point oklahoma had adopted a narrow mediately anyway after a major versus hard right oklahoma adopted a narrow constitutionally permissible knowing construction of that hack aggravat at all points in that timeframe oklahoma courts were appropriately limiting ok well now that you've wrapped herself around that what do you do with bell versus comb would suggest to us that we shouldn't  unless there is affirmative indicator to the contrary we should believe that oklahoma and obama's are permanently said they are pursuing they're narrowing construction why should we do anything but accept that as being true car right which leads to the fact that there needs to be an affirmative indicator that they have done something to the contrary out with the rebel vs come right i accept that is true and here let me give you the firm cases in which the victim experience conscious suffering in that window of time necessarily companies all murders o c c a said no it further gave the functional equivalent of the stiff arm to this court look back at this court's decisions and that locking romano in said merely because that the racial element satisfies the federal court doesn't mean it satisfies this court i mark that decision as the beginning and which that decision did the o c a say we are departing from our view from the narrowing construction that we adopted post mayor versus carter no ok well they didn't do that so do ro so it could be a one off inconsistency and if it is an inconsistency our grave i think is the case it says we're not supposed to be focusing on inconsistency with with what the o c or any other state court does inconsistency won't cut it inconsistency you're right your honor is inappropriate for you to consider within the realm of if due process th amendment sufficient to challenge and i don't offer that it however does not answer the the court is saying that it's not applying the narrowing construction because i thought the court was saying that it was so it seems to me that i mean i i think i'm following your argument but ultimately you've got a point to something in that opinion to show us that the o c c went off course somehow in terms of the narrow construction i've heard that yeah so can you so to satisfy the coned presumption i rest largely on the calendar if it happened after two thousand and four i think we  we called upon you to do so it's our fault but in the are for in your th in your footnote one you don't rely on this you said judge hearts in his judicial hardly jurors whatever those are two are these the same judicial harbinger if you will on our site defined the approved limiting struction as requiring the racial element or criticize the circuit of the o c a for moving away let me try though your honor to to to versus turned state versus battlefield you will find the o c ca rejecting hack cases where the film survives squawk several minutes a few minutes loses consciousness rapidly or the evidence is in is unclear about when consciousness is either that evidentiary uncertainty or the brief moment of conscious suffering that attends most murders  certainly i challenge you to find a case after de rosa where the victim lingers on tragically suffering refly after receiving what is the fatal  that a descent i judge briscoe in that dissent she goes on to explain oklahoma case law and categorize it into categories that show that it is entirely consistent with minor vs car right and it is a principle consider the situation of two situations where we're the doctor and i think wouldn't apply and well i mean it seems to me that so how does that line up with your point that poster rosa we have this whole wash of cases there are constitutionally permissible because they don't adhere to the narrowing construction well with due respect to the former chief judge of the circuit she's got the constitution wrong she points to are cases in which the  directive an aggravating circumstance and genuinely narrow the class of death eligible persons i disagree with her ok let's say that you disagree with that but and the question becomes and this goes back to the whether you agree with our steam colleague or not you've got a judge of the court who's reading the law and says this is the way it is doesn't that raise a question as to whether there is an affirmative indicator out there that the o c c is directed yes you know we're still elsewhere volves some grief moment of conscious suffering after the fatal blow and if that's true judge briscoe must be wrong because if that's true aggravating circ is not circumstance is not doing the one thing it must do and that's narrow reach of the aggravator so judge briscoe is a fair minded judge  a relates to that when i go back and look at your briefing it seems to me that it was attacking he didn't talk about the strip they came out in just hearts of opinion and other words it did focus on the notion that he was  that it was a one time narrow and now it is drifted down to the point where it's not constitutionally narrow and we the cases that were cited and in both instances where maynard and godfrey and got free really involved a different situation although it could provide some support for the involved a different situation than the one that you're alleging and the one that judge hart's alleged which is a drift problem which is which is different than those been got free i think you the argument presented in the state court decision or can fairly present the substance of its constitutional claim so long as the ultimate question for disposition remains the same so i grant you judge holmes there has been drift wood that mitchell's appellate lawyer framed it this way it's a weakness but i think i overcome it on two grounds one is for card tolerance for variation in the legal theory two is a prior case the judge holmes you know well you wrestled with it in rant and it's united states versus sanders sanders is not a fair versus sanders hill where there are doubts would go to the benefit of the cards cited washington and those doubts and called it a quote ready example of a case in which despite variation in the legal theory the ultimate question presented in the state court is the same in which it seemed to me that the argument that is being made now clearly was not made to the district court and it and so that's my st question and if that's true then aren't we under need to talk about now it seems to me that we've got another presumption issue and the presumption issue is if it was presented and it was presented we don't have to read through the tea leaves on pics expose presented to the o c ca the o c ca nominees the hicks claim whether it discussed it in its resolution of the matter johnson tells us the