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

### DEC 15 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CORNEL COOKS, Plaintiff-Appellant,

v. RON WARD, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Defendant-Appellee. No. 97-6105

ORDER ON REHEARING

Before BRORBY, BRISCOE and MURPHY , Circuit Judges.
This matter is before the court on Appellant’s peti tion for rehearing. The original panel has voted to deny rehearing. The pe tition therefore is denied. The original opinion has been amended, however, to clar ify our holding that Mr. Cooks waived his right to counsel under both the Fi fth and Sixth Amendments. The amended opinion is attached to this order; all revisions are found under the heading “I. Admissibility of Post-Arrest Statements.” The attached opinion is substituted for the one previously filed on October28, 1998. The amended opinion will reissue this date.-2-

The suggestion for rehearing en banc was transmitte d to all the judges of the court who are in regular active service as requ ired by Fed. R. App. P. 35. As no member of the panel and no judge in regular acti ve service on the court requested the court be polled, the suggestion is al so denied.

Entered for the Court

WADE BRORBY United States Circuit Judge

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

### DEC 15 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CORNEL COOKS, Plaintiff-Appellant,

v. RON WARD, Warden, Oklahoma State Penitentiary, McAlester, Oklahoma, Defendant-Appellee. No. 97-6105

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 87-CV-1538)
Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Plaintiff-Appellant. Sandra D. Howard (W.A. Drew Edmondson, Attorney Gen eral, with her on the brief), Assistant Attorney General, Oklahoma City, Oklahoma, for DefendantAppellee.

Before BRORBY, BRISCOE and MURPHY , Circuit Judges.

BRORBY , Circuit Judge.-2-

Petitioner Cornel Cooks appeals the denial of his p etition for a writ of habeas corpus seeking to overturn his capital murde r conviction and death sentence. We affirm both the conviction and senten ce.

BACKGROUND In March 1983, Mr. Cooks and a co-defendant, Rodney Madson Masters, a/k/a William Wallace Troxell, were tried together in Oklahoma state court on an information alleging (1) murder with malice aforeth ought, (2) felony murder while in the commission of first degree rape, and ( 3) felony murder while in the commission of first degree burglary. A jury convic ted both men for the murder of Mr. Cooks’ disabled, eighty-seven-year-old neighbor , Jennie Ridling. Mrs. Ridling suffocated to death after a piece of gauze- like material had been tightly wrapped around her head. The evidence indicated Mr s. Ridling was raped, and her home ransacked and burglarized.

After the sentencing stage of trial, the jury found three aggravating circumstances as to Mr. Cooks: (1) he previously w as convicted of a felony involving the use or threat of violence; (2) Mrs. R idling’s murder was especially heinous, atrocious or cruel; and (3) he represented a continuing threat to society. Based on these aggravators, the jury sentenced Mr. Cooks to death. Mr. Masters-3-

was sentenced to life imprisonment.

Mr. Cooks took a direct appeal to the Oklahoma Court of Criminal Appeals, represented by the same attorney who represented hi m at trial, Mr. Stephen Hilliary. That court affirmed his conviction and s entence. Cooks v. State , 699 P.2d 653 (Okla. Crim. App.), cert. denied, 474 U.S. 935 (1985). Represented by new counsel, Mr. Cooks filed an application for pos t-conviction relief in the District Court of Comanche County. The district co urt denied relief and was affirmed on appeal to the Oklahoma Court of Crimina l Appeals. Cooks v. State , Case No. PC-86-613 (Okla. Crim. App. Jan. 13, 1987) , cert. denied, 481 U.S. 1072 (1987).

Mr. Cooks first filed a habeas petition in the Unit ed States District Court for the Western District of Oklahoma in July 1987, whereupon the district court held the petition in abeyance and ordered Mr. Cooks to exhaust his state remedies on the issue of whether his jury was instructed pro perly on the heinous, atrocious, or cruel aggravating circumstance in light of Maynard v. Cartwright , 486 U.S. 356 (1988). The Oklahoma trial court denied Mr. Co oks’ second application for post-conviction relief. That decision was affirmed in Cooks v. State , Case No. PC-89-131 (Okla. Crim. App. Jan. 11, 1993), cert. denied, 510 U.S. 851 (1993).-4-

The district court ordered the federal case reopene d in February 1994. Mr. Cooks filed an amended habeas petition in May 1994. The court conducted an evidentiary hearing on the ineffective assistance o f counsel issue in August 1995 and allowed the parties to brief the issues raised in the amended petition. In February 1997, the district court denied Mr. Cooks ’ petition. Pursuant to the then recently enacted provisions of the Antiterrori sm and Effective Death Penalty Act of 1996 (AEDPA), the district court granted Mr. Cooks a certificate of appealability on certain issues.

Subsequent to the district court’s ruling, Lindh v. Murphy, 521 U.S. 320, ___, 117 S. Ct. 2059, 2068 (1997), held that § 2253 (c) of the AEDPA (pertaining to the certificate of appealability) applies only t o cases filed after April 24, 1996. Because Mr. Cooks’ amended petition was filed befor e that date, the certificate of appealability is not a jurisdictional requirement i n this case; rather, the district court or this court must issue a certificate of pro bable cause. Because we conclude Mr. Cooks has made a “substantial showing of the denial of [a] federal right,” Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (internal quotation marks and citation omitted), we grant a certificate of pr obable cause and proceed to consider all Mr. Cooks’ issues, applying pre-AEDPA law.-5- DISCUSSION Mr. Cooks raises four primary issues on appeal from the denial of his habeas petition: (1) his post-arrest statements we re involuntary and therefore inadmissible; (2) the “continuing threat” and “hein ous, atrocious, or cruel” aggravating circumstances are unconstitutional and unsupported by sufficient evidence; (3) certain jury instructions concerning mitigating circumstances confused the jury and thus rendered his death sente nce unconstitutional; and (4) he received ineffective assistance of counsel durin g both the guilt and sentencing stages of trial, as well as on direct appeal.

