DeLozier v. Sirmons

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH July 18, 2008
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

MICHAEL DELOZIER,

Petitioner - Appellant,
v. No. 06-7107
MARTY SIRMONS, Warden,
Oklahoma State Penitentiary,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 00-CV-102-JHP-KEW)

Jack S. Dawson (Sarah M. Jernigan with him on the brief), of Miller Dollarhide,
Oklahoma City, Oklahoma, for Petitioner - Appellant.

Robert L. Whittaker, Assistant Attorney General, Criminal Division (W.A. Drew
Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma
City, Oklahoma, for Respondent - Appellee.

Before LUCERO, MURPHY, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Michael DeLozier was convicted on two counts of first-degree murder in

Oklahoma state court and sentenced to death. The Oklahoma Court of Criminal
Appeals (OCCA) affirmed the conviction and sentence. See DeLozier v. State,

991 P.2d 22 (Okla. Crim. App. 1998). After Mr. DeLozier filed an unsuccessful

petition for a writ of certiorari in the United States Supreme Court, see DeLozier

v. Oklahoma, 528 U.S. 1023 (1999), and an unsuccessful application for

postconviction relief in Oklahoma state court, he filed in the United States

District Court for the Eastern District of Oklahoma on August 31, 2000, an

application for relief under 28 U.S.C. § 2254. The district court denied the

application but granted a certificate of appealability (COA) on Mr. DeLozier’s

claim of ineffective assistance of counsel. See 28 U.S.C. § 2253(c)(1) (requiring

a COA to appeal denial of habeas application). We denied Mr. DeLozier’s

motion for issuance of an expanded COA.

The OCCA summarized the incriminating evidence as follows:

Steven Morgan and Orville Lewis Bullard were camping in a
converted step-van on the bank of the Glover River in northern
McCurtain County [the “Morgan camp”]. About 600 yards from
their campsite was the “Tate bus,” a bus also converted for camping.
DeLozier, Glenney Dale [“Bo”] Madison, Nathaniel Brandon
Madison, and others were staying at the bus. Sometime on Saturday,
September 23, 1995, DeLozier, the Madison [cousins] and James
[“Bubba”] Oliver happened upon the Morgan campsite. They
engaged in conversation for a few minutes.

While there DeLozier spotted a generator he thought would bring
about $700 if stolen. Once back at the Tate bus, DeLozier mentioned
stealing the generator. Several of the group, including DeLozier,
talked about killing Morgan and Bullard and stealing everything they
had.

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 That night, DeLozier, carrying a single shot shotgun, Glenney
Madison, carrying a .22 caliber rifle, and Nathaniel Madison, set off
for the Morgan site. Once there, according to Nathaniel Madison,
DeLozier stepped into the camper and fired a single shot toward the
rear with the shotgun. Then Glenney Madison stepped into the
camper and fired a shot from the .22 rifle. The group then stood near
Morgan’s pickup where Glenney Madison fired several shots into the
front of the camper. Nathaniel Madison shouted several times for the
camper’s occupants to come out, saying nothing would happen to
them.

After several minutes, Morgan stepped from the camper. Upon doing
so, DeLozier shot him once in the chest with the shotgun. DeLozier
and Glenney Madison approached Morgan, and DeLozier took the
rifle from Glenney and fired it once into Morgan’s face.

The three loaded the generator and many other items from the
campsite, some of which were taken from the camper, into Morgan’s
pickup and took the stolen items back to the Tate bus. On the final
trip back to the Morgan camper, the trio encountered headlights
coming from the Morgan camp site. All three bailed out from the
pickup and left it sitting in the road.

George Vance was driving the vehicle which frightened the trio. He
drove up on the Morgan camper and observed Morgan lying on the
ground with his pants in his hands. Upon seeing this he turned
around and got out as fast as he could. On his way out he found that
he was blocked by Morgan’s abandoned pickup. He got out of his
vehicle and moved Morgan’s pickup to the side of the road.

Morgan was found lying on his back outside the camper in front of
the door. His body had been burned. Morgan’s camper had been
burned with the body of Bullard still lying in his bed. Morgan’s
pickup had also been burned.

DeLozier, 991 P.2d at 25–26.

Mr. DeLozier, Bo Madison, and Nathaniel Madison were charged with the

first-degree murders of Bullard and Morgan. Bo Madison was convicted and

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sentenced to life without parole in a separate proceeding. Nathaniel Madison

entered into a plea agreement with the State, agreeing to testify against

Mr. DeLozier in exchange for a lesser charge and reduced sentence.

On appeal Mr. DeLozier challenges his conviction and sentence on the

grounds that his trial counsel was ineffective in (1) not properly challenging four

jurors who were biased in favor of the death penalty; (2) not moving before trial

to exclude evidence of his prior convictions; (3) not calling as witnesses his sister

and a friend who were with him shortly after the murders but who did not

participate in the murders; (4) not effectively impeaching Nathaniel Madison’s

testimony; (5) not objecting to the State’s improper comment on his pretrial

silence; (6) not objecting to the State’s improper questions when he was cross-

examined and to its improper arguments to the jury; and (7) not conducting a

proper investigation to obtain mitigating evidence for the penalty phase of trial

and not presenting available mitigating evidence. He also contends (8) that his

counsel on direct appeal to the OCCA was ineffective for not raising a claim of

ineffective trial counsel and (9) that the cumulative effect of trial counsel’s

deficient acts rendered counsel’s assistance ineffective. We affirm.

I. THE TRIAL

A. Jury Selection

During voir dire the trial court informed each potential juror that under

Oklahoma law there were three alternative punishments for a person convicted of

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first-degree murder: death, imprisonment for life with no parole, or imprisonment

for life. It asked the jurors whether they could fairly consider each alternative if

the defendant was found guilty.

Four prospective jurors initially indicated that they would have difficulty

considering sentences other than death. The trial court inquired further into

whether they could fairly consider all three forms of punishment, and then

permitted the parties to ask questions. Ultimately, each of the four said that they

could give fair consideration to each form of punishment. Mr. DeLozier’s

attorney challenged only one of the prospective jurors for cause, but the court

overruled his challenge. He then removed that prospective juror and another of

the four with peremptory strikes; the other two jurors sat on the jury.

B. The Guilt Phase

1. The Prosecution’s Case in Chief

a. Nathaniel Madison

Nathaniel Madison was the first witness. He testified as follows: In late

September 1995 Damon Tate drove Mr. DeLozier, Bo Madison, Bubba Oliver,

Paradise Wooten, and him to a campsite on the Glover river that they called “the

Tate bus” because of a bus on the site that had been converted for camping. The

next day they all smoked marijuana but were not high because the marijuana was

not good. In the afternoon Mr. DeLozier, Bo, Bubba, and he left the camp on

four wheelers to look for a generator that they had heard the previous night; they

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had agreed to steal it. They found the generator at the Morgan camp, where they

saw Morgan and Bullard and stopped to talk. Nathaniel noticed the generator, ice

chests, and various other camping equipment.

When they returned to the Tate bus, Mr. DeLozier again brought up the

idea of stealing the generator. Nathaniel, Bo, and Bubba thought that it was a

good idea. As they were sitting around a campfire that evening, Mr. DeLozier

suggested that they just shoot the men and take everything that they had. Bo and

Nathaniel, but not Bubba, agreed. After a discussion of 15 or 20 minutes, Bo,

Nathaniel, and Mr. DeLozier decided to lie down, intending to wait a while so

that the victims would be asleep when they arrived at the Morgan camp. Later

they noticed that the generator had stopped running, so the three men walked to

the Morgan camp through the woods. Mr. DeLozier carried a shotgun and Bo

carried a .22 caliber rifle.

Upon arriving at the campsite, Mr. DeLozier and Bo each stepped into the

camper, fired a shot toward the back of the camper, and then hid behind a pickup

at the site (Morgan’s pickup). From there, Bo fired additional shots into the

camper. As instructed by Mr. DeLozier, Nathaniel began yelling for the

occupants to come out. About 20 minutes later Morgan came to the door of the

trailer. Mr. DeLozier told him to come out, assuring him that nothing would

happen to him. But when Morgan finally emerged, Mr. DeLozier stepped out

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from behind the truck and shot him with the shotgun. Mr. DeLozier then took the

.22 from Bo and shot Morgan in the face.

After the shooting the three men loaded goods from the camper into

Morgan’s pickup and drove it back to the Tate bus. They later returned, again

filled the pickup with goods, and drove back to the Tate bus. Among the items

that they took were two automatic shotguns and a .22 rifle. Some time after the

first trip, Michelle Tate (Mr. DeLozier’s sister), Damon Tate (her husband), and

Shawn Smith arrived at the campsite. Michelle asked where they had gotten the

truck and the goods. Mr. DeLozier answered that they had “borrowed the truck

and . . . got the stuff at the getting place.” R. Vol. 8 at 572.

Mr. DeLozier and the Madisons later set out in the pickup on a third trip to

the Morgan camp. But they met an oncoming vehicle on their way. Mr. DeLozier

pulled the truck to the side of the road and they fled. The Madisons went in a

different direction than Mr. DeLozier did, and they never saw him again. As the

Madisons walked back to the Tate bus, about five minutes after fleeing the truck,

Nathaniel saw the truck catch on fire. Ten minutes later he saw the Morgan

camper catch on fire and assumed that Mr. DeLozier had started the fires.

When Nathaniel and Bo arrived at the Tate bus, they changed clothes,

grabbed the guns used in the shootings, and walked to Damon Tate’s house.

Damon drove them to meet Nathaniel’s mother. In exchange for the ride,

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Nathaniel gave Damon the .22 used in the shooting; Nathaniel returned the

shotgun to the owner, his brother Tim.

Nathaniel was arrested early the next morning. He was then interviewed by

an investigator with the Oklahoma State Bureau of Investigation (OSBI), and he

was interviewed again the next day. He had not yet retained an attorney nor been

offered a plea agreement.

Mr. DeLozier’s attorney, Robert Perrine, cross-examined Nathaniel.

