PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JAMES CODDINGTON, Petitioner-Appellant,

v. TOMMY SHARP, Wa rden, Oklahoma State Penitentiary, * Respondent-Appellee. No. 16-6295

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:11-CV-01457-HE)
John T. Carlson, Ridley, Mc Greevy & Winocur P.C., Denver, Co lorado (Seth A. Day, Hall Estill P.C., Oklahoma City, Oklahoma, with him on the briefs), for Petitioner-Appellant. Caroline E.J. Hunt, Assistan t Attorney General (Mike Hu nter, Attorney General of Oklahoma, with her on the br ief), Oklahoma City, Oklahoma , for Respondent-Appellee.

Before LUCERO , MORITZ , and EID , Circuit Judges.

EID , Circuit Judge.

* Pursuant to Fed. R. App. P. 43(c)(2), Mi ke Carpenter is replaced by Tommy Sharp as the Warden of the Oklahoma Department of Corrections. FILED United States Court of Appeals Tenth Circuit 

### May 12, 2020 Christopher M. Wolpert Clerk of Court2 Petitioner James Coddington seeks collateral review of the Oklahoma Court of Criminal Appeals’ (OCCA) resolution of hi s constitutional challenges to his conviction and sentence. Coddington argues that the tr ial court deprived hi m of his constitutional right to present a defense when it refused to a llow his expert to testify that he was unable to form the requisite intent for malice murder. He also ar gues that his confession to the murder should have been su ppressed because he did not k nowingly and voluntarily waive his Miranda rights. The OCCA denied relief, and, applying AEDPA deference, the district court below did the same. For the reas ons set forth below, we affirm the district court’s denial of Coddington’s petition because Coddington has failed to sh ow that the OCCA’s rejection of his challenges involved an unreasonable application of federal law.
I. In March of 1997, Coddington, who had a history of cocaine use, relapsed and began using cocaine again. Coddington v. State , 142 P.3d 437, 442 (Okla. Crim. App. 2006). He spent approximately $1,000 per day to support his habit. See id. Eventually, he ran out of money. See id. On March 5, following a thre e or four-day cocaine binge, he was desperate for cocaine and robbed a convenience store. See id. But the money he took from the store was insufficient, so later th at day he went over to Al Hale’s house. See id. Hale and Coddington were friends, and Coddington knew that Hale usually kept large sums of cash (on March 5, Hale ha d over $24,000 in cash in his home). See id. Coddington did not immediately ask Hale for money—he watched TV with him for a couple hours. See id. At some point though, Coddingt on asked Hale if he could borrow some money. See id. According to Coddington, Hale could tell that Coddington3 had “relapsed on drugs.” 2003 Tr. VI at 47

. He refused Coddington’s request, told him to go back to treatment, and then asked him to leave. Id . at 48. Coddington began to leave. Id . But after noticing a hammer on the counter when he wa lked through the kitchen toward the door, Coddington stopped. State Ex. 89 at 14. Hale then went into the kitchen and “pushed * [Coddington] and told [him] to ge t out.” 2003 Tr. VI at 76. Coddington then grabbed the hammer and hit Hale in the head, causing him to fall. Id . at 69. When Hale was lying face-down on the ground, Coddington h it him several more times in the back of the head. Id . at 69–70. He then took th e money that Hale had on his person ($525) and, believing Hale was dead, left the house. State Ex. 89 at 15

. Coddington was mistaken; Hale was not dead. See id. at 443. Hale’s son, Ron, discovered his father later that day. See id. There was “blood and blood spatter everywhere.” Id. “Hale was lying in his be d, soaked in blood, still breathing but unable to speak.” Id. Hale had moved from the k itchen to his bedroom. See id. Hale was rushed to a hospital, where he died 24 hours later. See id. The autopsy showed he died from blunt-force trau ma to the head. See id. After Coddington left Hale’s house, Codd ington immediately bought more cocaine and continued committing crimes to finance his purchases. He robbed five more convenience stores. See id. at 442. When he eventually got back home, he threw the hammer in a creek behind his apartment. See id. at 455.

