PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ CARLOS CUESTA-RODRIGUEZ, Petitioner - Appellant,

v. MIKE CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee. No. 16-6315

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:11-CV-01142-M)

________________ _________________ Michael W. Lieberman, Assistant Fe deral Public Defender (Randy A. Bauman, Thomas D. Hird, Assistant Federal Pub lic Defenders, with him on the br iefs), Office of the Federal Public Defender, Oklahom a City, Oklahoma, for Petitione r-Appellant. Caroline E. J. Hunt, Assistant Attorney General (Mike Hunter, A ttorney General of Oklahoma, with her on the briefs ), Office of the Attorney Gener al, Oklahoma City, Oklahoma, for Respo ndent-Appellee. Before TYMKOVICH , Chief Judge, HOLMES , and PHILLIPS , Circuit Judges.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ In this habeas corpus case, Car los Cuesta-Rodriguez challenges his Oklahoma conviction for first-degree murd er and his accompanying sentenc e of death. The district court denied relief a nd denied a certificate of appeal ability (COA). We FILED United States Court of Appeals Tenth Circuit 

### February 22, 2019
Elisabeth A. Shumaker Clerk of Court2 granted a COA, agreeing to hear a number of Cuesta-Rodriguez’s claims. Exercising jurisdiction under 28 U.S.C. § 2253(a), we agree with the distr ict court and conclude that Cuesta-Rodriguez is n’t entitled to relief.
BACKGROUND
I. The Crime of Conviction The following facts come from the direct-appeal decision of the Oklahoma Court of Criminal Appeals (OCCA), Cuesta-Rodriguez v. State , 241 P.3d 214 (Okla. Crim. App. 2010). We presume that the O CCA’s factual findings are cor rect. See 28 U.S.C. § 2254(e)(1) (establishing that s tate-court determinations of f act “shall be presumed to be correct” unless rebutted by “cl ear and convincing evidence”). Olimpia Fisher—the victim—and he r adult daughter, Katya Chacon, lived with Cuesta-Rodriguez in a home Fishe r and Cuesta-Rodriguez had purc hased together. In the year following the home purchase , Cuesta-Rodriguez and Fisher’s relationship was strained. Fisher was working long hours as a moving-company pac ker, and CuestaRodriguez feared she was cheati ng on him. Whenever Fisher and C hacon would leave the house, Cuesta-Rodriguez would qu estion them “about where they w ere going and what they would be doing.” Cuesta-Rodriguez , 241 P.3d at 222. The rela tionship deteriorated to the point that both Cuesta-Rodriguez and Fisher wanted the o ther to move out. On May 20, 2003, Fishe r went to the local police station “to make a complaint of domestic abuse.” Id. The interviewing officer “observed bruising on her right upper arm and stomach.” Id. But when Fisher realized that the officer “was going to take3 photographs of the bruising and that Cuesta-Rodriguez would be arrested, she ran out of the station.” Id. On May 31, 2003, Cuesta-Rodri guez called Fisher on her cell pho ne. She answered and replied that she was at work. But Cuesta-Rodriguez had gone by her place of work earlier and knew she wasn ’t there. “Believing she was c heating on him, he went home, drank some tequila, and went to bed.” Id. Around 10 p.m., Chacon came home to a dark house. She saw an empty bottle of tequila 1 with a note beside it. The note , written on the back of an env elope, read, “fuck

1 In his statement of facts, Cuest a-Rodriguez claims that he was “highly intoxicated.” Appellant’s Opening Br. at 4. The OCCA concluded that “[t]he evidence in this case showed tha t Cuesta-Rodriguez did consume some tequila several hours before the murder.” Cuesta-Rodriguez , 241 P.3d at 223. The OCCA stated that though the “evidence may certainly support an infer ence that CuestaRodriguez was intoxicated,” it di dn’t constitute a prima facie showing that CuestaRodriguez was incapable of forming criminal intent. Id. at 224 (citing Charm v. State , 924 P.2d 754, 761 (Okla. Crim. App. 1996)). Various pieces of evidence suppor ted the OCCA’s conclusion, inc luding (1) that Cuesta-Rodriguez “said that he consumed two or three d rinks of tequila, but denied that he consumed enough to make him drunk”; (2) that Cha con described him as “‘stupid drunk’ . . . but also testified that he was steady on his feet and talking clearly”; (3) that an interviewi ng detective concluded that fou r hours after the murder, Cuesta-Rodriguez “smelle d of alcohol” but “appeared onl y slightly intoxicated”; and (4) that “Cues ta-Rodriguez remembered events well enough to give police a detailed account of the shooting and the circumstances surrounding it.” Id. at 223–24. All that being said, the OCCA di dn’t reach a definitive factual finding on Cuesta-Rodriguez’s level of int oxication. But Cuesta-Rodriguez’ s level of intoxication isn’t dispositive of any issue before us, so we do n’t address it any further in this opinion.4 you bitches and puntas, goodbye.” Trial Tr. vol. II at 381:2. After realizing CuestaRodriguez was home, Chacon atte mpted to contact her mother. Una ble to reach her by phone, Chacon left the house a nd joined Fisher as she was ge tting off work. The two ate a late dinner at McDona ld’s and went home. Though they initially planned to pack and leave that night, they decided to stay overnight, Chac on sleeping in her own bedroom and Fisher sleeping in a third bedroom. Around 4:30 a.m., Chacon awoke to the sounds of Fisher and Cues ta-Rodriguez arguing. She went to the bedroom where the two were fighting an d persuaded Fisher to come back to her (Chacon’s) bedr oom “in the hope that Cuesta-Ro driguez would leave them alone.” Cuesta-Rodriguez , 241 P.3d at 222. But “Cues ta-Rodriguez followed the women into [Chacon’s] bedroom w hile continuing to argue loudly with Fisher.” Id. Fisher picked up a phone, but Cue sta-Rodriguez grabbed it and t ossed it from her reach. At the same time, he pulle d out a pistol “and blasted Fi sher in the right eye.” 2 Id. Chacon “retrieved a baseball bat from under the b ed and tried t o hit Cuesta-Rodriguez in the hand.” Id. He “grabbed the bat as [she] swung it and threw it to the floo r.” Id. Chacon ran from the building and called 911 from a nei ghbor’s house. After being shot, Fisher was still conscious. Cuesta-Rodriguez “took her to his bedroom where, despite having an eye blown out, Fisher continue d to fight and struggle.”
Id. at 223. Around 4:41 a.m., the f irst police officers arrived onthe scene (within two

2 “Chacon testified that the guns hot hit the right side of Fishe r’s face.” CuestaRodriguez , 241 P.3d at 222 n.1.5 minutes of being dispatched by 9 11). Officers approached the ho use and heard Fisher

“ screaming and banging on a bedroom window as if she was trying to escape.” Id. The house’s windows and doors “w ere covered with burglar bars t hat not only prevented her escape, but also prevented entry by police.” Id. The officers attempted to enter by “kicking in the front d oor,” but that failed. Id. While attempting to enter the building, the officers heard a gunshot—and th en Fisher’s screams stopped. An autopsy later revealed a second, fatal gunshot wound to Fisher’s left eye. Certain that Fisher was dead and “ that Cuesta-Rodriguez was arm ed, police summoned their tactical team.” Id. Meanwhile, a police hostage negotiator attempted to convince Cuesta-Rodriguez to come outside. Using a specialized tool called a “jam-ram,” the tactical team forced their way through the front-door burglar bars. Id. Officers arrested Cuesta- Rodriguez and took him to the police station. He gave s tatements to detectives that da y and the following day— and in both interviews admitted to shooting Fi sher (though he c laimed the first shot was accidental). Photographs of Fisher’ s face showed g unshot wounds to both eyes. 3

3 At trial, the jury heard eviden ce that the location of the gun shot wounds had been deliberate: According to the testimony of Fisher’s former boyfriend, when F isher terminated their relationship in favor of Cuesta-Rodriguez, Fis her said that she had “put her eyes on somebody else.” The ex-boyfriend stated he was familiar with Fisher’s use of this unusual phrase because s he previously told him that if she put her eyes on somebody else, that meant she was “interested in him.” (Continued.)6 II. The Trial 4 The state of Oklahoma put Cuesta- Rodriguez on trial for first-d egree murder, and prosecutors sought the death penalty.
A. The Guilt Phase During the trial, the court ad mitted testimony from Dr. Jeffrey Gofton based on the report of an autopsy perfo rmed by another doctor (Dr. Fr ed Jordan) who wasn’t present and wouldn’t be subject to cross-examination. 5 “Dr. Gofton testified regarding the examination of t he body conducted by Dr. Jordan a nd gave his own opinions on Fisher’s injuries a nd cause of death based on Dr. J ordan’s observations as recorded in his autopsy report.” Cuesta-Rodriguez , 241 P.3d at 226–27. “Dr. Gofton explained to the jury the nature of [Fisher’s] injuries . . . and recited other observations mentioned in Dr. Jordan’s report.” Id. at 229. “He concluded that a firearm injury to the head was the cause of death and opined th at among several possibilities, the method of deat h was most likely choking on b lood that had entered the airway from bone fractur ing in the nasal area.” Id. He explained that “Fisher would have lost cons ciousness in a matter of seconds to minutes and could have taken as long as eight minutes to aspirate on the blood.” Id. He also pronounced that the second gunshot “was th e likely cause of death.” Id.

Cuesta-Rodriguez , 241 P.3d at 223 n.3 (c itations omitted).

4 We lay out here only the occurr ences now relevant on appeal.

5 Dr. Jordan had retired by the time of the trial.7 At the end of the trial, the ju ry found Cuesta-Rodriguez guilty of murder in the first degree.
B. The Penalty Phase The defense presented evidence of several mitigating circumstan ces, detailing, among other things, Cuesta-Rodri guez’s troubled childhood, his history of alcohol and substance abuse, as well as his experiences emigrating from Cuba. 6 His counsel introduced testimony about Cuest a-Rodriguez’s good behavior in jail. And his employer and co-workers testifi ed regarding his work ethic and abilities. Family members (both in taped interview s and in person) discussed Cues ta-Rodriguez’s background and good qualities. And they expressed their love fo r him and asked the jury to impose a non-capital sentence. The jury heard from a psychologis t (Dr. James Choca) who testif ied “ostensibly” in mitigation. 7 Appellant’s Opening Br. at 7 . Dr. Choca told the jury about a childhood injury from wh en Cuesta-Rodriguez “hit his he ad against [a] windshield and fractured his s kull.” Trial Tr. vol. V at 982:19 –20. After

6 Cuesta-Rodriguez’s defense couns el discovered and presented th is mitigation evidence after substantial effort s to obtain medical records an d statements or testimony from family. Those effo rts included a trip to Cuba, C uesta-Rodriguez’s home country, which required the application for and receipt of court funds. The trip also required navigating the co mplex landscape of U.S.–Cuba rel ations. Counsel also obtained mitigation witnesses from Oklahoma and Florida.

7 Cuesta-Rodriguez now challenges the efficacy of that testimony

.8 hospitalization “a metal plate had to be put in” his skull. 8 Id. at 982:21. The doctor also told the jury about an inj ury that took place years later in the United States: while working at a lumber yard a nd driving a tractor, Cuesta-Ro driguez “fell off the tractor and was dragged by the tractor for a few yards until so meone was able to stop it.” 9 Id. at 983:18–20. As a result of th at incident, Dr. Choca testifie d, CuestaRodriguez suffered from back pai n and took pain medication. The doctor discussed

8 Cuesta-Rodriguez’s brief descri bes the incident somewhat diffe rently. But nothing in this appeal turns on the distinctions. Cuesta-Rodrig uez described the incident as follows: When Mr. Cuesta was eight years old, he was riding on a city bu s with two of his cousins. Hurrica ne Flora, one of the deadliest hurricanes in Cuba’s history, was moving over the island at that time. The storm . . . caus[ed] the driver to lose cont rol of the bus, sending it care ening into a pole. The bus driver was killed. M r. Cuesta was sitting in the front of the bus near the driver and was thrown through the windshield. The impact fractured his skull and caused hi m to lose consciousness. He . . . had surgery to remove pieces of glass from his brain. A metal plate was inserted to repair his skull. He was in a coma for some time af ter the surgery. . . . Mr. Cuesta receive d psychiatric treatment as a r esult of the accident. Appellant’s Opening Br. at 15–1 6 (citations omitted).