Although Nathaniel had testified on direct that his testimony was consistent with

what he had said in both interviews with the OSBI, Perrine pursued possible

inconsistencies: Nathaniel had testified that Mr. DeLozier was the one who had

first spoken of killing Morgan and Bullard, but Perrine suggested that (1) in

Nathaniel’s initial interview he had said that there had been no talk of killing the

victims before they went to the Morgan camp and (2) in the later interview he had

said that Bo spoke of killing the men before their first trip to the camp. In

response, Nathaniel admitted that it was possible that he had lied during his

second interview. Also, although Nathaniel had testified that the murders

occurred on the first trip to the Morgan camp and that he, Mr. DeLozier, and Bo

were together on every trip made to the camp, Perrine intimated that Nathaniel

had told OSBI agents in his first interview that Mr. DeLozier had made a trip to

the camp by himself and, when he returned, told Nathaniel and Bo that he had set

fire to the campsite. Nathaniel admitted that if he had said that, it was a lie.

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 On further cross-examination Nathaniel admitted that he and Bo, not

Mr. DeLozier, had left the camp area with the murder weapons. Perrine then

elicited that in return for testifying against Mr. DeLozier, Nathaniel would be

charged with conspiracy to murder, rather than murder in the first degree, and his

punishment would be only ten years’ imprisonment and ten years’ probation.

Perrine also questioned Nathaniel about a letter that he had written to Paradise

Wooten saying that he would lie to get even and advising her to lie under oath if

she found herself in trouble. Asked whether he was capable of lying under oath,

he admitted that he was.

b. Law-Enforcement and Expert Witnesses

OSBI Agent Chris Dill confirmed that the shotgun used in the crime had

been recovered from the home of Tim Madison. On cross-examination Perrine

elicited that Dill had conducted the first interview of Nathaniel and that Nathaniel

had made two statements contrary to his trial testimony: Dill said that Nathaniel

had told him (1) that neither he, Bo, nor Mr. DeLozier had discussed killing the

victims before going to the Morgan camp to steal property, and (2) that

Mr. DeLozier made a trip to the Morgan camp by himself and, when he returned,

said that he had burned the pickup but did not say that he had burned the camper.

OSBI Agent Dale Birchfield described the murder scene and the

surrounding area, including the distance to the Tate bus—about 300 to 400 yards.

Also, to rehabilitate Nathaniel’s testimony, he recounted what Nathaniel had told

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him during Nathaniel’s second OSBI interview. In particular, Nathaniel had said

that Mr. DeLozier and Bo had stepped into the camper and fired shots, that

Morgan later came out of the camper, and that Mr. DeLozier had shot him first in

the chest with a shotgun and then in the face with a .22. Birchfield admitted on

cross-examination, however, that the OSBI investigation had shown that the

Madisons, not Mr. DeLozier, had taken the two murder weapons from the Tate

bus as they fled.

Dr. Ronald F. Distefano, a forensic pathologist and medical examiner,

testified that Morgan’s body was charred but that there was nevertheless evidence

that he had been shot. X rays showed objects in the chest that were characteristic

of shotgun pellets, and there was a gunshot wound in the head. Similarly,

although Bullard’s body was also charred, an x ray revealed shotgun pellets, the

plastic wad of a shotgun shell was recovered from the body, and there was

evidence of a bullet wound in the head.

Lester Blake, an agent with the Oklahoma State Fire Marshal, testified to

his opinion that the fire at the Morgan camp had been intentionally set with a

match and ignitable liquid. The fire followed the liquid from Morgan’s body to

the camper, where there was evidence of an accelerant pour pattern. Inside the

camper were some items that had exploded as a result of the fire, including a gas

lantern and some ammunition. On cross-examination Blake said that the fire

would have reached its peak within three minutes, so that it could have been seen

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from a distance, and would have continued for an hour or more; and he suggested

that in addition to explosions of the lantern and ammunition, the tires may have

exploded before they burned.

c. George Vance

George Vance did not testify but the parties stipulated to what he would

have said:

[H]e was . . . traveling in his pickup truck [when] he came upon a
campsite by the Glover River and observed a white male on his back
on the ground in front of a camper located at the camp. This white
male was clothed in undershorts and a shirt and was holding a pair of
blue jeans to his chest. [He] then attempted to leave the camp area
and spun his tires doing so[.] [As he] left the camp [he] met a . . .
pickup, which was abandoned by its drivers[.] [He] moved this
vehicle which was blocking the roadway and left the area. [He] saw
no fires at any time that evening.

R. Vol. 9 at 810.

d. Michael Mussett

Michael Mussett, who had been an inmate at the McCurtain County Jail

with Mr. DeLozier, testified that during an argument Mr. DeLozier yelled to

another inmate, Rodney Broades: “I’ve already killed two men, mother fucker; I

won’t hesitate to kill you.” Id. at 726. Mussett explained that because he was a

“trustee,” he was not in a cell with the rest of the inmates, but was able to roam

the jail’s L-shaped hallway. When the statement was made, he was standing at

the elbow, or “pivot point” of the L, looking in both directions. He could see

Mr. DeLozier’s ten-man cell (the “Thunderdome”) to the right, and Broades’s

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seven-man cell on the hallway to the left. Broades was screaming at the door of

the seven-man cell and Mr. DeLozier’s face was visible through the

Thunderdome’s bean hole (a head-level opening in the cell door about six inches

wide and 14 inches high). Mussett reported the incident to officials the following

day. Although he admitted that his trustee status reduced his time to be served,

he claimed to have received no special treatment for reporting the incident.

On cross-examination Mussett admitted that someone standing at the pivot

point of the hall could not see into the Thunderdome and that he “wouldn’t know

[Mr. DeLozier’s] voice from Adam.” Id. at 730. Perrine further elicited that

Mussett had known the victims all his life and knew when he went to jail that the

people accused of killing them would be there. When asked whether he felt that

he was helping the Morgans and Bullards by testifying, he said that he did not

know.

After Mussett testified, Perrine requested that the jury be permitted to visit

the jail, saying, “I went down there at lunch time and looked and . . . [t]here’s no

way; you can’t get enough of your face in that bean hole to identify who it is.”

Id. at 770. He argued that “the defendant is entitled to have this jury go look for

themselves to determine whether or not the witness Mussett is telling the truth

about the way he identified the speaker of those words, because he said that was

the only way he could identify them is by looking at him and seeing him through

the bean hole.” Id. The court denied the motion. Perrine later moved for

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permission to call a witness to rebut Mussett’s testimony. The court granted the

request, but the witness was never called.

2. Mr. DeLozier’s Case

Two witnesses testified for the defense: Paradise Wooten and

Mr. DeLozier himself.

a. Paradise Wooten

Wooten testified that she had been with Mr. DeLozier, the Madisons, and

her brother, Bubba Oliver, at the Tate bus the night of the murders. They all sat

around the campfire talking about stealing stuff from the Morgan camp and

killing Morgan and Bullard. They smoked one marijuana joint that evening, but

because they had no papers or cans to smoke the little marijuana that was left,

they threw the remainder in the fire.

She and Bubba were asleep when Mr. DeLozier and the Madisons returned

from the Morgan camp. They woke her, but she stayed in bed and did not see the

truck or what they had taken. The three men left again; and she and Bubba stayed

up to await their return. This time, however, Mr. DeLozier returned to the

campsite by himself. He said, “Let’s go, the game rangers are down there.” Id. at

854. She and Bubba dressed and the three of them quickly left.

Up to that point she had not heard any gunshots. After they had traveled

about 50 yards from the campsite, she saw a light coming from near the river (by

the Morgan camp). The light looked like “[l]ights on a football field but it was

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yellow.” Id. at 856. Once they finally got up the hill, about 30 to 45 minutes

after leaving the campsite, she heard three or four gun shots; five minutes later

she heard a blast. Wooten, Bubba, and Mr. DeLozier wandered through the

mountains for three days before they were arrested. Mr. DeLozier was with her

the entire time. She did not recall seeing any blood on his clothes or any

evidence that he had been near a fire. And he had not acted as if he had killed

somebody. On cross-examination Wooten admitted that part of the reason that

she and Bubba had refused to go to the Morgan camp with the others was the

earlier talk of killing Morgan and Bullard.

b. Mr. DeLozier

Mr. DeLozier began his testimony by stating his age (19), providing some

background information, and admitting that he had previously pleaded guilty to

felony charges of killing one police dog and injuring another. He then gave his

account of the murders. He had gone to the Tate bus campsite to avoid appearing

for court proceedings regarding the felony charges, which were pending at the

time. On Saturday September 26 he, Nathaniel, Bo, and Bubba were riding four

wheelers when they came across Morgan, Bullard, and a third man at the Morgan

camp. After talking with the three men for 15 to 20 minutes, they left.

Mr. DeLozier suggested to the others that they steal the generator from the

Morgan camp. Bo and Nathaniel again mentioned stealing property from the

Morgan camp later that evening as they were sitting around the campfire with

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Mr. DeLozier, Wooten, and Bubba. This time, however, Bo suggested that they

kill Morgan and Bullard and take everything. Mr. DeLozier did not respond

because he did not think Bo was serious. They were all high on marijuana, and he

had used some methamphetamine that weekend.

During the night the three left for the Morgan camp. He carried a shotgun

and Bo carried a .22, but they did so only for protection. About halfway to the

campsite they stopped to smoke a cigarette and he handed the shotgun to

Nathaniel, who carried the gun the rest of the way.

When they arrived at the campsite, the pickup, which was backed up to the

camper, was packed with camping equipment and other personal property;

everything but the generator was loaded on the truck. The keys were in the truck.

They quickly threw the generator in the back of the truck and left. As they were

unloading the pickup at the Tate bus, Michelle Tate, Damon Tate, and Shawn

Smith arrived in their vehicle. Damon said that a game warden had stopped them

as they drove to the Tate bus.

