* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 8 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES GLENN ROBEDEAUX,

Petitioner - Appellant,

v. GARY E. GIBSON, Warden,

Respondent - Appellee. No. 98-6021 (D. Ct. No. 96-CV-731) (W.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , EBEL , and BRISCOE , Circuit Judges.

In 1985, petitioner James Glenn Robedeaux was convi cted of first degree murder in Oklahoma County District Court for the de ath of Nancy McKinney. The jury imposed a capital sentence. On direct app eal, the Oklahoma Court of Criminal Appeals affirmed petitioner’s conviction a nd death sentence, see Robedeaux v. State , 866 P.2d 417 (Okla. Crim. App. 1993), and the Sup reme Court denied certiorari, see Robedeaux v. Oklahoma , 513 U.S. 833 (1994). Petitioner sought state post-conviction relief in t he trial court. That relief was- 2 -

denied by both the trial court and the Oklahoma Cou rt of Criminal Appeals. See Robedeaux v. State , 908 P.2d 804 (Okla. Crim. App. 1995). On February 21, 1997, Robedeaux filed a petition for a writ of habe as corpus in the United States District Court for the Western District of Oklahoma , alleging ten grounds for relief. The district court denied the petition on December 8, 1997. Robedeaux filed this timely appeal, raising seven of the issu es presented to the district court. We granted a certificate of appealability for all s even issues and now affirm. Background Robedeaux and Nancy McKinney shared an apartment in September of 1985 when McKinney disappeared, never to be heard f rom again. Parts of Nancy McKinney’s body -- a leg, part of her skull, and a piece of her arm and hand -- were found several months later scattered over thre e counties in central Oklahoma. Authorities could not ascertain the caus e of death from the recovered body parts. Significant circumstantial evidence li nked Robedeaux to the victim’s death and dismemberment, but the state had little d irect evidence showing Robedeaux committed first degree murder. Oklahoma law allows a conviction based on circumstantial evidence. In the first phase of the trial, the jury found Rob edeaux guilty of first1 Okla. Stat. Ann. tit. 21, § 701.7(A) states: “A person commits murder in the first

degree when he unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.” Intent to commit murder “may be formed instantly before committing the act.” Id. § 703. - 3 - degree murder. 1 After hearing additional testimony, the jury foun d aggravating factors outweighed mitigating factors and imposed adeath sentence. Specifically, the jury concluded that Robedeaux was a continuing threat to society, that he had committed a prior violent felony, and that the murd er was “especially heinous and atrocious.” The Oklahoma Court of Criminal Appeals dismissed the “especially heinous and atrocious” aggravating circumstance due to lack of evidence, but it affirmed the conviction and the weighing of the agg ravating and mitigating factors. In this habeas petition, Robedeaux asserts the foll owing grounds for relief: (1) insufficient evidence existed to prove that he actually killed the victim and that he acted with malice aforethought; (2) the tri al court’s refusal to instruct on a lesser included offense violated due process under Beck v. Alabama , 447 U.S. 625 (1980); (3) the trial court improperly excused a venireperson for cause because her statement that she would be unable to i mpose the death penalty was ambiguous; (4) admission of Robedeaux’s prior unadj udicated crimes in the sentencing phase violated the Eighth Amendment; (5) the state’s continuing threat aggravating circumstance is unconstitutional; (6) t rial counsel was2 The federal courts of appeals have adopted differing interpretations of the

standards of deference under § 2254(d)(1). See, e.g. , Matteo v. Superintendent, SCI Albion , 171 F.3d 877, 885-887 (3d Cir. 1999) (citing cases); Nevers v. Killinger , 169 - 4 - constitutionally defective at the sentencing stage by failing to develop mitigating evidence as to Robedeaux’s organic brain injury; an d (7) cumulative error. We review the district court’s legal conclusions de novo and its factual findings for clear error. See, e.g. , Newsted v. Gibson , 158 F.3d 1085, 1089 (10th Cir.), cert. denied , 119 S. Ct. 1509 (1999). Any district court findi ngs based merely on a review of the state record, however, ar e not entitled to the clearly erroneous standard. See Cunningham v. Diesslin , 92 F.3d 1054, 1062 n.6 (10th Cir. 1996). Because Robedeaux filed his habeas pet ition after April 24, 1996, we apply 28 U.S.C. § 2254, as amended by the Antiterro rism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
See Rogers v. Gibson ,__F.3d__, No. 98-6301, 1999 WL 203188, at *1 n.1 ( 10th Cir. Apr. 12, 1999). Under § 2254(d), a federal co urt may not grant habeas on any claim denied on the merits by the state court, unless the state proceeding “resulted in a decision that was contrary to, or in volved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or “resulted in a d ecision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). 2 Additionally, we presume the factualF.3d 352, 357-62 (6th Cir. 1999) (citing cases), petition for cert. filed , 67 U.S.L.W. 3654