We review the district court’s legal conclusions co ncerning these issues de novo and its factual findings for clear error. Hill v. Reynolds , 942 F.2d 1494, 1495 (10th Cir. 1991). Habeas relief must be grant ed only if the claimed constitutional error “‘had substantial and injuriou s effect or influence in determining the jury’s verdict.’” Kyles v. Whitley , 514 U.S. 419, 435-36 (1995) (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946)). If we are in “grave doubt” about whether an error satisfies thatstandard, then the error cannot be treated as harmless and the petitioner must prev ail. O’Neal v. McAninch , 513 U.S. 432, 437-38 (1995).1 Miranda v. Arizona , 384 U.S. 436 (1966).

2We note Mr. Cooks did not receive his court-appoi nted lawyer, Mr. Hilliary, until November 12, 1982.

-6-

I. Admissibility of Post-Arrest Statements Mr. Cooks was arrested in the early morning of Octo ber 29, 1982. Police advised him of his Miranda 1 rights upon arrest. Detectives attempted to quest ion Mr. Cooks later that same day; Mr. Cooks refused to answer questions, however, and requested a lawyer. The following evening, Oct ober 30, a jailer informed Detective Belcher that Mr. Cooks wanted to speak to him. Detective Belcher again advised Mr. Cooks of his Miranda rights. Mr. Cooks signed a form acknowledging those rights and stating he had volun tarily summoned the detective and wished to provide information concern ing Ms. Ridling’s murder. Mr. Cooks then proceeded to make self-incriminating statements. Two days later, November 1, Mr. Cooks made additional statements af ter detectives questioned him regarding differences between his and Mr. Maste rs’ initial statements. Again, Mr. Cooks affirmatively stated he understood his rights prior to providing additional information without legal representation

. 2

In his habeas petition and brief on appeal to this court, Mr. Cooks claims his post-arrest statements were involuntary and acq uired in violation of his-7-

constitutional right to counsel. He argues, withou t elaboration, his mental impairment and intellectual limits prevented him fr om comprehending the “abstract concepts thrown at him by the detectives. ” He further asserts “the detectives initiated an interrogation, promised him leniency, and threatened him with ‘the needle’ when he refused to talk.”

The district court concluded Mr. Cooks’ post-arreststatements were voluntary, and found, “[b]ased upon a review of the particular facts and circumstances of this case, including [Mr.] Cooks’ background and experience,” Mr. Cooks “knowingly waived his right to remain sil ent.” We review the district court’s findings of fact for clear error. See United States v. Bautista , 145 F.3d 1140, 1146 (10th Cir.), cert. denied, 1998 WL 480103 (U.S. Oct. 5, 1998) (No. 98-5584). However, the ultimate issue of voluntariness is sub ject to de novo review, considering the entire record and the total ity of the circumstances. Id. at 1149.

Mr. Cooks’ Fifth Amendment right to counsel attache d the moment he requested an attorney. United States v. Johnson , 42 F.3d 1312, 1318 (10th Cir. 1994) (citing Miranda v. Arizona , 384 U.S. 436, 444-45 (1966)), cert. denied, 514 U.S. 1055 (1995). However, if Mr. Cooks subsequent ly voluntarily initiated-8-

further communication with law enforcement official s, the law recognizes he effectively waived his previously invoked right to counsel. Edwards v. Arizona , 451 U.S. 477, 484-86 (1981); Oregon v. Bradshaw , 462 U.S. 1039, 1045-46 (1983). This same rule applies in the Sixth Amendm ent context to evaluate a waiver of right to counsel after arraignment. Michigan v. Jackson , 475 U.S. 625, 635-36 (1986). A waiver is voluntary if the record demonstrates it “(1) ... was a product of a free and deliberate choice rather than intimidation, coercion, or deception, and (2) ... was made in full awareness o f the nature of the right being waived and the consequences of waiving.” Bautista , 145 F.3d at 1149.

By any account, the police Mirandized Mr. Cooks upon his arrest. Police officers testified they repeated Mr. Cooks’ Miranda rights later that same day, prior to attempting to interrogate him at the polic e station. The officers recalled that Mr. Cooks refused at that time to make a state ment and requested a lawyer. Detective Belcher ceased the interrogation at that point. This exercise of rights indicates Mr. Cooks understood from the beginning b oth the nature and consequences of his right to remain silent and his right to counsel.

