UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_______________________________________ 

RENESE BRAMLETT, 

 Petitioner - Appellant, 

v. 

SCOTT CROW, 

 Respondent - Appellee.

No. 22-5079 

(D.C. No. 4:20-CV-00537-JFH-CDL) 

(N.D. Okla.) 

_______________________________________ 

ORDER

_______________________________________ 

Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges. 

_______________________________________ 

Mr. Renese Bramlett was convicted of first-degree murder. The 

prosecution didn’t seek the death penalty, so a life sentence was 

mandatory; but the jury could include the possibility of parole or deny that 

possibility. The jury opted to deny the possibility of parole. 

Mr. Bramlett unsuccessfully pursued state-court remedies (including 

a direct appeal and post-conviction appeal) and petitioned in federal 

district court for a writ of habeas corpus. In his federal habeas petition, he 

claimed in part that Oklahoma’s statutory procedure had violated his right 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 13, 2023

Christopher M. Wolpert 

Clerk of Court

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to due process.1 The district court rejected the habeas claim, and Mr. 

Bramlett wants to appeal. 

He not only renews his habeas claim for denial of due process, but 

also asserts a new claim: ineffective assistance of counsel for failing to 

object to the prosecutor’s closing argument. 

I. The state-law claim doesn’t provide an arguable basis for habeas 

relief. 

Because Mr. Bramlett seeks to attack the “process issued by a State 

court,” he can appeal only upon the issuance of a certificate of 

appealability. 28 U.S.C. § 2253(c)(1)(A). We can issue a certificate only if 

Mr. Bramlett made a “substantial showing of the denial of a constitutional 

right.” 28 U.S.C. § 2253(c)(2). To assess the strength of that showing, we 

consider whether reasonable jurists could “find the district court’s 

assessment of the constitutional claims debatable or wrong.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000). 

Mr. Bramlett invokes the Fourteenth Amendment’s due process 

clause based on the State’s opportunity to present evidence in aggravation 

1

 Mr. Bramlett also claimed misconduct by the prosecutor for 

appealing to sympathy. The state appellate court rejected this claim under 

the plain-error standard, and the federal district court held that the state 

appellate court’s decision was not contrary to clearly established federal 

law or an unreasonable application of a clearly established right. Here Mr. 

Bramlett doesn’t renew his claim for prosecutorial misconduct. But he does 

allege ineffective assistance of his trial attorney for failing to object to the 

prosecutor’s remarks. 

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and the defendant’s inability to present evidence in mitigation. Okla. Stat. 

tit. 21 § 701.10-1(A). We must consider the debatability of this claim 

based on the underlying statutory restrictions for habeas relief. See MillerEl v. Cockrell, 537 U.S. 322, 336 (2003) (stating that when deciding 

whether to grant a certificate of appealability, the Court “look[s] to the 

District Court’s application of [The Antiterrorism and Effective Death 

Penalty Act] to petitioner’s constitutional claims.”). These statutory 

restrictions would prevent habeas relief in the absence of (1) a clearly 

established constitutional right as determined by the Supreme Court or (2) 

an unreasonable determination of facts. 28 U.S.C. § 2254(d). 

The federal district court rejected Mr. Bramlett’s claim, reasoning 

that the Supreme Court has never recognized a constitutional right to 

present mitigating evidence in non-capital cases. We agree with this 

reasoning to the extent that it bears on part of Mr. Bramlett’s habeas claim. 

The Supreme Court has rejected Eighth Amendment claims involving the 

inability to present mitigating evidence in noncapital cases. See Harmelin 

v. Michigan, 501 U.S. 957, 994–95 (1991) (regarding an Eighth 

Amendment challenge to a sentence of life imprisonment based on the 

failure to consider mitigating factors); Gilmore v. Taylor, 508 U.S. 333, 

349 (1993) (O’Connor, J., concurring) (“We have not held that the Eighth 

Amendment’s requirement that the jury be allowed to consider and give 

effect to all relevant mitigating evidence in capital cases . . . applies to 

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noncapital cases.”). To date, the Supreme Court has not addressed whether 

due process entitles noncapital defendants to present mitigating evidence. 