presumption is it did and that you're going to have to come up with some reason to suggest that it did not and if it did discuss it i well i mean if how does that overcome the presumption well because it's so if you're just speculating at this point yes well it's the r c c oh well maybe they overlooked that or maybe they didn't overlook it and maybe they in addressing the brady claim thought they were mistake or not why isn't that a decision on the merits subject to a review because i think it's far more likely if you read the opinion that begins with hicks and then hicks vanishes from the pages it just was inadvertently correct i there was not an explicit argument that fair except that which in my view would be waiver and so you did but let's let's move on from that to ask assuming and again you don't have to accept this as is being true but assuming that you are under at the deference for the hicks claim what concerns me a little bit is it doesn't seem that you've made an argument on how you prevail under the deference before us in other words we could end up with a very troubling prospect that if we do find there we're under at the difference we have nothing from you to tell us why you should when  you're on our i think your point is an astute one and it is hardly informed a change in my position i think if you reach well i was hoping for your natural eloquence in telling me why you could do that in your brief and you didn't give it to me if right well my problem in well i have overstated my eloquence my other problem is i'm forced to see i'm if the courts the oklahoma courts resolve the ambiguity in mr mitchell saver then i believe i could overcome if i'm such a k let's let's go to let's go to the substance with unconstitutional state statute it wasn't so much that mr hicks was in the question of who was going to impose the sound as it just so happened to the jury is supposed to in his case it was that he had to be how hicks even a potus to this case can you help us with that  i'm assuming there's the i'm not let's assume for the sake of discussion that the same jury rule was violated here under state law i'm still not seen how hicks gets you to the finish line  general principle which is me at problem well i'm look i'm just asking how is hicks as a factual and legal matter applicable to no or no reason the defendant's fund rights to due process are violated provided that right doesn't hicks also require showing a prejudice i believe i have a hard time right your your as you your except in the brecht standard and i'm suggesting that any text direct doesn't apply structural i'm sentence because there's piers it's likely that the forty year sentence isn't going to be imposed that's prejudice i mean what what do we have here that's similar to that that if we if they had to go back and assemble a new jury to have both a guilt and a punishment proceeding where is the likely prejudice in the not having done that along the lines of hicks that likely prejudiced mr hicks because if you had applied the correct sentencing standard it was very likely that the forty year sentence was not going to happen again but here can you show that it's likely that he would have been convicted of the murder if you go back and have both the guilt and you don't even address that well i certainly do i know grief i suggest that find out the heck standard well i believe your position is i'm not taking the position i'm just saying in hicks hicks talked about prejudice and it wasn't just talking about the procedure it was talking about the fact that this forty year sentence would stand unless you go back and do the recent and seeing under the correct standard i think you make like i desperately wan please the court i'm jennifer crabb appearing on behalf of the respondent like to begin with the especially heinous atrocious or cruel aggravating circumstance i believe judge holmes is correct that this argument that petitioner is currently making was not exhausted appeals was a very brief this court's aggravating circumstances unconstitutionally bay citation of relevant case law did not make any indication that petitioner believed that the court of criminal appeals had adopted a new actually incorrect yes in two thousand and four and the darius a case the court of criminal appeals said we're not going to require the jury be instructed that there's a certain duration of suffering that has to accompany the murder however that has always been the court of criminal appeals position in one thousand nine hundred and ninety four in the hooker case which was actually also affirmed on sufficiency grounds by this court it was a stabbing case the victims could have lived anywhere from one to ten minutes because there were defensive wounds and indications of a struggle the court of criminal appeals affirmed in that case in one thousand nine hundred and ninety five in the robinson case it was a multiple gunshot wound case and the court said that the absence of testimony regarding the amount of time that the victim was conscious was not dispositive in one thousand nine hundred and ninety five in the perry case where the court reversed they discussed what is it that makes the evidence sufficient for this aggravator and when is it not sufficient they said we found it to be sufficient when there have been defensive wounds admissions by the defendant that the victim was conscious eyewitness testimony of consciousness or medical evidence it's insufficient where death was instantaneous there was no evidence of which gunshot wound came st where the victim was unconscious so they have been very clearly making this distinction even as you know in the mid ninety's the st time grounds not a facial challenge in the clayton vs gibson case where the victim was attacked at the front door and retreated to her bedroom we know that because of a blood trail beyond that the medical examiner could not tell the order of the wounds and some of the wounds would have caused immediate unconsciousness but it's that flight from the front door to her bedroom that was sufficient not only is that the position that the court of criminal appeals has taken and that has been refuted repeatedly affirmed by this court it is the position of the united states supreme court as well in walton versus arizona arizona defined cruel as including mental anguish which includes a victim's uncertainty as to his ultimate fate and they called this definition virtually identical to the one that they had in peru approved the torture or serious physical abuse in cartwright the dissent said but wait a minute arizona has never required that there be a duration on this uncertainty and the majority said nothing to that on the same day when the