After Damon, Michelle, and Shawn left, the Madisons wanted to go back to

the Morgan camp for another load. Mr. DeLozier joined them. On their way

back to the Morgan camp in the stolen truck, they saw headlights approaching, so

they stopped the truck and fled. Mr. DeLozier went back to the Tate bus and the

Madisons went in a different direction. When Mr. DeLozier reached the Tate bus

about ten minutes later, he woke up Paradise and Bubba and told them that they

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had to leave. He explained that he thought he had seen a game warden and

assumed that they did not want to be at the bus with stolen goods stacked in front

of it when the game warden arrived. As they were leaving in the opposite

direction from the Morgan camp, they heard an explosion and saw an orange glow

along the river. They also heard several “pops like gunshots.” R. Vol. 10 at 920.

On cross-examination Mr. DeLozier testified that he had never threatened

to kill fellow inmate Broades and that Mussett was lying.

3. Rebuttal Witness

The State called Phyllis Morgan Setzer, Morgan’s wife, in rebuttal. She

testified that she and her husband had gone camping hundreds of times and had

never loaded their things the night before. Rather, on the day they were set to

leave, they would typically have lunch and then load everything into the truck.

On the weekend of the murders, she and her son planned to drive to the Morgan

camp that Sunday (the day after the murders), meet Morgan and Bullard for a fish

fry, and pack up after that. She also testified that many of the items recovered

from the Tate bus were items that remained permanently in the camper at the

Morgan camp; they would not have taken them home.

C. The Penalty Phase

The information charging Mr. DeLozier with murder listed four aggravating

circumstances supporting the death penalty:

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 1. The defendants, and each of them, created a risk of death to
more than one person;

2. The murders were especially heinous, atrocious or cruel;

3. The murders were committed for the purpose of preventing a
lawful arrest or prosecution;

4. The existence of a probability that the defendants would
commit criminal acts of violence that would constitute a
continuing threat to society.

R. Vol. 2 at 4. During the penalty phase of the trial, after the jury had found

Mr. DeLozier guilty on both counts of first-degree murder, the State presented no

additional evidence in support of the aggravating circumstances. It limited its

presentation to calling victim-impact witnesses: Mr. Bullard’s son, Joe Bullard,

and Mr. Morgan’s wife, Phyllis Morgan Setzer. Both testified about the profound

effect of the loss of Morgan and Bullard on their families’ lives.

Perrine called three witnesses. Mr. DeLozier’s mother, Terry Gilbert,

testified that Mr. DeLozier’s biological father left him when he was very young.

When he was three years old, they moved in with his stepfather, Johnny Gilbert,

who beat him from the very beginning. The beatings got “really bad” when

Mr. DeLozier turned 12 or 13. R. Vol. 10 at 1054. For example, if Mr. DeLozier

failed to mow the lawn, Johnny would throw him up against a wall and start

calling him names; Johnny’s favorite name for him was “shit for brains.” Id. She

volunteered, “I mean you get told enough that you’re no good, that’s the way he

has had to grow up.” Id. Mr. DeLozier regularly attended church with his

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mother, but they eventually stopped when Johnny got jealous one night and

followed them home. As a result of the abuse, Mr. DeLozier became cold and

withdrawn. He began using drugs, but without the drugs he was not a bad person.

Mr. DeLozier’s aunt, Yolanda Bell, testified that his family life was so bad

that he ran away from home at one point and lived with her in Texas. She had

known him as a loving, affectionate boy. His sister, Michelle Tate, corroborated

that he was regularly abused by his stepfather. She said, “Johnny wouldn’t ever

hit me because [Mr. DeLozier] would always jump in and let him beat on him

instead.” Id. at 1068. She also testified that he began using drugs heavily once

he left home and that he stole from others to support his habit. When asked

whether she thought that Mr. DeLozier had turned to drugs to forget about what

his stepfather was like, Michelle answered, “Who wouldn’t want to forget? You

get cut for getting a cookie out of a cookie jar.” Id. at 1070. Before the drugs,

she said, he was a great brother with high spirits.

The court struck the second aggravator with respect to Bullard’s murder,

explaining that there was insufficient evidence that the killing was especially

heinous, atrocious, or cruel. The jury sentenced Mr. DeLozier to death on both

counts. With respect to the Morgan murder, the jury found that Mr. DeLozier

created a risk of death to more than one person, that he committed the murder

with the purpose of avoiding or preventing a lawful arrest or prosecution, and that

he constituted a continuing threat to society. Regarding Bullard’s death the jury

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found that Mr. DeLozier created a risk of death to more than one person and

constituted a continuing threat to society.

II. POSTTRIAL PROCEEDINGS

A. Direct Appeal

On September 15, 1997, Mr. DeLozier, through his new attorney, Lee Ann

Jones Peters, filed with the OCCA an appellate brief that claimed, among other

things, that Perrine had provided ineffective assistance of counsel. He

contemporaneously filed an application for an evidentiary hearing to supplement

the record regarding his claim that Perrine had failed to investigate and present

evidence to discredit Mussett’s testimony that he had heard Mr. DeLozier tell

Rodney Broades, a fellow inmate, that he had committed two murders. The

OCCA granted the application.

1. Evidentiary Hearing

At the evidentiary hearing before the trial judge, Perrine testified that as a

matter of trial strategy he had decided not to contact Broades. He had received a

copy of an OSBI report of interviews with Broades and Mussett conducted a few

days after the incident, and both had reported essentially the same statement.

(Broades reported that Mr. DeLozier had said: “‘You mother-fucker, I’ve killed

two people before. What makes you think I’m afraid to kill a “Nigger?”’”

R. Vol. 4 at 438. Mussett’s version was: “You mother-fucker, I’ve already killed

two men and I won’t hesitate to kill a Nigger.” Id. at 437.) Broades had also

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reported that Mr. DeLozier, referring to the charges on which he was being held,

had said that “‘[i]f they were Niggers, he would have pled guilty to killing

them.’” Id. at 438. Perrine feared that if Broades were called as a witness, he

might repeat what he had told the OSBI; and if Broades changed his story, he

could be impeached by his prior statement, “which would have over emphasized

the statement and given it more credibility.” R. Vol. 12 at 14. Perrine also

worried that the statement, which was laced with racial slurs, would inflame the

two African-American jurors against his client. Therefore, Perrine said, rather

than interview Broades or call him as a witness, he chose to deemphasize the

statement and attack Mussett’s credibility. He had visited the jail, including the

cells in which Broades and Mr. DeLozier were housed as well as the place in the

hall where Mussett claimed to have stood, and had requested that the jury be

permitted to visit the jail to see for themselves that Mussett’s testimony could not

be true. He had also included on the witness list an inmate in McCurtain County

Jail at the time of the incident. Although he never called the inmate, and could

not remember why, he recalled “feeling satisfied that there was enough evidence

in . . . about the physical set-up of the jail. And that’s the only reason that I can

think that I would have even wanted to call [him.]” Id. at 28.

Ruth Castillo, an investigator for Mr. DeLozier, was called to testify

whether a face in the bean hole of the Thunderdome (Mr. DeLozier’s cell) would

be visible from the hallway pivot point. Castillo had visited the jail in August

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1997, after the trial and after the facility had ceased serving as a jail. While

visiting the facility, she had several pictures taken from various locations. One

picture was of the Thunderdome bean hole taken from the point of the hallway

where Mussett claimed to have been. Castillo asserted that the picture showed the

difficulty one would have in identifying a face in the bean hole. She explained

I tried to put [the woman with the camera] right at the pivotal point.
I went into the cell, and I pressed my face against the Bean Hole in
the cement wall. She took a picture. Uh, and, uh, in the picture that
I reviewed, uh, has a little sliver of my face, but she—I think she
actually moved a little down the wall—down the hall. Now when
I—I didn’t take a picture of her in the cell. I didn’t ask her to do
that. It’s dirty. But when I stood at the pivotal point and I looked
down, I could not see into the Bean Hole at all, because it’s recessed.
All I could see was the outer cement, uh, uh, wall of it. I couldn’t
see anything inside of it. When I pressed my face against the Bean
Hole, I could not put my face in any way through the Bean Hole,
because it hit me on the cheeks, and on my hair.

Id. at 70–71.

Next, Mr. DeLozier called Rodney Broades, who testified that

Mr. DeLozier had said nothing to the effect of what was stated in the OSBI

report. Broades, who had several prior convictions, admitted that he and

Mr. DeLozier often argued, but he said that Mr. DeLozier had never admitted to

committing the murders or threatened to kill him. He testified that when an OSBI

agent had asked him to verify what Mr. DeLozier had allegedly said to him a few

days earlier, he had told the agent that the alleged statement “wasn’t nowhere in

the range of what was said.” Id. at 83. On cross-examination Broades repeated

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that the agent who wrote the report had lied about what he had told the agent.

But on redirect Broades admitted that Mr. DeLozier had said, consistent with the

report, “[I]f it would have been black people the[y’re] saying that I killed, I

would have said I done it and pleaded guilty to it.” Id. at 96.

One of Mr. DeLozier’s cellmates, Tony Loving, testified that he recalled a

shouting match between Mr. DeLozier and Broades on the day of the alleged

incident, but he said that the two were “just calling each other names back and

forth,” id. at 104. He said: “I never heard Mr. DeLozier say he’d kill anyone. Or

had killed anyone.” Id. at 105. He also testified that a person standing at the

pivot point of the hallway could not see a face in the Thunderdome’s bean hole.

For almost a month (though not at the time of the incident) Loving had been a jail

trustee, which allowed him, like Mussett, to walk the halls. He said that when a

cellblock door near the Thunderdome was open, it would block the view of the

bean hole from the pivot point, and that the cellblock door was “always open.”

Id. at 107. He did not, however, say whether a face in the bean hole would have

been visible if the door had been closed.

On cross-examination the State elicited that Loving had two prior felony

convictions and that he had not paid attention to every argument between

Mr. DeLozier and Broades. Then, in response to the trial judge’s question

whether he had ever heard Mr. DeLozier threaten Broades, Loving contradicted

some of his earlier testimony, saying that Mr. DeLozier had told Broades “that he

-22-
would kill his black ass.” Id. at 115. He added that Mr. DeLozier had “said

something about killing him. Said something about, If I would have killed

anybody it would have been a nigger . . . .” Id. at 117.