9 Cuesta-Rodriguez’s brief descri bes the incident as follows: In August of 1995, while Mr. Cue sta was employed at Forest Lumber Company, he experienced a nother serious head injury. As Mr. Cuesta was driving a tractor arou nd the lumber yard, a pin hold ing the seat broke and he fell backwards and hit his neck on a bar, for cing his head forward. He briefly lost c onsciousness and was dragged aro und by the tractor until another em ployee was able to stop it. Appellant’s Openi ng Br. at 16–17.9 Cuesta-Rodriguez’s history of dep ression and subs tance abuse. A nd he discussed Cuesta-Rodriguez’s “social histor y” “to get some sense for what he had been through.” Id. at 985:3, 6–7, 985:9–991:24 (dis cussing Cuesta-Rodriguez’s “di fficult life”). Dr. Choca determined tha t Cuesta-Rodriguez had borderli ne-personality disorder and discussed the effect of that condition. Allegedly due to the failure of trial counsel, the jurors didn’ t hear any
additional mitigation evidence regarding Cu esta-Rodriguez’s organic brain damage from the childhood incident. Nor d id they hear about his post-t raumatic stress disorder. 10 At the penalty phase of trial, t he state argued that Cuesta-Rod riguez deserved the death penalty based on two a ggravating circumstances: (1) t he heinousness, atrociousness, or cruelty of the murder and (2) the continuing risk Cuesta-Rodriguez posed to society. We now outline the prosecution’s comments tha t are at issue on appeal. These fall into two cate gories: (1) comments regarding the jury instruction on mitigating circumstances and (2) comments regarding the mitigat ion evidence that the defense presented.

10 Cuesta-Rodriguez now challenge s a number of Dr. Choca’s findin gs, including that Cuesta-Rodriguez ha s an IQ “in the bright normal range” and that Cuesta-Rodriguez has recovered well from his head injuries. Tri al Tr. vol. V at 994:14.10 1. Comments Regarding Jury Instruction During the penalty phase, the c ourt gave the jury an instructio n (instruction nine) that defined mitigating ci rcumstances and explained the j ury’s role in considering them. Inst ruction nine states: Mitigating circumstances are those which, in fairness, sympathy , and mercy, may extenuate or reduce the degree of moral culpability or blam e. The determination of what circumstan ces are mitigating is for you t o resolve under the facts and circumstances of this case. While all twelve jurors must unanimously agree that the State h as established beyond a reasonable doubt the exi stence of at least one aggravating circumstance prior to considerati on of the death penalty, unani mous agreement of jurors concerning m itigating circumstances is not required. In addition, mitigating circumstances do not have to be proved bey ond a reasonable doubt in orde r for you to consider them. Original R. vol. VII at 1284. Next, the court gave instruction ten, which states, “Evidence h as been introduced as to the following mitigating ci rcumstances,” and then lists s ixteen facts about CuestaRodriguez. Id. at 1285. The court told the jur y that “[e]vidence ha[d] been i ntroduced as to the following mitigating ci rcumstances”: (1) Cuesta-Rodri guez’s emigration “from the poverty-stricken Comm unist country of Cuba”; (2) his journey to the United States during the Mariel Boat Lift of 1980; (3) his time in federal detention after his heroin-possession conv iction; (4) the revolt of “some Cubans in the prison who feared repatriation” during Cuesta-Rodriguez’s time in fede ral custody, compared to Cuesta-Rodriguez’s “volunteer[ing] for and welcome[ ing]” of repatriation “so that he would s ee his family again”; (5) Cuest a-Rodriguez’s “productive[]” use of his time in federal detention “to learn t o speak and read11 English”; (6) his “long, stable work history” and status as a “ valued employee” who remained a “cherished and truste d friend” to his boss; (7) his volunteer work for seven years helping make “the hom es of elderly and needy person s . . . safe and habitable”; (8) his status as a likely “asset to a prison commu nity where productive inmate workers are needed” becaus e of his “past employment expe riences and willingness to work”; (9) his fa mily in Cuba, with whom “he has maintained regular contact with throughout the year s,” and who “asked [the jury] t o spare” his life; (10) Cuesta-Rodriguez’s love forhis son, Carlos (Kery) Cuesta Gonzalez, who was inspired by his father to become a writer; (11) Cuesta-Rodrigue z’s “serious, debilitating depression,” which wa s “made worse by self medicat ion with alcohol and other substances”; (12 ) his rapidly deteri orating mental condit ion that, “combined with alcohol and other substances [,] culminated i n [his] action s on May 31, 2003 which caused the death of Olimpi a Fisher”; (13) Cuesta-Rodrigue z’s since-improved mental condition, which was “eff ectively stabiliz ed by medicati ons” that “ease the symptoms of depression and delu sions”; (14) Cuesta-Rodriguez’s participation in and successful completion of the Okl ahoma Department of Mental Heal th’s Wellness Recovery Action Program; (15) h is good behavior in the county j ail for four years awaiting trial; and (16) his rem orse for causing Fisher’s death

. Id. at 1285–88. And, in a separate instruction—in struction sixteen—the jury was told: “All the previous instructions given you i n the first part of this trial apply where appropriate, except that in this part of the trial, you may consider sympathyor sentiment for the12 defendant in deciding whether to im pose the death penalty.” Id. at 1295 (emphasis added). The prosecution, in its closing argument, referenced instructio n nine discussing mitigating circumstan ces, arguing that the mitigatio n evidence presented to the jury didn’t reduce Cuesta -Rodriguez’s mo ral culpability for the crime. The prosecutor asked, “[H]ow does [the defense’s evidence (referrin g to “the evidence [the jury] heard the last two or three days”)] mitigate what th is defendant did on the date in question?” Trial Tr. vol. VII at 1281:21–2 2, 1282:1–2. And then the prosecutor referred the jury to “the instructions from His Honor up there,” id. at 1282:3–4, stating that mitiga ting circumstances are circums tances “which, in fairness, sympathy, a nd mercy, may extenuate or redu ce the degree of moral culpability or blame,” id. at 1282:6–8. The prosecutor went on to ask what evidence had been prese nted “that might re duce the moral culpab ility or blame of” Cuesta-Rodriguez for shooting Fisher. Id. at 1282:17–18. The prosecutor concluded that Cuesta-Rodriguez’s emigrati on from Cuba didn’t “reduce the moral culpability of this murder.” Id. at 1283:14–15. And the prosecutor conti nued on with this theme. See id. at 1283:16–17 (“How does it mitigate it? I pose the question to you . . . .”); id. at 1284:12–14 (“[T]he State of Oklahoma submits that [the fa mily testimony in mitigation] d oesn’t do anything to reduce the moral culp ability of what he did to Olimpia Fisher.” ). Discussing the family testimony, the prosecutor had this to say: “Do they love him? Sure, they do,13 even though they haven’t seen h im in a long time. It’s not surp rising. It’s not helpful to you either.” Id. at 1284:14–17. But the prosecutor interwove with those statements suggestions that the jury could consider the mitigation ev idence. The prosecutor told the jury: “And again, I’m not telling you don’t listen to them; by all means, you conside r what they have to say.” Id. at 1284:9–11; see also id. at 1281:17–19 (“[Y]ou still say, all right, does that outweigh the mitigating evid ence that we’ve heard.”); id. at 1283:20 (“I’m not going to disparage [the miti gation witnesses].”). After rejecting the import of the mitigation evid ence, the pros ecutor reminded the jury of the victim-impact testimony. See id. at 1285:18–21 (“You are to go up there and inquire into the moral culpability of what he did and , in doing so, remember the impact testimony th at came from these young ladies [Fisher’s daughters].”). The prosecutor co ncluded his argument by stating , “There is one punishment that doesn’t undermin e the seriousness of [the murde r], and that is the punishment of death.” Id. at 1286:20–22. The defense’s closing argument also touched on instruction nine . The defense emphasized to the jury that it ha d flexibility to consider miti gating circumstances, stating that mitigating circum stances “don’t have to be proven beyond a reasonable doubt” and needn’t be a greed on unanimously. Id. at 1301:24–25. Defense counsel told the jury, “Any level of pro of that is enough for you is go od enough.” Id. at 1301:25–1302:1. And defense counsel stressed to the jurors that they “may consider sympathy or sentiment for the defendant . . . because the law s ays it’s right for you to14 consider them; otherwise, the C ourt would not have allowed them to come before you.” Id. at 1301:13–20. The defense furth er emphasized that the jury cou ld rely on different mitigating circumstance s, including mitigating circum stances not on the list and not talked about during the tr ial, because “if it’s mitigat ing to you, it’s enough.”
Id. at 1302:5. The prosecution in rebuttal return ed to the theme that the miti gation evidence didn’t reduce Cuesta-Rodriguez’s culpability. After referencing instruction nine, the prosecutor said: “Counsel told you many times mitigating circum stances are those which, in fairness, sympathy, a nd mercy—and that’s true but the re’s more—may extenuate or reduce the degree of moral culpability or blame. M ay extend or reduce the degree of culpability or blame.” Id. at 1313:9–14. “So,” the prosecutor said, “now let’s look at the mitiga ting evidence they offer.” Id. at 1313:15–16. Referencing Cuesta-Rodriguez’s Cuban heritage , the prosecutor stated: “And you ask yourselves, looking at the law, does that r educe his degree of culpability or blame? State submits
no.” Id. at 1313:17–20. And, going through various pieces of the defense ’s mitigating evidence, the prosecuto r again and again reached the same concl usion. See id. at 1314:12–14 (“Ask yourselves how d oes [the fact that he came to the United States in the Mariel boat lift] reduce hi s degree of culpability or blame ?”); id. at 1315:1–3 (“[W]hat you have to ask yourselv es under the law is do you fin d [the fact that he welcomed repatriation] reduces his degree of moral culpability or blame for this case?”); id. at 1315:6–11 (“[A]nd I won’t go th rough all these [mitigating circumstances] . . . . And you as k yourselves how in the world does that reduce his15 degree of moral culpability or bl ame for this case?”). But the prosecution did encourage the jury to consider a ll the evidence, stating: “[W]e ’re not asking you to ignore the evidence, but embrace it.” Id. at 1315:11–12.
2. Comments Regarding Mitigation Evidence During its closing argument, the p rosecution stated that “the S tate of Oklahoma does not want to denegra te [sic] any of the evidence y ou’ve heard the last two or three days. I will not denegrate [sic] it.” Id. at 1281:20–22; see also id. at 1281:24–25 (referring to mitigati on witnesses as “fine, upstand ing people”). Later, discussing Cuesta-Rodriguez’s pr offered mitigation evidence, th e prosecutor stated: And as far as them tearfully pleading for his life there, I say to you on behalf of the State, ladies and gentlemen, shame on him for put ting them in that position. Shame on him for making them act as a human s hield between justice and himself. Id. at 1284:18–22. After the prosecution closing, the defense gave its closing arg ument. In it, defense counsel stated: “In fairn ess, sympathy, and mercy, refu se the death penalty because there’s a family 90 mile s from our shores who are a wor ld away who will be hurt. His mother Evi, his siste r Arelie, and his brother Juaqui n.” Id. at 1303:17–20. A few lines later, closing out the a rgument, counsel stated asked the jury to “refuse the death penalty because there is a son,” id. at 1303:21–22, who to ld Cuesta-Rodriguez that “I want to sit one day acr oss from you. Refuse the death p enalty because there is a son who tells his father, I a m your son, I have the right to know you. Don’t deny16 Kery Rodriguez [his son] that oppor tunity. In fairness, sympath y, and mercy, refuse the death penalty,” id. 1304:1–6. The prosecution started its rebut tal closing argument (presente d by a different prosecutor) by noting that it pl anned to “rebut a couple of thi ngs [defense] Counsel said.” Id. at 1304:13–14. Soon after, the p rosecutor, refer ring to defense counsel’s closing argument, told the jury that “what you’ve heard for 20 minutes is the guilt trip.” Id. at 1304:19–20. Defense counsel objected, and the judge asked th e prosecutor to rephrase. The pro secutor then told the jury: “ You know, when I say guilt trip, you don’t need to fe el guilty about doing your job. He’s the one that brought us together. It is his actions. And I want to talk abou t that because you can consider sympathy absolutely.” Trial Tr. vol. VII at 1306: 5–9. Soon after, the prosecutor continued: “So, yeah, w hen they want to talk to you about mercy, which you can consider, and I submit to you[,] you decide if you shou ld feel guilty about doing your job. You’ve got [interv ening objection] So when they ask you about mercy, and I say, you don’t have to feel guilty if you’re sitti ng on this jury; you’re doing your civic duty.” Id. at 1309:22–25, 1310:18–20. Lat er, the prosecutor stated: “As [my colleague] said, you know , shame on him. He puts those people in a terrible position.” Id. at 1316:7–8. The prosecution rest ed after asking the jury to se ntence17 Cuesta-Rodriguez to death: “His actions brought us here. Senten ce him accordingly.”
Id. at 1317:18–19. 11 That spelled the end of closing arguments, so the jury left to deliberate. During deliberations, the jury asked fo r the legal definition of culpa bility. The court answered, with both parties’ cons ent, that the definition is “b lame or blameable.” Id.
at 1318:23–24. In the end, the jury found the ex istence of two aggravating cir cumstances: (1) that the murder was especia lly heinous, atrocious, or cruel and (2) that CuestaRodriguez posed a continuing thr eat to society. And the jury re commended a death sentence. Later, the court forma lly sentenced Cuesta-Rodriguez to death.
III. The Appeals The OCCA affirmed Cuesta-Rodri guez’s conviction and sentence on direct appeal. Cuesta-Rodriguez , 241 P.3d at 247. In doing s o, the OCCA found two errors—a Confrontation Clause e rror and a prosecutorial-miscond uct error—but found both individually harmless. Id. at 230–31, 243–44. The OCCA concluded that the two errors were also cumulatively harmless. Id. at 246.

