unsuspecting world is kept safe from Jimmy Dale
Bland. . . . W e talked earlier about citizenship in our great country
and how sometimes it comes w ith a price. There are times it’s part
of our civic and moral duties of citizenship that we’re called upon to
face unpleasantly, unpleasant and difficult tasks. You’re [sic] got
one of those tasks facing you today.

Tr. Jury Trial, Day Seven, at 164; see also id. at 198-99. As we have stated

numerous times, “[i]t is improper for a prosecutor to suggest that a jury has a

civic duty to convict.” Thornburg v. M ullin, 422 F.3d 1113, 1134 (10th Cir.

2005); see also M alicoat v. M ullin, 426 F.3d 1241, 1256 (10th Cir. 2005); Spears

v. M ullin, 343 F.3d 1215, 1247 (10th Cir. 2003); Le, 311 F.3d at 1022 (explaining

that such comments are “‘offensive to the dignity and good order with which all

proceedings in court should be conducted’” (quoting Viereck v. United States, 318

-49-
U.S. 236, 248 (1943))). That is not what the prosecutor did in this case. The

civic duty to which the prosecutor referred was not the duty to convict, or to

return a death sentence, but rather the duty to decide whether to sentence M r.

Bland to death. W hile the prosecutor’s argument may have come close to the

line, we do not believe he crossed it.

5. Sympathy for the Victim

M r. Bland argues that the prosecution’s closing arguments improperly

evoked sympathy for the victim, M r. Rains, and that the prosecution improperly

contrasted M r. Rains’s death w ith M r. Bland’s life in prison. As to the more

general appeals for sympathy, M r. Bland points to one comment at each phase of

the trial. During the first phase, the prosecution said:

Ladies and gentlemen, on November the 14th, 1996, Jimmy Bland
wrote the ending to the story of W indle Rains’ life. And today you
have the chance to write the end of the story of W indle’s death.
Does W indle’s murderer go free? Does he get off with a lesser
charge because no one’s here to speak for W indle as to what
happened? You have the power to decide how the story of W indle’s
life and death will end.

Tr. Jury Trial, Day Six, at 133. At the sentencing phase, the prosecution

“recommend[ed] for the murder of W indle R ains that [the jury] sentence this

Defendant to death by lethal injection” because M r. Bland would be “getting no

more or less than he deserves for what he did to W indle.” Tr. Jury Trial, Day

Seven, at 201. W e cannot say that these statements were intended to evoke

-50-
sympathy for the victim, as they were statements based on the jury’s obligation to

consider the evidence and render a verdict.

The prosecution’s comparison of M r. Bland’s life in prison with M r.

Rains’s death, however, was inappropriate. W e regret to observe that in death-

penalty case after death-penalty case, Oklahoma prosecutors have made speeches

to the jury making light of the penalty of life in prison to demonstrate that the

only proper punishment for a defendant’s crime was death. In this case, the

terminology of choice was:

M aybe the Defendant will be in prison, maybe he will be behind that
concrete and those jail bars with his T.V. and his cable and good
food. But one thing . . . is for sure, W indle Rains won’t be here and
his family won’t be able to be w ith him, they won’t be able to share
holidays w ith him. And Doyle R ains w on’t get that final visit with
him that he hoped for.

Id. at 200. As we have said many times, it is prosecutorial misconduct for the

prosecution to compare the plight of the victim with the life of the defendant in

prison. See, e.g., Duckett v. M ullin, 306 F.3d 982, 992 (10th Cir. 2002); Le, 311

F.3d at 1015-16. “It is of vital importance to the defendant and to the community

that any decision to impose the death sentence be, and appear to be, based on

reason rather than caprice or emotion,” Gardner v. Florida, 430 U.S. 349, 358

(1977) (plurality opinion), and comparisons such as those made here call into

question the integrity of the criminal justice system.

-51-
 A lthough w e emphatically do not condone the prosecution’s remarks, we

must uphold the sentencing determination if we cannot conclude that the

comments deprived M r. Bland of a fundamentally fair trial. Le, 311 F.3d at 1016.

There was substantial evidence demonstrating the existence of both aggravating

factors and relatively little evidence establishing mitigating circumstances.

Prosecutors should be aware that arguments of this sort, while unnecessary to

obtain a proper verdict, create grave risk of upsetting an otherwise

unobjectionable verdict on appeal or on collateral review. It is time to stop.