The State called two law-enforcement officers in rebuttal. OSBI Agent

David Cathey testified that Broades had told him that Mr. DeLozier had said,

“‘You motherfucker, I killed two people before. What makes you think I’m afraid

to kill a nigger?’” Id. at 129. Cathey said that he had quoted the words that

Broades had used during the interview, which were “almost identical” to those

reported by Mussett. Id. On cross-examination Cathey admitted that he had not

recorded the interview, had not asked Broades to sign the statement, and had not

shown Broades the report after it had been transcribed. Next, the State called

McCurtain County Sheriff Richard McPeak, who testified that a person standing

at the pivot point could “[l]ook around the corner at the six-man cell, and look

right here at this Bean Hole and see somebody’s face in that Bean Hole. I’ve

stood there several times and looked at them before.” Id. at 138.

In his findings of facts and conclusions of law, the trial judge concluded

that “[f]ailing to call Broades as a witness . . . constituted sound trial strategy,”

R. Vol. 14, Doc. 51 at 9 (Evidentiary Hr’g - Findings of Fact and Conclusions of

Law, Sept. 17, 1998), and did not affect the outcome of the proceeding. The

judge said that both Broades and Loving gave inconsistent, impeachable

testimony. The trial judge was likewise unpersuaded by the photograph that

-23-
purportedly contradicted Mussett’s assertion that he had seen Mr. DeLozier’s face

in the bean hole. He said that it “clearly shows a portion of Mrs. Castillo’s face

in the bean-hole.” Id. at 15. The judge concluded:

Admissible evidence to support th[e] allegation [that Perrine
had failed to present evidence that Mussett could not have visually
identified Mr. DeLozier through the bean hole] did not exist and was
not available to [Perrine]. Appellate counsel fails to identify any
witness with a basis of knowledge to support defendant’s theory.
Photographic evidence was not available to support this theory
either, as defendant’s most probative photograph (. . . the only photo
taken from where Mussett was standing and looking at a face in the
beanhole) does not support appellate counsel’s theory. Even
testimony by Investigator Castillo would have been impeached by her
own photograph and the testimony of the Sheriff.
...

Failure to present such a witness or photograph had no effect
on the trial proceedings nor could it have impacted the jury’s verdict.

Id. at 17.

2. OCCA Opinion

The OCCA opinion addressed each of the ineffective-assistance claims

argued by Mr. DeLozier in this court, except for the claims regarding the penalty

phase, and affirmed his conviction and sentence. Mr. DeLozier’s petition for a

writ of certiorari was denied by the United States Supreme Court. See DeLozier,

528 U.S. 1023.

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 B. Application for Postconviction Relief

On December 11, 1998, Mr. DeLozier filed an application for

postconviction relief with the OCCA. Pertinent to this appeal, he argued that

Perrine had been ineffective in failing to present evidence of Mr. DeLozier’s drug

addiction and drug-induced impairment as mitigating factors in the penalty phase

of his trial. In support of the application Mr. DeLozier submitted a report of a

psychological examination by Dr. Jeri Fritz, a licensed clinical psychologist. The

report said that use of methamphetamine, a central-nervous-system stimulant,

could cause “irritability, insomnia, memory loss, confusion, anxiety, aggression,

as well as serious physical problems including cardiac and brain damage.”

R. Vol. 19, Ex. 13 at 11. “Prolonged use of methamphetamine,” it continued,

“can create symptoms that resemble psychiatric diagnoses and are characterized

by hallucinations, repetitive behaviors, and paranoia, which can produce suicidal

or homicidal thoughts.” Id. Although earlier tests of Mr. DeLozier had not

revealed any “gross neuropsychological impairment,” id. at 8,

[t]he effect of the combination of a prolonged methamphetamine
binge mixed with central nervous system depressants would most[]
likely have meant that Mr. DeLozier would have been in the highly
dangerous “tweaking” stage while at the Tate camp. He may have
most likely been irritable, confused, hyperaroused, agitated, and
paranoid. His behavior would probably have been unpredictable with
a high potential for unprovoked violence,

id. at 12. Mr. DeLozier contended that Perrine should have investigated and

developed such mitigating evidence.

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 In addition, Mr. DeLozier claimed that Perrine had been ineffective for

waiting until after the guilty verdict to interview members of Mr. DeLozier’s

family for potentially mitigating evidence. And appellate counsel had been

ineffective, according to Mr. DeLozier, because she had failed to claim that

Perrine had been ineffective for not presenting mitigating evidence.

The OCCA rejected Mr. DeLozier’s claims. His claims with respect to

Perrine were procedurally barred, it said, because he had not raised them on direct

appeal and his claims did not “turn on facts or information unavailable at the time

of his direct appeal.” DeLozier v. State, No. PC 98-517, slip op. at 6 (Okla. Crim.

App. April 28, 1999) (internal quotation marks omitted) R. Vol. 14, located

between Docs. 64 and 65). Regarding his claim of ineffective assistance of

appellate counsel, the court applied the test set forth in Walker v. State, 933 P.2d

327 (Okla. Crim. App. 1997), overruling recognized by Harris v. State, 167 P.3d

438 (Okla. Crim. App. 2007), and denied the claim because “[h]e ha[d] not shown

appellate counsel breached any duties owed to him, or that appellate counsel’s

judgment was unreasonable under the circumstances or did not fall within the

wide range of professional assistance.” DeLozier, No. PC 98-517, slip op. at 7–8

(internal quotation marks omitted).

C. § 2254 Application

On August 31, 2000, Mr. DeLozier filed his application for relief under

28 U.S.C. § 2254. Together with nine other claims for relief, he raised an

-26-
ineffective-assistance-of-counsel claim, advancing the same arguments that he

had made before the OCCA on direct appeal and in his application for

postconviction relief. The district court rejected his arguments but granted him a

COA with regard to his ineffective-assistance-of-counsel claim.

III. DISCUSSION

A. Standard of Review

Because Mr. DeLozier filed his application under 28 U.S.C. § 2254 after

the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA),

the provisions of that statute apply. Malicoat v. Mullin, 426 F.3d 1241, 1246

(10th Cir. 2005). AEDPA establishes deferential standards of review for

state-court factual findings and legal conclusions. “AEDPA . . . mandates that

state court factual findings are presumptively correct and may be rebutted only by

‘clear and convincing evidence.’” Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir.

2004) (quoting 28 U.S.C. § 2254(e)(1)). As for legal conclusions, if the federal

claim was adjudicated on the merits in the state court,

we may only grant federal habeas relief if the habeas petitioner can
establish that the state court decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”

Id. (quoting 28 U.S.C. 2254(d)(1) and (2)). As we have stated:

Under the “contrary to” clause, we grant relief only if the state court
arrives at a conclusion opposite to that reached by the Supreme Court

-27-
 on a question of law or if the state court decides a case differently
than the [Supreme] Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, relief is provided
only if the state court identifies the correct governing legal principle
from the Supreme Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case. Thus we may not issue a
habeas writ simply because we conclude in our independent judgment
that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations, and

internal quotation marks omitted).

B. Ineffective Assistance of Trial Counsel

Mr. DeLozier contends that he was denied effective assistance of trial

counsel because (1) counsel failed at voir dire to protect his right to be tried by an

impartial jury; (2) counsel failed to seek to prohibit disclosure of his prior

convictions before eliciting them himself on direct examination; (3) counsel did

not call Michelle Tate and Bubba Oliver as witnesses; (4) counsel did not

thoroughly impeach Nathaniel Madison’s testimony; (5) counsel did not properly

and effectively investigate and adduce testimony to counter Mussett’s testimony

that he had heard Mr. DeLozier’s boast of having committed two murders; (6)

counsel failed to object to the State’s comment on his pretrial silence; (7) counsel

did not object to the State’s cross-examination of him and its improper arguments

to the jury; (8) counsel did not properly and effectively investigate, prepare, and

-28-
adduce mitigating evidence for the penalty phase; and (9) the cumulative effects

of counsel’s deficient acts rendered counsel’s assistance ineffective.

To prevail on an ineffective-assistance-of-counsel claim, Mr. DeLozier

must establish (1) that his “counsel’s representation fell below an objective

standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),

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

unprofessional errors, the result of the proceeding would have been different,” id.

at 694. When reviewing the guilt stage of the trial for prejudice, “the question is

whether there is a reasonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt.” Id. at 695. With respect to

a death sentence, “the question is whether there is a reasonable probability that,

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

aggravating and mitigating circumstances did not warrant death.” Id. Our review

is “highly deferential” and we “indulge in a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is,

the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.” Id. at 689 (internal

quotation marks omitted).

1. Voir Dire

Mr. DeLozier claims that Perrine erred by failing to protect his right to be

tried by an impartial jury. During voir dire the trial judge informed the

-29-
prospective jurors that under Oklahoma law a person convicted of first-degree

murder could be punished by death, imprisonment for life with no parole, or

imprisonment for life. Four prospective jurors initially indicated that they could

not consider the punishments of life in prison or life in prison without parole.

Perrine unsuccessfully challenged one for cause, and he used peremptory

challenges to strike that juror and another of the four. The other two sat on the

jury. Mr. DeLozier contends that Perrine should have challenged for cause the

three unchallenged jurors and should have used peremptory strikes to exclude the

two who sat on the jury. He also contends that Perrine did not adequately

preserve for appeal the trial judge’s error in denying his one challenge for cause.

“[T]he proper standard for determining when a prospective juror may be

excluded for cause because of his or her views on capital punishment . . . is

whether the juror's views would prevent or substantially impair the performance

of his duties as a juror in accordance with his instructions and his oath.”

Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal quotation marks omitted).

We discuss each prospective juror in turn.

Juror 14 initially stated, “[A]nyone that has gone in and killed somebody

and if it’s proven without a doubt whatsoever, no question whatsoever that they

did do it then I think they deserve the death penalty.” R. Vol. 7 at 281. But when

asked by the court whether she could give “fair consideration to life in prison and

life in prison with no parole,” she said that she could. Id. at 282–83. Perrine’s

-30-
challenge for cause was overruled, but he later removed this prospective juror

with a peremptory strike.