11 In his brief, Cuesta-Rodriguez discusses another prosecution c omment unmentioned in this f acts section. At the start of its closing argument, the prosecutor told the jury: “I’m going to try and give us a little reality c heck here. They spent the last three days hoping you’ll forg et what happened to Olimpia F isher.” Trial Tr. vol. VII at 1270:17–20. But Cuesta-R odriguez concedes that this comm ent isn’t “part of the certificate of a ppealability” and that he isn’t “seeking re lief thereon.” Appellant’s Opening Br. at 56 n.30.18 Admitting Dr. Gofton’s testimony, t he OCCA determined, was in f act error under the Confrontation Clause because “Cuesta–Rodriguez was de nied the opportunity to confront Dr. Jordan in order to test his compete nce and the accuracy of his findings.” Id. at 229. But the OCCA determine d this error was harmless. 12 Id. at 231. The court concluded that y es, Dr. Gofton’s testimony was “ potentially relevant to proving the heinous, atrocious , or cruel aggravator in the s entencing phase by showing that Fisher consciously suffered before she died.” Id. at 230. Yet the OCCA decided that “even if Dr. Gofto n’s testimony is discounted in i ts entirety, there was still more than suffici ent evidence for the jury to conclude th at Fisher consciously suffered before her death.” Id. at 231. Specifically, the OCCA pointed to the testimony of police officers and Chacon, as well as Cuesta-Rodr iguez’s statements to police that “showed that when Cuesta-Rodriguez fired the first blast from his pistol into Fisher’s right eye, she was not rendered unconscious.” Id. Therefore the OCCA concluded that even excluding D r. Gofton’s testimony, “the jurycould have reasonably concluded that Fisher consciously experienced great physical an d mental suffering.” Id. ; see also id. (“Consequently, even if Dr. Gofto n’s testimony about how long F isher may have remained conscious after the second gunshot is eliminated from consideration, there

12 The OCCA concluded that the Con frontation Clause error caused by admitting Dr. Gofton’s testim ony mattered at both the guilt pha se and the penalty phase but found the error harmless at both phases. Cuesta-Rodriguez , 241 P.3d at 230–31. We discuss only the OCCA ’s penalty-phase conclusions be cause the guiltphase discussion isn’t re levant to this appeal.19 was enough remaining evidence to show conscious suffering in th e interval between the first and second shots.”). Regarding his claims of prosecuto rial misconduct, Cuesta-Rodrig uez argued that “the prosecutors made many s tatements designed to diminish , denigrate, or completely invalidate the mitigating eviden ce that was presente d.” Id. at 243. The OCCA identified just one—“the prosecutor’s first ‘guilt trip co mment’”—which, it concluded, “pushe[d] beyond the limits of permissible argument because it was not a comment on the evidence, but ins tead was an obvious attempt to denigrate CuestaRodriguez’s mitigation defense.” Id. at 244. The OCCA noted t hat the “prosecutor’s other two comments referring to ‘guilt trip’ or feeling guilty both c[a]me very close to crossing this line.” Id. But it recognized only the first comment as error. See id. Nonetheless, the OCCA determined that the comments weren’t “ver dict determinative” and that “ given the strength of the evi dence supporting imposition of the death penalty, they were harmless.” Id. The OCCA concluded that “Cuesta– Rodriguez was not denied a fai r or reliable sentencing proceedi ng.” Id. The OCCA later denied relief on Cuesta-Rodriguez’s two post-con viction applications. Cuesta-Rodriguez v. Oklahoma , No. PCD-2012-994 (Okla. Crim. App. Feb. 8, 2013); Cuesta-Rodriguez v. Oklahoma , No. PCD-2007-1191 (Okla. Crim. App. Jan. 31, 2011). The federal district court then d enied Cuesta-Rodriguez’s petit ion for habeas relief. Cuesta-Rodriguez v. Royal , No. CIV-11-1142-M, 2016 WL 5485117, at *1 (W.D. Okla. Sept. 29, 2016). The d istrict court also denied him a COA. But we20 granted a COA to consider (1) Cu esta-Rodriguez’s prosecutorial- misconduct claims; (2) his ineffective-assistance- of-counsel claims, including his procedural-default arguments and the district court’ s denial of his request for an evidentiary hearing; and (3) his cumulative-error claim. T hose claims are now before us on appeal.
DISCUSSION Cuesta-Rodriguez makes three main arguments on appeal: (1) that he isn’t procedurally barred from asserti ng his ineffective-assistance-o f-counsel claims regarding failure to introduce ev idence of his org anic brain da mage and posttraumatic-stress disorder, and th at those ineffective-assistanc e claims warrant relief; (2) that prosecutorial miscondu ct infringed his right to a fund amentally fair and reliable sentencing proceeding in violation of the Sixth, Eight h, and Fourteenth Amendments; and (3) that even if each individual error was harm less, the cumulative effect of the errors w arrants relief. After laying out the stan dard of review, we address each in turn.
I. Standard of Review The Antiterrorism and Effective D eath Penalty Act of 1996 (AEDP A), 28 U.S.C. § 2254, governs our review of ha beas petitions and focuses on h ow the state court resolved the claim. Byrd v. Workman , 645 F.3d 1159, 1165 (10t h Cir. 2011). “In general, if a convicted state criminal de fendant can show a federal habe as court that his conviction rests upon a violation of the F ederal Constitution, he may well obtain a writ of habeas corpus that requires a new tria l, a new sentence, or release.” Trevino v. Thaler , 569 U.S. 413, 421 (2013).21 A habeas petitioner must first e xhaust his claims in state cour t before a federal court may review them. 28 U.S. C. § 2254(b)(1)(A). For claims th at the state court adjudicated on the merits, we w ill grant habeas relief only if the petitioner establishes that the state-court decision was “c ontrary to, or involved an unrea sonable application of, clearly established Federal law, a s determined by the Supreme C ourt of the United States,” id. § 2254(d)(1), or that the state- court decision “was based on an unreasonable determination of the facts in li ght of the evidence presented i n the State court proceeding,” id. § 2254(d)(2). (This is the standard we apply to every issue he rein unless otherwise specified.) Claims that the state court didn’t adjudi cate on the merits, we review de novo. Hooks v. Workman ( Hooks II ), 689 F.3d 1148, 11 63–64 (10th Cir. 2012). The focus of § 2254(d) is the re asonableness of the state court ’s decision. “The question under AEDPA is not whether a federal court believes th e state court’s determination was incorrect but w hether that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan , 550 U.S. 465, 473 (2007). Relief is warranted only “where there i s no possibility fairminded jurist s could disagree that the state court’s decision conflicts with [the Supreme Court’s] pre cedents.” Harrington v. Richter , 562 U.S. 86, 102 (2011).
II. Procedural Bar Regarding Mitigation Evidence Cuesta-Rodriguez argues that, “[ d]ue to failures of his trial c ounsel,” the jury that sentenced him to death didn ’t hear “gold-standard mitigati on” evidence about his organic brain damage and post-trau matic-stress disorder that “c ould readily have22 resulted in” the selection of a lesser punishment (“life or lif e without parole”). 13 Appellant’s Opening Br . at 13. But before reaching the merits, we need to decide whether his ineffective-assistan ce-of-trial-counsel claim is pr ocedurally barred. Cuesta-Rodriguez didn’t bring hi s ineffective-assistance-of-tri al-counsel claim on direct appeal, triggering a state procedural bar. See Okla. Stat. Ann. tit. 22, § 1089 (“The only issues that may be rai sed in an application for post -conviction relief are those that [w]ere not and could not have been raised in a direc t appeal . . . .”). And Cuesta-Rodriguez didn’t claim hi s appellate counsel was ineffec tive in his first postconviction appeal. See Hatch v. State , 924 P.2d 284, 294 (Okla. Crim. App. 1996)

13 This boils down to two main a llegations, both of which surroun d the “[c]ore [m]itigation [e]vidence” that t rial counsel allegedly failed to adduce. Appellant’s Opening Br. at 15. First, Cuesta -Rodriguez alleges defense coun sel failed to sufficiently investigate and e xplain Cuesta-Rodriguez’s childho od brain injury and his later lumberyard injury. Cue sta-Rodriguez insists that the psychological evaluation was insufficient and that he needed a “neuropsycholo gical evaluation.” Id. at 17. From this, Cuesta-Rodri guez contests Dr. Choca’s finding s (namely, his conclusions that Cuesta-Rodrigu ez had a high IQ and had recover ed well from his head injuries) and complains that “[t]he lack of investigation led not only to an uninformed jury but to a jury, a s it turns out, f alsely assured on the head injury question.” Id. at 18. Second, Cuesta-Rodriguez complains that his post-trauma ticstress disorder (and other mental illnesses) weren’t appropriat ely presented to the jury. Those illnesses, h e claims, “require treatment with appro priate medications” and benefit from such treatment. Id. at 19. Cuesta-Rodriguez claims that “[d]espite the severity of Mr. Cuesta’s PT SD and other mental disorders . . . [,] the structured environment of prison combined w ith mental health counseling an d psychotropic medications will maintain Mr. C uesta in a symptom-free state.” Id. at 25. Just as with his organic-brain-damage claim, Cuesta-Rodriguez asserts that “ it is obvious that he was the victim of repeated traum atic events throughout his chil dhood and as an adult” and, therefore, that trial counsel failed in not presenting suc h evidence to the jury. Id. at 21. Cuesta-Rodriguez relies heavily on neuropsychological te sting done by a doctor retained by habeas c ounsel to make these claims.23 (“The issue of ineffective assi stance of appellate counsel, lik e any other claim, must be raised at the first availabl e opportunity.”). He first raise d his ineffective-assistance claims in his second state post- conviction application in the O CCA—claiming the ineffectiveness of trial, direct appellate, and first post-conv iction counsel. CuestaRodriguez , No. PCD-2012-994, slip op. at 3, 5, 6. The OCCA deemed his in effectiveassistance claims waived. See id. at 3–4, 5, 7. Reviewing Cuesta-Rodriguez’s hab eas petition, the district cour t concluded that Cuesta-Rodriguez’s ineffe ctive-assistance-of-counsel claim s were also procedurally barred. Cuesta-Rodriguez , 2016 WL 5485117, at *19. On appeal, Cuesta-Rodriguez urge s us to review his ineffective- assistance-oftrial-counsel claim (and so to re view whether the assertedly de ficient mitigation presentation violated the Sixth , Eighth, and Fourteenth Amendme nts), claiming that ineffective appellate and first post-conviction counsel justify our excusing the procedural bar. See Appellant’s Opening Br. at 9 (“ The district court erred in dea ling with this huge and harmful defi cit by holding the [ineffective- assistance-of-trialcounsel] claim was procedurally b arred from the reach of the fe deral courts.”). “[T]o bar federal review, a state procedural rule must be adequ ate to support the judgment and independe nt from federal law.” Banks v. Workman , 692 F.3d 1133, 1145 (10th Cir. 2012). When the adequacy and independence requi rements are met, we don’t review defaulted issues “unless the petitioner can dem onstrate cause and prejudice or a fundamental m iscarriage of justice.” Anderson v. Sirmons , 476 F.3d24 1131, 1140 (10th Ci r. 2007) (quoting English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998)). On appeal, Cuesta-Rodriguez claims (1) that the Oklahoma proced ural bar isn’t adequate, (2) that he de monstrated cause and prejudice fo r failing to bring his ineffective-assistan ce-of-trial-counsel cla im on direct appeal, and (3) that a miscarriage of justice occurred th at allows us to review his cl aim. We address each claim in turn.
A. Adequacy of the Procedural Bar 14 Cuesta-Rodriguez claims that Okla homa’s procedural bar requirin g him to raise ineffective-assi stance claims on dir ect appeal is inadequ ate. 15 He asserts that because his trial and direct-a ppeal counsel both hailed from th e Oklahoma County Public Defender’s Office (OCPD), a structural conflict of inter est prevented appellate counsel from properly bringing an ineffective-assistance-of-tri al-counsel claim. To be adequate, “a state procedur al rule must be ‘strictly or r egularly followed’ and applied ‘evenhanded ly to all similar claims.’” Banks , 692 F.3d at 1145 (quoting Duvall v. Reynolds , 139 F.3d 768, 797 (10th Ci r. 1998)). And, as Oklahoma

14 As a preliminary matter, Oklahom a claims that Cuesta-Rodriguez waived this argument, so we shouldn’t a ddress it. We assume the argume nt is properly before us, and we reach the mer its of his claim.