* Coddington told the police that Hale pushed him, but he did not volunteer this information in his trial testimony. St ate Ex. 89 at 15; 2003 Tr. VI at 49.4 Two days later, the police arrested Coddington at his apartment. See id. at 443. When the police arrived, Coddington be gan voluntarily making statements. See id. at 447. Realizing that Coddington may have been starting to confess, the police officers read him his Miranda rights. See id. Coddington waived his Miranda rights and continued making statements to officers. See id. About two to three hours after he initially waived his rights outsi de of his apartment, the polic e officers interrogated him at the station. See id. At the station, the officers reminded Coddington of his waiver from a few hours earlier, and Coddington stated he remembered waiving his rights. See id. Coddington then confessed to the convenience store robberie s and to murdering Hale. See id. at 443. At the station, Coddingt on was able to recall the murder in detail. See State Ex. 89 at 13–21 (Transcript of Police Station Interview); see also 2003 Tr. VI 47–48, 62–63. He recalled the clothes he wore, that he and Hale conversed for a couple hours, that they watched TV, that he had gone to Hale’s home to ask for mo ney, that Hale refused his request for money, that Hale then asked him to leave, and that he stru ck Hale with a claw hammer as Hale was showing him out. See State Ex. 89 at 14–15. He also remembered specific details about the hammer—that it ha d a chrome handle with a rubber grip. See id. at 20. He remembered how many times he struck Hale. See id. at 15. He remembered how much money he took from Hale’s person a nd the denominations of the bills. See id. at 18. Finally, he stated that he did not call the police when he left Hale’s home because he did not want to get caught. See Coddington , 142 P.3d at 443.5 The state charged Coddingt on with multiple armed robberies, murder, and robbery with a dangerous weapon. Coddington pleaded guilty to six armed robberies and proceeded to trial on the murder and robbery with a dangerous weapon charges. Prior to trial, the court resolved two motions in limine relevant to this petition. First, the court considered the state’s motion to exclude Coddington’s expe rt’s testimony on whether Coddington was able to form intent. See id. at 448–51. Coddington proffered that his expert—Dr. Smith—would have testified that his cocaine use leading up to and during the murder rendered him unable to form malice aforethought. See id. at 448–51. The state moved to have this portion of Dr. Smith ’s testimony excluded, and the trial judge granted the motion. See id. Second, the court considered Coddington’ s motion to suppress his confession. See id. at 446–48. Coddington believed that he di d not knowingly or voluntarily waive his Miranda rights. See id. The court did not agree and denied the motion. See id. The case proceeded to tria l. At the guilt phase of trial, the jury convicted Coddington of first-degree murder and robbery with a dangerous weapon. See id. at 442. At the sentencing phase, the jury found the existence of two aggravating circumstances and sentenced Coddington to death. See id. Coddington appealed his conviction and sentence to the OCCA. See id. Among other things, he challe nged the pretrial rulings (1) denying his motion to suppress his confession and (2) excluding a portion of Dr. Smith’s testimony. See id. at 446–51. The OCCA first conc luded that Coddington’s confession was sufficiently knowing and voluntary, but it ag reed with Coddington that the trial court erred by restricting Dr. Smith’s testimony. See id. The OCCA summarily determined6 that this amounted to a c onstitutional error and applied Chapman v. California , 386 U.S. 18 (1967), to determine whether the error was harmless beyond a reasonable doubt. See id. at 448–51. The OCCA determined that the evidence that Coddington acted with malice aforethought was overwhelming. See id. at 451. Accordingly, it held that “Dr. Smith’s expert opinion on the ultimate issue of whethe r Coddington could form the requisite malice would not have made a differe nce in the jury’s determination of guilt.” Id. The OCCA similarly rej ected Coddington’s other guilt-phase arguments and affirmed his conviction. It did, however, find that reversible error occurred at the sentencing phase. See id. at 461. † It therefore vacated Coddi ngton’s death sentence and remanded for resentencing. See id. At resentencing, the jury found the existence of aggravating circumstances and again sentenced Coddington to death. Coddington v.
State , 254 P.3d 684, 693 (Okla. Crim. App. 2011). The OCCA affirmed, see id. at 718, and the United States Supr eme Court denied certiorari, see Coddington v. Oklahoma , 565 U.S. 1040 (2011). Coddington then filed a petition for post-conviction relief with the
OCCA. Coddington v. State , 259 P.3d 833 (Okla. Crim. Ap p. 2011). The OCCA denied the petition. See id. at 840. Subsequently, Co ddington filed a 28 U.S. C. § 2254 petition.