The exchange between Juror 18 and Perrine was as follows:

MR. PERRINE: Can you imagine a situation where two people
were killed and you find somebody guilty of those
murders where you give them a life sentence?

JUROR 18: No.

MR. PERRINE: What I’m asking is it possible to give somebody a
life sentence in your mind could you vote for it
and can you perceive of any type of situation
when somebody has killed two people or been
involved in the killings and still give them a life
sentence and think that was appropriate?

JUROR 18: Yeah.

MR. PERRINE: That’s all we want to know is can you consider all
three punishments as a possible?

JUROR 18: Yes.

MR. PERRINE: Final conclusion?

JUROR 18: Yes.

R. Vol. 8 at 325–26. Perrine did not challenge Juror 18 for cause and he sat on

the jury.

Juror 41 initially stated that he would have difficulty giving fair

consideration to life in prison without parole:

THE COURT: [C]an you give fair consideration to
recommending the death penalty?

-31-
JUROR 41: Fair consideration?

THE COURT: Yes, sir.

JUROR 41: Yeah.

THE COURT: Can you also give fair consideration to life in
prison w[ith] no parole and to life in prison?

JUROR 41: Not life in prison with no parole.

THE COURT: You’re telling me you cannot even fairly consider
that?

JUROR 41: Well, I don’t like it. . . .

...

THE COURT: [W]hat would be required of you would be that
and this goes to my question, is if you found the
defendant guilty of murder in the first degree
beyond a reasonable doubt and if you felt like it
was warranted under the facts and circumstances
of the case then can you consider—number one,
can you consider, fairly consider, the death
penalty?

JUROR 41: Yes, sir.

THE COURT: You could on that. Now can you also fairly
consider life with no parole and life in prison if
you are directed by the Court that you should give
fair consideration or you must give fair
consideration to those punishment options?

JUROR 41: Yes, sir, if that’s what your directions are.

THE COURT: You could follow that?

JUROR 41: Yes, sir. I don’t like it.

-32-
 THE COURT: I understand. Now that’s some of the things that
when I went over instructions with you earlier
about can you accept and follow the law whether
you like it or not and this is not the place to
change the law. But I’m sure the attorneys may
have some follow-up questions they’d like to ask
you about that.

Id. at 511–13. Perrine did not challenge Juror 41 for cause and he sat on the jury.

Juror 49 similarly seemed to modify her views under questioning:

THE COURT: [C]ould you give fair consideration to
recommending the death sentence?

JUROR 49: Yes, I could.

THE COURT: Could you also give fair consideration to life in
prison with no parole and life in prison?

JUROR 49: No.

THE COURT: You could not even fairly consider those options?

JUROR 49: I would really, really have to think about it.

THE COURT: Well, that’s why we’re here. . . . My question is
could you fairly consider each of the three
punishment options?

JUROR 49: I probably could. I would really have to think
about it and just weigh the situation and probably
think it out.

THE COURT: I understand. Now the attorneys will . . . have
some questions for you I’m sure about how you
feel about the death penalty and so forth, but
before we move onto that I want to be real sure,
that you are able, you are telling me that you are
able under those circumstances to consider not
only the death penalty but also to give fair

-33-
 consideration to life in prison with no parole and
life in prison? Can you fairly consider each of
those?

JUROR 49: It would be real hard.

THE COURT: I understand it would be hard.

JUROR 49: That’s just how I feel.

THE COURT: There’s nothing easy about being a juror. I
understand. But I need you to tell me can you
give—

JUROR 49: I really couldn’t give you an honest answer.

THE COURT: Is there any set of circumstances in the case of a
murder in the first degree, any set of facts and
circumstances that you feel like you could warrant
or justify a life sentence or a life with no parole
sentence as opposed to a death sentence?

JUROR 49: There could be circumstances.

THE COURT: Once you heard the evidence in this case could
you fairly consider those circumstances and give
fair consideration to those two punishment
options?

JUROR 49: I guess I could; yes.

Id. at 464–65. The prosecutor then asked whether, if certain prerequisites for

imposing the death penalty were not met, the juror would “have any problem

returning a verdict of life or life without parole.” Id. at 466. Juror 49 said,

“Probably not; I could probably.” Id. Perrine then questioned the juror:

MR. PERRINE: If [the government does not] convince you beyond
a reasonable doubt that any of [the] aggravating

-34-
 circumstances exist you’re not even supposed to
consider the death penalty. Do you think you
could do that?

JUROR 49: I probably could.

MR. PERRINE: Now the Bible says something about an eye for an
eye?

JUROR 49: Yes.

MR. PERRINE: Sounds like that’s what you believe?

JUROR 49: I do believe that, yes.

MR. PERRINE: That may be fine in your religious beliefs, but
when you’re in a courtroom you have to set aside
that feeling and follow the law. Is that possible?

JUROR 49: Yes.

Id. at 467–68. Perrine did not challenge Juror 49 for cause, but used a

peremptory strike to remove her. See id. at 528.

On direct appeal the OCCA ruled that Perrine had not been ineffective with

respect to these four prospective jurors. “Generally, an attorney’s actions during

voir dire are considered to be matters of trial strategy, which cannot be the basis

of an ineffective assistance claim unless counsel’s decision is so ill chosen that it

permeates the entire trial with obvious unfairness.” Neill v. Gibson, 278 F.3d

1044, 1055 (10th Cir. 2001) (brackets, ellipses, and internal quotation marks

omitted). Mr. DeLozier has failed to make such a showing. A reasonable

attorney could have found Jurors 18 and 41 acceptable and Juror 49 not

-35-
challengeable for cause. The OCCA’s decision was neither contrary to, nor an

unreasonable application of, clearly established federal law. (As for Juror 14,

Perrine adequately preserved for appellate review his challenge for cause; the

OCCA addressed, and rejected, the argument.)

2. Prior Convictions

Mr. DeLozier testified on direct examination that he had two prior felony

convictions—one for mistreating a police dog and another for killing a police

dog. He contends that Perrine was ineffective for failing to seek to prohibit

disclosure of his convictions on cross-examination before eliciting them himself

on direct examination. Under Oklahoma law, evidence of prior felonies “shall be

admitted [for the purpose of attacking the credibility of a witness] if the court

determines that the probative value of admitting this evidence outweighs its

prejudicial effect to the accused.” Okla. Stat. tit. 12, § 2609. Rather than waiting

for the prosecutor to elicit a conviction on cross-examination, however, defense

counsel may decide to attempt to reduce the sting of the evidence by introducing

it on direct examination. See Lamb v. State, 756 P.2d 1236, 1238 (Okla. Crim.

App. 1988) (“This Court has been unwilling to say that direct examination about

prior felony convictions was not a viable trial strategy.”). Although Mr. DeLozier

acknowledges that this may be a sensible strategy, he argues that Perrine should

not have pursued it without first trying to prohibit disclosure of the evidence

through a pretrial motion in limine.

-36-
 The OCCA reviewed this claim on the merits on direct appeal. It held that

“[t]rial counsel was not ineffective for failing, in limine, to prevent the disclosure

of DeLozier’s prior convictions,” calling “[t]he basis for this argument . . .

tenuous at best.” DeLozier, 991 P.2d at 32. We must defer to the OCCA’s

evaluation of the admissibility of impeachment evidence under state law. See

Boyd v. Ward, 179 F.3d 904, 912 (10th Cir. 1999) (“[W]e defer to state court

determinations of state law.”). Of course, counsel is not ineffective for failing to

make a motion that would not succeed. See Sperry v. McKune, 445 F.3d 1268,

1275 (10th Cir. 2006). Given the unlikelihood of a successful motion in limine,

the OCCA’s rejection of this ineffective-assistance claim was neither contrary to,

nor an unreasonable application of, clearly established federal law. See 28 U.S.C.

§ 2254(d).

3. Failure to Call Witnesses

Mr. DeLozier contends that Perrine was ineffective for failing to call

Michelle Tate and Bubba Oliver as witnesses. We first address Tate.

Mr. DeLozier asserts that Tate’s testimony would have corroborated his

defense that Morgan and Bullard were alive after the first trip to the Morgan

camp. In an interview following the murders, she told an OSBI agent

When [Damon Tate, Shawn Smith, and I] arrived at the [Tate] bus I
saw MICHAEL DELOZIER standing on the driver[‘s] side of a
turquoise blue Chevrolet pickup truck. The pickup had just stopped
and BO and NATHANIEL were standing on the passenger side.

-37-
 ...

[Mr. DeLozier] said that he had borrowed the pickup truck.
NATHANIEL told me they were going to take it back at least close
enough they could find it. NATHANIEL said they had got the stuff
from the lake.

R. Vol. 3 at 301 (emphasis added). According to Mr. DeLozier, the italicized

they in Nathaniel’s statement to Tate refers to Morgan and Bullard and proves

that the two men were alive after the first trip to the Morgan camp, as he testified.

“Generally, the decision whether to call a witness rests within the sound

discretion of trial counsel.” Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir.

1998). Mr. DeLozier has failed to establish that Perrine’s decision not to call

Tate as a witness was unsound. Nathaniel’s statement to Tate, which, as hearsay,

would have been admissible solely to impeach Nathaniel’s testimony, see Okla.

Stat. tit. 12, § 2801, was ambiguous. The “they” who “could find” the truck may

have been law-enforcement officers or relatives of the victims, as well as the

victims themselves. More importantly, there would be no reason to assume that

Nathaniel was telling the truth. After all, he did not contradict Mr. DeLozier’s

statement to Tate that the three men had “borrowed” the truck. Nathaniel

apparently felt no urge to expose the lie to Tate. The OCCA ruled that Perrine’s

decision not to call Michelle as a witness was not deficient performance.

DeLozier, 991 P.2d at 32. Given the marginal probative value of Tate’s

-38-
testimony, we hold that the OCCA’s decision was not an unreasonable application

of, or contrary to, clearly established federal law.