15 Cuesta-Rodriguez doesn’t contes t the bar’s independence—the ot her part of the test. See Appellant’s Opening Br . at 41 (only mentioning adequacy in its argument section); Banks , 692 F.3d at 1145.25 points out, we have previously foun d the Oklahoma procedural ba r applied here to be both adequate and independent. See id. at 1444–47. Oklahoma’s system for raising in effective-assistance-of-counsel claims on direct appeal is inadequate when trial and appellate counsel ar e too closely intertwined. Cannon v. Mullin , 383 F.3d 1152, 1173 (10th Cir. 2004); English , 146 F.3d at 1263–64. Such conflict exists when trial and appellate couns el are one and the

same. English , 146 F.3d at 1263–64. And we have held that, sometimes, counse l from the same office are conflicted in choosing to raise ineffective -assistance claims implicating their colleagues. Cannon , 383 F.3d at 1173 (“If a criminal defendant is represented by trial and appellate counsel from the same office , appellate counsel’s assessment of trial counsel’s pe rformance may be less than comp letely objective. An understandable, although inappr opriate, regard for collegialitymay restrain appellate counsel from identifying and ar guing trial-attorney error.”). “[W]hether trial and appellate attorneys from th e same ‘office’ should be deemed ‘separate’ counsel will turn on the specific circumstances.” Id. “Presenting an ineffectiveassistance-of-counsel claim maywell damage the reputation of t he trial attorney and the office for which both trial and appellate counsel work.” Id. ; see also id. (“Arguing ineffective assistance with respect to a co lleague’s performanc e is saying that the performance was not only inferi or, but unreasonable.”). Thus, w e must be wary about assuming that counsel is “separ ate” merely because the individu al lawyers are distinct.
See id. (“[T]wo lawyers from the same pri vate law firm are often treate d as one for conflict-of-interest purposes.”).26 “[T]he state bears the burden o f proving the adequacy of a stat e procedural bar in order to preclude federal habeas review.” Hooks v. Ward , 184 F.3d 1206, 1217 (10th Cir. 1999); see also id. at 1216–17 (“[T]he st ate is undoubtedly ina better position t o establish the regularity, consiste ncy and efficiency with whichit has applied Rule 3.11 16 in the past to allow direct appe llants to develop a factual rec ord challenging the adequacy of trial counsel than are habeas petitioners, who often appear pro se, to prove the converse.”). But a defendant com plaining of such a conflict nee ds, “at a minimum,” to provide “specific allegations . . . as to the inadequacy of the state procedure.” Id. at 1217; see also Cannon , 383 F.3d at 1173–74 (concluding co unsel wasn’t separate based “[o]n the record before” the court). Oklahoma highlights a number of c ases in which appellate counse l at OCPD, including Cuesta-Rodriguez’s a ppellate counsel, have pursued in effective-assistance-ofcounsel claims. See, e.g. , Coddington v. State , 254 P.3d 684, 692, 713–14 (Okla. Crim. App. 2011) (claim of ineffective assistance of trial counsel ba sed on failure to introduce mitigation evidence du ring capital penalty phase raised by Cues ta-Rodriguez’s appellate counsel); Jiminez v. State , 144 P.3d 903, 904–07 (Okla . Crim. App. 2006) (claim of ineffective assistance of trial counsel raised by Cuesta-Rodrig uez’s appellate counsel) 17 ;

16 The Oklahoma Court of Crimina l Appeals’ Rule 3.11 governs supplementation of the record. See Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003)

17 Cuesta-Rodriguez argues that Coddington and Jiminez aren’t relevant, noting that neither case “require [d] investigation via a new ex pert never hired before in the case by the office.” Appe llant’s Reply Br. at 8. We disa gree. That Cuesta-27 see also, e.g. , Frederick v. State , 400 P.3d 786, 825–32 (Okla . Crim. App. 2017) (claim of ineffective assistance of a ppellate counsel for not raising claim of ineffective assistance of trial counsel), overruled by Williamson v. State , 422 P.3d 752 (Okla. Crim. App. 2018); Davis v. State , 268 P.3d 86, 97, 1 29–38 (Okla. Crim. App. 2011) (same) 18 ; Warner v. State , 144 P.3d 838, 861, 868, 872–77, 8 91–96 (Okla. Crim. App. 2006 ) (same), overruled by Taylor v. State , 419 P.3d 265 (Okla. Crim. App. 2018). In light of those cases, Cuesta-R odriguez hasn’t explained how and why his trial and direct-appeal counsel were p roblematically interconnected. He asserts only that trial and appellate counsel both worked for the OCPD—and that they wo rk “just down the hall” from each other. Appellant ’s Opening Br. at 44 n.21; cf. Cannon , 383 F.3d at 1173 (“A statewide public defender’s office with independent local o ffices, and perhaps even a distinct appellate office, would not raise the same concerns as when trial and appellate counsel work in adjacent rooms. ”). From that pro ximity, he infe rs potential bases for conflicts, like budgetary concer ns and loyalty—potential confli cts that exist whenever counsel share an employer. See Appellant’s Opening Br. at 43 (“Thus, the office budget must be tapped for an expert to investigate a colleague or suchinvestigative funding must

Rodriguez’s appellate counsel h as brought ineffective-assistanc e claims tilts the scales in favor of separateness.

18 Cuesta-Rodriguez asserts that t he ineffective-assistance claim s in this case were “so awkward and d ifficult” that his appellate counsel was “actually discouraged” from bringing such claims. Appellant’s Opening Br. at 45 n.23. Without more, this unsubstantiate d allegation doesn’t help Cues ta-Rodriguez’s argument.28 be humiliatingly and im probably requested fro m the court fund i f that is even possible.”). Cuesta-Rodriguez also invites us t o “[i]magine” the dilemma app ellate counsel might be placed in. Id. at 45 n.23. Hence Cuesta-Rodriguez claims that an evidentiary h earing is needed “to explore the specific circumstances and ascertain whether counsel could be deemed separate.” 19 Id. at 44. But Cuesta-Rodriguez hasn’t shownthat a relationship to trial counsel hindered his appellate counsel. So his case bears little resemblance to our prior cases. See 383 F.3d

19 At oral argument, Cuesta-Rodri guez made a point that doesn’t a ppear in his briefing: that direct-appeal coun sel couldn’t pursue her ineffe ctive-assistance-ofcounsel claim because of the fi nancial hurdles and inhibition o f the head of the office. He argued: The nature of the conflict in thi s case is that the trial lawye r couldn’t get money from Bob Ravitz, who is the head of the Oklahoma County P ublic Defender’s Office, and therefore didn’t call certain types of e xperts to testify at trial. Now what direc t-appeal counsel would have had to do would have been to go back to Bob Ravitz and say, “[T]hat money that you refused to give at the tri al level was so constitutionally unreasonable that I now want you to give me that money so that I can hire th ose experts to prove how constitutionally unreasonable your past behavior w as.” That’s where the conflict in this case comes in. Oral Argument at 7:48–8:38, Cuesta-Rodriguez v. Carpenter , No. 16-6315 (10th Cir. May 17, 2018). He then distinguish ed that kind of request from a run-of-the-mill ineffective-assistance claim, describing it as “exceedingly mor e difficult.” Id. at 8:42–45. But, in response to a p anelist’s question, he admitted : “We didn’t make that argument [on appeal] in those terms.” Id. at 9:48–53. So that p recise argument is waived. See, e.g. , Fed. Ins. Co. v. Tri-State Ins. Co. , 157 F.3d 800, 805 (10th Cir. 1998) (“Issues raised for the firs t time at oral argument are c onsidered waived.”) Cuesta-Rodriguez’s opening brief does briefly mention the diffi culty of “pursuing asserted office faili ngs with office money.” See Appellant’s Openi ng Br. at 45 n.23 (quoting R. vol. 1 at 249 n.7). B ut we deal with that distinct argument in the main text.29 at 1173–74 (concluding trial coun sel wasn’t separate when the r ecord was “strongly suggestive” of the fact that “a ppellate counsel had a policy of not claiming ineffective assistance by public defenders at trial”); Carter v. Gibson , 27 F. App’x 934, 943 (10th Cir. 2001) (finding procedural bar i nadequate when appellate co unsel failed to raise ineffective assistance of trial counsel on direct appeal after trial counsel assisted in writing the appellate brief). Oklahoma’s cases showing regularl y-made ineffective-assistance claims suffice to defeat Cuesta-Rodriguez’s argumen t when weighed against the non existent conflict evidence proffered. See Cannon , 383 F.3d at 1173–74 (“The culture of an office can also make a substantial difference. A history of raising ineffective -assistance claims could allay concerns.”); Smallwood v. Gibson , 191 F.3d 1257, 1270 (1 0th Cir. 1999) (rejecting the “contention that office po licy prevented . . . appellate co unsel from bringing ineffective assistan ce . . . claims” when “[ t]he record contain [ed] no evidence that such a policy existed” and instead, “the record indicate[d] that petit ioner’s appellate counsel aggressively raised” multiple issu es, including ineffective ass istance, on direct appeal). Thus, we reject Cuesta-Rodriguez’ s argument and conclude that O klahoma’s procedural bar here was adequate (and that Cuesta-Rodriguez isn’t entitled to an evidentiary hearing on the adequacy of that bar). 20

20 Cuesta-Rodriguez also mak es passing reference to Kimmelman v. Morrison , 477 U.S. 365 (1986). He notes tha t “Oklahoma’s rule [3.11] [i]s inadequate unless the ‘ Kimmelman imperatives’ [a]re met.” Appe llant’s Opening Br. at 42 (quotin g English , 146 F.3d at 1263). But he doesn’t argue that they aren’t met here (apart from30 B. Cause to Overcome Default To avoid the application of the procedural bar, Cuesta-Rodrigue z argues that he can demonstrate cause for his f ailure to raise his ineffecti ve-assistance-of-trialcounsel claim on direct appeal. First, he claims that appellate counsel was ineffective because his appellate counsel wasn’t “truly separate” from his trial counsel. Appella nt’s Opening Br. at 46. But he immediately runs into a pr oblem—his ineffective-assistan ce-of-appellatecounsel claim is procedurally def aulted because he failed to br ing it in his first postconviction application. See Hatch , 924 P.2d at 294. Thus, Cuesta-Rodriguez argues that his first post-conviction c ounsel was also ineffective, th ereby establishing cause for the failure. Generally, “ineffectiv e assistance of counsel in postconviction proceedings does not establish cause for the p rocedural default of a claim. ” Fairchild v. Trammell , 784 F.3d 702, 720 (10th Cir. 2015) (citing Coleman v. Thompson , 501 U.S. 722, 756– 57 (1991)); see also Coleman , 501 U.S. at 752 (“There is no constitutional right to an attorney in state post-convicti on proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in suc h proceedings.” (citing Pennsylvania v. Finley , 481 U.S. 551 (1987); and Murray v. Giarratano , 492 U.S. 1 (1989)); 28 U.S.C. § 2254(i) (“T he ineffectiveness or incompete nce of counsel during

his separate-counsel argument, w hich we have already addressed) . So we needn’t get into it.31 Federal or State collateral pos t-conviction proceedings shall n ot be a ground for relief in a proceeding arising under section 2254.”). We make an exception when “the in itial-review collateral procee ding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial,” because then “the colla teral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim .” Martinez v. Ryan , 566 U.S. 1, 11 (2012). This exception also applies when the “state procedural framework, by reason of its design and oper ation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim o f ineffective assistance of trial couns el on direct appeal.” Trevino , 569 U.S. at 429. So when a state’s scheme makes a post-conviction proceeding the defendant’s first opportunity to raise his trial counsel’s ineffective assistance , the ineffective assistance of post-conviction c ounsel can serve as cause to exc use a failure to raise it then. Cuesta-Rodriguez claims that the “[l]ack of truly separate coun sel on direct appeal means . . . that post-c onviction was th e first opportuni ty . . . to raise trial counsel’s ineffectiveness.” Appe llant’s Opening Br. at 46. Thus , Cuesta-Rodriguez asserts that post-convi ction counsel’s failure to raise an inef fective-assistance claim constitutes cause under the e xception established in Martinez , 566 U.S. at 11, and
Trevino , 569 U.S. at 429.32 But Cuesta-Rodriguez’s argument ignores the reality of Oklahoma ’s ineffective-assist ance-claim system. 21 “Oklahoma provides a reasonable time to investigate a claim of ineffectiv e assistance before raising it on direct appeal.”
Fairchild , 784 F.3d at 721. An ineffectiv e-assistance clai m can be raise d in the opening brief on appeal, and th at brief can be accompanied by a request to supplement the record. Id. In Fairchild , we noted that Oklahom a’s system “allowed appellate counsel to file the [ appellate] brief, along with a R ule 3.11 motion to supplement the trial record, 16 m onths after Defendant was sent enced, with access to the transcript and record for nearly six months.” Id. at 722. Oklahoma points us to our decisions in Fairchild , 784 F.3d at 723, and Banks , 692 F.3d at 1148, in which we det ermined that Oklahoma’s ineffe ctive-assistanceclaim structure voids the need for the Martinez and Trevino safety-valve exception.
In Fairchild and Banks , we determined that Oklahoma’s procedural safeguards allow for ineffective- assistance claims to be b rought on direct appea l. That determination controls this case. Indeed, the d istrict court concluded that O klahoma’s Rule 3.11 “allows defendants a meaningful opportunity to raise ineffectiv e-assistance-of-trialcounsel claims” on direct appeal. Cuesta-Rodriguez , 2016 WL 5485117, at *19.