(U.S. Apr. 5, 1999) (No. 98-1665); O’Brien v. Dubois , 145 F.3d 16, 21-25 (1st Cir. 1998); Green v. French , 143 F.3d 865, 870-73 (4th Cir. 1998), cert. denied , 119 S. Ct. 844 (1999). The Supreme Court has granted certiorari to settle the differences in interpretation. SeeWilliams v. Taylor, 119 S. Ct. 1355 (1999). Despite the varied interpretations, “[t]he disagreement is not about whether the AEDPA requires a high degree of deference to the state court’s judgment; rather, it is about how to gauge the degree of deference necessary.” Nevers , 169 F.3d at 361. Under any of the deferential standards announced by the circuits, this appeal would reach the same result. Therefore, we decline to adopt a specific interpretation of § 2254(d)(1) in this case. - 5 - findings of the state court are correct unless peti tioner shows otherwise by clear and convincing evidence. See id. § 2254(e)(1).
I. Petitioner strenuously argues that the state offere d insufficient evidence to establish that he killed McKinney or to establish t hat he acted with malice aforethought. Under petitioner’s theory, the state provided nothing but tenuous circumstantial evidence that he committed the murde r, and this minimal evidence requires an unconstitutionally large inferential le ap in order to establish guilt. Similarly, petitioner asserts that given the paucity of evidence regarding his state of mind, his conviction for first degree murder can not stand. In reviewing a sufficiency of the evidence claim, “ the relevant question is whether, after viewing the evidence in the light mo st favorable to the prosecution,

anyrational trier of fact could have found the essent ial elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). “To- 6 -

be sufficient, the evidence supporting the convicti on must be substantial; that is, it must do more than raise a mere suspicion of guil t.” Scrivner v. Tansy , 68 F.3d 1234, 1239 (10th Cir. 1995) (internal quotation mar ks and citations omitted). After carefully reviewing the record in this case, we find the evidence sufficient to sustain petitioner’s conviction. Instead of recounting the full extent of the eviden ce, which the state court has already done, see Robedeaux v. State , 866 P.2d 417, 426-29 (Okla. Crim. App. 1993), we merely highlight the most salient fa cts in our analysis. Petitioner shared a one-bedroom apartment with Nancy McKinney in August and September of 1985. On the morning of September 22, Barbara J ones, who lived immediately below Robedeaux and McKinney, saw McKinney take tra sh to the dumpster. That night, Mrs. Jones and her husband both heard loud thumping, such as might be caused by someone jumping off furniture, coming fro m Robedeaux’s apartment. The noise, which was loud enough to shake the Jones ’ apartment, began around 10:00 p.m. and continued intermittently until appro ximately 1:00 a.m. Mrs. Jones, who testified that she could tell the differ ence between Robedeaux’s heavy footsteps above her apartment and McKinney’s softerones, heard heavier footsteps periodically during this time but did nothear McKinney’s. Earlier in the evening, she had heard both heavy and soft foot steps above her. After September 22, she heard no more soft footsteps.- 7 -

Nobody saw the decedent after September 22, 1985. Mrs. Jones saw Robedeaux leave the apartment the next morning driv ing McKinney’s car. Five days later, on September 28, 1985, Mrs. Jones heardthe sounds of a carpet cleaner or vacuum upstairs for approximately two ho urs. After that, she saw Robedeaux putting a carpet cleaner in his truck. A dditional evidence revealed that Robedeaux had a female acquaintance rent the c arpet cleaner for him. Shortly after September 23, 1985, the maintenance m an for Robedeaux’s apartment, Allen Savill, noticed brownish-red stain s on the carpet at the entrance of Robedeaux’s bedroom closet and on the closet wal ls. The owner of the apartment, Arthur Smedley, also saw the stains. Savill noticed towels with similar stains hanging in the bathroom. He collect ed the towels when he saw Robedeaux throw them in the apartment complex dumps ter. Tests revealed that the stains on the carpet, wall, and towels were Typ e A blood, Nancy McKinney’s type. Type A blood was also found on a pair of Rob edeaux’s pants and in his truck. Robedeaux has Type O blood. Further tests showed a high concentration of blood on the carpet in Robedeaux’s bedroom, much of which had been spread and diluted through cleaning. When police pulled up the carpet, they found blood stains on the pad and floor underneath. Petitionertold police that he had fought with the decedent in early September and hit her ha rd enough to make her bleed on the floor. A police expert testified that only a great deal of blood could have- 8 -