majority wrote lewis versus jeffers they indicated that they had rejected the dissents arguments and walton and bell versus cone which was a perk yury an opinion the tennessee supreme court when discussing the aggravating circumstance noted that the deaths were not instantaneous the victims had defensive w and there was blood throughout the house and the jury could consider the terror fright and horror of the helpless victims so the question before the supreme court was whether the tennessee supreme court had applied a constitutionally narrow aggravating circumstance and because they did not do so expressly the supreme court looked and said well this looks like the other cases in which they've affirmed or they have expression we applied the aggravator and they said which includes factors like attempts by the victim to resist the deaths were not instantaneous the victims terrified in horror and then they said see another case where the tennessee supreme court has found the evidence insufficient because the death was instantaneous and finally they moved on and they said and i quote with respect to the meaning of torture the court held the aggravator was not satisfied where the victim dies instantly but that was where the unconscious contradicted proof shows that the victim had defensive injuries her being there was time for her to realize what was happening to feel fear and to try to protect herself accord cartwright approving torture serious physical abuse so in light of the other tennessee supreme court cases the supreme court held that tennessee was distinguishing these cases on a principle basis there is simply no room even if the court's review were to know about it but it's not because petitioner made no challenge in district court to the application of a d p s deference nor did he try to satisfy the one or d t and lee did a more extensive analysis and lee talked about cartwright godfrey into labor versus california there are no further questions on that opposition i'm ready to move on to the hicks claim and if i understood counsel correctly he had mended that there i oklahoma statute if that is the case then he cannot show that he had an entitlement to the same jury or that he was arbitrarily denied there of ambiguous such that upon remain and the trial court could not have understood that he absolutely had to somehow re empanel the original jury and then ensure that that original jury was not taint could be removed from the original jury where the statute is ambiguous he could not have arbitrarily denied petitioner that right because the right was if it exists which of course it doesn't but if it did it's so unclear that because because seventy one point one begins upon conviction or adjudication of guilt and albeit in a different context the court of criminal appeals has repeatedly referred to that as something like the triggering event so the trigger event st same jury is the conviction and this procedural statute is designed so that once the defendant is convicted you don't have to re empanel a new jury we don't have to do my dear again we don't have to educate the sentencing jury on the crime for which they're sentencing the defendant we simply keep that jury we start right away on sentencing and when you look at seven a one ten which wasn't acted subsequently you can tell what the legislature thought excuse me when you look at seventy one point an essay you can tell what they meant by seven a one dollar because it says it begins notwithstanding subsection a of seven a one point of this title which requires that the same jury sit in the sentencing phase of a capital murder trial and then that statute closes with that this section should not be construed to amend seven a one dollar which requires the same jury to sit in both the guilt and sentencing reversed the sentence it noted that the state had incorporated st state's evidence into the sentencing and that the prosecutor had argued right within the sentencing phase of the trial so what we have here is that there was a brady error made in both stages of this trial of the original trial but it was only a prejudicial error in the nd stage which is why the statute permitted the it was not prejudicial as to the murder in st stage which is what petitioner was being sentenced for in the nd stage so that's how it was not prejudicial error state i agree it was as to the rape and the sodomy conviction however as to the murder which is the conviction for which petitioner was sentenced it was not prejudicial error in the st stage in petitioner's reading of the statute to aside from leading to absurd results requiring not only the technical probably and possibility of getting these people back i don't even know of any statute or any authority that would allow a trial court to haul twelve particular people from the community him there and so he and his reading of the statute is if you do re sentencing you have to give me a new guilt phase as well or you have to give me the original jury it would be impossible to give you the original jury and it would also be absurd to give you the original jury because as you noted earlier on or they were exposed to error however petitioner focuses on in section one it says you know if the court proceeding only if you continue to read the very end of section one says when a capital case is re man did after vacation of a death sentence the prosecutor may and then and then it also says that no error in the sentencing proceeding shall result in the reversal of the conviction for a capital felony but that is exactly what petitioner is asking for here he's saying there was an error that caused my sentence to be reversed and so you must give me a new guilt trial the statute explicitly excludes that result of criminal appeals originally did not believe it had i think it the statute was worded differently and the court or criminal appeals believe that if it found a sentencing error its only option it was to modify to life without parole and so the statute was amended to give them the authority to do that i think it does so i guess the part of the question would be doesn't say anything about a new having the same you're it does not your honor and i think it does in that way support our argument that when you read the statutes  whole it's clear what they're doing and we do have to can you have this quest to construe them both to avoid absurd results and also to be constitutional if that's possible what they're doing is seven a one dollar says as a matter of as administrative reach the merits of his claim and so this court found it to be forfeited but same result did not review it at all now the state cannot wave the standard of review this court has held that  it