21 Rule 3.11(B) governs requests fo r supplementation of the recor d for direct criminal appeals and allows cri minal defendants the opportunity to discover and include more information regard ing trial failures (including in effective-assistance claims). Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003).33 But Cuesta-Rodriguez makes two a ttempts to distinguish his case , arguing: (1) that because he didn’t have s eparate counsel at trial and o n direct appeal, his first opportunity to challenge his tri al counsel’s performance was hi s first post-conviction application and (2) that “the st ructure and operation of the Ok lahoma system,” which regularly results in defendants in Oklahoma and Tulsa Counties receiving representation by the OCPD and th e Tulsa County Public Defender ’s Office, respectively, both at trial and on direct appeal, restricts suc h defendants from “hav[ing] full acces s to Rule 3.11.” 22 Appellant’s Opening Br. a t 48. Both arguments center on Cuesta-Rodriguez’s not h aving had full access to Rule 3.11 due to conflicted advocates. But we have already concluded that Cuesta -Rodriguez had separate counsel for his trial a nd direct appeal, so these argu ments are foreclosed. And our conclusions in Fairchild pose an uphill battle f or Cuesta-Rodriguez. There, we concluded that Oklahom a’s regime was unlike the legal and structural barriers that had worried the Supreme Court in Martinez and Trevino

. Fairchild , 784 F.3d at 723 (“Oklahoma law did not preclude raising on direct a ppeal a claim of ineffective assistance of trial counsel—either as prohibited by state law, as in
Martinez , or as a practical conseque nce of that law, as in Trevino . . . .”). After Oklahoma presented evidence of public defenders having asserted ineffective-

22 Oklahoma asserts that Cuesta-R odriguez waived these arguments, so we shouldn’t address them. We assume the arguments are properly be fore us and reach their merits.34 assistance-of-counsel claims, we concluded that Mr. Fairchild h adn’t “shown that the ‘design and operation’ of Oklahom a’s procedural framework ‘ma[d ]e[ ] it highly unlikely in a typical case that a defendant w[ould] have a mean ingful opportunity to raise a claim of ineffective as sistance of trial counsel on dir ect appeal.’” Id. (alteration in original) (quoting Trevino , 569 U.S. at 429). Likewise , here, Cuesta-Rodriguez agrees that Oklahoma allows for i neffective-assistance claims o n direct appeal but claims that the public-defender sy stem’s structure prevents def endants from accessing that right. But he has failed to show that “the pract ical consequence” of Oklahoma’s set-up denies the ave rage defendant a meaningful opp ortunity to raise an ineffective-assi stance claim. Id. So this isn’t a Martinez or Trevino case. Cf. Pavatt v. Royal , 894 F.3d 1115, 1137 (10th Ci r. 2017) (Briscoe, J., concurring and dissenting) (“[T]o bypass the OCCA’s procedur al bar ruling and review [the petitioner’s] ineffective assistance claims on the merits ” based on his separate-counsel argument “would be to adopt an entirely new, and pot entially much broader, rule than was announced in
Martinez and Trevino ”).
Martinez and Trevino don’t apply to Cuesta’s case, so we can’t review his first post-conviction counsel’s alleged ineffectiveness. 23 Hence Cuesta-Rodriguez didn’t

23 Cuesta-Rodriguez also forfeited his right to dispute his first post-conviction counsel’s ineffectiveness. Okla homa requires that a subsequent post-conviction application be filed within 60 days “from the date the previous ly unavailable legal or factual basis serving as the bas is for a new issue is announced or discovered.” Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Tit . 22, Ch. 18, App. (2012). As the OCCA determined, t he date the OCCA denied Cuesta -Rodriguez’s initial application for post-convi ction relief (January 31, 201 1) was the latest possible35 show cause for his failure to ti mely raise his ineffective-assi stance claims, and the procedural bar holds. And we rej ect his request for an evidenti ary hearing on the same basis—namely, that he has n’t provided specific allegations suggesting that Oklahoma’s system was working unfairly. 24
C. Fundamental Miscarriage of Justice On appeal, Cuesta-Rodriguez argue s for the first time that he h as shown actual innocence of the death penalty— i.e. , that but for constituti onal error, no reasonable jury could have found that the a ggravating circumstances of his crime outweighed the mitigating circumstances—and thatthis Court should therefore r eview his procedurally defaulted claims under the miscarriage-of-justice exception. But we agree with Oklahoma that Cuesta- Rodriguez failed to preserve th is argument for appellate review, and so we decline to consider it. See, e.g. , Stouffer v. Trammell , 738 F.3d 1205, 1221 n.13 (10th Cir. 2 013) (“We do not generally con sider issues that were not raised before the distr ict court as part of the habeas petition.”); Heard v.

time “that the alleged failings of first post-c onviction counse l became apparent.” See Cuesta-Rodriguez , No. PCD-2012-994, slip op. at 6– 7. But Cuesta-Rodriguez filed his second post-conviction appli cation “on November 12, 2012, o ver one-and-a-half years after the latest date upon which the factual basis of his claim against postconviction counsel shoul d have been discovered with the exercis e of reasonable diligence.” Id. at 7.

24 Cuesta-Rodriguez relies on Watson v. New Mexico , 45 F.3d 385, 387–88 (10th Cir. 1995), to su pport his claim that he should get an ev identiary hearing on his adequacy and cause concerns. But Watson was a case in which a pro se petitioner did provide specific alle gations to show his e ntitlement to an evid entiary hearing. Id. at 388. Absent such allegations her e, the two cases bear little si milarity.36 Addison , 728 F.3d 1170, 1175 (10th Cir . 2013) (“We do not reach [the p etitioner’s argument] in this case, however , because . . . we conclude that [the petitioner] never raised such a claim, in his pet ition or otherwise, before the f ederal district court.”). Cuesta-Rodriguez maintains that w e should choose to address his actual-innocence argument because the Supre me Court’s opinion in Jenkins v. Hutton , 137 S. Ct. 1769 (2017) (per curiam), changedthe legal landscape. See United States v. Mora , 293 F.3d 1213, 1218 (10th Cir. 2002) (noti ng that though “[w]e generallydo not consider issues raised for the first time on ap peal,” we will “occasionally” do so). But we aren’t persuaded. As the Supreme Court explained in Sawyer v. Whitley , 505 U.S. 333 (1992), actual-innocence claims are limit ed to arguments that “no reaso nable juror would have found the petitioner eligible for the death penalty under the a pplicable state law,” i.e. , the elements of the crime itself and the existence of aggravating c ircumstances. Id. at 336, 344–45; see also id. at 347 (“The ‘actual innocence ’ requirement must focus on thos e elements that render a defendant eligible for the death penalty. . . .”). But, the Court explained, the existence of “a dditional mitigating evidence that was prevented from being introduced as a result of a cla imed constitutional error” is no t a proper basis for an actualinnocence claim. Id. at 347. Later, discussing Sawyer , we explained that “even if state law considers the outweighing o f mitigating circumstances by ag gravating circumstances an ‘element’ of a capital sentence , it is not an element for purposes of the actualinnocence inquiry.” Black v. Workman , 682 F.3d 880, 916 (10t h Cir. 2012). These precedents foreclose Cuesta-Rodri guez’s actual-innocence claim.37 Hutton hasn’t changed that. Indeed, inreversing a Sixth Circuit deci sion reviewing the merits of a case under the m iscarriage-of-justice exceptionto procedural default,
Hutton reaffirmed the core holding of Sawyer

. See Hutton , 137 S. Ct. at 1773. The Hutton Court explained that a reviewing court must analyze “whether a properly instructed jury could have recommended death,” not “whether the alleged error m ight have affected the jury’s verdict.” Id. at 1772. Cuesta-Rodriguez, though, seizes on the Hutton Court’s “[a]ssuming” that a court could excuse default based on a “trial court’s failure to speci fy that, when weighing aggravating and mitigating factor s, the jury coul d consider onl y the aggravating circumstances it found at the guilt phase.” Id. ; see also Appellant’s Opening Br. at 40 (“This explication overruled [the Tenth Circuit’s] prior jurisp rudence that held the concept of innocence of the death penalty did not extend to the weighing process.” (citing
Black, 682 F.3d at 916)). But the Hutton Court assumed potential error only to reverse the Sixth Circuit’s faulty application of Sawyer —nothing in the Court’s discussion contradicted its earlier decisions. See Hutton , 137 S. Ct. at 1772–73. In short, nothing in
Hutton supports our reviewing Cuesta-R odriguez’s actual-innocence cla im. And addressing this fact-laden inquir y when no lower reviewing cour t did—even tangentially—isn’t justified here.
* * * Having rejected all of Cuesta-Rodriguez’s arguments, we don’t r each the merits of his ineffective-assistance claims . We turn next to his second p roposition on appeal.38 III. Prosecutorial Misconduct Cuesta-Rodriguez claims that “[ i]n the penalty phase closing ar guments, the prosecutors engaged in a flagran t campaign to denigrate or comp letely invalidate the mitigating evidence.” Appellant’s Opening Br. at 55. He claims that “[t]hese prosecutorial efforts” “precluded [the jury] from considering as a mitigating factor , an[] aspect of [Cuesta-Rodrigue z’s character] . . . and [some] circumstances of the offense that [Cuesta-Rodriguez] p roffer[ed] as a basis for a se ntence less than death.”
Id. at 56 (quoting Lockett v. Ohio , 438 U.S. 586, 604 (1978) ( plurality opinion)). That prosecutorial misconduct, he cl aims, denied him a fundamentally fair trial in violation of the Sixth, Eight h, and Fourteenth Amendments. “[O]ur interest is in whether [C uesta-Rodriguez] got a fair tri al; ‘inappropriate prosecutorial comments, standi ng alone, [do] not justify a revi ewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.’” Matthews v. Workman , 577 F.3d 1175, 1186 (10th Cir. 2009) (secon d alteration in orig inal) (quoting United States v. Young , 470 U.S. 1, 11 (1985)). Instead , we reverse for prosecutorial misconduct when errant remarks “so infected the trial with unfairness as t o make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974); see also Hanson v. Sherrod , 797 F.3d 810, 843 (10th Cir. 2 015) (“Prosecutors are prohibited from violating fundam ental principles of fairness, w hich are basic requirements of Due Process.”). T hat “objectionable content was invited by . . . the defense” doesn’t “excuse improper comments,” but it may be cons idered in “determin[ing] [the misconduct’s ] effect on the trial as a whol e.” Darden , 477 U.S. at39 182; see also Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2 000) (“When a prosecutor responds to an attack made by de fense counsel, [this Court] eva luate[s] that response in light of the defense argument.” (quoting Moore v. Reynolds , 153 F.3d 1086, 1113 (10th Cir. 1998)). “[T]he appropriate s tandard of review for such a c laim on [habeas] is the narrow one of due process, and not the broad exercise of superv isory power.” Hanson , 797 F.3d at 843 (second alte ration in original) (quoting Darden v. Wainwright , 477 U.S. 168, 181 (1986)). Cuesta-Rodriguez contests the O CCA’s conclusions that only one prosecutorial-misconduct error occurred and that the one error— the first guilt-trip comment—was harmless. H e asserts other comments were also error s, and not harmless ones.
A. Which Statements, if Any, Were Errors? Cuesta-Rodriguez highlights multip le prosecution statements—(1) those suggesting that “the [defense’s ] mitigation case was an effort to send jurors on a guilt trip” and that Cuesta-Rodriguez “shamefully” tried to use his f amily as a human shield and (2) those discussing instruction nine, regarding mit igation—claiming all were error. Appellant’s Opening B r. at 55. The OCCA determined that only the prosecution’s first guilt-trip sta tement was an error. We first address the prosecution’s comments that allege dly denigrated the defense’s mitigation evidence before turning to the comments re garding jury instruction nine. After doing so, we address whether the errors , if any, were harmless.40 1. Guilt and Shame Comments The OCCA found that the first guilt-trip comment was error. The OCCA didn’t find the other statements regar ding guilt to be error, although the court did find that the comments came “very clos e to crossing this line.” Cuesta-Rodriguez , 241 P.3d at 244. But Cuesta-Rodriguez argues that other guilt-based comment s were also errors, as well as the shame-on-him (sai d twice) and human-shield comme nts. CuestaRodriguez thus claims that “[t]h e OCCA’s holding is contrary to or an unreasonable application of Supreme Court pr ecedent.” Appellant’s Opening Br . at 59. Two facts counter Cuesta-Rodrigu ez’s argument. First, defense c ounsel didn’t object to the shame-on-him and hum an-shield comments contempora neously. See Trice v. Ward , 196 F.3d 1151, 1167 (10th Cir. 1999) (notin g that the lack of an objection, “while not dispositive, is rele vant”). Second, in evaluating pr osecution comments’ impact, we consider whether the defense invited the comments. See Darden , 477 U.S. at 182 (“[T]he idea of ‘invited resp onse’ is used not to excuse improper comments, but to determine their effect on the trial as a whole.” (quoting Young , 470 U.S. at 13)); see also
Tillman , 215 F.3d at 1129. Statements o f family members that they “lov e” a defendant aren’t “‘relevant mitigating evid ence’ on which a jury legitimately might . . . ground[] feelings of sympathy.” Coleman v. Saffle , 869 F.2d 1377, 1393 (10th Cir. 1989). And defense counsel attempted to elic it sympathy for Cuesta-Rodrigu ez’s family—his son in particular—based on the pain the y would feel if he received the death penalty. Thus, the41 second shame-on-him comment, as well as the guilt-trip comments , when viewed in light of the defense’s approach, were less harmful than they otherwis e might have been. 25 Beyond the context in which the p rosecutor’s comments arose, Cu estaRodriguez points to little feder al law to support his propositi on that the OCCA’s conclusion (that the comments we ren’t error) was contrary to es tablished federal law. He cites Dodd v. Trammell , 753 F.3d 971 (10t h Cir. 2013), as a case in which “an experienced prosecutor knowingly crossed the line in the penalt y phase for an expected effect on the sentenci ng determination.” Appellant’s O pening Br. at 60. But
Dodd concerned inappropriate victim- impact testimony, and its holdi ng has little bearing on this case. In Dodd , prosecutors had i ntroduced victim-impact evidence in clear violation of Supreme Cour t precedent, but the OCCA had co ncluded that the violation was harmle ss. 753 F.3d at 996–97. 26 Though we reversed the OCCA’s decision, we took care to note th at the case was an outlier, as evidenced by “the sheer