soaked through a carpet. An amount such as would c ome from a cut or a bloody nose would not be sufficient to soak through. Numerous witnesses testified that they smelled a pu trid odor in the apartment after the end of September. This odor, w hich the petitioner told several people was “spoiled meat,” was present in the apart ment for weeks. A police expert testified that blood, unless refrigerated, h as a very foul odor. Robedeaux’s own statements, introduced at trial thr ough witness testimony, provided additional incriminating evidence. Lisa A ustin, who met Robedeaux on October 18, 1985 and lived with him for about a mon th, testified that on November 13, 1985, Robedeaux told her that he had k illed Nancy McKinney and “cut her up.” Additionally, when police first ques tioned him, Robedeaux denied any bloodshed or violence in his apartment. Instea d, he claimed he had spilled “red koolaid” on the floor, causing a stain. He later admitted to police that he had hit the decedent on several occasions during fights which were usually alcoholrelated. He professed to have been angry at McKinn ey for writing bad checks, and he told officers that he hit her repeatedly dur ing their last fight, causing her to bleed in his bedroom. He claimed McKinney left him in early September, not long after this last fight. While McKinney was never seen again, authorities later recovered several human body parts -- a leg and foot, an arm and hand , and a piece of a skull -- in- 9 -

the same general vicinity in central Oklahoma. Dr. Larry Balding, a forensic pathologist and anthropologist, compared the skull to x-rays of the decedent and concluded the skull belonged to her. He also found the leg bone consistent with the decedent’s x-rays, the foot consistent with the decedent’s foot size, and the blood to be Type A, the decedent’s blood type. Dr. Balding opined that the leg belonged to the decedent. He further found the arm had strong consistencies and no inconsistencies with the decedent’s characterist ics. Finally, he noted evidence of dismemberment. Another expert, anthropologist D r. Clyde Snow, concurred in Dr. Balding’s conclusions with respect to the skull and the leg. He also testified regarding evidence of saw marks on the recovered le g. We hold that the record shows a rational trier coul d have found the elements of first degree murder against petitioner beyond a reasonable doubt. Nancy McKinney’s disappearance, the loud noises in Robedeaux’s apartment, the large amount of blood in the apartment, the blood o n petitioner’s clothes and truck, petitioner’s prior history of violence towar d the decedent, Robedeaux’s admission to Lisa Austin that he killed and dismemb ered the decedent, Robedeaux’s inconsistent story to the police, and t he identification of parts of the decedent’s body combine to support a conclusion that Robedeaux killed and dismembered Nancy McKinney. In addition, Robedeaux ’s history of violence toward the decedent, his admission that he had been angry with her for writing- 10 -

bad checks, and his effort to hide the crime by giv ing the police inconsistent stories and dismembering the body all support a rea sonable inference that Robedeaux acted with malice aforethought. A jury c an find intent, including malice aforethought, from circumstantial evidence. See Holland v. United States , 348 U.S. 121, 140 (1954); Barr v. State , 763 P.2d 1184, 1186 (Okla. Crim. App. 1988). Malice requires only proof that petitioner, at the time he committed the act, had a specific and deliberate intent to take away McKinney’s life. This malicious intent may be formed in an instant: “A de sign to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is carried into execution.” Okla. Stat. Ann. ti t. 21, § 703; see also Paxton v.
State , 867 P.2d 1309, 1316 (Okla. Crim. App. 1993). Whi le petitioner’s counsel aggressively challenged the credibility of much of this evidence, we conclude that a reasonable factfinder could have found it suffici ently credible to convict petitioner. Therefore, the state court decision on this matter was not contrary to, and did not involve an unreasonable application of, established federal law, see 28 U.S.C. § 2254(d)(1), nor was it “based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding,” see id. § 2254(d)(2).
II. At trial, petitioner requested jury instructions o n second degree murder and3 We note that there is some ambiguity about the scope of Beckin this circuit.