As for calling Bubba Oliver, Mr. DeLozier contends that Bubba would have

(1) contradicted Nathaniel’s testimony that Mr. DeLozier shot Morgan and

Bullard on the first trip to the Morgan camp, and (2) corroborated his and

Wooten’s testimony that gunshots were fired, and the fires started, by someone

other than Mr. DeLozier after he had returned (without the Madisons) to the Tate

bus. There is support in the record that Bubba could have provided evidence on

the first subject: In an interview with the OSBI, Bubba gave the following

account:

A short time after they got the [Morgan] pickup unloaded, [Damon]
TATE, MICHELLE and SHAWN SMITH left in TATE’s pickup.
[Bubba] then asked NATHANIEL MADISON if they had killed the
men at the camp. NATHANIEL replied to [Bubba] that they didn’t
kill them, they changed their minds when they got there and had just
stolen some of the stuff from the camp.

R. Vol. 4 at 418. He apparently testified similarly at the preliminary hearing:

I asked [Nathaniel] earlier in the bus, you know, did they kill them
and he said no that they . . . had their stuff loaded up going to leave
the next day and he supposedly figured that’s what it was all loaded
up for and that’s what I figured they just got in it and took off, they
. . . was pretty wasted earlier that day so I figured that was pretty
believable you know for them to be asleep.

Aplt. Br. at 21–22 (The record does not contain a transcript of the preliminary

hearing, but the State does not challenge this quotation in Mr. DeLozier’s brief.).

If Bubba had so testified at trial, the testimony would have been admissible to

-39-
impeach Nathaniel. On the second subject, Mr. DeLozier can point to Wooten’s

testimony—that she, Bubba, and Mr. DeLozier were together when they saw the

fire at the Morgan campsite and heard gun shots and an explosion—and assume

that Bubba would have testified similarly. Mr. DeLozier asserts that Bubba

would actually have been a superior witness to Wooten, contending that Bubba

“was much more familiar with the woods than the young Ms. Wooten[,] so he

would have been able to provide details as to time, distance, and the sound of gun

shots.” Id. at 25. He does not, however, cite to anything in the record on appeal

showing Bubba’s version of these events.

In any event, even if Perrine had believed that Bubba would testify about

the fires and gunshots as described in Mr. DeLozier’s brief, it would have been

reasonable strategy not to call him as a witness. Bubba had made very

incriminating statements during his interview with the OSBI. Contrary to

Mr. DeLozier’s trial testimony that he had not seriously discussed killing the men

at the Morgan camp, Bubba told the OSBI that everyone had discussed killing

Morgan and Bullard. Indeed, according to Bubba, Mr. DeLozier said: “‘We

could sneak through the woods and they could not hear us because of the

generator running. We could open the door and blow their heads off.’” R. Vol. 4

at 417. After Bubba had tried for two hours to convince Bo, Nathaniel, and

Mr. DeLozier that there was no need to kill Morgan and Bullard, someone said,

“‘Let’s go smoke them, come on.’” Id. Bubba responded, “‘I’m not going. I

-40-
ain’t got the balls to kill anybody,’” and stayed at the Tate bus with Wooten. Id.

When Nathaniel, Bo, and Mr. DeLozier had returned from the Morgan camp,

Bubba expected them to return with news of their having killed somebody and

asked both Mr. DeLozier and Nathaniel if they had done so. Rather than deny

killing them, Mr. DeLozier admonished Bubba to keep quiet in front of Michelle.

A reasonable attorney could decide that the risk of Bubba’s testimony

conforming to what was in the OSBI report (or his being impeached by an OSBI

witness if his testimony was to the contrary) greatly outweighed any advantage

from Bubba’s duplicating Wooten’s account (which appears credible) and stating

that Nathaniel had denied that they had killed anyone when the three men

returned to the Tate bus with their loot. The OCCA ruled that Perrine’s failure to

call Bubba “was not so egregious that it indicates deficient performance, falling

outside the wide range of reasonable professional assistance.” DeLozier, 991

P.2d at 32. This ruling was not an unreasonable application of, or contrary to,

clearly established federal law.

4. Cross-Examination of Nathaniel Madison

Mr. DeLozier contends that Perrine was ineffective for failing to impeach

Nathaniel Madison’s testimony more thoroughly by showing inconsistencies with

his statements to the OSBI. He points to the following inconsistencies between

Nathaniel’s trial testimony and his first statement to the OSBI: (1) At trial

Nathaniel testified that upon arriving at the Morgan camp, Mr. DeLozier and Bo

-41-
stepped into the camper and each fired a shot. Several minutes later Morgan

stepped out and Mr. DeLozier shot him; neither Mr. DeLozier nor Bo reentered

the camper to kill Bullard. In his first statement to the OSBI, however, Nathaniel

had said that Morgan and Bullard were ordered out of the camper, that Morgan

was shot first, and that Mr. DeLozier and Bo then entered the trailer to shoot

Bullard. (2) Nathaniel also testified at trial that he and Bo never left the Tate bus

without Mr. DeLozier. Yet in his first statement to OSBI agents he said that in

the early morning, after the first trip to the Morgan camp (when Morgan and

Bullard were murdered and he, Bo, and Mr. DeLozier stole the truck and the

goods), he and Bo left the Tate bus for a short while and returned after

Mr. DeLozier, Wooten, and Bubba had left. Mr. DeLozier contends that pointing

out such inconsistencies would have weakened Nathaniel’s credibility and shown

the jury that he and Bo had an opportunity to commit the crimes without

Mr. DeLozier.

This court has repeatedly stated that “counsel’s decisions regarding how

best to cross-examine witnesses presumptively arise from sound trial strategy.”

Richie v. Mullin, 417 F.3d 1117, 1124 (10th Cir. 2005). Mr. DeLozier has failed

to show that the strategy employed here was not sound. Perrine questioned

Nathaniel on several inconsistencies between his statements to the OSBI and his

testimony. At trial Nathaniel testified that Bo had not stated that he was going to

kill Morgan and Bullard and take their belongings, but he did admit that he may

-42-
have told OSBI agents otherwise in his second interview. Additionally, he

testified that the murders occurred on the first trip to the Morgan camp and that

he, Bo, and Mr. DeLozier were together on every trip made to the camp. But on

cross-examination, Perrine pointed out that Nathaniel had told OSBI agents in his

first interview that Mr. DeLozier made a trip to the camp by himself and, when he

returned, told Nathaniel and Bo that he had set fire to the campsite. Nathaniel

said that he did not remember making that statement; but that if he had, it was a

lie. Perrine even got Nathaniel to admit that he was capable of lying under oath.

Moreover, when an OSBI agent later testified about Nathaniel’s first statement,

Perrine elicited from him two things that Nathaniel had said that were contrary to

his trial testimony.

Perhaps Nathaniel could have been impeached further with his statements

to the OSBI, but emphasizing those statements could produce only limited

dividends because they were consistent with his testimony on the essentials: in

both statements he asserted that Mr. DeLozier had killed Morgan and Bullard. In

any event, Perrine obtained substantial concessions from Nathaniel—in particular,

his admissions that he might lie under oath and that he received a great benefit

(the lighter sentence) for testifying against Mr. DeLozier. The OCCA ruled that

Perrine’s failure to impeach Nathaniel at greater length did not constitute

deficient performance. See DeLozier, 991 P.2d at 32. This ruling was not an

unreasonable application of, or contrary to, clearly established federal law.

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 5. Impeachment of Jailhouse Confession

Mr. DeLozier contends that Perrine did not perform adequately in

impeaching Mussett’s testimony that during an argument in the county jail

Mr. DeLozier had boasted about committing two murders. Mussett, who had been

an inmate trustee at the jail, testified that he had heard Mr. DeLozier yell to

another inmate, Rodney Broades, “I’ve already killed two men, mother fucker; I

won’t hesitate to kill you.” R. Vol. 9 at 726. He reported the event to officials

the following day.

On cross-examination Mussett said that when the statement was made, he

was standing at the pivot point of the jail’s L-shaped hallway and could see both

Mr. DeLozier and Broades. He testified that Mr. DeLozier’s face was visible in

the opening in the cell door known as the bean hole, but he admitted that he could

not have seen into Mr. DeLozier’s cell. Perrine also elicited from Mussett that he

did not know Mr. DeLozier at the time and “wouldn’t know his voice from

Adam.” Id. at 730. In addition, Mussett admitted that he had known the victims

all his life and knew when he was sent to jail that the people accused of killing

them would be there. When asked whether he felt that he was helping the

Morgans and Bullards by testifying, he said that he did not know. After Mussett’s

testimony, Perrine requested that the jury be permitted to visit the jail, saying, “I

went down there at lunch time and looked and . . . [t]here’s no way; you can’t get

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enough of your face in that bean hole to identify who it is.” Id. at 770. The

judge, however, denied the request.

Mr. DeLozier argues that Perrine should have done more to undermine

Mussett’s testimony. First, he contends that Perrine should have called Broades

and other witnesses to testify that Mr. DeLozier had never made the alleged

statement. In support of this claim Mr. DeLozier points to testimony by Broades

and Loving (one of Mr. DeLozier’s cellmates) at the evidentiary hearing on

remand from the OCCA, in which both said that Mr. DeLozier had not made the

statement. Broades testified at the hearing that Mr. DeLozier had neither

threatened to kill him nor admitted to having committed two murders, and he

claimed that the statements in the OSBI report “[were]n’t nowhere in the range of

what was said.” R. Vol. 12 at 83. Loving testified at the hearing: “I never heard

Mr. DeLozier say he’d kill anyone. Or had killed anyone.” Id. at 105.

Next, Mr. DeLozier contends that Perrine should have offered evidence,

such as testimony explaining—and pictures, sketches, and drawings

showing—that from the pivot point Mussett could not have seen Mr. DeLozier’s

face in the bean hole. Loving testified at the evidentiary hearing that a cellblock

door, if open, would have prevented Mussett from seeing a face in the bean hole.

And Ruth Castillo, a defense investigator, testified, and offered a photograph as

proof, that Mussett could not have seen from the pivot point a face in the bean

-45-
hole. Mr. DeLozier argues that Perrine’s failure to present this evidence

constitutes deficient performance. We disagree.