25 This point has no bearing on th e human-shield and the first sh ame-on-him comments. Cuesta-Rodriguez clai ms that the prosecution’s commen ts unfairly targeted one source of his mitig ation evidence: the statements that his Cuban family members gave. See Appellant’s Opening Br. at 57 (“ In Mr. Cuesta’s case, it was profoundly unfair for the prosec ution to argue that Mr. Cuesta acted in a shameful manner in presenting statements from his family in Cuba to the jury, particularly given his and their unusual circ umstances.”). But we note only that the defense’s emotional plea is a factor to cons ider when analyzing the prose cution’s statements in response.

26 The OCCA had also concluded that the victim-impact statements didn’t violate the defendant’s Eighth Am endment rights, but we deemed that conclusion contrary to clearly esta blished federal law. Dodd , 753 F.3d at 996.42 volume” of problematic testimony and a “weak[] case for the dea th penalty.” Id. at 998. Ignoring the differences between the two cases, Cuesta-Rodrigue z contends that Dodd announces a rule (“the Dodd inference”) that rever sal is particularly appropriate when prosecutorial misconduct was purposeful. Appel lant’s Reply Br. at 35. We see no such rule in Dodd —but even if we did, we aren’t persuaded that Cuesta-Rodriguez has shown that t he prosecutors’ statements amo unted to purposeful (and erroneous) manipulation. As Oklahoma highlights, the prose cutors told the jury that the mitigation evidence c ould factor into its decision. Fo r example, one prosecutor told the jury to “cons ider” what Cuesta-Rodriguez’s family members “ha[d] to say.” Trial Tr . vol. VII at 1284:10–11. Our decision in Hanson is more on point. See 797 F.3d at 840 (reiterating the standard that “we cannot say tha t ‘[a] state court’s determinat ion that a claim lacks merit’ is wrong on habeas ‘so long as “fairminded jurists could disagree” on the correctness of the state court’ s decision’” (alteration in orig inal) (quoting Harrington , 562 U.S at 101)). In that cas e, we upheld the OCCA’s conclusi on that it wasn’t error for a prosecutor to state that it “is also clear t hat life without parole is not enough accountability f or this defendant.” Id. at 846. We rejected the argument that the OCCA’s conclusion “effectively precluded the jury from considering mitigating evidence.” Id. at 847. So too here: We can’t say that the prosecution’s comme nts prevented the jury from examini ng the defense’s mitigation evid ence. Cuesta-Rodriguez43 fails to point to a Supreme Cour t case suggesting otherwise, thus failing to meet his burden under AEDPA. And as Oklahoma points out, we have denied habeas relief in cas es involving similar prosecutorial comments. See, e.g. , Simpson v. Carpenter , 912 F.3d 542, 587 (10th Cir. 2018) (noting that the prosecutor had “improp erly denigrat ed [the petitioner’s] mitigating evidence” by “suggesting the defense should be asham ed for relying on [the petitioner’s] family support and mental health,” but concluding that none of the prosecutor’s comments, “separately or cumulatively . . . depriv ed [the petitioner] of a fundamentally fair sentencing proceeding”); Bland v. Sirmons , 459 F.3d 999, 1026 (10th Cir. 2006) (rejecting the claim that the prosecutor had “improp erly demeaned [the petitioner’s] mitigating eviden ce” by calling pieces of that ev idence “excuses” and asking whether those pieces should “act[as a] shield from accepting the full responsibility for his actions” (internal quotation marks and citation omitted)); Pickens v. Gibson , 206 F.3d 988, 999–1000 (10th Ci r. 2000) (denying habea s relief in a case where the prosecutor referred to a defense argument as a “guilt trip”). So we don’t think the OCCA’s conclusion—that just one prose cution comment was error—was contrary to established federal law. But Cuesta-Rodriguez makes another argument. 27 He claims that the OCCA (and the district court) incorre ctly analyzed the errors separa tely (rather than

27 Oklahoma claims this argument wa sn’t raised at the district co urt and that Cuesta-Rodriguez didn’t argue forplain-error review, so we sho uldn’t address it. But we assume we can address it, and we do so.44 together), correctly pointing ou t that “all the conduct must be considered ‘ in toto because individual harmless pro secutorial errors can add up to make a trial fundamentally unfair in the aggr egate.’” Appellant’s Opening Br . at 60 (quoting Le v. Mullin , 311 F.3d 1002, 1022 (10th Cir . 2002)). Building this argument , CuestaRodriguez argues that the OCCA f ailed to give the shame-on-him comments any weight in assessing the impact o f the erroneous guilt-trip comm ent. We aren’t persuaded. Under the h eading “Prosecutorial Misconduc t,” the OCCA addressed Cuesta-Rodriguez’ s “claims that numerous instanc es of improper argument and questioning of witn esses during the sentencing pha se of his trial produced a sentence that failed to meet the heightened standard of reliability in death penalty cases.” Cuesta-Rodriguez , 241 P.3d at 243. After “review[ing] the prosecutors’ questions and comments cited by Cu esta-Rodriguez as improper,” the OCCA concluded that “[w]ith one exception, . . . nothing in any of those quest ions or comments, individually or cumulatively , [went] beyond an attempt to m inimize the effect of the evidence presented by the defen se, or [went] be yond discussing the evidence in arguing for an appropriate sentence.” Id. at 243 (emphasis added). The OCCA wasn’t required to address the harmlessness of non -errors. Only actual errors need be included. Le , 311 F.3d at 1023. The OCCA did address th e harmlessness of the one error it found—the merits of which we discuss a little later.
2. Jury Instruction Comments “During the sentencing phase of a capital case, the defendant h as a wellestablished right to introduce ‘re levant’ mitigating evidence t hat he proffers as a45 basis for a senten ce less than death.” Coleman , 869 F.2d at 1392 (citing Lockett , 438 U.S. at 604). Cuesta-Rodriguez—pointing to var ious prosecution statements con cerning the jury instruction—alleges that t he prosecution improperly exploi ted instruction nine’s language to preclude considerat ion of mitigating evidence. 28 Reviewing the prosecution’s appr oach to instruction nine, the O CCA concluded that “the prosecutor in this case did not urge the ju ry to categorically disregard the proffered mitigatio n evidence, but instead argued that the evidence offered in mitigation did not s upport an inference of reduced c ulpability.” CuestaRodriguez , 241 P.3d at 243. To prevail here , Cuesta-Rodriguez needs to s how us that the OCCA’s determination was unreasonable. The OCCA’s conclusion that the p rosecution didn’t try to make t he jury ignore mitigation evidence wasn’t unrea sonable. The prosecution didn’t tell the jury not to consider Cuesta-Rodriguez’s m itigation evidence. Instead, the p rosecution argued that the mitigating testimony s houldn’t weigh against a sentenc e of death—and that’s permissible. The prosecution can advocate what evidence the jur y should value. It

28 Oklahoma has since ame nded the instruction. See Grant v. Royal , 886 F.3d 874, 933–34 (10th Cir. 2018) (discu ssing the reformed instructi on); Harris v. State , 164 P.3d 1103, 1114 (Okla. Crim. App . 2007) (expressing concern at “the consistent misuse” of the old instruction) . Cuesta-Rodriguez highlights fl aws in the instruction while conceding that we have hel d that the instruction doesn’t violate the Constitution. See Hanson , 797 F.3d at 849–52. And Cues ta-Rodriguez also concedes that he didn’t obtain a COA on the issue.46 just can’t tell the jury that it can’t considerthe mitigation eviden ce unless it speaks to culpability. Cuesta-Rodriguez relies on our decision in Le , where we noted that the prosecution’s arguments “may have implied that the jury had the ability to ignore the legal requirement that it must consider mitigating evidence.” 29 311 F.3d at 1018. But he fails to mention that in Le , we concluded that “the jury was appropriately informed by the jury instructi ons and by closing arguments that it had to consider mitigating evidence before decidi ng to impose a death sentence. ” Id. The same is true here. We reached a similar conclusion in Hanson , 797 F.3d at 851–52. In that case, “the prosecutor told the jury to consider whether any of the mi tigating circumstances ‘really extenuate or reduce [the d efendant’s] degree of culpabi lity or blame in this
case.’” Id. at 851. But we upheld the OCCA’ s decision affirming the defend ant’s death sentence because the prosecutor also encouraged the jury to con sider the mitigation evidence and the judge instructed the jury to consider mitigati on evidence. Id. at 851– 52; see also Grant v. Royal , 886 F.3d 874, 939 (10th Ci r. 2018) (describing our decision in Hanson , and noting that “because the mor al-culpability text itself wa s not unconstitutional—at least in the c ontext of other, broadening i nstructions—the

29 Of course, as Oklahoma notes, “ Le is not an opinion of the Supreme Court and cannot provide clearly estab lished federal law.” Appellee’s Response Br. at 92. But we address Cuesta-Rodrigu ez’s argument head-on anyway.47 prosecutor’s isolated references to that text, without more, di d not effect a constitutional violation”). We again upheld a death sentence in Grant —a case in which the prosecution made statements like, “ [W]hat the law says is that before something can be mitigating it must reduce the moral cu lpability or blame of the defendant. ” 886 F.3d at 937. But the trial court in Grant gave the same instruc tion given here and in
Hanson , listing non-culpability-related ci rcumstances as mitigation. Grant , 886 F.3d at 940; Hanson , 797 F.3d at 851. And in affirming the se ntence, we relied on the ameliorating jury instructions a s a whole and prosecution comme nts interpreting mitigation circumstan ces more broadly. Grant , 886 F.3d at 939–40. We have comparable circumstances here. The prosecution similarl y gave a broader view of the mitigating ev idence than some isolated comm ents might suggest, saying things like:

 “[Y]ou still say, all right, do es that outweigh the mitigating evidence that we’ve heard?” Tria l Tr. vol. VII at 1281:17–19.

 “And, again, I’m not telling you don’t listen to [CuestaRodriguez’s family members]; by all means, you consider what they have to say.” Id. at 1284:9–11.