did your honor and and grant i believe that also had not the argument had not been made in this court as well and it was an argument that the dissent was making yes absolutely because it's and the reason that it it can be waived by the defendant is because it's his burden under a t p it's very clearly his burden to demonstrate that the state courts decision was contrary to our reason or the language of d two and because it's his burden to do that when he doesn't even make any attempt in front of the district court to do that he's deprived the district court of the opportunity to explore that issue and then he's raised it for the st time on appeal because we do have a d p a difference the question is whether hicks clearly establishes a right that would entitle petitioner to heaviest relief and it does not in hicks there was yes a statutory right but that statutory right was the right to have a jury and the court of criminal appeals arbitrarily denied the petitioner in that case that right because where the jury was instructed to give a forty year mandatory sentence they should have actually been instructed under a constitutional recidivism statute at the minimum was ten years and so the court said it was arbitrary or the court of criminal appeals to merely say well but that was in the forty years that the jury was instructed they had to give was in this in this range of punishment and so you know no harm no foul here and where there was a fundamental right it was conferred by statute but it was still a fundamental right to have the jury decide his sentence here what we have is at best an ambiguous statute which petitioner says entitled him to the same jury however petition went through not one but two rounds of re sentencing without arguing without objecting to the him handling of a new jury and it didn't supreme court noted i mean consequences of getting a new jury having a jury decide the issue was not a mere formality i mean the way they noted that it was likely whatever the jury held i mean would be it there would no be would not be a sentence above that right so you combine that with the likelihood that the jury would reach a non forty year sentence that's pretty powerful substantive effect right it is your honor because the core criminal appeals does not have the authority to increase the sentence that the jury returns and so that was absolutely part of their decision here and petitioner cannot make that showing in this case when you look at the ross case and the rivera versus illinois case supreme court has made it really clear that there is no constitutional right to a particular composition of a it's so that the jury so long as the jury is fair and impartial and petitioner has made no allegation that the jury here was not fair and impartial and petitioners primary argument as it goes to prejudice has been that well the prosecutor could not have used the same motive the prosecutor was unable to use the rape allegation as they did in the st trial then the motive for the murder would have been different and i think counsel said today that the state would not have been able to argue the avoid arrest aggravating circumstance it at the st recent and seen the state had again relied on the rape allegation at recent unseen and cortical appeals that was one of the reasons they reversed they said listen without joy skill chris testimony there's no evidence of penetration he said there may have been a rape there may not have been a rape we don't know but we do agree that the state should not be allowed to our you the avoid arrest aggravator based on a right however they said the defendant doesn't contest and we agree the state should be allowed to argue a sexual assault an attempted rape something along those lines and in fact the state did so at the most recent recent incident so the motive didn't change the scott would that have changed their motive for the murder well we know it wouldn't have because it didn't because the state still made that argument at the nd recent unseen and again she was yes he said that he met his nearly masturbated course that also a sexual motive in his assault if he's being aroused by it then there's also a sexual motive but in addition she was naked and she had bruises right above both hip bones she had bruises on both wris which the state's reconstruction experts said were consistent with trying to to restrain her for a sexual assault it's actually what he had done with maria the eleven year old that he had raped when he was fifteen he held both of her wrists as well and there also bruises and scratches on her buttocks and her lower back and so the evidence although there may not have been sufficient evidence of penetration the evidence that this was a sexually motivated crime is overwhelming which case the petitioner cannot show prejudice he and i'll just briefly as far as the murder conviction itself goes the evidence was absolutely overwhelming he had washed the blood off his shoes he was seen there by carolyn ross immediately before she left that that was the supervisor who left placed mitchell there asking about the library which is where the assault started petitioner admitted various degrees of involvement in the crime but in his last statement to police he actually admitted to being the one to strike the fatal blow with the coat rack and then his due presence of his d n a at the crime scene so as evidence of the murder is absolutely overwhelming and there is no prejudice because whatever jury the same jury again or a new jury would have convicted him of the murder and then i've already spoken to the sentence the motive would have been the saying season or cruel aggravator you know we've been speaking of this in facial terms does their definition adequately narrow it but when you look at what actually happened in this case we have a prolonged assault with whether he can establish prejudice on the sentencing of having the same jury vs the original jury i'm just saying that the evidence is so overwhelming that the composition of the jury was reached the same result correct i thought part of this maybe i misunderstood i thought part of his argument for prejudice stemmed from the notion that the jury may not have convicted nd time i think i think there is a hint of that your honor and that's why i discuss the evidence of cannot satisfy the a p a standard with respect to this claim if the court does not have any further questions i would ask you to affirm the decision of the district court so i don't know no it isn't the argument you're making today the argument you're making today is that there was a drift from the initial narrow construction that took place host manner versus current right the question is