† The OCCA found that the trial court ma de two reversible errors during the sentencing phase. The first was that the cour t did not allow Coddingt on to play a video tape of his mother’s testimony, but instead only allowed Coddington to show the jury a written transcript of it. The trial court’s se cond error was its allowa nce of a confusinglyworded jury instruction that potentially misled the jury about the si gnificance of various testimony from Coddington’s family members. Coddington , 142 P.3d at 460–61.7 Coddington v. Royal , No. CIV-11-1457-HE, 2016 WL 4991685 (W.D. Okla. Sept. 15, 2016). In his § 2254 petition, Coddington raised nine grounds for relief. See id. at *1. The district court denied relief on all of them. See id. We granted a Certificate of Appealability (COA) as to the first and second grounds: (1 ) whether the OCCA unreasonably applied federal law when it held that the exclusion of Dr. Smith’s testimony was harmless, and (2) whether the OCCA unreasonably applied federal law when it affirmed the lower court’s decision that Coddington’s waiver of his Miranda rights was knowing and voluntary.
II. Under the Antiterrorism and Effective Death Penalty Ac t of 1996 (AEDPA), the standard under which we review the district court’s disposition of a state petitioner’s habeas petition depends on how the claim at i ssue was resolved in the state court. Byrd v. Workman , 645 F.3d 1159, 1165 (10th Cir. 2011 ). Here, because the issues in Coddington’s habeas petition were already ad judicated on the merits by the OCCA, “we review the district court’s legal analysis of the state court decision de novo.” Littlejohn v. Trammell , 704 F.3d 817, 825 (10th Cir. 2013). We therefore—like the district court before us—review the OCCA decision under the AEDPA deference standards. The AEDPA, 28 U.S.C. § 2254(d), provides that: An application for a writ of habeas co rpus on behalf of a person in custody pursuant to the judgment of a State cour t shall not be grante d with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--8 (1) resulted in a decision that wa s contrary to, or involved an unreasonable application of, clearl y established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. A decision is contrary to federal law “i f the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a ques tion of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Valdez v. Bravo , 373 F.3d 1093, 1 096 (10th Cir. 2004) (quotations omitted) (alterations in original). Relatedly, a decisi on is an unreasonable application of federal law “if the state c ourt identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applie s that principle to the facts of the prisoner’s case.” Id. (same). Finally, a federa l court may only grant habeas relief if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with the Supreme Court’s precedents.” Frost v. Pryor , 749 F.3d 1212, 1223 (10th Cir. 2 014) (quotations omitted).
III. In his first claim for relief, Coddington argues that the trial court deprived him of his constitutional right to present a defense when it refused to allow his expert to testify that he was unable to form the requisite in tent for malice murde r, and that the OCCA wrongfully concluded that the trial court’s error was harmless. We affirm the district court’s denial of this claim, concluding that the OCCA did not unreasonably apply9 Chapman in holding that the exclusion of a portion of Dr. Smith’s testimony was harmless.
A. On direct appeal, a state appellate cour t evaluates a state trial court’s federal constitutional error for harmlessness. See Chapman v. California , 386 U.S. 18 (1967). Specifically, the court considers whether the state has proven beyond a reasonable doubt that the federal constitutional error was harmless. See id. When a state court’s Chapman decision is reviewed by a federal court und er AEDPA, “a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable .” Davis v. Ayala , 135 S. Ct. 2187, 2199 (2015 ) (emphasis in original). This AEDPA limitation to Chapman is subsumed by the Brecht test for harmlessness, which is used by courts e ngaging in collateral review. Id . Under this test, a petitioner cannot gain relief for a trial court’s error unle ss he can establish that the error “had [a] substantial and injurious effect or influe nce in determining th e jury’s verdict.” Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (quotations omitted). In other words, the petitioner must establish actual prejudice. See id. Coddington must therefore “show that he was actually prejudiced by” the trial court’s failure to admit the expert’s testimony, “a standard that he necessarily cannot satisfy if a fairminded jurist could agree with the [OCCA’s] decision that [the error] . . . met the Chapman standard of harmlessness.”
Davis , 135 S. Ct. at 2199. The Brecht test for harmlessness also applies to Coddington’s claim that the trial court’s rejection of Dr. Smith’s testimony separately amounted to a violation of due10 process. Any constitutional due process violations are likewise reviewed for harmlessness. See Patton v. Mullin , 425 F.3d 788, 800 (10th Cir. 2005) (applying Brecht harmlessness analysis to pe titioner’s allegation of due pr ocess violation at trial). ‡
B. As a preliminary matter, the state argue s that Coddington has not shown the existence of a constitutional error sufficient to trigger Chapman / Brecht