Perrine’s investigation and strategy regarding Mussett’s testimony was

reasonable. Before trial Perrine had been given a copy of Broades’s statement to

the OSBI just days after the incident, in which he reported that Mr. DeLozier had

said: “‘You mother-fucker, I’ve killed two people before. What makes you think

I’m afraid to kill a “Nigger?”’” and “‘If they were Niggers, [I] would have plead

guilty to killing them.’” R. Vol. 4 at 438. Even if Broades had testified to the

contrary at trial, the prosecutor would certainly have offered his prior statement

to impeach him. Moreover, in light of Broades’s statement, Perrine could

reasonably have considered it unproductive to look for inmates who may have

supported Mr. DeLozier’s defense. Perrine therefore chose a path that would not

emphasize the statement while attacking Mussett’s credibility on cross-

examination. To this end he questioned Mussett’s motive for testifying,

highlighting Mussett’s relationship with the victims’ families and the possible

benefits that his cooperation could have had on his treatment in jail. Perrine also

investigated the physical layout of the jail, both before trial and after the trial had

begun, and elicited from Mussett that one could not see into Mr. DeLozier’s cell

from the pivot point, and that Mussett could not have identified Mr. DeLozier’s

voice. Although Perrine might have called a witness to testify to the difficulty of

seeing a face in the bean hole from the pivot point, such testimony could easily

-46-
have degenerated into a swearing match that would not advance the defense while

emphasizing the importance of Mr. DeLozier’s statement.

In retrospect, Perrine’s strategy was prescient. At the evidentiary hearing

both Broades and Loving proved to be less-than-helpful witnesses, despite their

initially favorable testimony, on which Mr. DeLozier now relies. Both had

significant criminal records. Broades admitted that he and Mr. DeLozier had

argued and that during the course of the argument Mr. DeLozier had said, “[I]f it

would have been black people [they’re] saying that I killed, I would have said I

done it and pleaded guilty to it.” R. Vol. 12 at 96. And an OSBI agent later

testified at the hearing that his report had quoted verbatim Broades’s account of

what Mr. DeLozier had said. As for Loving, he testified in response to a question

from the trial judge that he had heard Mr. DeLozier tell Broades “that he would

kill his black ass,” id. at 115, and, “If I would have killed anybody it would have

been a nigger . . . ,” id. at 117. Likewise, the additional evidence regarding the

(lack of) visibility of a face in the bean hole would have been of limited benefit.

Loving did testify that the cellblock door, if open, would have blocked the view

of the bean hole from the pivot point; but he never discussed what the visibility

would have been if the door had been closed. Moreover, Sheriff McPeak testified

at the hearing that on several occasions he had identified faces in the bean hole

from the pivot point, and the photograph offered by Castillo corroborated that

testimony.

-47-
 Addressing the contention that Perrine was ineffective for failing to call

Broades as a witness and failing to present evidence that Mussett could not have

seen Mr. DeLozier’s face, the OCCA ruled “that counsel's failure to utilize all

possible evidence did not alter the outcome of this trial.” DeLozier, 991 P.2d at

34. This ruling was neither contrary to, nor an unreasonable application of,

clearly established federal law.

Finally, Mr. DeLozier requests a new evidentiary hearing, alleging that “his

Constitutional Due Process rights were violated when he did not get a full and fair

evidentiary hearing in the state court before a judge with no actual bias against

the defendant or interest in the outcome of his particular case.” Aplt. Br. at 39.

When, as here, the habeas applicant made the showing necessary to obtain an

evidentiary hearing in state court, that hearing must be a fair one. See Townsend

v. Sain, 372 U.S. 293, 312 (1963) (“[T]he federal court in habeas corpus must

hold an evidentiary hearing if the habeas applicant did not receive a full and fair

evidentiary hearing in a state court.”), overruled on other grounds Keeney v.

Tamayo-Reyes, 504 U.S. 1, 5-6 (1992).

Mr. DeLozier contends that the judge’s campaign promise to put people in

jail, the public opinion of the crime, and the judge’s predisposition regarding

counsel’s performance rendered the hearing fundamentally unfair. The district

court, however, rejected Mr. DeLozier’s claim that the state-court evidentiary

hearing was neither full nor fair:

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 The trial judge is in the best position to evaluate counsel’s conduct
during a trial. To expect that a trial judge would not have some
preconceived notions about the conduct he has observed first hand in
his courtroom would be absurd. This Court’s view of the record does
not support [Mr. DeLozier’s] assertion that he did not receive a
“fair” evidentiary hearing below.

Aplt. Br., Attach. 2 at 24 n.4. Even if the trial judge’s evaluation of the evidence

at the hearing could be questioned on the ground of bias, Mr. DeLozier points to

no errors in the presentation of evidence. Given that evidence, the trial judge’s

evaluation was eminently reasonable, an evaluation that has commended itself to

every later court to address the issue, including this one. Mr. DeLozier has failed

to establish that the evidentiary hearing conducted in state court was not full or

fair. We affirm the district court’s denial of his request for a new evidentiary

hearing.

6. Reference to Pretrial Silence

Mr. DeLozier claims that Perrine was ineffective for failing to object to

questions on cross-examination that violated his Fifth Amendment right to remain

silent. The exchange at issue was as follows:

Q. How long did it take you to arrive at this story you just told
this jury? Let’s see it’s May 20 something and this happened
in September. That’s five–that’s eight months; right?

A. I’ve been in jail, yes, eight months.

Q. No. I asked how long did it take you to come up with the story
you just told this jury?

A. The whole time I was in the woods.

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 Q. I figured that.

R. Vol. 10 at 929.

We have held that “the test for determining if there has been an

impermissible comment on a defendant’s right to remain silent at the time of his

arrest is whether the language used was manifestly intended or was of such

character that the jury would naturally and necessarily take it to be a comment on

the defendant’s right to remain silent.” United States v. Mora, 845 F.2d 233, 235

(10th Cir. 1988) (brackets and internal quotation marks omitted). But “[m]anifest

intent will not be found if some other explanation for the prosecutor’s remark is

equally plausible.” Id. (brackets and internal quotation marks omitted). In

particular, if a defendant testifies at trial, the prosecutor may use the defendant’s

earlier silence “to rebut the defendant's trial testimony[, although] the government

may not attempt to use it as substantive evidence of guilt.” Earnest v. Dorsey, 87

F.3d 1123, 1135 (10th Cir. 1996).

Here, the OCCA construed the cross-examination as “more in line with

questioning regarding ‘how long did it take for you to come up with such a

ridiculous story?’” DeLozier, 991 P.2d at 28. It ruled that because the question

was not “a reference to DeLozier’s pre-trial silence,” id., it “[could not] say that

the failure to object to th[is] comment[] was ineffective assistance of counsel.”

Id. at 32. This characterization of the disputed questioning is a reasonable one.

Therefore, the OCCA’s determination that Perrine was not ineffective was neither

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contrary to, nor an unreasonable application, of clearly established federal law.

Mr. DeLozier has not pointed to any Supreme Court precedent that would have

required a contrary ruling by the OCCA.

7. Improper Cross Examination and Closing Argument

Mr. DeLozier contends that Perrine’s failure to object to his cross-

examination by the prosecutor or to the prosecutor’s closing argument constituted

ineffective assistance of counsel. But his brief does not identify specific

improper questions asked during cross-examination (other than the alleged

reference to pretrial silence, which was addressed above), nor does it point to any

specific improper comments in the closing argument. In the absence of such

specifics, we can afford no relief. See Fed. R. App. P. 28(a)(9)(A) (“The

appellant’s brief must contain . . . appellant’s contentions and the reasons for

them, with citations to the . . . parts of the record on which the appellant relies . .

. .”); Cummings v. Sirmons, 506 F.3d 1211, 1228 (10th Cir. 2007) (appellate

claim fails on merits when appellant fails to “identify any specific instances to

support [a] general assertion” of error).

8. Mitigating Evidence

Mr. DeLozier claims that Perrine was ineffective because he did not

properly and effectively investigate, prepare, adduce, and explain mitigating

evidence. He contends that Perrine did not begin investigating mitigating

evidence until after the guilt stage of trial, and even then spoke with only a few

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family members during the brief time before the penalty phase began. He argues

that because of the inadequate investigation, Perrine failed to paint the full picture

of his severe emotional and physical abuse at the hands of his stepfather, or to

inform the jury of the effects of his drug use at the time of the offense; in

particular, he says that Perrine should have retained an expert to examine

Mr. DeLozier and to explain to the jury “the psychological and behavioral effects

of DeLozier’s addiction to the drugs as well as the severe level of mental

impairment which stemmed therefrom.” Aplt. Br. at 53.

We hold that Mr. DeLozier’s claim of ineffective assistance of trial counsel

is procedurally barred. Mr. DeLozier raised an ineffective-assistance-of-trial-

counsel claim in his state application for postconviction relief, but the OCCA

refused to consider it because it had not been raised on direct appeal and “[did]

not turn on facts or information unavailable at the time of his direct appeal.”

DeLozier, No. PC 98-517, slip op. at 6. See Okla. Stat. tit. 22, § 1089(C) (“[t]he

only issues that may be raised in an application for post-conviction relief are

those that . . . [w]ere not and could not have been raised in a direct appeal.”).

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

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

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th Cir.1998).

The Oklahoma requirement that a claim of ineffective assistance of trial counsel

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be raised on direct appeal is an “adequate” ground for procedural default only if

(1) the defendant’s counsel on direct appeal is different from trial counsel and (2)

for claims that cannot be resolved on the trial record alone, Oklahoma offers a

“procedural mechanism on direct appeal whereby defendants can adequately

develop the factual basis of their ineffective assistance claims.” Id. at 1263.

Mr. DeLozier raises two challenges to the procedural bar in this case.

First, he contends that the English requirements for adequacy were not satisfied.