It is also undisputed that approximately twenty-fou r hours after police first attempted to question Mr. Cooks, after Detective Ma hamed allegedly suggested-9-

Mr. Cooks would “get the needle” if he did not coop erate, and after he had been formally arraigned, Mr. Cooks told a jailor he wished to speak to Detective Belcher. Nothing in the record suggests police further pressured Mr. Cooks into giving a statement without a lawyer present, or that Mr. Cooks was intimidated by Detective Mahamed’s alleged statements. Indeed, a full day had passed with no further attempt to speak to Mr. Cooks. When Detect ive Belcher came to the jail at Mr. Cooks’ request , he carefully advised Mr. Cooks of his rights prio r to any conversation. Mr. Cooks signed an Advice of Rights form indicating he had an eleventh grade education and affirming (1) he under stood each component of his Miranda rights, (2) no pressure or coercion had been used against him, and (3) he nevertheless desired to make a statement and answerquestions without an attorney present. Mr. Cooks does not claim Detecti ve Belcher or anyone else made any promises, threats, or any further comments regarding “the needle” at this time. After Detective Belcher typed Mr. Cooks ’ responses to his questions, Mr. Cooks signed the two-page statement, attesting it was a “true and accurate account” of events and was given to the police “fre ely and voluntarily, without fear of threat or promise of reward.” Mr. Cooks si gned another Advice of Rights form and typed statement after he spoke to Detectiv es Belcher and Mahamed on November 1. Detective Belcher testified that on bo th occasions Mr. Cooks appeared to understand his rights and did not appea r to be under the influence of-10-

intoxicants.

Having independently reviewed the entire record and totality of the circumstances, we find no clear error in the distri ct court’s finding Mr. Cooks initiated his post-arrest, post-arraignment convers ation with Detective Belcher, and there was no deception, intimidation or coercio n sufficient to taint Mr. Cooks’ waiver of rights under the Fifth, Sixth, and Fourteenth Amendments. Accordingly, we hold Mr. Cooks’ waiver of counsel a nd post-arrest statements were voluntary, knowing and intelligent, and theref ore deny habeas relief on this ground.

II. Constitutionality of Aggravating Circumstances “The constitutional validity of aggravating [circum stances] is a question of law subject to de novo review.” United States v. McCullah , 76 F.3d 1087, 1107 (10th Cir. 1996), cert. denied, 117 S. Ct. 1699 (1997).

A. Continuing Threat to Society Mr. Cooks claims the “continuing threat to society” aggravator is unconstitutionally applied in Oklahoma because it “ functions as a catch-all circumstance that fails completely to narrow the cl ass of individuals eligible for-11-

death.” He further claims the “continuing threat” aggravator unconstitutionally overlaps the “prior conviction” aggravator in this case.

This court already has upheld the constitutionality of Oklahoma’s “continuing threat to society” aggravator inasmuch as Mr. Cooks claims it is vague and fails to narrow the class of individuals eligible for death. Nguyen v. Reynolds , 131 F.3d 1340, 1352-54 (10th Cir. 1997), cert. denied, 119 S. Ct. 128 (1998). That resolution binds this panel. United States v. Foster , 104 F.3d 1228, 1229 (10th Cir. 1997).

Mr. Cooks’ argument the “continuing threat” aggravator impermissibly overlaps the “prior conviction” aggravator is likew ise unavailing. It is true we have held certain aggravating circumstances may imp ermissibly overlap and therefore unconstitutionally skew the process of we ighing aggravating and mitigating circumstances. See McCullah , 76 F.3d at 1111-12. Such precedent does not, however, stand for the proposition that a ny time evidence supports more than one aggravating circumstance, those circumstan ces impermissibly overlap,
per se. The test we apply is not whether certain evidence is relevant to both aggravators, but rather, whether one aggravating ci rcumstance “necessarily subsumes” the other. Id . at 1111. Under the facts and circumstances of th is case,-12-

there are two reasons the “continuing threat” aggr avator did not subsume the “prior conviction” aggravator.

First, although Mr. Cooks’ jury may have considered evidence of his prior conviction of a violent crime in the context of det ermining the presence of both the “prior conviction” and “continuing threat” aggr avators, the “prior conviction” circumstance focused the jury’s attention on the pa rticular nature and consequences of his pastconduct, while the “continuing threat” aggravator focused attention on the likelihood offuture violent conduct. Second, under Oklahoma law, evidence regarding the callous nature of a crime, alone, is sufficient to support a jury’s finding a defendant poses a continuing threat to society. See Coleman v. Saffle , 869 F.2d 1377, 1390 (10th Cir. 1989), cert. denied, 494 U.S. 1090 (1990); Pennington v. State , 913 P.2d 1356, 1371 (Okla. Crim. App. 1995), cert. denied, 117 S. Ct. 121 (1996). The record here is replet e with evidence that supports a finding Ms. Ridling’s murder was, indeed, callous. Ms. Ridling was both elderly and disabled. Neverth eless, Mr. Cooks and Mr. Masters broke into her home, held her down, and the n gagged her with sufficient force to lay her nose over to one side. The record further indicates that after binding and gagging Ms. Ridling, Mr. Cooks raped he r and then proceeded to ransack her home and steal her possessions. Mr. Co oks and Mr. Masters then left3 Jury Instruction No. 51 read: As used in these instructions, the term “heninous” [sic] means extremely wicked or shockingly evil; “atrocious” me ans outrageously wicked and vile; “cruel” means pitiless, or designe d to inflict a high degree of pain, utter indifference to, or enjoymentof, the sufferings of others. The phrase “especially heinous, atrocious, or cruel ” is directed -13- Ms. Ridling, immobilized on her bed, to die from as phyxiation. This evidence invalidates any argument the jury’s finding that Mr . Cooks posed a continuing threat to society was dependent on evidence he had committed a prior violent crime. Because the “continuing threat” aggravator did not subsume the “prior conviction” aggravator in this case, we find no con stitutional error that warrants habeas relief.