. See Resp.’s Br. at 16 (“[T]he application of the Brecht harmless error standard pr esupposes the existence of an actual federal constitutional error.”). It contends that e xpert testimony on the ultimate issue of intent is generally not a llowed in the federal system because it is prohibited by Federal Ru le of Evidence 704. See Fed. R. Evid. 704(b) (“In a criminal case, an expert witness must not state an opi nion about whether the defendant did or did not have a mental state or co ndition that constitutes an elemen t of the crime charged or of a defense. Those matters are for the trier of fact alone.”). Additionally, it notes that multiple federal courts—including the Tenth Ci rcuit—have upheld Rule 704 in the face

‡ We have previously stated that “on ce a showing of fundamental unfairness is made, a petitioner is entitled to habeas relief w ithout an assessment of harmless error.” Spears v. Mullin , 343 F.3d 1215, 1 229 n.9 (10th Cir. 2003). We based this statement on our belief that the fundamental unfairness inqui ry “essentially duplicate[s] the function of harmless error review.” Id. (alteration in original) (quota tions omitted). The Supreme Court, however, has commented that “the Chapman harmless-error standard is more demanding than the ‘fundamental fairness’ inquiry of the Due Process Clause.” Greer v. Miller , 483 U.S. 756, 765 n.7 (19 87). One standard that is less demanding than another cannot “duplicate” the more demanding standard. Accordingly, we de cline to follow this court’s earlier holding in Spears that would preclude harmlessness review when a due process violation is f ound on habeas review. See Bryan A. Garner et al., The Law of Judicial Precedent 303–04 (2016) (noting that, while ea rlier horizontal precedent nearly always controls, an exception exists if that decision was “clearly contrary to a thenstanding vertical precedent”).11 of constitutional challenges because testimony on the ultimate issue of intent is not actually evidence. See id. at 17 (citing United States v. Austin , 981 F.2d 1163, 1165 (10th Cir. 1992)). Under those precedents, the te stimony Coddington sough t to have admitted was not evidence at all. See, e.g. , Austin , 981 F.2d at 1165. So, the argument goes, Coddington’s constitutional right to present a defense was not violat ed, and the analysis should end there. We disagree. Even if a state law violatio n cannot be tied to the denial of a specific federal constitutional right (such as the right to present a defense), it is still reviewed to determine whether the violatio n “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Romano v. Oklahoma , 512 U.S. 1, 12 (2004). And whether we anal yze Coddington’s claim as a violation of a specific constitutional right or as a violation of cons titutional due process, we still must determine whether the alleged error was harmless. See Patton , 425 F.3d at 800 (“[A]ny trial errors will be deemed harmless unless they had a substa ntial and injurious effe ct or influence in determining the verdict. . . . If we are in gr ave doubt as to the harmlessness of an error, the habeas petitioner must prevail.”). Because we ultimately conclude that the tr ial court’s error in excluding a portion of Dr. Smith’s testimony was harmless, see infra , we need not determine whether the error committed by the trial court amounted to a violation of a specific constitutional right or a more general constitutional due process violation. Instead, we “assume, without deciding, that the e rror[ ] [Coddington] identifies . . . [is] of constitutional magnitude.” Malone v. Carpenter , 911 F.3d 1022, 1032 n.1 (10th Cir. 2018) (rejecting12 state’s argument that habeas relief was not available because there was no constitutional violation).