He concedes that the first requirement was satisfied; his appellate counsel had not

been his trial counsel. But he contends that his ineffectiveness claim could not

“be resolved on the trial record alone.” Aplt. Reply Br. at 26. Although this

contention is true—Mr. DeLozier would indeed need to supplement the trial

record to establish that his trial counsel was ineffective in failing to present

mitigation evidence—it is not sufficient to show that English’s second

requirement was not satisfied. Under English the Oklahoma procedural-bar rule

is adequate even when the claim of trial-counsel ineffectiveness cannot be

resolved on the trial record alone, so long as the State provides a procedural

mechanism to supplement the record. Not only has Mr. DeLozier failed to

suggest that Oklahoma lacked such a mechanism at the time of his direct appeal,

see Okla. Stat. tit. 22, ch. 18, App. Rule 3.11 (providing for supplementation of

record), but he was able to invoke the rule in his direct appeal to make a record

-53-
regarding the Mussett testimony. He has not explained why he could not likewise

have supplemented the record regarding mitigation evidence.

Mr. DeLozier’s second challenge to the procedural bar is his contention

that the bar can be overcome by his demonstration of cause and prejudice. He

argues that the cause for his failure to raise his mitigation-ineffectiveness claim

on direct appeal was the ineffectiveness of his appellate counsel. We disagree

and therefore reject his challenge without the need to consider prejudice.

We review de novo this claim of ineffective appellate counsel. Although

the OCCA held that Mr. DeLozier’s direct-appeal counsel was effective, it

reached that conclusion by applying the test set out in Walker, 933 P.2d at 334.

See DeLozier, No. PC 98-517, slip op. at 6–8. Because that test is contrary to

federal law, we do not defer to the OCCA’s ruling. See Malicoat, 426 F.3d at

1248 (the “OCCA’s three-part [Walker] standard does not comport with the

established federal standard for evaluating Sixth Amendment ineffective

assistance of counsel claims under Strickland.”).

Mr. DeLozier’s claim on appeal is that Peters, his counsel on direct appeal,

failed to investigate and raise a claim that Perrine had been ineffective in

investigating and presenting mitigating evidence at the penalty phase of his trial.

To sustain a claim of ineffectiveness of appellate counsel, that counsel’s

“representation must fall below an objective standard of reasonableness.” Id.

(internal quotation marks omitted). “A claim of appellate ineffectiveness can be

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based on counsel’s failure to raise a particular issue on appeal, although it is

difficult to show deficient performance under those circumstances because

counsel ‘need not (and should not) raise every nonfrivolous claim, but rather may

select from among them in order to maximize the likelihood of success on

appeal.’” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003) (quoting Smith

v. Robbins, 528 U.S. 259, 288 (2000)). “[I]f the omitted issue has merit but is not

so compelling, [we must assess] the issue relative to the rest of the appeal, and

deferential consideration must be given to any professional judgment involved in

its omission; of course, if the issue is meritless, its omission will not constitute

deficient performance.” Id. “In reviewing a claim of ineffectiveness we must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance, and avoid judging counsel’s performance

using the distorting benefit of hindsight.” Fisher v. Gibson, 282 F.3d 1283, 1293

(10th Cir. 2002) (internal quotation marks omitted).

In light of the information in her possession, Peters could reasonably have

decided not to pursue a claim of ineffective assistance of trial counsel. First,

Perrine had introduced the gist of the lay testimony that Mr. DeLozier now

contends should have been presented to the jury. At the penalty stage of trial,

Perrine had introduced evidence, through testimony from Mr. DeLozier’s mother,

sister, and aunt, that Mr. DeLozier had been abandoned by his biological father as

an infant and had, since he was a young child, suffered severe physical and

-55-
emotional abuse at the hands of his stepfather, whose favorite name for him was

“shit for brains.” R. Vol. 10 at 1054. Mr. DeLozier’s mother testified that the

abuse started when Mr. DeLozier was three and escalated when he turned 12 or

13. His aunt testified that Mr. DeLozier’s family life was so bad that he once ran

away from home and lived with her in Texas. His sister testified to the abuse he

received from his stepfather and how he protected her from attacks by intervening

and taking the blows himself. She reported that he turned to drugs to forget about

the abuse from his stepfather, stating, “Who wouldn’t want to forget? You get cut

for getting a cookie out of a cookie jar.” Id. at 1070. When he left home, she

said, he began using drugs heavily and stole from others to support his habit.

Perhaps additional evidence of abuse could have been presented, but the evidence

at trial certainly conveyed the essence of the problem. Importantly, Mr. DeLozier

does not identify any specific statements from specific witnesses that would have

added materially to the trial testimony.

As for expert testimony, Mr. DeLozier contends that an expert could have

explained the psychological and behavioral effects that the abuse and severe drug

addiction had on him. He submits a report of Dr. Jerri Fritz, a clinical

psychologist, stating that Mr. DeLozier “was a high intensity user of

methamphetamine who had been on a three week binge.” R. Vol. 19, Ex. 13 at

12. Accordingly, he “most likely . . . would have been in the highly dangerous

‘tweaking’ stage while at the Tate camp,” meaning that “[h]is behavior would

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probably have been unpredictable with a high potential for unprovoked violence.”

Id. The report also states that “Mr. DeLozier’s antisocial attitudes and behaviors

most likely directly reflect the dysfunctional, violent, and corrupt environment in

which he was reared.” Id.

But Peters did not have Dr. Fritz’s report when handling the state appeal.

Rather, she had retained a different expert, Dale Watson, Ph.D., to perform a

“comprehensive forensic neuropsychological assessment.” Id. at 8. Dr. Watson’s

report is not part of the record, but Dr. Fritz’s report summarizes it as follows:

Dale Watson, Ph.D. examined Mr. DeLozier in August of 1997 to
identify mitigating factors that might have been presented at his
original trial and to explore the issue of future dangerousness.
Dr. Watson’s test findings did not reveal the presence of gross
neuropsychological impairment. Mr. DeLozier’s intellectual
functioning was within the low average range of abilities. His
testing did strongly suggest that Mr. DeLozier had a substance abuse
disorder. Dr. Watson’s report indicated that Mr. DeLozier’s
personality testing offered a diagnosis of “[]Antisocial Personality
Disorder, a Schizoid Personality Disorder with Passive-Aggressive
(Negativistic) personality traits and Self-Defeating personality traits
in addition to Psychoactive Substance Abuse (NOS) and Adjustment
Disorder with Anxiety and Alcohol Abuse.” Although
Mr. DeLozier’s score on the Hare Psychopathy Checklist-Revised
were below cutoff scores for psychopathy, he was determined to
present a higher risk for future violence if he were released from
custody, than the average inmate is.

Id. Although some of what Dr. Watson said may have been helpful to

Mr. DeLozier, it could have been devastating for the jury to hear of his “higher

risk for future violence if he were released from custody.” Id. Contrary to

Mr. DeLozier’s repeated assertions in his briefs to this court, the Supreme Court’s

-57-
decisions in Brewer v. Quarterman, 127 S. Ct. 1706 (2007), and Abdul-Kabir v.

Quarterman, 127 S. Ct. 1654 (2007), do not require counsel to put on evidence

that may be a two-edged sword; rather, that decision merely says that if evidence

can be used to support both diminished blameworthiness and future

dangerousness, the jury instructions cannot preclude consideration of the evidence

for mitigation. See id. The issue for counsel, in contrast, is not how trial

evidence is to be considered by the jury, but whether to present the evidence to

the jury—that is, whether putting on the evidence is more likely to help or hurt

the defendant.

Based on the information known to Peters, it would have been quite

reasonable for her to decide that she could not have persuaded the OCCA that

Perrine’s failure to present an expert witness had prejudiced Mr. DeLozier. The

decision not to pursue on direct appeal this ineffectiveness claim must be given

deference, see Fisher, 282 F.3d at 1293, and we hold that Peters was not herself

ineffective in making this decision.

We recognize that Peters’s decision not to raise the issue may not be

entitled to deference if she had not adequately investigated the matter before

making the decision. See Anderson v. Sirmons, 476 F.3d 1131, 1145–46 (10th

Cir. 2007). One might argue that Peters conducted an inadequate investigation

because she failed to discover Dr. Fritz’s views. But counsel is not required to

keep hiring experts until the most favorable one possible is found.

-58-
Mr. DeLozier’s briefs in this court have not pointed to any lapse in investigation

by Peters. All they cite as proof of her investigation’s inadequacy is a December

1997 disclaimer by Peters submitted to the OCCA on direct appeal, which states

that she “has not conducted and cannot conduct a full investigation of Appellant’s

case” because of insufficient resources. R. Vol. 19, Ex. 6 at 2. Yet Peters did not

specify what issues she could not pursue; in particular, she did not specifically

refer to mitigation. Such a conclusory, bald assertion proves nothing. After all,

she had retained an expert—Dr. Watson—several months earlier and she also

conducted enough of an investigation regarding Mussett’s testimony to convince

the OCCA to remand for an evidentiary hearing. Accordingly, we hold that

Mr. DeLozier has not shown that we should refrain from deferring to Peters’s

decision on the ground that she conducted an inadequate investigation regarding

mitigation. Because Mr. DeLozier has not shown cause (ineffective assistance of

appellate counsel) that would excuse his failure to raise on his state direct appeal

his claim that trial counsel was ineffective in investigating and presenting

mitigation evidence, we hold that he is procedurally barred from raising that

claim before us.

9. Cumulative Effect

Finally, Mr. DeLozier incorporates his arguments above and claims that, in

the aggregate, Perrine’s deficient acts rendered his assistance ineffective.

Mr. DeLozier has failed, however, to establish error with respect to any of the

-59-
properly preserved issues raised in his brief. Therefore, there can be no

cumulative error. See Jones v. Stotts, 59 F.3d 143, 147 (10th Cir. 1995).

C. Ineffective Assistance of Appellate Counsel

Mr. DeLozier claims that Peters, his appellate counsel, was ineffective for

failing to raise on direct appeal a claim of ineffective assistance of trial counsel

for failure to present additional mitigating evidence. But as we have shown,

Peters’s decision not to raise the issue on direct appeal was reasonable. Therefore

Mr. DeLozier’s claim fails.

IV. CONCLUSION

We AFFIRM the district court’s denial of § 2254 relief.

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