CompareUnited States v. McVeigh , 153 F.3d 1166, 1197 (10th Cir. 1998) (finding, as alternative holding, that lesser included offense need not be given when jury had sentencing discretion, thereby limiting Beckto instances in which conviction of first degree murder automatically would result in death sentence), cert. denied , 119 S. Ct. 1148 (1999), Johnson v. Gibson , 169 F.3d 1239, 1251 (10th Cir. 1999) (following analysis from McVeighin state habeas appeal), andRoberts v. Ward , No. 98-6066, 1999 WL 162751, at *8 (10th Cir. Mar. 25 1999) (unpublished) (following McVeighanalysis), with Stouffer v. Reynolds , 168 F.3d 1155, 1170-71 (10th Cir. 1999) (applying traditional Beck analysis), andWalker v. Attorney Gen. for State of Okla. , 167 F.3d 1339, 1349 (10th Cir. 1999) (ignoring McVeighand applying traditional Beckanalysis). In Hopkins v. Reeves , the Supreme Court specifically declined to rule on this issue. See118 S. Ct. at 1902 n.7. We need not resolve this ambiguity in this case because, even under the traditional Beck framework, we find petitioner cannot meet his burden under 28 U.S.C. § 2254(d). - 11 - first degree manslaughter. The trial court refused to give such instructions, instructing the jury only on first degree murder. Petitioner claims that the failure to instruct on these offenses violates his due proc ess rights under Beck v. Alabama , 447 U.S. 625 (1980). In Beck , the Supreme Court held that, in a capital case, due process requires the court to give a less er included offense instruction if the evidence would support a conviction on that off ense. See id. at 638; see also Hopper v. Evans , 456 U.S. 605, 610 (1982); Duvall v. Reynolds , 139 F.3d 768, 786 (10th Cir.), cert. denied , 119 S. Ct. 345 (1998). The Supreme Court has emphasized that the Beckrule applies “only on those offenses that have bee n deemed [by the state] to constitute lesser included offenses of the charged crime.” Hopkins v. Reeves , 524 U.S. 88, 118 S. Ct. 1895, 1901 (1998). 3
A.- 12 -

On direct appeal, the Oklahoma Court of Criminal Ap peals held that petitioner deserved no lesser included offense inst ruction. It stated: This court has repeatedly held that an instruction on a lesser included offense or a theory of defense need only be given w hen there is evidence in the record to support such an instructi on. . . . Here, the evidence warranted only instructions on f irst degree malice aforethought murder and Appellant’s defense of alibi. To instruct on any lesser included offenses to malice aforethought murder or more than one theory of defense would be inconsistent. While appellant is entitled to an instruction on hi s theory of defense, he is not entitled to instructions on every possibl e theory of defense. See Kinsey v. State , 798 P.2d 630, 633 (Okla. Cr. 1990). As the evidence in the present case showed that Appellant either killed the decedent with malice aforethought or was not presen t at the time of her death, the trial court properly refused Appella nt’s requested instructions. Robedeaux v. State , 866 P.2d 417, 431 (Okla. Crim. App. 1993). In denying Robedeaux’s habeas corpus petition, the district co urt affirmed the Court of Criminal Appeals’ finding that there was insufficie nt evidence to support a lesser included offense instruction. See Dist. Ct. Mem. Op. at 22-23. As an initial matter, we interpret the Oklahoma Cou rt of Criminal Appeals’ opinion as finding insufficient evidence to warranta lesser included offense instruction. Petitioner points out that the opinio n also may rely upon the fact that Robedeaux argued a defense theory -- alibi and inno cence -- inconsistent with the requested instructions on second degree murder and first degree manslaughter. The Supreme Court requires courts to look at all ev idence in the record to4In fact, the Supreme Court, in Schad v. Arizona , 501 U.S. 624, 645-48 (1991),

implicitly affirmed the idea that a lesser included instruction that is supported by the evidence can satisfy Beck, even if it is inconsistent with the defendant’s theory of the case. In Schad , the defendant was convicted of capital murder, and the court gave a lesser included instruction on second degree murder. The second degree murder instruction was inconsistent with defendant’s trial theory, which was that he had robbed the victim but had not killed him. Defendant requested a lesser included instruction on robbery, which the trial court refused. The Supreme Court found no Beckviolation because the jury had a third option to capital murder and that option was supported by evidence in the record. Seeid. at 647-48. The fact that defendant had argued “I did not kill him” was not enough to mandate only instructions consistent with his theory of the case. - 13 - determine whether a lesser included offense instruc tion should have been given.
See Hopper , 456 U.S. at 611 (“Beckheld that due process requires that a lesser included offense instruction be given when the evidence warrants such an
instruction .” (emphasis added)). Although an inconsistent tri al theory may indicate a lack of evidence for a Beckinstruction, it does not definitively establish that fact. See Parks v. Brown , 840 F.2d 1496, 1500-01 (10th Cir. 1987) (considering all evidence, including inconsistent a libi defense, in determining whether Beckviolation occurred), vacated on other grounds on r eh’g en banc , 860 F.2d 1545 (10th Cir. 1988), rev’d sub nom. Saffle v. Parks , 494 U.S. 484 (1990); id. at 1521-22 (Baldock, J., on petition for rehearing ); Walker v. Jones , 10 F.3d 1569, 1573-74 (11th Cir. 1994) (holding evidence supported only an instruction for capital murder, especially in light of defendan t’s alibi and intoxication defenses). 4 The district court and the Oklahoma Court of Crim inal Appeals both- 14 -