B. Heinous, Atrocious or Cruel Mr. Cooks argues “Oklahoma has no genuinely meaning ful or principled narrowing construction for its ‘especially heinous, atrocious or cruel’ aggravating circumstance,” as required by the Eighth and Fourte enth Amendments and recognized by this court in Cartwright v. Maynard, 822 F.2d 1477 (10th Cir. 1987), aff’d

486 U.S. 356 (1988). More specifically, he claims the second paragraph of Jury Instruction No. 51 failed to suff iciently narrow the circumstances within which this aggravator could be applied. 3 Even if we deemto those crimes where the death of the victim was p receded by torture

of the victim or serious physical abuse.

-14- the instruction sufficient, Mr. Cooks asserts “the State failed to prove the ‘heinous, atrocious, or cruel’ aggravating circumst ance beyond a reasonable doubt.”

We considered and rejected this same constitutional argument concerning the same jury instruction in Duvall v. Reynolds , 139 F.3d 768, 792-93 (10th Cir. 1998), cert. denied, 119 S. Ct. 345 (1998). Oklahoma’s narrowed interpretation of the “especially heinous, atrocious, or cruel” ag gravator as articulated in the second paragraph of the standard jury instruction w as held to satisfy the Cartwrightstandard in Hatch v. Oklahoma , 58 F.3d 1447, 1468-69 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996). The Duvalldecision extended Hatch by opining that the Oklahoma courts consistently ha ve “interpreted the ‘especially heinous, atrocious, or cruel’ aggravator to require ‘torture’ and ‘serious physical abuse’ as evidenced by proof of conscious physical suffering.” Duvall , 139 F.3d at 793. Equally important, Duvallheld Oklahoma courts consistently have applied that standard when evaluating whether the e vidence justifies a finding of the “heinous, atrocious or cruel” aggravator. Id

. Duvalltherefore is dispositive on this issue. Foster , 104 F.3d at 1229.-15-

Furthermore, we conclude the record supports the ju ry’s finding that Ms. Ridling experienced conscious physical suffering su fficient to establish torture or serious physical abuse as interpreted by the Oklaho ma courts. The record reveals Ms. Ridling suffered injury to the urethral opening , as well as a “significant blow to the head,” bruises on both sides of her face, ov er the knuckles, and on the top of her left foot. Dr. Robert Dix, the state’s medi cal examiner, testified the bruised knuckles and foot indicated she had hit and kicked her attacker. The autopsy report likewise cited the fresh bruises as “evidence of a struggle.” With regard to his findings concerning “asphyxiation due to gag” as the specific cause of death, Dr. Dix testified there was evidence of agag that left Ms. Ridling’s face “quite distorted.” The upper part of her face was “very swollen” and, while the indentations in the swollen tissue were not necessa rily caused by force, the gag was tied with sufficient pressure to lay Ms. Ridlin g’s nose “over to one side.” It was Dr. Dix’s opinion Ms. Ridling “was alive for so me time in order for that swelling to take place in the face.” On cross-exam ination, Dr. Dix estimated it took “more than an hour or two” for her death to oc cur. This evidence amply supports application of the “heinous, atrocious or cruel” aggravator. Because we hold that aggravator is not unconstitutional on its face or as applied in this case, we deny Mr. Cooks’ request for habeas relief on thi s ground.-16-

III. Jury Instructions Concerning Mitigating Circumstances A. Jury Instruction No. 55 - Jury Discretion to Im pose a Life Sentence Mr. Cooks asserts the trial court erroneously faile d to inform the jury it had the option to return a life sentence even if it fou nd the aggravating circumstances to outweigh the mitigating circumstances. He claim s Jury Instruction No. 55 “misled the jury by implying it was required to fin d the existence of specific mitigating circumstances before it could sentence [ him] to life imprisonment.” Jury Instruction No. 55 advised the jury:

If you unanimously find that one or more of the agg ravating circumstances existed beyond a reasonable doubt, un less you also unanimously find that any such aggravating circumst ance or circumstances out weigh [sic] the finding of one ormore mitigating circumstances, the death penalty shall not be impos ed.
It is important to note Jury Instruction No. 55 was not the only instruction concerning aggravating and mitigating circumstances . The court also instructed the jury, in pertinent part:

Instruction No. 52

... Should you unanimously find that one or more aggrav ating circumstances existed beyond a reasonable doubt, yo u would be authorized to consider imposing a sentence of death

.-17- If you do not unanimously find beyond a reasonable doubt that one or more of the aggravating circumstances existe d, you are prohibited from considering the penalty of death. In that event, the sentence must be imprisonment for life. Instruction No. 53 Mitigating circumstances are those which, in fairne ss and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of w hat are mitigating circumstances is for you as jurors to resolve underthe facts and circumstances of this case.
We considered, but rejected, the same argument Mr. Cooks makes here, concerning a substantially similar set of jury inst ructions, in Duvall , 139 F.3d at 789-92. We reach the same result here. Mr. Cooks is correct that under Oklahoma law a jury may avoid the death penalty eve n if it finds aggravating circumstances to outweigh mitigating circumstances. Duvall , 139 F.3d at 789-90. However, state courts are not constitutionally boun d to “‘affirmatively structure in a particular way the manner in which juries cons ider mitigating evidence.’” Id. at 790 (quoting Buchanan v. Angelone, ___ U.S. ___, 118 S. Ct. 757, 761 (1998)). Thus, so long as the court does not precl ude the jury from giving effect to any relevant mitigating evidence, it need not se parately instruct the jury of its option to return a life sentence regardless of its finding the aggravating circumstances outweigh the mitigating circumstances

. Id . at 790-91. On review, we need only ensure there is no reasonable likeliho od the jury applied the-18-

challenged instruction in a way that prevented the consideration of relevant evidence. Id . at 790; see also Castro v. Ward, 138 F.3d 810, 824 (10th Cir.), cert. denied, 119 S. Ct. 422 (1998).

In this case, the instructions, read as a whole, di d not preclude the jurors from considering and giving effect to any mitigatin g circumstances in Mr. Cooks’ favor. Nor did they suggest the jury’s discretion to avoid the death penalty was limited in any way. Instruction No. 53 expressly p ermitted the jury to consider any evidence as mitigating evidence. We see no lik elihood the jury would have understood they were required to find a particular mitigating circumstance. Instructions Nos. 54 and 55 merely authorized the j ury to consider the death penalty if, and only if, it unanimously found one o r more aggravating circumstances to outweigh any mitigating circumstan ces. These instructions cannot fairly be read to have mandated imposition o f the death penalty. Accordingly, Mr. Cooks is not entitled to habeas re lief on this ground.

B. Jury Instruction No. 54 - Minimum Mitigating Ci rcumstances Jury Instruction No. 54 advised the jury: Evidence has been offered as to the following minim um mitigating circumstances: 1. The defendant has no significant history of priorcriminal-19-

activity; 2. The age of the defendant at the time of the crime

. Whether these circumstances existed, and whether th ese circumstances are mitigating, must be decided by yo u.

Mr. Cooks argues this jury instruction misled the j ury into believing these were the only mitigating circumstances that could s upport a life sentence. Further, because Mr. Cooks claims these circumstanc es applied only to his codefendant, he argues the jury effectively was instr ucted there was no mitigating evidence to support him. According to Mr. Cooks, t he prejudice he suffered as a result of Jury Instruction No. 54 was exacerbated b y his co-defendant’s counsel’s closing statements that Jury Instruction No. 54 “st ated the law” and that his client was “a young, inexperienced gentleman, led into cri me by an older, convicted criminal.”

As stated above, we review jury instructions pertai ning to mitigating evidence only to ensure there is no reasonable like lihood the jury applied the challenged instruction in a way that prevented the consideration of relevant evidence. Duvall , 139 F.3d at 790. While we appreciate Mr. Cooks’ concern Jury Instruction No. 54 specified mitigating evidence th at arguably did not apply to4The instruction referred to evidence to the effec t “[t]he defendant has no

significant history of prior criminal activity”; ho wever, the jury had received evidence regarding Mr. Cooks’ prior criminal activi ty.

-20- him, 4 and referred to “the defendant” in the singular wh en in fact the case was being tried against two defendants, we do not belie ve the instructions, read as a whole, prevented the jury from considering any and all mitigating evidence that might support either defendant.

Despite Jury Instruction No. 54's infirmities, the fact remains Instruction No. 53 broadly defined mitigating circumstances as any circumstances that, “in fairness and mercy, may be considered as extenuatin g or reducing the degree of moral culpability or blame,” and then left the dete rmination of what constituted mitigating circumstances in this case to the jury’s sound discretion. We fail to see how the specificity of Jury Instruction No. 54 in a ny way undermined the general directives of Instruction No. 53. Moreover, we see nothing patently erroneous or inappropriate in the closing comments of Mr. Master s’ counsel – certainly nothing that rises to the constitutional level necessary to support Mr. Cooks’ habeas petition. Consequently, relief is denied on this g round.

Mr. Cooks’ concerns with Jury Instruction No. 54 ap pear to stem not so5 Mr. Cooks bases his ineffective assistance claim in large part on his

counsel’s relative inexperience and the failure of the Oklahoma court system to appoint more qualified and experienced attorneys in capital cases. He asserts these are crucial factors to consider when determin ing ineffectiveness of counsel. Such reliance on inexperience and the imperfections of the court appointment system is misplaced. When considering an ineffecti ve assistance of counsel claim, this court must focus on the attorney’s perf ormance, not his experience. An attorney with little or no prior experience cert ainly can render effective assistance. Mr. Cooks therefore must demonstrate s pecific instances of deficient conduct, not simply allege inexperience. See United States v. Cronic , 466 U.S. 648, 665 (1984); LaGrand v. Stewart , 133 F.3d 1253, 1275 (9th Cir.), cert. -21- much from the instructions themselves or the remark s of his co-defendant’s counsel, but from his own attorney’s failure to pre sent mitigating evidence on his behalf, or to offer any alternative or supplemental instructions. We thus proceed to consider Mr. Cooks’ ineffective assistance of co unsel claims.

IV. Ineffective Assistance of Counsel Mr. Cooks claims he received ineffective assistance of counsel at both the guilt and sentencing stages of trial, as well as on direct appeal. An ineffective counsel claim presents a mixed question of fact and law we review de novo

. Williamson v. Ward, 110 F.3d 1508, 1513 (10th Cir. 1997).

To prevail on this claim, Mr. Cooks must first demo nstrate his counsel “committed serious errors in light of ‘prevailing p rofessional norms’” such that his legal representation fell below an objective st andard of reasonableness. 5denied, 119 S. Ct. 422 (1998).

-22-

United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993) (quoting Strickland v. Washington , 466 U.S. 668, 688 (1984)). If Mr. Cooks demonstr ates constitutionally deficient performance, he must the n show prejudice – “a ‘reasonable probability’ that the outcome would hav e been different had those errors not occurred.” Id . at 955 (quoting Strickland, 466 U.S. at 694). This court may address the performance and prejudice component s in any order, but need not address both if Mr. Cooks fails to make a suffi cient showing of one. Strickland, 466 U.S. at 697.

A. Trial Stage According to Mr. Cooks, Mr. Hilliary failed to adeq uately investigate and prepare for the guilt/innocence stage of trial, particularly with regard to presentation of an intoxication defense. He assert s Mr. Hilliary’s defense strategy “to hold the State to their burden of proof on each and every element of the crime beyond a reasonable doubt, hoping ... that during t he course of the trial there would be some substantial errors ... and that the S tate would just not be able to meet their burden of proof in the case,” amounted t o no coherent defense strategy at all. In support of this claim, Mr. Cooks relies in part on the testimony of Mr.-23-

David Autry, an attorney with experience litigating capital offenses, who testified as an “expert” during the 1995 evidentiary hearing in federal district court concerning Mr. Cooks’ ineffective assistance of cou nsel claims. Mr. Autry opined that Mr. Hilliary was ineffective during the guilt stage of trial, and that Mr. Cooks was substantially prejudiced by his couns el’s errors and omissions.

Under the circumstances, we need express no opinion whether Mr. Hilliary’s performance fell below the prevailing pr ofessional standard. Since Mr. Cooks fails to prove he was in any way prejudiced b y Mr. Hilliary’s performance, we proceed directly to our analysis of that issue. See Castro , 138 F.3d at 832.

In evaluating prejudice during the guilt/innocence stage of trial, “the question is whether there is a reasonable probabili ty that, absent the errors, the factfinder would have had a reasonable doubt respec ting guilt.” Strickland, 466 U.S. at 695. To answer this question we must lookat the totality of the evidence, not just evidence that would have been helpful to M r. Cooks’ case. See Brewer v. Reynolds , 51 F.3d 1519, 1527 (10th Cir. 1995), cert. denied, 516 U.S. 1123 (1996); see also Robison v. Maynard, 829 F.2d 1501, 1510 (10th Cir. 1987).

Perhaps as Mr. Cooks suggests, Mr. Hilliary could h ave gathered and-24-

presented further evidence of Mr. Cooks’ state of i ntoxication immediately prior to the crime. The record demonstrates, however, th e jury was generally aware Mr. Cooks had been drinking for some time prior to entering Mrs. Ridling’s home. In addition, during closing arguments, Mr. H illiary told the jury Mr. Cooks’ judgment had been impaired by his drinking. Mr. Cooks offers no cogent argument the law provided an intoxication defense t o the felony murder charges, or that if an intoxication defense was available, h e was intoxicated to the extent he was incapable of forming the necessary criminal intent. Under these circumstances, we fail to see how additional, more specific evidence of intoxication would have had any bearing on the jury ’s determination of Mr. Cooks’ guilt.

Even more important to our analysis here is the fac t the record is replete with evidence of Mr. Cooks’ guilt, not the least of which is Mr. Cooks’ own statements admitting he bound, gagged, raped, and r obbed Mrs. Ridling. Mr. Cooks’ admissions were corroborated by the post-arr est statements and trial testimony of his co-defendant, Mr. Masters. For th ese reasons, we conclude there is no reasonable probability Mr. Cooks would have avoided the murder conviction had his counsel performed differently. Accordingl y, Mr. Cooks was not prejudiced by Mr. Hilliary’s performance during the guilt stage of trial, and he is-25-

not entitled to habeas relief on this ground.

B. Sentencing Stage Here again, the essence of Mr. Cooks’ claim is Mr. Hilliary’s alleged failure to adequately investigate and prepare. Wit h regard to the sentencing stage, Mr. Cooks focuses primarily on mitigating evidence he claims was available at trial, but which Mr. Hilliary, for no apparent strategical reason, failed to develop and present to the jury as a reasonable explanation for Mr. Cooks’ criminal conduct. Mr. Cooks identifies the following mitigating evidence in support of his claim: 1. Mr. Cooks was a person of limited intellectual capacity; 2. he had endured an unhappy and deprived childhood; 3. he had a severe drinking problem, which began at an early age; 4. he had severe psychological and mental problems at the time of the offense; 5. his mental problems were compounded at the time o f the offense by excessive drinking and use of the drug commonly called PCP, which altered his ordinarily peaceful, nonviolent disposition; 6. he was a good worker during intermittent periods of sobriety; 7. during periods when he was drug free and sober, h e was a responsible, caring and nonviolent person; 8. he repeatedly expressed remorse and shame in-26- connection with the incident that resulted in the d eath of Ms. Ridling; 9. he had enlisted in the Navy at the age of eightee n, but was honorably discharged after four months and twen ty days because of ineptitude. Mr. Cooks argues such evidence would have presented “[a] powerful case in mitigation ... that ... could have resulted in a li fe sentence, just as Mr. Masters, the codefendant, received.”

The obligation to provide effective assistance of c ounsel unquestionably extends to a capital sentencing hearing. Davis v. Executive Director of Dep’t of Corrections , 100 F.3d 750, 756 (10th Cir. 1996), cert. denied, 117 S. Ct. 1703 (1997); Brecheen v. Reynolds , 41 F.3d 1343, 1365 (10th Cir. 1994), cert. denied, 515 U.S. 1135 (1995). Indeed, we have recognized aneed to apply even closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case. “‘[T]he minimized state interest in finality when resentencing alone is the remedy, combined with the acute interest of a defendant facing death, justify a court’s closer scrutiny of attorney perfo rmance at the sentencing phase.’” Moore v. Reynolds , 153 F.3d 1086, 1116 n.1 (10th Cir. 1998) (Brorby, J dissenting) (quoting Osborn v. Shillinger , 861 F.2d 612, 626 n.12 (10th Cir. 1988)). Having carefully reviewed the trial and 19 95 evidentiary hearing transcripts with these principles in mind, we agree with Mr. Cooks his attorney6Mr. Long was an older, more experienced attorney, who volunteered to

help his friend, Mr. Hilliary, defend Mr. Cooks.

-27- was ineffective at the sentencing stage.

Mr. Hilliary waived his opportunity to make an open ing statement at the outset of the sentencing hearing, called no witness es, and presented no evidence on Mr. Cooks’ behalf. Although he briefly cross-ex amined the prosecution’s two witnesses, Mr. Hilliary did not cross-examine Mr. C ooks’ co-defendant, Mr. Masters, who told the jury he did not strike Mrs. R idling, tie her up or participate in raping her. Mr. Masters nevertheless expressed remorse over Mrs. Ridling’s death and testified he had no prior felony convicti ons, had trouble in school and an unstable home life, and had consumed a case of b eer and about four pints of rum prior to breaking into Mrs. Ridling’s home. Mr . Masters characterized himself as a follower rather than a leader. At the end of his testimony, Mr. Masters told the jury he thought some useful purpos e could be served if he was given life imprisonment and asked the jury to spare him from the death penalty. Aside from the limited cross-examination of the State’s witnesses, Mr. Cooks’ sentencing stage defense consisted solely of Mr. Lo ng’s 6 brief (three transcript pages) and generic closing argument reminding the j ury of the seriousness and finality of their sentencing decision and asking th em to impose a sentence of life-28-

imprisonment.

When invited to explain his sentencing stage strate gy during the 1995 evidentiary hearing, Mr. Hilliary stated he underst ood the importance of the sentencing stage and “attempted to develop a second stage strategy.” Mr. Hilliary further testified he and Mr. Long attempted to “gat her and glean evidence that would have been helpful to Mr. Cooks in the second stage of the trial.” Notably, however, Mr. Hilliary never articulated a strategy and later admitted “there was not much second[] stage defense put on.”

Indeed, we are unable to glean from the record any second stage strategy developed to defend Mr. Cooks against the death pen alty. What is more, by all accounts, Mr. Hilliary’s investigative efforts were minimal. Mr. Hilliary spoke to Mr. Cooks’ wife on several occasions before and dur ing trial, and to Mr. Cooks’ mother and two of his brothers during trial recesse s. However, by Mr. Hilliary’s own admission, he did not speak to Mr. Cooks’ stepf ather; did not investigate Mr. Cooks’ school records or speak to Mr. Cooks’ teache rs; did not investigate Mr. Cooks’ military records; and, because he was aware the Department of Corrections questioned the credibility of the state hospital’s mental evaluations, did not review any records concerning Mr. Cooks’ me ntal evaluation or introduce-29-

as evidence a letter from the state hospital statin g Mr. Cooks was not considered dangerous to himself or society. Mr. Hilliary furt her admitted he was not aware of Mr. Cooks’ abusive childhood environment prior t o trial. Mr. Hilliary testified he and Mr. Long discussed the possibility Mr. Cooks ’ documented good behavior during a prior incarceration could be used as mitig ating evidence, but he left the decision whether to present such evidence to Mr. Lo ng. On cross-examination, Mr. Hilliary admitted he should have used that evid ence during the sentencing stage. Perhaps most troubling is the fact Mr. Hill iary stated he knew Mr. Cooks was remorseful, but offered no reason, strategic orotherwise, to explain why he did not consider putting Mr. Cooks on the witness s tand during the sentencing stage.

This is not a case in which the defendant refused t o testify or otherwise influenced the reasonableness of counsel’s actions. See Brecheen , 41 F.3d at 1369-70. Nor could counsel argue the available mi tigating evidence conflicted with the trial defense. See Stafford v. Saffle , 34 F.3d 1557, 1563 (10th Cir. 1994), cert. denied, 514 U.S. 1099 (1995). This also is not a case in which counsel reasonably investigated the defendant’s background, but found no one willing to testify, see, e.g., Nguyen , 131 F.3d at 1348-49, or determined the mitigating7Mr. Hilliary did determine the testimony of Mr. C ooks’ mother and

brothers could have done more harm than good; howev er, there were numerous other sources of mitigating evidence Mr. Hilliary d id not similarly evaluate.

-30- evidence Mr. Cooks now relies on could do more harm than good. 7 See Burger v. Kemp , 483 U.S. 776, 790-91 (1987); Brecheen , 41 F.3d at 1367. Rather, this is a case in which counsel admitted his investigation wa s limited, admitted he should have presented certain mitigating evidence and, mos t important, offered no strategy, reasonable or otherwise, to explain his p erformance during the sentencing stage. Even applying the presumption of adequate performance, we cannot help but conclude counsel failed under these circumstances to satisfy his “duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Accordingly, we hold Mr. Cooks was denied effective assistance of counsel during the sentencing stage of his trial.

We must now determine whether Mr. Hilliary’s substa ndard performance prejudiced Mr. Cooks at the sentencing stage. Mr. Cooks seems to argue the circumstances of his case warrant application of th e presumption of prejudice acknowledged in United States v. Cronic , 466 U.S. 648, 658-60 (1984). According to Mr. Cooks, his counsel’s inaction duri ng the sentencing stage-31-

transformed that phase of trial “into a proceeding dominated exclusively by the State,” and thus failed “to subject the prosecution ’s case to meaningful adversarial testing.” If the adversary process dur ing the penalty phase failed, Mr. Cooks argues his death sentence was rendered presumptively unreliable.

The Supreme Court in Cronic recognized that in rare instances it may be appropriate to presume prejudice “without inquiry i nto counsel’s actual performance at trial,” because the circumstances “a re so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Cronic , 466 U.S. at 658, 662. Circumstances that justify a presumption of prejudice include the absence of counsel at a criti cal stage of trial, the denial of the right to effective cross-examination, and the c omplete failure to subject the prosecution’s case to adversarial testing; but, as the Supreme Court points out, a presumption of prejudice is the exception, not the rule. Id . at 659.

Although we agree Mr. Hilliary was ineffective duri ng the sentencing stage, his failures do not amount to the kind of actual orconstructive denial of counsel necessary to trigger a presumption of prejudice. M r. Hilliary was present in the courtroom. He conducted limited cross-examination, made evidentiary objections, and gave a closing argument. Hence, this case fall s outside the narrow Cronic-32-

exception.

Since Cronic does not apply, Mr. Cooks must affirmatively prove actual prejudice by demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693-94. As applied to the sentencing stage of his trial, Mr. Cooks must demonstrate “a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id . at 695. Mr. Cooks has not met this standard.

“In evaluating prejudice, we must keep in mind the strength of the government’s case and the aggravating [circumstance s] the jury found as well as the mitigating factors that might have been present ed.” Castro , 138 F.3d at 832 (internal quotations omitted). Here the jury found three aggravating circumstances to support Mr. Cooks’ death sentence: (1) his previous conviction of a felony involving the use or threat of violence ; (2) the heinous, atrocious or cruel nature of Mrs. Ridling’s murder; and (3) the continuing threat Mr. Cooks presented to society. As discussed above, the gove rnment presented abundant evidence to support each of these circumstances. T he mitigating evidence Mr.-33-

Hilliary could have presented to counterbalance the se aggravating circumstances centered on Mr. Cooks’ troubled childhood, borderli ne I.Q., and history of alcohol and drug abuse. The jury also would have l earned Mr. Cooks was nonviolent when sober, but was intoxicated on the n ight of the crime, and he was remorseful over Mrs. Ridling’s death.

While we are troubled by Mr. Hilliary’s failure to discover and/or present available mitigating evidence without good reason, the benchmark for evaluating Mr. Cooks’ ineffectiveness claim during the sentenc ing stage remains “whether counsel’s conduct so undermined the proper function ing of the adversarial process that the trial cannot be relied on as having produc ed a just result.” Strickland, 466 U.S. at 686. Applying this standard, we conclu de there is no reasonable probability the available mitigating evidence would have led the jury to a different result. Mr. Cooks’ background, together with the nature and circumstances of Mrs. Ridling’s death, presented a strong case in support of the three determinative aggravating circumstances. Mr. Cooks was a convicted felon who, by his own admission, broke into the home of ahandicapped, elderly woman, bound and gagged her, raped her, robbed her, and left her lying on her bed, partially clothed, to slowly suffocate. The a vailable mitigating evidence simply did not outweigh these aggravating circumsta nces. Consequently,-34-

counsel’s substandard performance did not so underm ine the proper functioning of the adversarial process that the sentencing proc eeding cannot be relied on as having produced a just result. Mr. Cooks’ request for habeas relief on this ground fails.

C. Direct Appeal Mr. Cooks asserts his counsel failed on direct appe al to raise “several critical issues” that would have required reversal of his conviction, or, at a minimum, vacation of the death sentence. Notably, however, Mr. Cooks identifies only two issues he suggests are “dead-ba ng winners” – issues which, if not raised on direct appeal, demonstrate ineffectiv e representation, see Banks v. Reynolds , 54 F.3d 1508, 1515 n.13 (10th Cir. 1995): (1) th e unconstitutionality of aggravating circumstances, and (2) the inadmissi bility of his post-arrest statements. Because we have denied habeas relief o n the merits of both these issues, Mr. Cooks’ counsel cannot be said to have b een ineffective for failing to raise them on direct appeal, and Mr. Cooks’ convict ion cannot be reversed on this ground.-35- CONCLUSION We are forever mindful that “‘[o]ur duty to search for constitutional error with painstaking care is never more exacting than i t is in a capital case.’” Brecheen , 41 F.3d at 1370 (quoting Burger , 483 U.S. at 785)). We thus have given careful consideration to each of Mr. Cooks’ c laims. Finding no constitutional error for the reasons stated, we AFFIRM Mr. Cooks’ conviction and sentence.