C. The OCCA concluded that, even if Dr. Smith had been permitted to testify on intent, the jury would have s till found malice aforethought. See Coddington , 142 P.3d at 451. Coddington argues that the OCCA’s harmlessness determination was unreasonable because, while he was allowed to present substantial test imony about the effects of cocaine use, none of the evidence went to whether he was able to form the requisite intent. See Pet’r Br. at 17–26. After reviewing the state court record, we do not find that the exclusion had a substantial a nd injurious effect on the jury’s verdict. First, though he was unable to present testimony explicitly a sserting that his cocaine use might have precluded his ability to form malice aforeth ought, Coddington was permitted to present copious testimony on how his cocaine use negatively a ffected his rationality and selfawareness. Second, it was dis puted as to whether Coddington was even intoxicated at the time of the murder. And third, the ex cluded testimony would have been heavily contradicted by other evidence in the reco rd indicating that Coddington not only was capable of self-awareness, but that he indeed hit Hale with the deliberate intent “to take away [his] life.” See Criminal Appeal Original Record (C.A.O.R.) I at 88 (jury instruction defining “malice aforethought”).
1. Even without Dr. Smith’s excluded testimony, the jury considered evidence regarding Coddington’s cocaine use and the ill- effects of such use on his brain. Dr.13 Smith told the jury that he had diagno sed Coddington with cocaine dependency. See 2003 Tr. V at 81. He then told the jury that cocaine aff ects the “thinking part of the brain,” i.e., the cortex and frontal lobes. See id. at 81–82. He also to ld the jury that the cortex is what “makes you aware of yourself and what you’re doin g and your ethics and your judgment and how to make decisi ons and therefore how to behave.” Id. at 82. He showed the jury a PET-scan of a drug-addi ct’s brain to give the jury a visual representation of how drug us e can cause brain damage. See id. at 83. He further told the jury that cocaine use can cau se paranoia and agitation. See id. at 88. Dr. Smith then applied these general stat ements about cocaine use to Coddington in particular. He noted that Coddington’ s cocaine use “had a marked effect on [Coddington’s] brain function” the day of the murder. See id. at 92. It made him -- it had multiple effects on his brain function. His paranoia, his fearfulness, his belief he was being followed and watched constantly, his desperation to get more cocaine, his over-responsive ness to stimulation of any kind, including touching. So I think it markedly affected his ability to exercise reasonable judgment and control. Id. Dr. Smith also told the jury that Coddington’s cocaine binge likely made these effects even worse. Specifically, it likely made it “difficult for [Coddington] to control his behavior.” See 2003 Tr. VI at 5. He testified th at, to a reasonable degree of medical certainty, Coddington was not thi nking reasonably or rationally. See id. at 6. §

§ Coddington also contends that the OCCA’s opinion is internally inconsistent. He says that the OCCA acknowle dged that Dr. Smith’s excluded testimony would have lowered the degree of murder. See Pet’r Br. at 18. This assertion is factually inaccurate. The OCCA stated that Dr. Smith’s testimony would have lowered th e degree of murder if the jury believed it