explicitly determined that the evidence did not sup port giving petitioner’s requested instructions. See Dist. Ct. Mem. Op. at 22-23; Robedeaux , 866 P.2d at 431. Therefore, we refuse petitioner’s entreaty to construe the state court’s decision as relying solely on the inconsistent alib i defense and completely failing to review the evidence in this case. On this record, the state court correctly refused t o instruct on first degree manslaughter. In Oklahoma, first degree manslaught er occurs, inter alia, “[w]hen perpetrated without a design to effect death, and i n a heat of passion, but in a cruel and unusual manner.” Okla. Stat. Ann. tit. 2 1, § 711(2). Heat of passion has the following elements: “‘(1) adequate provocat ion; (2) a passion or emotion such as fear, terror, anger, rage or resentment; (3 ) homicide occurred while the passion still existed and before a reasonable opportunity for the passion to cool; and (4) a causal connection between the provocation , passion and homicide.’” Lewis v. State , 970 P.2d 1158, 1166 (Okla. Crim. App. 1998) (quot ing Charm v.
State , 924 P.2d 754, 760 (Okla. Crim. App. 1996)); accor dLe v. State , 947 P.2d 535, 546 (Okla. Crim. App. 1997), cert. denied sub nom. Thanh Le v. Oklahoma , 118 S. Ct. 2329 (1998). The passion must be “so gr eat as to render the mind incapable of forming a design to effect death.” Se e Charm , 924 P.2d at 760 (internal quotation marks and citation omitted). P etitioner can point to no evidence in the record that he acted in the heat of passion. Additionally,- 15 -

petitioner has not shown that he was adequately pro voked. Robedeaux relies on his statements to interrogating police officers that he had been mad at the decedent for writing bad checks. However, anger fo r passing bad checks does not provide the kind of provocation necessary for mansl aughter. Cf., e.g. , Conover v.
State , 933 P.2d 904, 917 (Okla. Crim. App. 1997) (breaki ng window of acquaintance’s home was not sufficient provocation) . Moreover, the murder occurred weeks after petitioner’s claimed anger at McKinney. Petitioner stated that his final fight with the decedent occurred in early September and that the decedent left him after that time. The evidence pr esented at Robedeaux’s trial establishes that McKinney was killed on September 2 2. A heat of passion offense must occur before the murderer has a reasonable opp ortunity to cool down. See Lewis , 970 P.2d at 1166. Thus, even if petitioner had b een adequately provoked in early September, he cannot reasonably claim his passion had not cooled by the time he killed McKinney. See, e.g. , id. (finding defendant had reasonable opportunity to cool down between learning of victim ’s infidelity to him and murder of victim). The argument on second degree murder is a closer on e than manslaughter, but it yields the same outcome. Second degree murd er in Oklahoma occurs, inter alia, “[w]hen perpetrated by an act imminently dang erous to another person and evincing a depraved mind, regardless of human life, although without any- 16 -

premeditated design to effect the death of any part icular individual.” Okla. Stat. Ann. tit. 21, § 701.8(1). Petitioner’s theory is t hat his testimony showed he and the decedent had fought on several occasions in the past and the murder could have resulted unintentionally from such an incident . Petitioner relies heavily on the testimony of Deputy Sheriff Ron Tavanello, who had interrogated Robedeaux on November 15, 1985, and made notes of the interro gation. According to Tavanello, Robedeaux admitted to getting into sever al fights with the decedent. The fights were mostly alcohol-related, but Robedea ux claimed also to have been angry because McKinney had written bad checks. Rob edeaux admitted that he struck the decedent hard during what he claimed was their last fight. That fight must have occurred no later than early September, a ccording to Robedeaux’s admissions, because he claimed the last time he saw the decedent was around the first week of September. Petitioner argues “In lig ht of this evidence, the jury could have reasonabl[y] found that Robedeaux killed McKinney, not with malice aforethought, but during a domestic argument with M cKinney.” Appellant’s Opening Br. at 37. The Oklahoma Court of Criminal Appeals disagreed, a nd we do not find this conclusion based on an unreasonable determinat ion of the facts or involving an unreasonable application of clearly established federal law. If petitioner bases his claim on the notion that the fight to which Rob edeaux referred in his police- 17 -