 “[W]e’re not asking you to ignor e the evidence, but embrace it. ” Id. at 1315:11–12. See also id. at 1273:3 (“Pay close attention to the Judge’s instruction.”). So here, like
in Hanson , “the prosecutor made a number of other comments to the jury t hat encouraged them [sic] to consid er any and all mitigating eviden ce they thought relevant.” 797 F.3d at 851.48 And the jury here heard the same instructions we found curative in Hanson

. See Original R. vol. VII at 1285–88; Hanson , 797 F.3d at 851. First, the judge instructed the jury on sixteen specific mitiga ting circumstances, “some of which had nothing to do with [the petit ioner’s] moral culpability.” Hanson , 797 F.3d at 851 (listing mitiga ting circumstances including the petitioner’s emotional history, family history, h istory while i ncarcerated, and his having a son). “In other words, in this instruction . . . the trial judg e specifically characterized as ‘mitigating’ factors that ordinar ily would not be deemed to hav e extenuated or reduced [the petitioner’s] moral culpability or blame.” Grant , 886 F.3d at 940 (describing mitigating circumstances invol ving the petitioner’s family and emotional history as not extenuating moral culpability o r blame). The court instructed the jury on “mitigating” evidence, such as Cuesta-Rodrigue z’s volunteer work, his learni ng to read and write English while in federal deten tion, his family ties, and his re lationship with his son. Original R. vol. VII at 1 285. And just like in Hanson and Grant , that evidence was described as mitigating even tho ugh it doesn’t speak to culpabi lity. Hanson , 797 F.3d at 851 (“Viewing the challenged in struction in the context of all the instructions, we do not think the jury would have felt pr ecluded from considering any m itigating evidence . . . .”). Next, “in the same instruction th at included the moral-culpabil ity text, there was language that vested the jury with the responsibility for deter mining what evidence was mitigating.” Grant , 886 F.3d at 940 (discussing Hanson ). Here, in instruction nine, the district court told the jury that “[t]he determination of what circumstances are mitigating49 is for you to resolve under the fa cts and circumstances of this case.” Original R. vol. VII at 1284; see also Grant , 886 F.3d at 940 (relying on this exact instruction and declar ing that “a jury is presumed to foll ow the trial court’s instructio ns”); Hanson , 797 F.3d at 851 (finding that this sentence “bro adened any potential limitation s imposed by the first sentence of the instruction”). So , again, the court correctly i nformed the jury of the law. Last, in the court’s final instru ction in this case, it told th e jury that “in this part of the trial, you may consider sym pathy or sentiment for the defen dant in deciding whether to impose the death penalty.” Original R. vol. VII at 1295. So the jury instructions accurately described the law (in cluding emphasizing the inclusi on of mitigating circumstances). See Grant , 886 F.3d at 941 (explaining th at accurate, clear jury instructions are relevant “in concluding that the OCCA would no t have been unreasonable in determining that t he prosecution’s closing argu ment did not have the unconstitutional effect of precl uding the jury from considering the petitioner’s proffered mitigating evidence th at did not extenuate or reduce moral culpability or blame”). We accord tha t substantial weight . See Boyde v. California , 494 U.S. 370, 384 (1990) (noting that instructions from the court, “we have o ften recognized, are viewed as definitive and binding statements of the law” (citati ons omitted)). And it’s worth noting that defense counsel spent substantial time inform ing the jury of its ability to consider mitiga ting evidence as well. Given all that, we can’t say that the OCCA’s decision was contr ary to federal law.50 Attempting to escape that conclu sion, Cuesta-Rodriguez argues t hat the jury’s question regarding the legal de finition of culpability shows th at the prosecution’s comments misled the jurors. See Appellant’s Opening Br. a t 69–70 (“The note they sent out during sentencing delib erations asking for guidance on the ‘legal definition of culpability’ tells us the pro secution’s false boundary was w orking great for them, though unconstitutionally.” (quo ting Trial Tr. vol. VII at 1318 :22)). From this, Cuesta-Rodriguez argues, “We kno w to near certainty the prosecu tion’s improper argument worked.” Id. at 70. But, Oklahoma counters, “[t]hat is far too speculative a basis to find that the prosecutor misled the jury into believing it could not consider Petitioner’s mitigating circumstances.” Appellee’s Respons e Br. at 93. We agree. Determ ining culpability is a big part of the jury’s job at s entencing. All the jury note s hows is that the jury read the instruction and had a ques tion: What does legal culpabilitymean? Nor do we find persuasive Cue sta-Rodriguez’s reliance on Hooks v. Workman ( Hooks I ), 606 F.3d 715, 743 (10th Cir . 2010). In that case, we found a jury note to be “a singularly clear indicati on” that prosecutorial misconduc t “did, in fact, mislead the jury.” Id. at 745. Cuesta-Rodriguez is right that Hooks I stands for the proposition that questions can be relevant indicators of juror misperceptio n. But that doesn’t suggest that the OCCA impermissibly erre d here. Desiring to know the de finition of culpability— a definition central to the jury ’s penalty-phase job—doesn’t le ad us to believe that the prosecution led the jury astray . So the note doesn’t show that the OCCA’s conclusions regarding prosecutorial mis conduct were unreasonable.51 But Cuesta-Rodriguez makes a coupl e more arguments that need ad dressing. He claims that because “the type of misconduct at issue . . . inva des specific constitutional rights,” strict scrutiny applie s (which the OCCA didn’t use). A ppellant’s Opening Br. at 67. Cuesta-Rodriguez’s argument relies on the claim that “[p]ro secutorial misconduct impinging a specific right demands strict scrutiny.” Id. at 68 (citing Caldwell v. Mississippi , 472 U.S. 320, 340 (1985)). The s pecific right here is the rig ht to present mitigation evidence. But Cuesta-Rodriguez hasn’t shownthat he was denied his right to present mitigation evidence. Indeed, Cuest a-Rodriguez presented substan tial mitigation evidence during his trial. See Original R. vol. VII at 1285–88 (listing sixteen mitigating circumstances ranging from Cuesta -Rodriguez’s Cuban emigration to his successful work history and strong familial re lationships). So he has failed to make the threshold showing. Moreover, Oklahoma counters Cuest a-Rodriguez’s argument by poin ting out that no clearly established law support s Cuesta-Rodriguez’s proposit ion that the prosecutorial misconduct here required strict-scrutiny review. We agree. 30 Cuesta-Rodriguez relies on Paxton v. Ward , 199 F.3d 1197, 1217–18 (10th Cir. 1999), to prove his point. In Paxton , we noted: [T]his court has drawn an important distinction between an ordi nary claim of prosecutorial misconduct, whi ch warrants habeas relief only when the entire proceeding is rendered fundamentally unfair, and a claim that the

30 So we don’t address Oklahoma’s proposed alternati ve ground for affirmance—that, “assuming that the OCCA was required to apply strict scrutiny under clearly established federa l law, this Court must presume that the OCCA did so.” Appellee’s Response Br. at 95 n.27.52 misconduct effectively deprived the defendant of a specific con stitutional right, which may be the basis for habeas relief without proof t hat the entire proceeding was unfair. 199 F.3d at 1217. But as we made clear when addressing exactly this issue in Littlejohn v.
Trammell , our past decisions can’t creat e clearly established law for A EDPA purposes.
See 704 F.3d 817, 838 n.9 (10th Cir. 2013) (“It goes without sayin g, however, that
Paxton cannot supply clearly established federal law to support [the p etitioner’s] claim.”). Cuesta-Rodriguez also cites two Supreme Court cases in support of his claim that because the prosecuto rial statements infringed a constitutional right, the OCCA ought to have applied strict scrutiny. See Appellant’s Opening Br. at 67–68 (citing Caldwell , 472 U.S. at 340; and Donnelly , 416 U.S. at 643). Neither proves his point. In Donnelly , addressing prosecutorial-misconduc t claims, the Supreme Court s tuck with a fundamental-fairness analysis. See 416 U.S. at 643 (“When spe cific guarantees of the Bill of Rights are involved, [the Supr eme Court] has taken special c are to assure that prosecutorial conduct in no way impermissibly infringes them.”) . And Caldwell distinguished Donnelly , concluding that in Caldwell , “the prosecutor’s argument sought to give the jury a v iew of its role in the capital sentencing p rocedure that was fundamentally incompatible withthe Eighth Amendment[].” Caldwell , 472 U.S. at 340. So there, the Supreme Court reve rsed (without clarity as to the proper standard of review). But the prosecutors’ str ay comments here are a far cryfrom those facts. Cuesta-53 Rodriguez hasn’t provided any sufficiently similar Supreme Cour t case to prove his point. 31 Last, Cuesta urges us to look at the OCCA’s decision in Harris v. Oklahoma , 164 P.3d 1103 (Okla. Crim. App. 20 07), suggesting that the OCCA act ed unreasonably in finding no prosecutorial error h ere after it concluded in Harris that the instruction was exploitable and that “the kind o f prosecutorial argument made h ere exploited the statutory language improperly.” Appellant’s Opening Br. at 66 (citing Harris , 164 P.3d at 1113). But the relevant inquiry is wheth er the OCCA acted contrary to Supreme Court precedent, not its own, so we sw iftly reject the argument. No p otential inconsistency between the two cases allows this court to grant Cuesta-Rodrigu ez relief. See Lockyer v.
Andrade , 538 U.S. 63, 71 (2003) (“[T]he only question that matters und er § 2254(d)(1) [is] whether a state court decisi on is contrary to, or involved an unreasonable application of, clearly established federal law.” (citing Weeks v. Angelone , 528 U.S. 225 (2000))). And Cuesta-Rodriguez ignores the distinguishing facts betweenHarris and this
case. In Harris , the OCCA found a prosecutor’s c omments that “told jurors not to consider [the defendant’s] m itigating evidence” improper. 164 P.3d at 1113. But “[u]nlike Harris , . . . the prosecutor in this case did not urge the jury to categorically

31 And in Gipson v. Jordan , we noted that the cir cuits diverge in their interpretation of “the standard for evaluating . . . prosecutor ial misconduct.” 376 F.3d 1193, 1197 (10th Cir. 2004); see also id. (“Generally, improper prosecutorial remarks will not warrant feder al habeas relief unles s the remark ‘so in fected the trial with unfairness as to make the resul ting conviction a denial of due process.’” (quoting Donnelly , 416 U.S. at 643)). After so no ting, we declined to address th e issue, further highlighting the lack of clarity o n the issue, which prevents r elief here.54 disregard the proffered mitigati on evidence, but instead argued that the evidence offered in mitigation did not support aninference of reduced culpabili ty.” Cuesta-Rodriguez , 241 P.3d at 243. And despite “the c onsistent misuse of the language in th[e] instruction” in
Harris , the OCCA ultimately concluded th at “[t]he prosecutor’s improp er argument on this issue was cured by furthe r argument and instruction.” Harris , 164 P.3d at 1114. Thus, Cuesta-Rodriguez’s “reliance onHarris [wa]s misplaced.” Hanson , 797 F.3d at
850.
B. Was the Error Harmless? We next review whether the OCCA acted contrary to established f ederal law in finding the first guilt-t rip comment harmless. The OCCA concluded that none of the guilt-trip comments “were v erdict determinative” and concluded that“given the strength of the ev idence supporting imposition of the death pen alty, they were harmless.” Cuesta-Rodriguez , 241 P.3d at
244. In doing so, the OCCA referenced t he statements’ impact on the trial as a whole.
Id. And, earlier in the opinion, the OCCA laid out in detail the e vidence supporting the jury’s determination that t wo aggravating circumstances (he inousness and continuing risk to society) existed. Id. at 237–39. The first gu ilt-trip comment didn’t deny Cuesta-Rodriguez his right t o a fundamentally fair trial. And Cuesta-Rodriguez provides us no federal-law basis to reject the OCCA’s conclusio n that the comment, though disfavored, was harmless. Cuesta-Rodriguez also argues that the OCCA’s harmlessness concl usion was contrary to or an unreas onable application of Chapman v. California , 386 U.S. 1855 (1967), because “the OCCA failed to find the error was harmless beyond a reasonable doubt.” 32 Appellant’s Opening Br. at 59. B ut the OCCA stated plainly tha t it analyzed “the context of the entire trial.” Cuesta-Rodriguez , 241 P.3d at 243. Here, as in
Hanson , “we find it hard to imagine that the jurors thought they were p rohibited from considering any of the mitigati ng evidence they heard at the re sentencing hearing.” 797 F.3d at 852 (citing Boyde , 494 U.S. at 378–86). Thus, we can’t conclude that the OCCA’s determination that the guilt-trip comment was harmless was contrary to established federal law.
IV. Cumulative Error This leaves us with Cuesta-Rodrig uez’s claim of cumulative erro r. He argues that even if each individual error was harmless, the cumulative effe ct of the errors impacted the penalty-phase verdict. Cuest a-Rodriguez highlights three er rors to include in the cumulative analysis: (1) the ine ffective-assistance-of-counsel claim, (2) the prosecutorialmisconduct errors described abov e, and (3) the Confrontation Cl ause error the OCCA determined was harmless. The OCCA denied Cuesta-Rodrigue z’s cumulative-error claim on di rect appeal, concluding that while “Cuesta-R odriguez’s trial was not error f ree, the errors do not require relief because when consider ed in the aggregate, they d id not render his trial fundamentally unfair, taint the jury’s verdict, or render the s entencing unreliable.”