Unable to conclude that the comments affected the outcom e of the trial, however,

we find that the OCCA’s judgment finding the error harmless was not an

unreasonable application of clearly established federal law.

6. Arguing Facts not in Evidence

Finally, M r. Bland claims that the prosecution argued facts not in evidence

during both phases of trial. During the guilt phase, the prosecution argued that a

pair of eyeglasses at the scene of the crime belonged to M r. Rains. Tr. Jury Trial,

Day Six, at 22. W e perceive no error. Although no direct testimony established

that the eyeglasses belonged to M r. Rains, his ow nership of the eyeglasses was a

permissible inference to draw from the evidence. As this Court has held, “[a]

prosecutor may comment on and draw reasonable inferences from evidence

presented at trial.” Thornburg, 422 F.3d at 1131. The photograph of the crime

scene depicted eyeglasses lying near the creek where M r. Bland disposed of M r.

-52-
Rains’s body, and Sheriff Hanes testified that the glasses w ere found “just a little

ways from the pile of w ood” in w hich M r. Rains’s body was found. Tr. Jury

Trial, Day Three, at 87, Ex. 2B. Considering the proximity of the eyeglasses to

M r. Rains’s body, it was not unreasonable for the OCCA to conclude that the

evidence permitted a reasonable inference that the glasses belonged to the victim.

Even if the prosecution’s argument about the eyeglasses w ere not a

reasonable inference from the evidence, this misstatement did not deprive M r.

Bland of a fair trial. The presence of the glasses did not necessarily discredit M r.

Bland’s story that he and M r. Rains struggled. It was entirely possible for the

jury to believe that M r. Bland and M r. Rains struggled, but that M r. Rains’s

glasses did not fall off until M r. Bland took M r. Rains’s body to the creek. Such

a theory is consistent both with the evidence and with M r. Bland’s testimony.

Thus, even if the prosecution erroneously attributed the glasses to M r. Rains, the

error did not render the trial fundamentally unfair.

At the sentencing phase, the prosecution argued that M r. Bland killed M r.

Rains during a robbery. Tr. Jury Trial, Day Seven, at 155. M r. Bland contends

that this line of argument was impermissible, as the jury did not reach a verdict as

to felony murder. Because the jury did not convict M r. Bland on the felony-

murder charge, which w as predicated on the theory that M r. Bland killed M r.

Rains in the course of a robbery, it was inappropriate for the prosecution to argue

during the sentencing phase that M r. Bland killed M r. Rains during a robbery.

-53-
However, the error did not render M r. Bland’s sentencing fundamentally unfair

because the nature of the murder (felony murder or malice-aforethought murder)

did not affect his eligibility for the death penalty, and whether M r. Bland robbed

M r. Rains during or after the murder did not affect either the aggravating factors

or mitigating circumstances.

7. Cumulative Error

W e now address whether the above errors, considered cumulatively,

deprived M r. Bland of a fair trial at either the guilt or sentencing phase. “A

cumulative error analysis aggregates all the errors that individually might be

harmless, and it analyzes whether their cumulative effect on the outcome of the

trial is such that collectively they can no longer be determined to be harmless.”

Thornburg, 422 F.3d at 1137 (internal quotation marks omitted). In death-penalty

cases, we review whether the “improper comments as a whole so infected the trial

with unfairness as to make the resulting conviction a denial of due process, or

rendered the sentencing fundamentally unfair in light of the heightened degree of

reliability demanded in a capital case.” Id. (internal citation and quotation marks

omitted). Because the OCCA concluded that the cumulative errors did not

deprive M r. Bland of a fair trial, we must defer to its ruling unless it constitutes

an unreasonable application of the cumulative-error doctrine.

Three errors affected the guilt phase of the trial: (1) argument that the jury

should consider manslaughter only after it rejected first-degree murder; (2) a

-54-
comment on M r. Bland’s post-M iranda silence; and (3) ridiculing M r. Bland as a

“sniffling . . . coward[].” The evidence establishing M r. Bland’s guilt on the

first-degree malice-aforethought murder charge was quite strong. M r. Bland had

previously told M s. Lord that he wanted to kill M r. Bland. He admitted to hiding

his shotgun in his coveralls so M r. Rains w ould not see the weapon, and to

shooting M r. Rains in the back of the head. He attempted to cover up the murder

by cleaning the garage and discarding M r. Rains’ body in a remote creek and

covering the body with logs. He then lied to his mother so that she would not

know that anything had happened to M r. Rains. Excluding all impermissible

prosecutorial comments and considering any curative instructions, it was not

unreasonable for the OCCA to conclude that the jury had substantial evidence to

convict M r. Bland of first-degree murder, and that the errors did not result in a

denial of due process.