interrogation actually resulted in the decedent’s d eath, that claim does not square with the evidence. Robedeaux told Deputy Tavanello the fight occurred in early September and that McKinney soon thereafter left hi m. However, Mrs. Jones, Robedeaux’s downstairs neighbor, testified that she heard Robedeaux and McKinney arguing late one night about a week before September 22 and heard McKinney say “don’t hit me any more.” See Trial Tr., Vol. 5 at 716-19. Even if this later incident was the “fight” to which Robede aux referred in his police interrogation, it still occurred well before the day of the murder. Other evidence presented at petitioner’s trial showed McKinney’s m urder occurred on September 22. Mrs. Jones saw Nancy McKinney that morning, he ard her footsteps early that evening, and heard the thumping and heavier footste ps later that night. Consequently, the record provides no support that the early September argument resulted in Nancy McKinney’s death. On the other hand, petitioner could be asserting th at the couple had a different domestic dispute on the night of Septembe r 22. This argument, however, would rest not on evidence that a domestic argument actually occurred, but on pure speculation that one mighthave occurred. Speculation about what might have happened, rather than evidence of what r eally did happen, does not constitute sufficient evidence to require a lesser included offense instruction under Beck . The record is devoid of evidence that Robedeaux and McKinney5As an alternative argument, the state asserts that, under Oklahoma law, second

degree murder is no longer a lesser included offense of first degree murder. Because we affirm the district court on the sufficiency of evidence issue, and because the parties only discussed the matter fleetingly in their briefs, we decline to decide this issue. - 18 - argued the night of September 22. There was no tes timony regarding shouting or arguing from Robedeaux’s apartment on the night of the murder. Mr. and Mrs. Jones testified to hearing footsteps and loud thump ing noises directly above their bedroom, but they did not mention talking, yelling, or other sounds of argument. Moreover, the apartment building would have allowed Mr. or Mrs. Jones to hear such sounds because Mrs. Jones had heard Robedeaux and McKinney arguing a week earlier. In sum, we agree with the state court’s conclusion that no evidence exists to support a second degree murder or first degree m anslaughter instruction. Consequently, we find the state court’s holding reg arding petitioner’s Beckclaim was neither an unreasonable application of clearly established federal law, 28 U.S.C. § 2254(d)(1), nor “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” see id. § 2254(d)(2). 5
III. Petitioner next contends that the trial judge impro perly excluded a jury venireperson for cause in violation of his Sixth Am endment right to an impartial- 19 -

jury in the sentencing phase of his trial. “[A] ju ror may not be challenged for cause based on his views about capital punishment u nless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wa inright v. Witt , 469 U.S. 412, 420 (1985) (quoting Adams v. Texas , 448 U.S. 38, 45 (1980)). Wainright established that the trial judge’s determination of a juror’s bias is a factual issue to which we apply a very deferential standard under28 U.S.C. § 2254. See id. at 429; Castro v. Ward , 138 F.3d 810, 824 (10th Cir.), cert. denied sub n om. Castro v. Gibson , 119 S. Ct. 422 (1998). We must therefore presume the finding of bias is correct unless petitioner can prove otherwise byclear and convincing evidence.
See 28 U.S.C. § 2254(e)(1). In response to a question about whether she could c onsider imposing a death sentence, prospective juror Childers stated “ no.” The judge then asked Childers the following question: If you find beyond a reasonable doubt that the Defe ndant was guilty of Murder in the First Degree and if, under the evi dence, the facts and circumstances of the case, the law would permityou to consider a sentence of death, are your reservations about th e death penalty such that regardless of the law, the facts and circ umstances of the case, you would not consider inflicting the death p enalty? Trial Tr., Vol. 2, at 115. Childers answered “righ t.” The court then dismissed Childers for cause. In Davis v. Maynard , 869 F.2d 1401, 1408 (10th Cir. 1989), vacated on- 20 -