. See Coddington , 142 P.3d at 451. The OCCA then went on to explain that the jury would not have believed it. See id.14 In addition to Dr. Smith’s comprehensive testimony, Coddington himself testified that he never intended to kill Hale. He al so stated that the mu rder basically just happened: “the next thing I kno w he was laying on the floor and I had hit him with [the hammer].” Id. at 48. Also, Coddington’s counsel repeatedly argued that Coddington’s cocaine use and addiction rendered him incap able of forming the requisite intent. Counsel referred to the killing as “mindless” and having occurred “in the middle of a drug-inspired frenzy.” Id. at 150–51. In fact, in closi ng, Coddington’s counsel explicitly told the jury that Coddington’s “cocaine intoxication rendered him at the moment of truth incapable of forming malice aforethought.” Id. at 161.
2. With or without the excluded portion, the jury might have disregarded Dr. Smith’s testimony altogether if it found that Coddingt on was not “intoxicated” at the time of the murder. Coddington offered D r. Smith’s testimony to support his intoxication defense, which applies where the de fendant’s “mental powers” were so “overcome with intoxication” that it would have been “ impossible [for him] to form the special state of mind known as malice aforethought.” C.A.O. R. I at 106 (Jury Instruction 39) (emphasis added). But Dr. Smith’s testimony fo cused less on how a person behaves while intoxicated from cocaine and more on how repeated cocain e use can damage a person’s brain. He explained that cocaine can impa ir a person’s judgment and self-awareness by damaging their pre-frontal cortex. He descri bed these effects not necessarily as cocaine intoxication, but instead as “cocaine dependenc y.” 2003 Tr. V at 81. And it is unclear15 whether the jury would have equated such chronic effects of cocaine with the “intoxication” language existing in the pertinent jury instruction. With the above said, the jury considered evidence that Coddington likely was not “high” at the time of the murd er. Dr. Smith info rmed the jury that the “high” from cocaine can last anywhere from several minutes to several hours. Id. at 94. On numerous occasions, Dr. Smith described the effe cts of cocaine as “momentary.” Id. at 64, 66. His testimony further suggested that smoking —which was Coddington’s typical method of ingestion—crack cocaine typically resulted in a “quicker” high. Id. at 63. With that said, Coddington was at Hale’s house for roughly two to three hours before he murdered Hale. Therefore, for Coddington to have been intoxicated with cocaine at the time of the murder, he likely would have either had to ha ve smoked cocaine while at Hale’s house, or potentially immediately before arriving there. And whether Coddington had indeed smoked cocaine wh ile—or immediately before—visiting Hale was in dispute during the tr ial. Coddington testified at trial that he smoked cocaine in Hale’s bathroom during the visit. 2003 Tr. VI at 47. And Dr. Smith testified that Coddington ha d allegedly smoked cocaine so metime before arriving at Hale’s house. Id . at 29. However, this testimony co ntrasts with Coddington’s original confession during which he desc ribed the murder and surrounding events in detail, yet never alleged that he had smoked cr ack cocaine in Hale’s bathroom. Id . at 55; State Ex. 89. Moreover, in contrast to the above tes timony, other evidence showed that it was implausible for Coddington to have possessed and smoked cocaine at those alleged times.16 By Coddington’s own admission, after con ducting a robbery or a burglary, he would immediately use the stolen money to buy cocaine, and “as soon as [he] bought that cocaine [he] smoked it up.” Id . at 56. “And when [he] got to wanting another fix [he] went and got some money a nd did the same thing.” Id . On the day of the murder, which occurred sometime between 6:00pm and 7:00p m, the last time Coddington had stolen money was at 2:30am when he robbed a convenience store. Id

. ** These admissions from Coddington suggest that the last time he w ould have smoked cocaine on the day of the murder was likely early in the morning after hi s last robbery, and that it would have been uncharacteristic of him to have retained enou gh cocaine to smoke it in the evening. And the fact that Coddington—again, by his own admission—quickly after the murder bought more cocaine with the mone y he took from Hale’s walle t further suggests that Coddington had already run out of the narcotic by that time and was desperate for more. See id . at 78. The jury therefore consid ered evidence suggesting th at Coddington likely did not ingest cocaine immediately befo re or during his visit with Hale, and that the effects of any cocaine he smoked earlier in the day lik ely would have receded by the time of the