32 Oklahoma urges us to find this argument waived because it wasn ’t raised at the district court. But we assume we can address it.56 Cuesta-Rodriguez , 241 P.3d at 246. Thus, the OCCA concluded that “[a]ny errors were harmless beyond a reasonable doubt , individually and cumulative ly.” Id. “In the federal habeas context, a cumulative-error analysis agg regates all constitutional errors found to be harmless and analyzes whether their cumulative effect on the outcome of the trial is su ch that collectively they can no longer be determined to be harmless.” 33 Cole v. Trammell , 755 F.3d 1142, 1177 ( 10th Cir. 2014) (quoting
Alverson v. Workman , 595 F.3d 1142, 11 62 (10th Cir. 2010)). “The cumulative-error analysis applies where there ar e two or more actual errors. It does not apply, however, to the cumulative eff ect of non-errors.” Smith , 824 F.3d at 1255 (quoting United States v.
Franklin-El , 555 F.3d 1115, 11 28 (10th Cir. 2009)). To receive habeas reli ef, CuestaRodriguez must show that “the c umulative effect of the errors d etermined to be harmless had a ‘substantial and injurious effect or influence in determi ning the jury’s verdict.’”
Hanson , 797 F.3d at 852 (quoting Brecht v. Abrahamson , 507 U.S. 619 , 637 (1993)). We first analyze each of Cuesta-Ro driguez’s proposed errors to determine whether the error should be included in our cumulative-error analysis.

33 “[F]or purposes of possible en b anc or certiorari review,” Okl ahoma argues that our “reliance on general princi ples of ‘the right to a fair tri al and due process’” in establishing our cumulative-error jurisprudence “is improper.” Appellee’s Br. at 97 n.28 (quoting Hanson , 797 F.3d at 852 n.16). As Oklahoma rightly acknowledges, our precedent forecloses this argument. See Smith v. Duckworth , 824 F.3d 1233 , 1255 (10th Cir. 2016) (rejecting the argument that because “no clearly est ablished federal law recognizes cumulative error as a ground for habeas relief,” AED PA bars the use of cumulative error analysis). We ad dress this argument no further in this opinion.57 A. Ineffective Assistance Oklahoma argues that this court cannot rely on procedurally def aulted claims in considering a cumulati ve-error claim. We agree. 34 “[I]n a cumulative error analysis, a court . . . may not consider claim s that are procedurally defau lted.” Ray v. Simmons , 125 F. App’x 943, 946–47 (10th Cir. 2005); see also Hughes v. Dretke , 412 F.3d 582, 597 (5th Cir. 2005) (“Meritless claims or claims that are not preju dicial [or claims that are procedurally barred] cannot be c umulated.” (alteration in origi nal) (quoting Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996))). So Cuesta-Rodriguez’s ineffectiveassistance claims, having been r uled procedurallybarred, have no place in our cumulative-error analysis.
B. Confrontation Clause Oklahoma argues that because Cue sta-Rodriguez didn’t receive a COA on the underlying Confrontation Clause claim, we can’t consider it in the cumulative error analysis. We disagree. The COA explicitly included the Confrontation Clau se claim as one to be included in the cumulative- error analysis: We stated that “harmless constitutional errors found by the Oklahoma Cour t of Criminal Appeals in appel lant’s direct appeal concerning the admission of aut opsy diagrams and the testimony of Dr. Gofton” were to be included. Order at 2, Cuesta-Rodriguez v. Carpenter , No. 16-6315, (10th Cir. Apr. 10,

34 Oklahoma also argues that ine ffective-assistance claims don’t factor into cumulative error at all. But it r ecognizes that this argument h as been precluded by our prior decisions.58 2017). True, we can’t simply ad opt the OCCA’s constitutional co nclusions. But a lack of explicit mention of the merits inour COA doesn’t mean we can’t reach them. The COA did what it intended—flagged th e potential Confrontation Clause error as one this court could look at in its cumul ative error analysis. See Appellant’s Opening Br. at 77 n.40 (“Cuesta was granted a certifi cate of appealability on the cumu lative penalty prejudice flowing from [the Confronta tion Clause] violation.”). Oklahoma’s reliance on Young v. Sirmons , 551 F.3d 942, 972–73 (10th Cir. 2008), for the contrary position is unpersuasive. See Appellee’s Response Br. at 100 (describing Young as standing for the proposition that “a cumulative error claim cannot encompass a substantive claim for which a petitioner doe s not have a COA”).
In Young , we rejected a petitioner’s ar gument that we should cumulative ly assess all of the trial errors found by the OCCA where: (1) those errors w eren’t mentioned in the COA 35 and (2) some of the errors the petitioner sought to cumulate i nvolved state-law issues. 551 at 973. So this case is clearly distingui shable: (1) the COA explicitly mentions the Confronta tion Clause error and (2) the Confrontation Clause

35 Indeed, that COA (granted by th e district court) granted four of the petitioner’s claims: “(1) ineff ective assistance of trial couns el for failing to adequately investigate and presen t mitigation evidence for the sentencing stage; (2) improper victim impact evide nce; (3) improper admission of Petitioner’s ‘fish blood’ statement; (4) cumulative impact of errors.” Order Grant ing Certificate of Appealability at 2, Young v. Sirmons , No. 00-CV-310-JHP-PJC ( N.D. Okla. Sept. 21, 2007). Thus, the COA didn’t menti on in any form the specific er rors the petitioner wanted to cumulate. See Young , 551 F.3d at 973 (“[N]either t he district court nor we have granted a COA with respect t o those issues.”). And, the si mplest read of the COA is that the “errors” in num ber four refer back to the earli er listed errors, not unnamed errors.59 issue is squarely one of federal, not state, law. So we can loo k at the Confrontation Clause issue in the cumu lative-error analysis. It’s worth noting, though, that no Supreme Court case has squar ely resolved the issue of whether the Confront ation Clause applies at penalt y-stage proceedings. See Carter v. Bigelow , 787 F.3d 1269, 1294 (10th Ci r. 2015) (“The Supreme Court has never held that the Confront ation Clause applies at capital sentencing.”); Wilson
v. Sirmons , 536 F.3d 1064, 1111– 12 (10th Cir. 2008) (“[W ]e have recently st ated that it is ‘far from clear’ whether the Confr ontation Clause even applies at capital sentencing proceedings.” (quoting United States v. Barrett , 496 F.3d 1079, 1099 (10th Cir. 2007))). But that doesn’t preclude our i nclusion of the error in our det ermination whether, in the aggregate, the various errors den ied Cuesta-Rodriguez a fair tr ial. 36 See Littlejohn , 704 F.3d at 843 (“Allowing Mr. Littlejo hn maximum latitude in addre ssing his claim, we assume without deciding that the Confrontation Clause applies i n capital sentencing proceedings.”).

36 That the OCCA relied solely on state-law cases doesn’t control our analysis. See Early v. Packer , 537 U.S. 3, 8 (2002) (rejecting the contention that a state c ourt’s failing to cite to federal law suggests an AEDPA problem: “Avoi ding these pitfalls [requiring AEDPA reversal] does not require citation of our cas es—indeed, it does not even require awareness of our cases, so long as nei ther the reasoning nor the result of the state-court de cision contradicts them.”).60 Having concluded we can look at it, we assume without deciding that the Confrontation Clause error found by the OCCA was indeed error, and plug it into our cumulative-error analysis. 37
C. Prosecutorial Misconduct Having concluded earlier that onl y one applicable error survive s—the initial guilttrip comment, that’s the only pr osecutorial misconduct we inclu de in our analysis.
D. Cumulative-Error Analysis To start, Oklahoma argues that b ecause the guilt-trip comment i s the only error we can consider, there aren’t multip le errors to cumulate. True, a cumulative-error analysis requires more than one error to a ggregate. But because we assum e, without deciding, that the Confrontation Clause error w as error, we have more than one error to address, and so we proceed to the cumulative-error analysis. AEDPA deference controls our analysis. Cuesta-Rodriguez asks th at we include other errors in our cumulative-e rror analysis—and he then claim s that adding more errors means we are evaluating a claim that the OCCA didn’t add ress on the merits, so we should apply de novo review. See Appellant’s Opening Br . at 77 (“This Court’s review for cumulative error is not under so-called AEDPA defere nce but rather is de

novo .”); Hooks II , 689 F.3d at 1163–64. But we are evaluating the same two error s that

37 OCCA’s conclusion regarding the Confrontation Clause error cod ed it as both a guilt-phase and a penalty-phase error. Cuesta-Rodriguez , 241 P.3d at 231. On appeal, Cuesta-Rodriguez refers only to the penalty-phase compo nent of the error.61 the OCCA analyzed and so will upr oot the OCCA’s decision only i f it was contrary to or an unreasonable applicati on of established federal law. 38 We have already determined that the OCCA’s conclusion that the prosecutorialmisconduct error was harmless wasn ’t unreasonable. All that’s l eft to determine is whether the Confrontation Clause error combined with the prosec utorial misconduct error denied Cuesta-Rodriguez a right to a fundamentally fair trial. In doing so, we are mindful that cumulative error does not re quire any synergistic effect. Grant v. Trammel , 727 F.3d 1006, 1026 (10th Cir. 2013). Even so, recognizing that Cuesta- Rodriguez claims such a synerg y, Oklahoma points out that he fails to explai n how the Confrontation Claus e error would have any synergistic effect with the prose cutorial error such that it de nied him a fundamentally fair trial. Indeed, Cuesta-Rodriguez ac knowledges that the Confrontation Clause violation was relatively minor. See Appellant’s Reply Br. at 37 (“ [T]he Confrontation Clause violation is not the strongest c umulative error element nor the one on which Mr. Cuesta most relies.”). All Cuesta-Rodriguez tells us on this point is that the Confron tation Clause error could have affected the jury’s de termination of the heinous, atrocious, or cruel

38 Cuesta-Rodriguez also argues th at the OCCA “relied in part on an unreasonably erroneous c onclusion the Confrontation Clause erro r was harmless because sufficient other eviden ce existed.” Appellant’s Opening Br. at 77 n.41 (citing Cuesta-Rodriguez , 241 P.3d at 231). Finding error ha rmless based on the weight of other evidence is exactly the ki nd of determination we leave un disturbed under AEDPA. Cuesta-Rodriguez doesn’t explain how this conclusion was unreasonable.62 aggravator. On that, the OCCA co ncluded that ample other eviden ce in the record showed that Fisher consciously e xperienced physical and mental suffering before her death. Cuesta-Rodriguez , 241 P.3d at 231. The OCCA poin ted to other testimony (that of police officers and Chacon) that showed evidence of a struggle “for at least seven minutes until Cuesta-Rodriguez de livered the fatal shot to her left eye.” Id. From there, the OCCA concluded that even w ithout the medical examiner’s tes timony, “the jury could have reasonably concluded that Fishe r consciously experie nced great physical and mental suffering.” Id. The OCCA’s conclusions weren’t unreasonable. As the prosecutor said to the jury in discussing Fisher’s suffering , “In this case we don’t even h ave to take just [the medical examiner’s] word for it. We know[the first shot] wasn’t fatal. ” 39 Trial Tr. vol. VII at 1279:6–8. The pro secutor went on to refere nce Cuesta-Rodriguez’ s statement to police and testimony from officers on the scene who heard Fisher’s “bl ood-curdling scream.” Id. at 1279:12; see also id. (discussing Fisher’s behavior during her last minutes of life) . So the OCCA’s conclusion that the jury needn’t have relied on the medical examiner’s testimony stands. The first guilt-trip comment conc erned the defense’s mitigationevidence. See Appellant’s Opening Br. at 75 (“Th e prosecution minimized and s ought to side step mitigation by falsely describi ng it as a guilt trip.”). This er ror, though adjudged harmless,

39 The prosecution did, however, r efer to the medical examiner’s testimony again later.63 was weightier than the Confront ation Clause error. Indeed, the OCCA cautioned “prosecutors in future cases to keep their argument focused on the evidence and to avoid making comments that do nothing but denigrate the defense.” Cuesta-Rodriguez , 241 P.3d at 244. Combining the two errors thou gh, we can’t see how the admittedl y minor error perhaps influencing the jury’s c onclusion that the crime was particularly heinous, atrocious, or cruel coul d have combined withthe guilt-trip comment on mitigation to violate Cuesta-Rodriguez’s cons titutional rights. The two error s relate to different jury findings. Cuesta-Rodriguez hasn’t persuadedus that the combined errors l ed to a trial that wasn’t “fundamentally fair.” Cole , 755 F.3d at 1177. So Cues ta-Rodriguez’s cumulativeerror claim fails.
CONCLUSION For the above reasons, we affirm the district court’s judgment.