There were two instances of prosecutorial misconduct at the sentencing

phase: (1) ridiculing M r. Bland as a “violent and evil man,” and a “heartless and

vicious killer”; and (2) comparing M r. Bland’s life in prison to M r. Rains’s death.

For reasons already explained, however, the evidence supporting both aggravating

factors was overwhelming and the mitigating evidence weak. Having reviewed

the entire record, we conclude that the OCCA reasonably applied clearly

established federal law in determining that the sentence was not the consequence

of any prosecutorial misconduct.

-55-
G. Ineffective Assistance of Counsel

Last, M r. Bland has raised three grounds for ineffective assistance of trial

counsel: (1) failing to request an instruction on voluntary intoxication; (2) failing

to adequately investigate, prepare, and use available evidence during both stages

of trial; and (3) failing to lodge appropriate objections for the claims discussed

above. M r. Bland also requests an evidentiary hearing to further develop his

claims of ineffective assistance of counsel.

M r. Bland raised all of these claims on direct appeal. Applying the

standard of Strickland v. Washington, 466 U.S. 668 (1984), the OCCA rejected

his voluntary-intoxication-instruction claim, finding that M r. Bland was not

prejudiced by counsel’s failure to request the instruction because the instruction

was not supported by the evidence. Bland, 4 P.3d at 731. The OCCA deemed

M r. Bland’s failure-to-investigate claim waived because the arguments relied on

affidavits that were not part of the appellate record. Id. Nonetheless, the OCCA

considered the claim in light of M r. Bland’s request for an evidentiary hearing.

Id. at 732. Examining the affidavits that would be proferred at such a hearing, the

court rejected the claims. Id. at 732-34. The O CCA also rejected M r. Bland’s

claim arising from counsel’s failure to object to prosecutorial misconduct, finding

no reasonable probability that the result of the trial would have been different had

counsel objected. Id. at 732. The district court likew ise rejected M r. Bland’s

claims, “confident that the jury would have convicted Petitioner of first-degree

-56-
murder and recommended a death sentence even if trial counsel had employed all

of the trial tactics and had used all of the information that Petitioner’s current

counsel suggests he should have.” R. Doc. 61, at 26.

Claims of ineffective assistance of counsel present mixed questions of law

and fact. Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999). To prevail on

such a claim, a petitioner “must prove [1] that counsel’s performance was

constitutionally deficient and [2] that counsel’s deficient performance prejudiced

the defense, depriving the petitioner of a fair trial with a reliable result.” Boyd v.

Ward, 179 F.3d 904, 913 (10th Cir. 1999) (citing Strickland, 466 U.S. at 687). It

is not enough that counsel’s decisions w ere wrong in hindsight; they must fall

below “an objective standard of reasonableness,” evaluated from counsel’s

perspective at the time the decision was made. Strickland, 466 U.S. at 689. For

that reason, we are “highly deferential” to counsel’s decisions, and a petitioner

“must overcome the presumption that counsel’s conduct was not constitutionally

defective.” Wallace, 191 F.3d at 1247.

W e need not consider whether counsel’s performance was deficient,

however, if the petitioner w as not prejudiced by the alleged deficiency. See Allen

v. M ullin, 368 F.3d 1220, 1245 (10th Cir. 2004) (proceeding directly to prejudice

analysis). To establish prejudice, a petitioner must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694. For

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challenges to counsel’s conduct during the sentencing phase, a petitioner must

show “a reasonable probability that, absent the errors, the sentencer . . . would

have concluded that the balance of aggravating and mitigating circumstances did

not warrant death.” Id. at 695.

1. Failure to Request a Voluntary Intoxication Instruction

In considering this claim of ineffective assistance, the OCCA found that

M r. Bland would not have been entitled to such an instruction and therefore was

not prejudiced. Bland, 4 P.3d at 731. Oklahoma law provides for an instruction

on voluntary intoxication only when a defendant presents sufficient prim a facie

evidence that he meets the legal criteria for the defense of voluntary intoxication.