** In his trial testimony, which took pl ace over six years after the murder, Coddington said he did not remember whet her he committed any robberies between the time he robbed the 7-11 at 2: 30am and the time of the murder. 2003 Tr. VI at 56. However, during his interrogation two days after the murder, he indicated that he did not conduct another robbery until after the murder. Ex. 8 at 5, 20 (asserting that his first robbery—the 7-11—took place on Tuesday night, while his second robbery—the Texaco—took place on Wednesda y night after the murder). Further, Coddington pleaded guilty to six robberies, the fi rst of which was the 7-11 at 2:50am on March 5, and the second of which was the Texa co at 1:15am on March 6. C.A.O.R. I at 12–13.17 murder. Considering this evid ence, the jury could have fo und that Dr. Smith’s excluded testimony—about Coddingt on’s alleged inability to form th e requisite intent while under the influence of cocaine—was irrelevant altogether.
3. Even if the jury believed that Coddington was under the influence of cocaine— from either a “high” or other cocaine-related effects—at the time of the murder, it still likely would have found Coddington was capab le of forming the requisite intent of malice aforethought. Coddington testified that though he decided to take the cash from Hale’s pocket, he deliberately refrained fro m taking Hale’s diamond ring because he “couldn’t do that.” State Ex. 89 at 15. Ther efore, if Coddington was indeed “high” at the time of the murder, his actions immediately thereafter showed that he was nonetheless capable of self-awareness during that period . Additionally, while allegedly “high on cocaine,” Coddington successfu lly robbed three venues and intentionally began targeting gas stations because they were more likely to carry cash. 2003 T r. VI 58, 80; State Ex. 89 at 4–7, 9, 11. And during one of these robberies, Coddington devised a scheme in which he first scoped-out the venue while pret ending to buy a soft drink, then—after ensuring the store was empty—re turned with a knife so that he could rob the clerk. Id . at 57. Further, the available eviden ce showed not only that Coddington was capable of self-awareness at the time of the murder, but that he indeed had formed malice aforethought when killing Hale . We agree with the OCCA that “the circumstances surrounding [t]his murder su ggest it was committed with in tent. Coddington attacked18 Hale after Hale refused to give him money fo r drugs. He hit Hale with the hammer three times; Hale had defensive wounds, and th ere was significant blood spatter.” Coddington , 142 P.3d at 455–56. Not only did Coddington hit Hale so ha rd that he made Hale fall over, but he continued to pound the back of Hale’s head w ith the hammer while Hale was lying face-down on the floor. 2003 Tr. VI at 69–70. The repetition and force with which Coddington struck Hale, along with evidence suggesting that Hale tried to defend himself, could support a finding that Coddingt on had formed “the deliberate intention to take away the life of a human being.” C.A.O. R. I at 88 (jury instruction defining “malice aforethought”).
4. In sum, we conclude that Coddington was not prejudiced by the trial court’s decision to exclude Dr. Smith’s testimony that, in his opinion, Coddington “would not have been able to fo rm the intent of malice aforethough t” while “experiencing the effects of the cocaine.” 2003 Tr. V at 81. Despite the exclusion, the ju ry still heard evidence about how cocaine could have made Coddingt on unaware of what he was doing. And even with the excluded testimony, the jury still would ha ve had to grapple with whether Coddington was indeed intoxicated at the tim e of the murder. Regardless, Dr. Smith’s excluded testimony would have been contradicted by evid ence showing not only that Coddington was capable of self-awareness at the time of the murder, but that he repeatedly hit Hale w ith the intent to deliberately take away his life. Given this, we simply cannot conclude that no “fairminde d jurist could agree with the [OCCA’s] decision that,” beyond a reasonable doubt, D r. Smith’s testimony regarding intent would19 not have made a difference in the outcome of the trial. †† Davis , 135 S. Ct. at 2199. Put another way, we do not find that the exclusion “had [a] substantial a nd injurious effect or influence in determining the jury’s verdict.” Brecht , 507 U.S. at 637.
IV. In his second claim for relief, Coddington argues that his confession to the murder should have been suppressed because he did not knowingly and voluntarily waive his Miranda rights. We find that the OCCA did not unreasonably apply federal law in concluding that Coddington’s wa iver was both knowing and volu ntary. Neither the delay between Coddington’s confession and the sta tion-house interrogati on, nor Coddington’s drug use, were sufficient to render hi s confession unknowing or involuntary.
A. Testimony from a custodial in terrogation will be suppresse d if the prisoner did not knowingly and voluntarily waive his Miranda rights. See Patterson v. Illinois , 487 U.S. 285, 292 (1988); see also Miranda v. Arizona , 384 U.S. 436 (1966). This “inquiry has two distinct dimensions.” Moran v. Burbine , 475 U.S. 412, 421 (1986). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and delib erate choice rather than intimidation, coercion, or deception. Second, the waiv er must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