other grounds sub nom. Saffle v. Davis , 494 U.S. 1050 (1990), we found an almost identical question “confusing.” Nevertheles s, applying the deferential standard announced in Witt , we upheld the dismissal for cause of five jurors on facts in which the jurors gave more ambiguous answe rs than the one given in this
case. See id. at 1408-09. We reach the same conclusion here. C hilders’ answers were not so equivocal as to prove by clear and conv incing evidence that she held no biases. In fact, the record shows she was reaso nably clear in her refusal to impose the death penalty. Thus, the record fairly supports the trial judge’s dismissal for cause.
IV. At the sentencing phase of petitioner’s trial, the prosecution introduced evidence of numerous unadjudicated crimes or bad ac ts in order to establish that petitioner was a continuing threat to society. Thi s evidence included petitioner’s physical abuse of Nancy McKinney’s children, his ex -wife, a previous girlfriend, and her child. Another former girlfriend testified Robedeaux tried to rob her. Petitioner argues that the admission of this eviden ce was so prejudicial that it rendered his sentence constitutionally unreliable u nder the Eighth and Fourteenth Amendments. Petitioner maintains that the prior bad acts eviden ce “lack[s] the trustworthiness necessary for reliability in capita l cases.” Appellant’s Opening6 Several courts upholding admission of prior bad acts evidence during the

sentencing phase have noted that the evidence must have some indicia of reliability. See McDowell v. Calderon , 107 F.3d 1351, 1366 (9th Cir. 1997), amended and superseded in part by116 F.3d 364 (9th Cir. 1997), vacated in part on other grounds on reh’g en banc , 130 F.3d 833 (9th Cir. 1998), cert. denied , 118 S. Ct. 1575 (1998); United States v. Beckford , 964 F. Supp. 993, 999-1000 (E.D. Va. 1997). This court has not directly imposed such a requirement, but even if we were to do so, petitioner provides no evidence that the testimony introduced at trial was actually unreliable. To the contrary, Nancy McKinney’s children corroborated each other’s testimony, the state introduced hospital photographs corroborating Doris Robedeaux’s testimony that she was beaten, and a witness corroborated Lisa Austin’s testimony that Robedeaux beat her. - 21 - Br. at 74. However, this circuit has held that “a dmission of evidence of unadjudicated offenses at a sentencing proceeding d oes not violate due process.” Hatch v. Oklahoma , 58 F.3d 1447, 1465 (10th Cir. 1995); see also Williamson v. Ward , 110 F.3d 1508, 1523 (10th Cir. 1997). 6 We are bound by the decision of prior panels, see United States v. Foster , 104 F.3d 1228, 1229 (10th Cir. 1997), and circuit precedent therefore forecloses this cla im. Circuit precedent also dictates denial of petitione r’s claim that Oklahoma’s continuing threat aggravating circumstance is uncon stitutionally overbroad. The continuing threat factor requires “[t]he existence of a probability that the defendant would commit criminal acts of violence th at would constitute a continuing threat to society.” Okla. Stat. Ann. ti t. 21, § 701.12(7). This court has repeatedly upheld the constitutionality of this agg ravating factor, finding it neither unconstitutionally vague nor overbroad. Se e Ross v. Ward , 165 F.3d 793, 800 (10th Cir. 1999); Castro v. Ward , 138 F.3d 810, 816-817 (10th Cir.), cert.- 22 -

denied sub nom. Castro v. Gibson , 119 S. Ct. 422 (1998); Nguyen v. Reynolds , 131 F.3d 1340, 1353-54 (10th Cir. 1997), cert. deni ed , 119 S. Ct. 128 (1998).
V. Robedeaux argues that his counsel was constitutiona lly deficient at the sentencing stage for allegedly failing to fully inv estigate his mental status. Referring to a 1995 examination by Dr. Philip J. Mu rphy, a clinical psychologist, which revealed “neuropsychological impairment,” pet itioner claims his counsel failed to discover this condition and such oversigh t prejudiced petitioner at sentencing. Respondent contends that petitioner’s failure to ra ise this issue in his direct appeal to the Oklahoma Court of Criminal Appeals (“ OCCA”) constitutes procedural default. Oklahoma law requires petition er to bring ineffective assistance of counsel claims on direct appeal if th e claims are grounded in facts discernable from the trial record. See Berget v. State , 907 P.2d 1078, 1084 (Okla. Crim. App. 1995). In state post-conviction procee dings, the OCCA found Robedeaux’s ineffective assistance of counsel claim procedurally barred because of his failure to raise it on direct appeal. See Robedeaux v. State , 908 P.2d 804, 808 (Okla. Crim. App. 1995). Although ineffective assistance of counsel claims m ay involve unique concerns justifying an exception to the procedural default rule, see Brecheen v.7Pete Gelvin was counsel of record on appeal, while Opio Toure and Cindy Foley