Jackson v. State, 964 P.2d 875, 892 (Okla. Crim. App. 1998). To satisfy the legal

criteria, a defendant must actually be intoxicated and “be so utterly intoxicated,

that his mental powers are overcome, rendering it impossible for a defendant to

form the specific criminal intent or special mental element of the crime.” Id. The

OCCA has held that it belies a defense of voluntary intoxication for a defendant

to have been sufficiently aware so as to be able to testify about events

surrounding a murder. See id.

The O CCA’s decision that M r. Bland was not entitled to a voluntary

intoxication instruction was not unreasonable. Although M s. Lord and M r. Bland

both testified that he consumed drugs before the murder, M r. Bland’s ability to

recall, in detail, the events surrounding the murder— his argument with M r. Rains,

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placing the gun in his coveralls, kicking M r. Rains, cleaning the garage, and

hiding M r. Rains’s body— defeats his voluntary intoxication defense under

Oklahoma law . Counsel therefore could not have been ineffective in failing to

request an instruction to which M r. Bland was not entitled based on the evidence,

and the OCCA therefore did not unreasonably apply clearly established federal

law .

2. Failure to Investigate, Prepare, and Use Available Evidence

Although the O CCA found this claim waived due to lack of evidentiary

support, it considered the claim based on the evidence that M r. Bland would

provide at an evidentiary hearing. For simplicity, we will consider the claims in

light of the evidence that M r. Bland would present if we were to order an

evidentiary hearing. M r. Bland challenges three specific items that trial counsel

allegedly failed to investigate: his own intoxication, M s. Lord’s credibility, and

the circumstances of his prior conviction. He also contends that counsel failed to

properly use evidence available from Dr. Church to emphasize the extent of M r.

Bland’s mental and substance-abuse problems.

As to the level of his intoxication, M r. Bland presents affidavits from four

different people who refer to his drug use immediately before and after the

murder. Bland, 4 P.3d at 733. The OCCA found that counsel was not ineffective

for failing to present this evidence of intoxication because trial counsel presented

substantial evidence of M r. Bland’s drug use on the day of the murder and, in any

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case, M r. Bland’s detailed recollection of the murder precluded an instruction on

voluntary intoxication. Id. This conclusion was not an unreasonable application

of Supreme Court precedent. As discussed above, M r. Bland was not entitled to

an instruction on voluntary intoxication. He therefore suffered no prejudice by

counsel’s failure to present additional, redundant evidence supporting M r. Bland’s

unrefuted testimony that he consumed drugs immediately before and after the

murder.

To challenge M s. Lord’s credibility, M r. Bland claims that his trial counsel

should have asked the custodian of records at the Oklahoma County Jail to testify

that M s. Lord was incarcerated for seventy-five days, beginning on November 19,

1996. Id. The OCCA held that counsel’s failure to call this witness did not

prejudice M r. Bland because trial counsel sufficiently called M s. Lord’s

credibility into question. Id. At trial, M s. Lord herself admitted that she had

been incarcerated before trial and was currently incarcerated. Defense counsel

also called two witnesses to challenge M s. Lord’s truthfulness. A child welfare

specialist opined that M s. Lord is not “a truthful person.” Tr. Jury Trial, Day

Five, at 8. M s. Lord’s sister testified that M s. Lord has “been untruthful . . . on

numerous occasions” and that she cannot “rely on her to tell the truth all the

time.” Id. at 18. In light of the ample evidence trial counsel presented to

challenge M s. Lord’s credibility, the OCCA’s decision that counsel’s failure to

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present additional impeachment evidence did not prejudice M r. Bland and did not

involve an unreasonable application of clearly established federal law.

Directing the court to newspaper articles, M r. Bland next argues that had

counsel fully investigated his prior conviction, counsel would have discovered

that M r. Bland fired his gun at pursuing officers only after the officers shot at

him. Bland, 4 P.3d at 733-34. The OCCA found that counsel was not deficient

and that “[a]ny additional evidence counsel might have presented . . . would not

have been found sufficiently mitigating by a reasonable juror to outweigh the

evidence in aggravation.” Id. at 734. The evidence introduced at trial concerning

M r. Bland’s prior manslaughter conviction indicated that the police fired first and

that M r. Bland had been drinking before the crime. Considering that the jury was

informed that the police fired first, it was not unreasonable for the OCCA to

conclude that counsel’s failure to conduct further investigation was not deficient

performance.