So no jurist could reasonably find a Supreme Court precedent that clearly 

establishes a right under the Due Process Clause to present mitigating 

evidence in noncapital cases.2

But Mr. Bramlett’s claim goes beyond his inability to present 

mitigating evidence. He claims that Oklahoma law unfairly allows the State 

to present aggravating evidence while disallowing a comparable right for 

defendants to present mitigating evidence. 

The state statute exists as part of Oklahoma’s procedure for 

bifurcating criminal cases when the prosecutor seeks enhancement of a 

sentence based on prior felony convictions. Mahdavi v. State, 478 P.3d 

449, 462 (Okla. Crim. App. 2020) (Kuehn, V.P.J., concurring in the result). 

The state procedure authorizes bifurcation of criminal cases when the 

prosecution has a right to present evidence of prior felony convictions. 

Okla. Stat. tit. 21 § 701.10-1(a). Through bifurcation, the procedure is 

designed to prevent prosecutors from using prior felony convictions during 

the guilt phase of a criminal trial. 

2

 We’ve held that the right to due process does not entitle defendants 

in noncapital cases to present mitigating evidence. Scrivner v. Tansy, 68 

F.3d 1234, 1240 (10th Cir. 1995). 

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To determine whether this procedure triggers a denial of due process, 

we consider whether the procedure “offends some principle of justice so 

rooted in the traditions and conscience of our people as to be ranked as 

fundamental.” Medina v. California, 505 U.S. 437, 445 (1992) (quoting 

Patterson v. New York, 432 U.S. 197, 202 (1977)). We thus apply this 

standard to the state’s procedure for bifurcation when prior felony 

convictions are inadmissible at the guilt stage and admissible for 

sentencing. 

Under the state procedure, the prosecution can present only evidence 

of prior felony convictions; the statute does not authorize prosecutors to 

present other forms of aggravating evidence. See Mahdavi, 478 P.3d at 462 

(Kuehn, V.P.J., concurring in results) (stating that the law limits the State 

“to presenting a limited category of evidence — prior convictions”). The 

United States Supreme Court has never considered whether a bifurcated 

procedure like this one would offend a deep-rooted tradition or otherwise 

trample on a fundamental right. Given the absence of a Supreme Court 

precedent that clearly establishes this constitutional right, Mr. Bramlett’s 

proposed appellate argument isn’t reasonably debatable. So we deny a 

certificate of appealability on Mr. Bramlett’s argument involving his 

inability to present mitigating evidence when the State presents evidence 

of prior felony convictions. 

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II. Any jurist would regard the claim of ineffective assistance as 

procedurally barred. 

Mr. Bramlett alleges ineffective assistance of counsel for failure to 

object to the State’s closing argument. Ordinarily a habeas petitioner must 

exhaust state court remedies, and Mr. Bramlett hasn’t raised this claim in 

the state court of appeals. See 28 U.S.C. § 2254(b)(1)(A). So the claim is 

technically unexhausted. 

But exhaustion would be futile because Mr. Bramlett has already 

pursued state-court remedies involving both a direct appeal and a postconviction appeal. And if Mr. Bramlett were to present the claim now, it 

would be procedurally barred. See Cummings v. Sirmons, 506 F.3d 1211, 

1223 (10th Cir. 2007). So the claim is subject to an anticipatory procedural 

bar. See id. 

Given the anticipatory procedural bar, we could consider the merits 

of the claim only if Mr. Bramlett satisfies the requirements for one of two 

exceptions: (1) cause and prejudice or (2) a fundamental miscarriage of 

justice based on actual innocence. Coleman v. Thompson, 501 U.S. 722, 

750 (1991). Mr. Bramlett has not invoked either exception. 

Given the anticipatory procedural bar, no reasonable jurist could 

credit the petitioner’s appeal point on the claim of ineffective assistance. 

*** 

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Because Mr. Bramlett’s habeas claims aren’t reasonably debatable, 

we deny his request for a certificate of appealability. In the absence of a 

certificate, we dismiss the appeal. 

Entered for the Court 

Robert E. Bacharach 

Circuit Judge 

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