represented petitioner at trial. All three apparently were attorneys for the same public defender office in Oklahoma City. Petitioner suggests appellate counsel, by virtue of working in the same office as trial counsel, was not sufficiently independent to objectively review trial counsel’s performance. A close review of the trial and appellate record reveals no evidence that casts doubt on appellate counsel’s independence or performance. Appellate counsel aggressively raised over twenty issues on direct appeal. However, as we note in our discussion infra, he had no reason to question the adequacy of trial counsels’ performance regarding the investigation of petitioner’s mental state. The law requires different appellate counsel in order to ensure objective review of trial counsel’s performance. Based on these facts, Robedeaux received such a review. - 23 - Reynolds , 41 F.3d 1343, 1363-64 (10th Cir. 1994), we have r ejected the idea that ineffective assistance claims are always excused fr om procedural default, see English v. Cody , 146 F.3d 1257, 1263 (10th Cir. 1998). In English , we held that procedural default may apply if the state “(1) allo w[s] petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel’s performance, and (2) provid[es] a procedural mechanism whereby a petitioner can adequately develop the fac tual basis of his claims of ineffectiveness.” Id. Additionally, irrespective of the fact-finding pr ocedures, procedural default applies when petitioner had diff erent trial and appellate counsel and we can resolve the ineffectiveness clai m “upon the trial record alone.” Id. at 1264. After carefully reviewing the record, we find petit ioner procedurally defaulted his ineffective assistance claim under ou r holding in English

. Robedeaux had different counsel on appeal than at t rial. 7Additionally, the trial- 24 -

record sets forth the scope of trial counsel’s inve stigation into Robedeaux’s mental status. Robedeaux’s trial counsel hired a q ualified psychiatrist, Dr. Nolan Armstrong, to evaluate him prior to trial. Dr. Arm strong examined Robedeaux and also talked at length with Robedeaux’s parents. Dr. Armstrong’s staff performed four or five tests on petitioner, includi ng an I.Q. exam. Based on the examination and tests, Dr. Armstrong testified at t rial that petitioner had an average I.Q., exhibited no evidence of “psychotic p rocess . . . such as hallucinations, or abnormal thought processes,” and“seemed like a reasonably logical, sensible guy.” Trial Tr., Vol. 8, at 1633 . The doctor also explained that Robedeaux’s “testing indicated that he was rather e motional and sens[i]tive, daydreamed a lot. An individual who wanted attenti on, and needed help.” Id. at 1634. Dr. Armstrong’s main medical conclusions inv olved the effect of petitioner’s diabetes and alcohol problems on his a ctions. Petitioner is a diabetic and had a problem with alcohol abuse. Dr. Armstron g stated that petitioner often refused to take his insulin shots. According to Dr . Armstrong, this factor, combined with petitioner’s frequent drinking and oc casional drug use, could lead to periods of diabetic coma in which petitioner wou ld act aggressively but not realize what he was doing. Dr. Armstrong believed that petitioner could have committed violent acts while in a blackout state bu t that petitioner would pose no threat to society if he treated his diabetes and di d not drink.- 25 -

The record reveals that Robedeaux’s trial counsel p roperly employed a psychiatrist to evaluate petitioner prior to trial. That evaluation was thorough and gave counsel no reason to believe petitioner suffer ed a condition that required further investigation. This performance differed s ignificantly from cases in which counsel inadequately investigated or failed to inve stigate information for the sentencing phase. See Brecheen , 41 F.3d at 1367 (listing cases); Stafford v. Saffle , 34 F.3d 1557, 1563-64 (10th Cir. 1994) (finding f ailure to investigate constituted deficient performance). Counsel’s perf ormance was clear from the trial record. Therefore, petitioner procedurally d efaulted this claim. See English , 146 F.3d at 1264.
VI. Finally, petitioner claims cumulative errors render ed his trial fundamentally unfair. Since we find no constitutional errors in this review, no prejudicial cumulative error can exist. See, e.g. , Moore v. Reynolds , 153 F.3d 1086, 1113 (10th Cir. 1998), cert. denied , 119 S. Ct. 1266 (1999). Accordingly, we deny Mr. Robedeaux’s petition for awrit of habeas corpus. AFFIRMED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge