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

### AUG 26 2003 

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

TENTH CIRCUIT

WINDEL RAY WORKMAN,

Petitioner - Appellant,

v. MIKE MULLIN, Warden, Oklahoma State Penitentiary,

Respondent - Appellee. No. 01-6448

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-97-1378-L)

Robert W. Jackson (Steven M. Presson with him on th e briefs), Jackson & Presson, P.C., for Petitioner-Appellant. David M. Brockman, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma, with him on the brief s), State of Oklahoma for Respondent-Appellee.

Before EBEL , BRISCOE , and HARTZ , Circuit Judges.

EBEL , Circuit Judge.- 2 -

Petitioner-Appellant, Windel Ray Workman, was convi cted and sentenced to death by a jury in Oklahoma state court for felo ny first-degree child abuse murder. He petitions for a writ of habeas corpus f or relief in federal court pursuant to 28 U.S.C. § 2254. He objects to his de ath sentence on the ground that, although the jury found that he had killed a child during the course of the felony of child abuse, the verdict did not sufficie ntly determine his degree of culpability as required by the Supreme Court cases of Enmund v. Florida , 458 U.S. 782, 798 (1982), or Tison v. Arizona , 481 U.S. 137, 157 (1987), such that the State may impose the death penalty on him. We AFFIRM the district court’s dismissal of Workman’s petition for a writ of habea s corpus. We hold that an additional culpability finding as might be required by Enmundor Tisonin order to apply the death penalty for a felony murder conv iction does not apply when the defendant actually killed his victim, as was the ca se here. BACKGROUND Windel Ray Workman was tried by a jury in Oklahoma and convicted of the first-degree child abuse murder of his live-in girl friend’s two-year-old daughter. Workman v. State , 824 P.2d 378, 380 (Okla. Crim. App. 1991). The g irl, Amanda Holman, was pronounced dead upon arrival at South C ommunity Hospital in Oklahoma City on the morning of January 10, 1987. The emergency room doctor- 3 -

and nurse who unsuccessfully attempted to revive Am anda observed numerous bruises on the girl’s face, chest, back and buttock s, and suspected child abuse. The police were called to the hospital and spoke wi th Workman about Amanda’s injuries. Workman told them that Amanda h ad fallen backwards out of bed the night before. He also admitted to spanking the child hard, leaving bruises on her body. He played “pitch” with Amanda, in whi ch he threw the girl up in the air and caught her. Amanda’s pediatricians testifi ed, however, that her injuries could not have resulted from these activities alone and she was not a child who bruised easily. According to the medical examiner, Amanda had died from blunt head injury. Her death was a homicide, not a result of accident. Any of Amanda’s three serious head injuries could have killed her, and he noted additional injury to the child’s abdomen and buttocks. Moreover, becaus e bruising cannot occur postmortem, the injuries observed must have been inflic ted before her death. Had Amanda’s injuries been the result of a fall as Work man claimed, such a fall must have been from at least ten feet. The physician in charge of the emergency room at Children’s Hospital revised upward the medical e xaminer’s estimate of the height of a fall that could have inflicted similar injuries, concluding that such injuries might result from a fall from a two or thr ee-story building. The doctor from the Children’s Hospital also concluded that, o n the basis of the autopsy- 4 -

report, photos of Amanda, and discussions with the medical examiner, Amanda had been “most definitely” a victim of child abuse. Witnesses established that Amanda had been in Workm an’s care during the time she incurred her injuries. Several employees of the child’s daycare testified that they had noticed bruises and other injuries on Amanda in the days preceding her death. Amanda cried when Workman came to pick her up from the center. January 7, 1987 was the last day that Workman picke d Amanda up from daycare. On that day, the girl screamed and cried when she saw Workman at the door. She climbed into the lap of a stranger and w et her pants. Workman’s comment about Amanda’s behavior was that the child, for some reason, “doesn’t like me.” Workman kept Amanda home by himself on January 8th and 9th. He testified that he heard Amanda fall in her room on the 8th and believed that she had hit a dresser. The two-year-old told him that her stomach hurt afterwards. On cross-examination, Workman admitted spanking Ama nda on the 8th. According to Workman, on the 9th, Amanda fell again in the bathtub. Workman did not tell the police about this fall in initial interviews because he said he had left her unaccompanied at the time, in contraventio n to a promise he had made her mother. That evening, Amanda began to vomit. Afte r Amanda could not be1 Child abuse murder in Oklahoma is similar to felo ny murder in that it

does not require a specific intent to kill. Malico at v. State , 992 P.2d 383, 395 (Okla. Crim. App. 2000). Nevertheless, it is categ orized as first-degree murder. Fairchild v. State , 998 P.2d 611, 618 (Okla. Crim. App. 1999); see al so Okla. Stat. tit. 21, §843 (amend. 1989, 1990), renumbered as Okla. Stat. tit. 10, §7115 effective Nov. 1, 1995 (amend. 1995, 1996, 1998, an d 1999) (Supp. 2003) (“‘[C]hild abuse’ means the willful or malicious ab use . . . of a child under eighteen (18) years of age by another, or the act o f willfully or maliciously injuring, torturing or maiming a child under eighte en (18) years of age by another.”); Okla. Stat. tit. 21, §701.7(c) (amend. 1989, 1997) (“It is sufficient for the crime of murder in the first degree that the pe rson either willfully tortured or used unreasonable force upon the child or malicious ly injured or maimed the child.”). - 5 - resuscitated on the 10th, Workman and the girl’s mo ther took her to the hospital, and she was pronounced dead on arrival. Amanda’s pediatricians testified that Amanda’s moth er had been a concerned parent, bringing Amanda in for treatment of even minor injuries. By contrast, Workman’s own witness, his second wife, h ad seen Workman spank their daughter too hard two or three times, causing the child to wet her pants.

Procedural History At trial, the state court retained a juror who firs t expressed doubt about whether she could serve, and then later agreed thatshe could be fair. The jury convicted Workman of child abuse murder in the first degree. 1 The jury was instructed that the elements of the cr ime were (1) “The death of a human being;” (2) “That this human being was under the age of eighteen years;”- 6 -

(3) that “The death occurred as a result of the wil lful or malicious use of unreasonable force upon the child;” and (4) that th ese actions had been committed “By the defendant Windel Ray Workman.” Jury Instru ction No. 6. During the sentencing stage of Workman’s trial, the jury found the existence of aggravating circumstances, including that the murder was “espec ially heinous, atrocious, or cruel,” and recommended imposition of the death pen alty. See Okla. Stat. tit. 21, §701.12(4). On direct appeal, Workman challenged Oklahoma’s fir st-degree murder statute as vague, and the jury instructions as not properly relaying to the jury the requirements of the statute. He also argued that t he jury instructions were insufficient under the Eighth and Fourteenth Amendm ents because they allowed conviction without proof of mens rea for the killin g, as opposed to mens rea for the commission of child abuse. Workman exhausted h is state remedies on direct appeal. The Oklahoma state courts did not address the Eighth Amendment issue and denied relief. On collateral attack in federal court, Workman argu ed for the first time that his trial counsel had a conflict of interest becaus e the attorney represented his brother, Tracey Workman, on a separate charge. He also renewed his objection that the jury instruc tions had not properly determined his degree of culpability for the child abuse murder and he more- 7 -

explicitly referred to the standard for imposition of the death penalty under the Eighth Amendment cases of Enmund v. Florida , 458 U.S. 782, 798 (1982), and Tison v. Arizona , 481 U.S. 137, 157 (1987). The district court found that Workman had properly presented his Eighth Amendment Enmund/Tisonargument on direct appeal. It then ordered Workma n to present the argument again to the Oklahoma state courts so that the Oklahoma courts could make a determination of Workman’s Enmu nd/Tisonculpability pursuant to the procedures outlined in Cabana v. Bu llock , 474 U.S. 376 (1986). The Oklahoma Court of Criminal Appeals (the OCCA), however, again refused to rule on the substance of Workman’s Enmun d/Tisonargument, now claiming that it was procedurally barred, apparentl y predicated on the belief that the argument had not been raised on direct appeal. When Workman’s case returned to the federal system, however, the district court found that his Enmund /Tisonclaim was not procedurally barred as the OCCA had determined. The district court reiterated its earlier determination that Workman hadraised the issue of Enmund /Tisonculpability on direct appeal. Because the OCCA declined to rule on the merits of Workman’s Enmund/Tisonclaim even when presented with an additional opportunity to do so, the district court subsequently made the required d etermination on the issue of Workman’s culpability itself. The district court f ound that, although there had- 8 -

been no direct finding in the trial record that Wor kman had intended to inflict fatal blows to the child, the record contained “abu ndant circumstantial evidence of Petitioner’s mental state.” Slip Op. at 15. Th e district court surveyed the traumatic physical abuse done to Amanda Holman befo re her death, and noted that it was bound by the state court’s determinatio n that Workman had been the one who had inflicted the abuse. Given the evidenc e of the type of abuse presented at trial, the district court concluded th at the record was “sufficient to demonstrate that Petitioner acted with reckless dis regard of the consequence of his actions when he repeatedly struck [the two-year -old child] about the head and abdomen.” Slip Op. at 16-17. This language satisf ied the “reckless disregard” or “reckless indifference to the value of human life” standard in Tison v. Arizona

. Tison , 481 U.S. at 157. Now on appeal, Workman argues that his sentence sho uld be overturned on five main grounds. First, he objects that his atto rney had a conflict of interest that mandates reversal of his sentence. Second, he argues that his right to an impartial jury was unconstitutionally impaired by t he retention of the juror who initially objected to serving. Third, Workman argu es that his right to due process was unconstitutionally impaired by jury instruction s that allegedly relieved the State of the burden of proving every element of the crime charged. Fourth, Workman argues that his sentence is unconstitutiona l because the definition of the- 9 -

aggravating circumstance for murder was vague. Fif th, he argues that his sentence is unconstitutional due to cumulative erro r. Workman also has filed motions to have his case held in abeyance because o f the Supreme Court’s recent decision in Ring v. Arizona , 536 U.S. 584 (2002), and to remand his case for a n evidentiary hearing. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. §§ 2253, 2254. For the reasons that follow, we AFFIRM the d istrict court’s denial of a writ of habeas corpus, we DENY the motion to hold t he appeal in abeyance, and we DENY the petitioner’s request to remand for an e videntiary hearing.

DISCUSSION Pursuant to the Antiterrorism and Effective Death P enalty Act of 1996 (AEDPA), issues brought on petition for a writ of h abeas corpus must have been exhausted in the state system. 28 U.S.C. § 2254(b) . Federal courts may not issue a writ unless the state courts’ adjudication of a c laim was either “contrary to, or involved an unreasonable application of, clearly es tablished [f]ederal law” or “resulted in a decision . . . based on an unreasona ble determination of the facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(1) & (2). State court determinations of fa ct are “presumed to be correct”- 10 -

unless a petitioner rebuts them with “clear and con vincing evidence.” 28 U.S.C. § 2254(e)(1). Under extraordinary circumstances when a federal di strict court must make the initial determination of an issue because the s tate courts have not addressed the merits of a claim and there is no state procedu ral bar, we review the district court’s conclusions of law de novo and its findings of fact for clear error. LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999).

I. Attorney Conflict of Interest.
We find that Workman’s attorney did not have a conf lict of interest that mandates reversal of his sentence. Workman had arg ued that his Sixth Amendment right to counsel was violated because his attorney had also represented his brother, Tracey, on a separate char ge after a search of their joint residence uncovered marijuana in Tracey’s room. A conflict of interest may be present even when an attorney’s clients are not co-defendants if a petitioner can prove that th e common representation adversely affected his attorney’s performance. Uni ted States v. Soto Hernandez , 849 F.2d 1325, 1328-29 (10th Cir. 1988) (common rep resentation other than as co-defendants); United States v. Bowie , 892 F.2d 1494, 1500 (10th Cir. 1990) (burden of proof on petitioner).2 Because the state did not raise an issue of proce dural bar, but instead

engaged the Cuyleranalysis directly, we do not address the question of whether procedural bar might have applied to Workman’s conf lict of interest claim. - 11 - But Workman did not raise this issue at trial or on direct appeal, and a conflict of interest claim brought for the first ti me on collateral attack is governed by the Supreme Court’s standard under Cuyler v. Sul livan

. 2 446 U.S. 335, 347-48 (1980) (“[A] defendant who raised no objection at t rial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.”); Selsor v. Kaiser , 22 F.3d 1029, 1032 (10th Cir. 1994). As the Court held in Cuyler , the mere possibility of conflict is insufficient to reverse a criminal conviction, at least when the conflict was not brought to the trial court’s attention. Cuyler , 446 U.S. at 350; see also United States v. Cook , 45 F.3d 388, 393 (10th Cir. 1995). An actual conflictof interest exists only if counsel was “forced to make choices advancing . . . interests to the detriment of his client.” United States v. Alvarez , 137 F.3d 1249, 1251-52 (10th Cir. 1998) (citing Stoia v. United States , 22 F.3d 766, 771 (7th Cir. 1994)). Furthermore, “the petitioner must be able to point to specific i nstances in the record” that suggest his interests were damaged for the benefit of another party. Id. (quoting Danner v. United States , 820 F.2d 1166, 1169 (11th Cir. 1987)). Workman attempts to list examples of when his inter ests were compromised by the attorney’s representation of Tracey, but his assertions are strained and- 12 -

counterintuitive. In each of Workman’s examples, h is interests appear not to have been damaged, but instead his interests may actuall y have been furthered by his attorney’s actions. First, Workman contends that his attorney should no t have moved to suppress evidence of the drugs found in the house. He asserts that the presence of drugs in the house was a “nullity” as far as his ca se was concerned. But it certainly could not have helped Workman, on trial f or murder already, for the jury to discover that he allowed drugs in the house with a two-year-old child. Second, Workman contends that his attorney should h ave cross-examined Tracey on why he was angry with Workman. Yet the r eason why Tracey was angry with his brother is that Workman had given co nsent for the search of the house during which police found the drugs. Had the attorney asked any questions in this vein, testimony about the drugs would have come in, and that would have hurt Workman. Third, Workman contends that his attorney never sug gested that Tracey could have harmed the child instead of himself. Th is theory of defense, however, would have contradicted Workman’s own testimony that he was the only person looking after the child in the days leading up to h er death and therefore that no one else could have injured the child. Workman tol d the police that the child had fallen several times in those days on his watch, an d that he had been the only one- 13 -

to witness her rapid decline. As the district court found then, “defense counsel’s ability to effectively point the finger at others w as severely limited by [Workman’s] own position — not by any conflicting i nterests between Petitioner and his brother.” Slip Op. at 19. Workman’s attor ney could thus only have done damage to the petitioner’s credibility had he attem pted this line of questioning. Fourth, Workman contends that his attorney should n ot have argued in camera against the impeachment of Tracey’s testimony through the introduction of past drug convictions. But again it was apparen tly against Workman’s own interests for evidence of his brother’s prior crimi nal record to be introduced because it would have made Workman, given his testi mony, look like a poor caretaker to have allowed a two-year-old child to l ive in a household around such activities. Workman’s interests were not tangibly compromised i n the attorney’s representation of his brother. See generally Alvarez , 137 F.3d at 1252 (“Without a showing of inconsistent interests, any alleged co nflict remains hypothetical [and will not support reversal].”). There is no “actual conflict” here as defined by the Supreme Court in Cuyler . We AFFIRM the district court’s denial of a writ on this basis.3 The Oklahoma State Court of Criminal Appeals (the OCCA) also

reviewed Workman’s claim regarding the juror and fo und no error in the trial court’s actions. Workman v. State , 824 P.2d 378, 380-81 (Okla. Crim. App. 1991). Under Oklahoma law, “no person shall be dis qualified as a juror by reason of having formed or expressed an opinion upon the m atter or cause to be submitted to such jury, founded upon . . . statemen ts in public journals . . . provided it appears to the court, upon his declarat ion . . . that he can and will . . . act impartially and fairly upon the matters to be s ubmitted to him.” Okla. Stat. tit. 22, §662. - 14 - II. Retention of juror. We hold that Workman’s right to an impartial jury w as not unconstitutionally impaired by the retention of a j uror who first expressed doubt about whether she could serve, and then later agree d that she could be fair. The Tenth Circuit has specifically held that federa l courts may only reverse state court determinations of juror impartiality up on a showing of “manifest error.” 3 Brecheen v. Reynolds , 41 F.3d 1343, 1350 (10th Cir. 1994); see also Cannon v. Gibson , 259 F.3d 1253, 1280 (10th Cir. 2001) (deferring t o a trial judge’s finding as to whether a potential juror is biased unless the finding is rebutted by clear and convincing evidence); accord Sallahdin v. Gibson , 275 F.3d 1211, 1224 (10th Cir. 2002). This limited degree o f review is justified by a trial judge’s unique advantage in observing and evaluatin g the demeanor of jurors. Brecheen , 41 F.3d at 1350 (quoting Church v. Sullivan , 942 F.2d 1501, 1519 (10th Cir. 1991)).- 15 -

Prior to being sworn in, one of the jurors told the judge that she had seen a report about Workman’s case on the television that morning and would have a difficult time believing that the child he was accu sed of murdering could have been fatally injured by “fall[ing] from a bed onto a cocktail table” as reported. One of her own children had fallen off of a couch o nto the floor and suffered no injuries at all. As a result of this personal expe rience, the juror was “afraid it would take much more to convince me that [Workman i s] innocent.” ROA II, Tr. at 278. The prosecutor and defense counsel examined the jur or about her viewing of the television report, driving home the point th at the actual charges at trial might be more detailed and that Workman’s defense h ad not yet been presented. The juror was then asked whether, if she was permitted to stay on the jury, she could disregard anything she heard outside the courtroom and base her verdict only on the evidence that she heard in court. Id. at 280. To this question, the juror replied: “Yes, I can do that.” Id. She reaffirmed her answer when asked again. Id. at 281 (“Yeah, I can do that.”). The judge heard further argument from counsel and t hen explained that the prospective juror “could probably be a fair and imp artial juror. I think she’s trying very hard to be absolutely fair . . . I’ll overrule the motion to excuse her- 16 -

for cause.” Id. at 287. The defense attempted twice more to have her removed from the jury, but those motions were similarly den ied. The state court’s decision to retain the juror does not appear contrary to established federal law. See generally 28 U.S.C. § 2254. Indeed, the Supreme Court has specifically upheld cases in which jurors have been allowed to serve after giving contradictory testimony on whether the y could be fair. In Patton v.
Yount , 467 U.S. 1025 (1984), for example, the Supreme Co urt wrote that it is generally a matter for the state courts to determin e whether “a juror [who swears] that he could set aside any opinion he might hold a nd decide the cases on the evidence . . . [should be] believed.” Id. at 1036. Workman does not carry the heavy burden of showing that the state court’s judgment constituted manifest error. We are bound by prescribed deference to the decisions of state courts under AEDPA and AFFIRM th e denial of a writ on this basis.

III. Jury instructions. Workman makes the constitutional argument that the jury instructions in his case did not require the jury to make a finding as to his culpability for Amanda Holman’s killing such that he should be eligible fo r the death penalty. In opposition, Oklahoma argues that Workman’s constitu tionality-of-the-jury-4 According to Workman’s brief on direct appeal, “I t is impermissibly

vague to subject a person to capital punishment on the basis of an either/or prescription. Willfully is defined as that which is done on purpose, requi ring absolutely no intent to violate the law or [to] inj ure another; while that which is done maliciously , requires the actor to possess a specific intent t o harm, injure, or take the life of another.” Although this section o f the brief opened with a reference to vagueness doctrine, Workman concluded the section, as noted above, with reference to a violation of the Eighth and Fou rteenth Amendments. - 17 - instructions argument cannot be heard in federal co urt because it was not raised on direct appeal in state court and so is not exhau sted. The district court nevertheless found that Workman had raised his constitutional determination argument regarding the jury instructions on direct appeal in the state courts. We agree. Because the Eighth Amendment issue was raised on direct appeal but never addressed by the OCCA, Workman has exhausted his state remedies and we consider the is sue de novo . See generally
LaFevers , 182 F.3d at 711. Workman’s brief on direct appeal argued that it was impermissibly vague to subject a person to capital punishment on the basis of a prescription that may or may not require the jury to find intent to kill. 4 He specifically objected that it was a violation of the Eighth and Fourteenth Amendments to sentence him under such a scheme. The Oklahoma Court of Criminal Appeals, though, nev er separately addressed Workman’s argument regarding the constitu tionality of the jury- 18 -

instructions. It did conclude that the Oklahoma st ate statute contained a mens rea requirement, but it did not address the constitutio nal adequacy of that requirement under the Eighth Amendment. See Workman , 824 P.2d at 383. We find that Workman’s formulation sufficiently rai sed the heart of an Enmund/Tisonobjection on direct appeal despite the failure of the Oklahoma state courts to recognize the issue. Workman’s cla im was therefore properly exhausted and federal courts may examine it under A EDPA. Some background is necessary to understand the lega l context of Workman’s Enmund/Tisonclaim. To be convicted of first degree child abus e murder in Oklahoma, a jury must find that the defen dant willfully or maliciously injured, tortured, maimed, or used unreasonable for ce on a child, and that the child died as a result. Okla. Stat. tit. 21, §707. 7(c). The jury need not find that the defendant intended to kill the child. Cf. Malicoat v. State , 992 P.2d 383, 395 (Okla. Crim. App. 2000) (child abuse murder is a ge neral intent crime). Child abuse murder in Oklahoma does not require the jury to find that the defendant intended to kill his victim, but rather the crime i s a type of felony murder. See generallyBlack’s Law Dictionary 556 (5th ed. 1979) (definin g the traditional felony-murder rule as holding that “one whose condu ct brought about an unintended death in the commission or attempted com mission of a felony [is] guilty of murder.”); accord 2 Wharton’s Criminal Law §147 (Charles E. Torcia- 19 -

ed., 15th ed.) (“[T]he author of an unintended homi cide is guilty of murder if the killing takes place in the perpetration of a felony .”) [hereinafter Wharton’s Criminal Law]. In this sense, the felony murder r ule in its classic form is very broad, encompassing both crimes in which there are co-defendants, and crimes involving just a single actor. See 2 Substantive Criminal Law §14.5(b) (Wayne R. LaFave ed.); Wharton’s Criminal Law at §147. Ok lahoma categorizes child abuse murder as murder in the first degree. Fairch ild v. State , 998 P.2d 611, 618 (Okla. Crim. App. 1999). The central concern of the Enmund /Tisonline of Supreme Court cases is whether a conviction for felony murder contains an adequate determination of defendants’ culpability such that imposition of the death penalty does not violate the Eighth Amendment’s prohibition against cruel an d unusual punishment. U.S. Const. amend. VIII (“Excessive bail shall not be re quired, nor excessive fines imposed, nor cruel and unusual punishments inflicte d.”). Three Supreme Court cases in particular provide the necessary guidance as to the specificity required for a culpability deter mination in order to sustain the death penalty against an Eighth Amendment challenge . Enmund v. Floridais the5 In Enmund , the Supreme Court reversed the death sentence of a

defendant convicted under Florida’s felony-murder r ule. 458 U.S. at 801. Enmund was the driver of a getaway car, and his acc omplices conducted an armed robbery of a home while he waited on the street in the car. Id. at 784. During the course of the robbery, his accomplices shot and kil led the elderly couple who lived in the home. Id. The Supreme Court concluded on the basis of these facts that, because Enmund had not himself killed, attemp ted to kill, or intended to kill the victims of the robbery, his “degree of particip ation in the murders was so tangential that it could not be said to justify a s entence of death.” Tison , 481 U.S. at 148 (describing Enmund ’s ruling) (emphasis redacted). - 20 - first of these three cases. 5 458 U.S. 782 (1982). As the Court itself explain ed in a later case discussing Enmund : Enmundexplicitly dealt with two distinct subsets of all felony murders in assessing whether Enmund's sentence was disproportional under the Eighth Amendment. At one pole was Enmund himself: the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culp able mental state. Only a small minority of States even authorized the death penalty in such circumstances and even within those jurisdicti ons the death penalty was almost never exacted for such a crime. The Court held that capital punishment was disproportional in thes e cases. Enmund also clearly dealt with the other polar case: the f elony murderer who actually killed, attempted to kill, or intended to kill . The Court clearly held that the equally small minority of jur isdictions that limited the death penalty to these circumstances co uld continue to exact it in accordance with local law when the circ umstances warranted.” Tison , 481 U.S. at 149-50 (emphasis added). Workman’s crime falls into the category of cases un der Enmundin which a felony murderer has “actually killed” his victim. See id. at 150. The phrase “actually killed, attempted to kill, or intended to kill” or variations thereof is6 The particular case we examine today involves the serious and highly

culpable felony of child abuse murder and conduct b y the defendant directly causing the death of the victim. We need not, and do not, in this case explore the outer parameters of whether the requisite culpabili ty for imposition of the death penalty can be established when the underlying felo ny involves substantially less culpable behavior or where the causal connection be tween the defendant’s conduct and the victim’s death might be more attenu ated or remote. - 21 - repeated at least nine times in Enmund , 458 U.S. at 797, 793 n.15, 795, 796, 797, 798, 799, 801, is repeated at least three times in Tison , 481 U.S. at 148, 150, 152 n.4, and is repeated at least twenty times in Caban a v. Bullock , 474 U.S. 376, 378, 383, 384, 385, 386, 387, 387 n.4, 388 n.5, 389, 390 , 391, 391 n.6, 392, 392 n.7. In short, the iteration of this test has been caref ully formulated by the Supreme Court and often reaffirmed. Accord also Revilla v. Gibson , 283 F.3d 1203, 1210 (10th Cir. 2002) (quoting language in Enmund requiring that a defendant “himself kill, attempt to kill, or intend that a killing tak e place or that lethal force will be employed”). The significance of falling into Enmun d ’s category of when a felony murderer has “actually killed” his victim is that t he Eighth Amendment’s culpability determination for imposition of the death penalty has then been satisfied. 6 Cabana , 474 U.S. at 386 (“If a person sentenced to death in fact killed . . . the Eighth Amendment itself is not violated b y his or her execution.”). Five years later, the Supreme Court decided the cas e of Tison v. Arizonato consider situations between the two poles discussed in Enmund , specifically “whether the Eighth Amendment prohibits the death p enalty in the intermediate7 Tisonspecifically considered the constitutionality of adeath sentence

imposed on a defendant convicted of felony murder b ut who did not himself kill the victims of the crime. 481 U.S. at 139-41. The defendant’s degree of participation in the murders in Tison , though, had not been as tangential as in Enmund . See id. Tisoninvolved a scheme in which a heavily armed group entered a prison and escaped with two inmates. Id. at 139. In the course of their flight from the prison, their car broke down in the Arizona desert. Id. They flagged down a passing car containing a mother and father, their two-year old son, and a fifteen-year old niece. Id. at 140. After taking control of the family’s car, the two escaped inmates murdered the family. Id. at 141. - 22 - case of the defendant [who did not kill, attempt to kill, or intend to kill under Enmundbut] whose participation [in the felony] is major and whose mental state is one of reckless indifference to the value of hum an life.” 7 Tison , 481 U.S. at 152. In the general literature, Tison has thus come to be distinguished from Enmundas promulgating the test for defining the culpabil ity determination necessary for “non-triggerman,” as opposed to those who have “actually killed” under Enmund . See, e.g. , James J. Holman, Note, Redefining a Culpable Ment al State for Non-Triggermen Facing the Death Penalty Tison v. Arizona, 33 Vill. L. Rev. 367 (1988); Andrew H. Friedman, Note, Tison v. Arizona: The Death Penalty and the Non-Triggerman: The Scales of Justi ce are Broken , 75 Cornell L. Rev. 123 (1989); see also generally Lynn D. Wittenbrink, Note, Overstepping Precedent? Tison v. Arizona Imposes the Death Penalty on Felony Murder Accomplices , 66 N.C. L. Rev. 817 (1988). While refusing “prec isely [to] delineate the particular types of conduct and state s of mind warranting imposition8 The facts in Cabanawere that Crawford Bullock held a man down as a

friend smashed a bottle over the man’s head and the n pummeled him to death. Cabana , 474 U.S. at 379. Bullock also helped the friend dispose of the man’s body afterwards. Id. He confessed to his participation in these events and was convicted by a Mississippi jury of felony capital m urder. Id. - 23 - of the death penalty” in its intermediate zone of c ases, the Tison Court simply held “that major participation in the felony commit ted, combined with reckless indifference to human life, is sufficient to satisf y the Enmund culpability requirement.” 481 U.S. at 158. Finally, Cabana v. Bullock 8 was a procedural case in which the Court considered who could make the determination of culp ability if a case fell outside of the established categories in Enmund , and later Tison , after a jury’s verdict. 474 U.S. 376 (1986), abrogated on other grounds by Pope v. Illinois , 481 U.S. 497, 503 n.7 (1987). However, only when a federal court reviews a claim in which the jury has not already determined that a defendant is culpable under Enmundbecause he killed, attempted to kill, or intended to kill, must a court consider further inquiry under Cabana . Id. at 380-84 (quoting at length the jury instructions in the case and examining them first f or a potential finding of culpability); see also id. at 387. In that rare situation in which a jury ha s not already made a finding that permits a defendant’s c ase to fall into one of the defined categories under Enmund or Tison , Cabanaheld that state courts may make the finding on appeal, or, as a final alternat ive, that the finding may be- 24 -

made by a federal court upon review for habeas corp us. Id. at 390 (“[Assuming that the Enmund determination is not made at trial], [t]he federal court could itself make the factual determination whether the d efendant killed, attempted to kill, or intended to kill, and either grant or deny the writ depending on the outcome of that inquiry. Alternatively, the federa l court could take steps to require the State’s own judicial system to make the factual findings in the first instance. . . . We believe . . . that the second co urse of action is the sounder one . . . [and that the state court should have the ini tial] opportunity to carry out in the first instance the factual inquiry called for by En mund .”); id. at 386 (“At what precise point in its criminal process a State [or f ederal court on review for habeas corpus] chooses to make the Enmund [or Tison ] determination is of little concern from the standpoint of the Constitution.”). This is not the first time that we have confronted a defendant’s Enmund/Tisonchallenge to a death sentence imposed after convic tion under Oklahoma’s first degree child abuse murder statute. In Revilla v. Gibson , 283 F.3d 1203 (10th Cir. 2002), the defendant similarly argued in his federal habeas proceeding that the state courts did not make findi ngs that established the level of culpability required by Enmund or Tisonto impose a death sentence. Id. at 1210–11. In Revilla’s case, we found that we could easily dispose of the petitioner’s Enmund /Tisonclaim because the OCCA had, in that case, found th at9 Our discussion of the issue in Revilla was:

Our decision to affirm on this [substantive rationa le] does not imply that an Enmund claim would otherwise necessarily be established o n these facts. Enmund , a felony murder case in which the defendant did not kill the victim, held that the Eight Amendm ent prohibits capital punishment ‘for one who neithertook life, attempted to take life, norintended to take life.’ Enmund , 458 U.S. at 787 [emphasis added by the Tenth Circuit] . . . . Since Revilla did in fact kill [his victim], it is not clear that Enmund would undermine use of the death penalty here, whatever his intent . . . . By reject ing Revilla’s Enmund claim on [another basis], we merely avoid, rather t han implicitly resolve, this debate. Revilla , 283 F.3d at 1211 n. 4.

- 25 - the victim had died as a result of “injuries intent ionally inflicted by the Appellant in a premeditated design to effect death.” Id. at 1211. Nevertheless, we cautioned that we were not holding that an addition al culpability determination was necessary where the defendant had actually kill ed the victim, and we stated explicitly that in Revillawe were “avoid[ing], rather than implicitly resolv [ing] this debate.” 9 Id. at 1211, n.4; see also Cannon v. Gibson , 259 F.3d 1253, 1279 n.26 (10th Cir. 2001) (noting the OCCA and districtcourt’s doubts whether additional Enmund or Tisonculpability determinations would be required in a case in which the defendant actually killed the vic tim, but finding that it did not have to address the question).- 26 -

In other cases, we have appeared to assume that the culpability requirement in Enmundor Tisonwas satisfied where the jury verdict determined th at the defendant actually killed the victim. In Johnson v . Gibson , 169 F.3d 1239 (10th Cir. 1999), for example, we held that the requisite culpability was established when a defendant killed his victim during the felon y of rape. First, we reiterated language found in Tison : [T]he reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a gr ave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing j udgment when that conduct causes its natural, though also not inevita ble, lethal result.

Id. at 1250 (quoting Tison 481 U.S. at 157). We then went on to conclude: The jury in [Johnson’s case] was instructed that itshould find the defendant guilty if it found beyond a reasonable do ubt that he ‘did . . . willfully and unlawfully kill [his victim], [b]y asphyxiation with his hands inflicting mortal wounds which caused her death . . . [w]hile in the commission of Forcible Rape in the First Degree .’ Such an instruction is sufficient to satisfy the requiremen ts of Tison , and the evidence presented at trial supports this conclusio n. Id. at 1250-51 (citations omitted). We now hold that the constitutional check that Enmu nd , and certainly that Tison , represent is satisfied in felony murder cases in which the defendant actually killed his victim. Other Circuits have re ad the Supreme Court’s decisions the same way. In Murray v. Delo , 34 F.3d 1376 (8th Cir. 1994), the Eighth- 27 -

Circuit wrote that “Enmund and Tisonare felony-murder cases which apply in situations in which the defendant was not the shoot er. [Here] the evidence at trial indicated that the petitioner actually committed at least one murder, and perhaps both.” Id. at 1367. In Adams v. Wainwright , 709 F.2d 1443 (11th Cir. 1983), the Eleventh Circuit wrote that “[t]he Supreme Court he ld the death penalty disproportionate to Enmund’s culpability, reasoning that he personally ‘did not kill or attempt to kill’ or have ‘any intention of participating in or facilitating a murder.’ Here [the defendant] personally killed hi s victim, savagely beating him to death.” Id. at 1447. Finally, in Williams v. French , 146 F.3d 203 (4th Cir. 1998), the Fourth Circuit wrote: The evidence in this case satisfied the Enmund [and therefore also the lower Tison ] standard because [the defendant] was a major participant in the murder itself, and his actions s howed a reckless indifference to [the victim] Joines’ life. William s got out of the car carrying his loaded shotgun, went inside the Servic e Distributors station, stood behind or over Joines, and shot Join es in the back of his head after the robbery had been accomplished. Manifestly, these circumstances satisfy the standard set forth in Enm undand its progeny. Id. at 215. Oklahoma has also given the same reading as we do t o Enmundand Tison

. In Fairchild v. State , 998 P.2d 611 (Okla. Crim. App. 1999), the OCCA st ated “[t]his Court has found Tison does not apply to a defendant who, by his own hand, does kill . . . If a person sentenced to dea th in fact killed, attempted to kill,10 Moreover, even if the determination of culpability required by Enmund

had not been so directly answered by the verdict of Workman’s jury, under the

(continued...) - 28 - or intended to kill, the Eighth Amendment itself is not violated by his or her execution.” Id. at 630 (quotation marks and citations omitted). A dditionally, the California Supreme Court has concluded that furtheranalysis is not necessary under Enmundor Tisonwhen the defendant in a felony murder does in factkill, and that court has now overruled its earlier preced ent to the contrary. People v. Anderson , 742 P.2d 1306, 1325 (1987). Workman was not convicted of felony murder generall y: he was convicted of child abuse murder in which a jury determined th at he had actually killed Amanda Holman, and that he had done so in the willf ul or malicious commission of physical battery upon the child. The evidence o f abuse at trial included expert testimony regarding the multiple blows to the head and abdomen that the twoyear-old suffered before she died. Three doctors t estified that the child’s death was caused by blunt trauma; her injuries were consi stent with being hit by a fist, a hard object such as a board, or by being picked up by her legs and slammed into a wall. Workman was found to have purposefully infli cted these blows. We hold that no further analysis is required by a court und er Enmundor Tisonbecause the Eighth Amendment is not offended in this case of fe lony murder after the jury’s finding that Workman actually killed his victim. 10 Enmund , 458 U.S. at 801;10 (...continued)

intermediate test in Tison , Workman certainly would have been found to be a major participant in the felony of abusing Amanda H olman and to have acted with reckless disregard for her life in committing that abuse. The district court in Workman’s case went beyond the requirements of Enmu ndto examine the facts of Workman’s case and make a Tison finding, but the district court properly did this under Cabanawhen precedent in this circuit was unclear and onc e the state courts repeatedly refused on non-substantive grounds to ad judicate the case. See 474 U.S. at 390. - 29 - accordRevilla v. Gibson , 283 F.3d 1203, 1211 (10th Cir. 2002) (noting that Edmundrestricted the imposition of the death penalty onl y on defendants who “aid[] and abet[] a felony in the course of which a murder is committed by others but who do[] not [themselves] kill .”) (emphasis added). Accordingly, the Enmund / Tisontest for culpability was satisfied by the jury’s finding in this case and thus, on this issue , we AFFIRM the district court’s dismissal of Workman’s petition for habeas corpus.

IV. Abeyance.

In Ring v. Arizona , 536 U.S. 584 (2002), the Supreme Court held that a capital defendant is entitled to have a jury determ ine the presence or absence of aggravating factors in death penalty cases. Id. at 609 (“[W]e overrule [a previous case] to the extent that it allows a sentencing jud ge, sitting without a jury, to find- 30 -

an aggravating circumstance necessary for impositio n of the death penalty.”). The aggravating factors in Workman’s case, though, were decided by the jury. Nevertheless, Workman would have us read Ring for a different proposition than its central holding. He would expand Ring ’s narrow holding from barring a sentencing judge, sitting alone, from finding aggra vating circumstances to establishing that only juries, not judges ever, cou ld find culpability necessary for the imposition of the death penalty under Enmund or Tison

. However, we do not in this case need to address thi s argument because, as noted above, the jury did determine that Workman ac tually killed Amanda Holman and thus the Enmund /Tisontest is satisfied. Furthermore, Ring may not be applied retroactively to cases on collateral rev iew. Cannon v. Mullin , 297 F.3d 989, 994 (10th Cir. 2002). Accordingly, the Ring case does not aid Workman’s argument, and we DENY his motion for abeyance.

V. Alleged vagueness of Oklahoma’s “especially heino us, atrocious or cruel” aggravating circumstance.
We have repeatedly held that Oklahoma’s current def inition of “especially heinous, atrocious or cruel” aggravating circumstan ce is not unconstitutionally
vague.- 31 -

Workman acknowledges that the Tenth Circuit has rou tinely upheld the constitutionality of this aggravating circumstance, see, e.g. , Romano v. Gibson , 239 F.3d 1156, 1176 (10th Cir. 2001); Thomas v. Gib son , 218 F.3d 1213, 1226 (10th Cir. 2000); Medlock v. Ward , 200 F.3d 1314, 1319 (10th Cir. 2000); Moore v. Gibson , 195 F.3d 1152, 1175-76 (10th Cir. 1999); Smallwoo d v. Gibson , 191 F.3d 1257, 1274 (10th Cir. 1999); Hooks v. Ward , 184 F.3d 1206, 1239-40 (10th Cir. 1999); Foster v. Ward , 182 F.3d 1177, 1194 (10th Cir. 1999); Duvall v. Reynolds , 139 F.3d 768, 793 (10th Cir. 1998). Nevertheless , Workman attempts to find room for his argument that the aggravating circumstance is unconstitutionally vague in snippets of language fr om our cases such as a line from Thomas expressing doubt about blanket application of Okla homa’s early formulation and Judge Lucero’s concurrence in Medlo ck . See generally Thomas , 218 F.3d at 1229 n.17 (“There exists, at a minimum, a serious constitutional question as to whether an aggravator which makes el igible for the death penalty all murderers who strike more than one blow adequat ely narrows the class of murderers eligible for the death penalty.”); Medloc k , 200 F.3d at 1324 (“There must be conscious suffering of more than the brief duration necessarily accompanying virtually all murders. Were this not s o, the narrowing construction [that Oklahoma has given the aggravating circumstan ce] would not have the- 32 -

discretion-limiting effect required by [the Eighth Amendment].”) (Lucero, J., concurring). Oklahoma, however, has limited application of the a ggravating circumstance to only those crimes where the death o f the victim was preceded by torture of the victim or serious physical abuse. S touffer v. State , 742 P.2d 562, 563 (Okla. Crim. App. 1987). This limitation was i ncluded in the jury instructions in Workman’s case. ROA Criminal Appea l, Original Record at 98, Instruction No. 3 – penalty phase (“The phrase ‘esp ecially heinous, atrocious, or cruel’ is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.”). We have specifically found Oklahoma’s new formulation to be constitutional sin ce this limiting language was enacted. Hatch v. State , 58 F.3d 1447, 1468 - 69 (10th Cir. 1995); see als o Duvall , 139 F.3d at 793. Moreover, the details of Workma n’s crime of firstdegree child abuse murder seem to sit at the heart of what the Oklahoma statute contemplates in which the death of a victim is prec eded by torture or serious physical abuse. See generally Stouffer , 742 P.2d at 563. Workman’s objection, therefore, has no merit and we AFFIRM the district court’s denial of a writ of habeas corpus.- 33 -

VI. Cumulative error.

Workman’s sentence cannot be unconstitutional due t o cumulative error because we have not found that the district court c ommitted error. Cumulative error is present when the “cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant t o the same extent as a single reversible error.” Duckett v. Mullin , 306 F.3d 982, 992 (10th Cir. 2002) (quoting United States v. Rivera , 900 F.2d 1462, 1469 (10th Cir. 1990)). “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not revers ible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Id. In reviewing a case for cumulative error, we may on ly consider actual errors in determining whether the defendant's rightto a fair trial was violated. Le v. Mullin , 311 F.3d 1002, 1023 (10th Cir. 2002) (citing Rive ra , 900 F.2d at 1470-71 (“[A] cumulative error analysis should eval uate only the effect of matters determined to be error, not the cumulative effect o f non-errors.”)). Our analysis in this case, however, has not disclosed any errors

. Accordingly, we do not reverse on the basis of cumu lative error.- 34 -

VII. Requested remand for an evidentiary hearing.

Finally, Workman’s case will not be remanded for an evidentiary hearing because he does not suggest what evidence has yet t o be discovered, or what evidentiary questions might yet remain for resoluti on. His only proposed grounds for factual inquiry are into “Enmund /Tisonissues” or “any factual issue present in this appeal to which the Appellee takes issue.” Th ere is no factual inquiry left to be done in his case. The State also contested no i ssue of fact on appeal. As Workman presents no ground upon which his case c ould be remanded for an evidentiary hearing, we DENY his motion for remand.

CONCLUSION For the reasons stated above, we AFFIRM the distric t court’s denial of a writ of habeas corpus. Additionally, we DENY Workm an’s request that we hold this appeal in abeyance and that we remand for an e videntiary hearing.