Nor has M r. Bland established that counsel was deficient for failing to

question Dr. Church in such a w ay as to reveal the full extent of M r. Bland’s

mental and substance-abuse problems. See id. at 732. Dr. Church’s testimony

was well developed. She testified that M r. Bland had “low average intelligence”

and “difficulty . . . understanding just the usual social standards of society” and

“making judgments about what is appropriate and what is not appropriate.” Tr.

Jury Trial, Day Seven, at 117. She explained that his long history of abusing

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substances makes him a “chemically dependent person,” meaning that he would

have even less abilities to operate under stress if he were using drugs. Id. at 122.

She talked about the childhood trauma he endured when his father suffered a

brain injury, and testified that this likely manifested itself in post-traumatic stress

disorder. Id. at 122-24. W hen asked whether he was likely to be a violent

prisoner, she emphasized that M r. Bland “knows right from wrong,” and that “he

would be a good prisoner” in a “structured, supervised situation.” Id. at 129-30.

Counsel thoroughly explored M r. Bland’s background, mental status, and

chemical dependency with Dr. Church. The OCCA’s finding that counsel was not

deficient therefore did not involve an unreasonable application of clearly

established federal law .

3. Failure to Object

M r. Bland also claims that counsel was ineffective by failing to object to

the prosecutorial misconduct and other sources of error discussed above. The

OCCA rejected this claim, finding that timely objections would not have affected

the outcome of the trial. Bland, 4 P.3d at 732. Some of the alleged prosecutorial

misconduct did not constitute error for which an objection would have been

sustained. This is true of the purported Caldwell violation, the prosecution’s

characterization of M r. Bland as a liar, and the allegations that the prosecution

demeaned his mitigating evidence, told the jury it had a moral and civic duty to

convict, evoked sympathy for the victim, and argued facts not in evidence.

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Counsel in fact lodged objections to various improper statements, including the

prosecution’s only comment on M r. Bland’s post-arrest, post-M iranda silence, Tr.

Jury Trial, Day Six, at 96; Bland, 4 P.3d at 730 (noting that the trial court

sustained the objection), the prosecution’s comparison of M r. Bland’s life in

prison with M r. Rains’s death, Tr. Jury Trial, Day Seven, at 200, and the

prosecution’s argument ridiculing M r. Bland as a coward, Tr. Jury Trial, Day Six,

at 38. Because M r. Bland did not suffer prejudice from the remaining errors,

namely the prosecutor’s inaccurate characterization of the jury instructions and

calling M r. Bland an “evil man” and a “heartless and vicious killer,” the OCCA’s

decision that M r. Bland was not prejudiced by counsel’s failure to object was not

contrary to, and did not involve an unreasonable application of, clearly

established federal law.

4. Request for Evidentiary Hearing

Under AEDPA , a court cannot hold an evidentiary hearing unless (1) the

claim relies on a new rule of constitutional law or a factual predicate that could

not have been previously discovered, and (2) the facts underlying the claim are

sufficient to establish by clear and convincing evidence that but for the

constitutional error, no reasonable jury would have found the petitioner guilty. 28

U.S.C. § 2254(e)(2). However, the pre-AEDPA standard applies when “a habeas

petitioner has diligently sought to develop the factual basis underlying his habeas

petition, but a state court has prevented him from doing so.” M iller v. Champion,

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161 F.3d 1249, 1253 (10th Cir. 1998). By seeking an evidentiary hearing in state

court, M r. Bland diligently sought to develop the factual basis of his habeas

petition. W e therefore apply pre-AEDPA standards, which entitle him to an

evidentiary hearing if “his allegations, if true and if not contravened by the

existing factual record, would entitle him to habeas relief.” Id. Having

considered the evidence M r. Bland would introduce at an evidentiary hearing to

support his claims of ineffective assistance of counsel and having found no

meritorious ineffective-assistance-of-counsel claim, we find that he has not

established an entitlement to habeas relief. To the contrary, our review of the

record indicates that M r. Bland’s trial counsel were diligent and thorough in their

representation and we commend them for their work in this case. The district

court therefore did not err in denying his request for an evidentiary hearing.

IV. Conclusion

For the reasons set forth above, we AFFIRM the district court’s decision

denying M r. Bland’s 28 U.S.C. § 2254 petition for a writ of habeas corpus.

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