†† As noted above, the district court conc luded that the OCCA’s determination was not unreasonable. In the altern ative, it held that even if the exclusion of Dr. Smith’s testimony was not harmless, th e jury would have still conv icted Coddington of first degree felony murder (because it convicted hi m of robbery with a dangerous weapon). See Coddington , 2016 WL 4991685, at *6. Be cause we conclude the OCCA’s determination was not unreasona ble, we do not address the district court’s alternate holding.20 Id. “We engage in a totality of the circum stances approach, where no single factor— whether intoxication, exhaustion, or othe r—is dispositive.” United States v. Burson , 531 F.3d 1254, 1258 (10th Cir. 2008). However, one circumstance that is not relevant to our analysis is whether the susp ect was aware of each possible subject of questioning. See Colorado v. Spring , 479 U.S. 564, 577 (1987) (“[A ] suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntar ily, knowingly, and intellig ently waived his Fifth Amendment privilege.” (emphasis added)). Ad ditionally, “[t]he mere fact of drug or alcohol use will not” render a confe ssion unknowing or involuntary. Burson , 531 F.3d at 1258. Drug use will only re nder a confession unknowing if it rises “to the level of substantial impairment.” Id. (“The defendant must produce evidence showing his condition was such that it rose to the level of substantial impa irment [because] . . . [o]nly then could we conclude the government ha s failed to prove the defendant possessed full awareness of both the nature of his rights and the conseq uences of waiving them.”). Likewise, drug use will render a confession involuntary only if the suspect’s “will was overborne by the circumstances surroun ding the giving of a confession.” United States v. Smith , 606 F.3d 1270, 1276–77 (10th Cir. 2010) (quotations omitted).
B. Coddington advances several arguments for why his waiver was unknowing and involuntary. See Pet’r Br. at 30–39. First, he conten ds that the officers misled him about the nature of their questioning. Specifically , Coddington believes that the officers told21 him that they wanted to question him about the robberies, when they clearly intended to also question him about Hale’s murder. Codd ington’s argument is unconvincing. “[A] suspect’s awareness of all the possible subjec ts of questioning in ad vance of interrogation is not relevant to determining whethe r the suspect voluntarily, knowingly, and intelligently waived his Fi fth Amendment privilege.” Spring , 479 U.S. at 577. The OCCA’s rejection of this argument, therefor e, was a reasonable application of federal law. See Coddington , 142 P.3d at 448 (citing Spring , 479 U.S. at 573, 577 to conclude trial court properly admitted Coddington’s confession). Second, Coddington argues that the interr ogation at the police station occurred 2.5 to 3 hours after the offi cers initially read him his Miranda rights at his home. He believes that this time gap between his waiver a nd the interrogation rendered his confession unknowing. This argument overlooks key facts. First, before the police officers interrogated Coddington at the police station, they asked him if he remembered being advised of—and subsequently waiving—his Miranda rights several hours earlier; and Coddington replied in the affirmative. Id. at 447; State Ex. 89 at 1–2. This court has found that such a reminder under si milar circumstances was adequate. See Burson , 531 F.3d at 1259 (concluding the defendant “knew his constitutional rights” where the interrogating officer “asked [the de fendant] if he remembered the Miranda warning he was given at the time of his arrest less th an two hours earlier” and the defendant “responded affirmatively”). Second, Coddin gton had previous encounters with law enforcement and was familiar with his Miranda rights. The Tenth Circuit has previously held that a suspect’s knowledge of Miranda rights from previous encounters with law22 enforcement is an appropriate consideration in determining whethe r a later waiver is voluntary. Smith v. Mullin , 379 F.3d 919, 934 (10th Cir. 2004). Accordingly, it was proper for the OCCA to cons ider Coddington’s previous la w enforcement en counters in its analysis. Coddington , 142 P.3d at 448 (“[F]rom his prior contacts with law enforcement and prior convictions, we can a ssume he was familiar with and understood the concepts encompassed in Miranda .” (quotations omitted)). Third, Coddington contends that he could not have knowin gly or voluntarily waived his rights because he was intoxicated and sleep-deprived. It is well established that intoxication alone will not render a c onfession involuntar y. The intoxication must rise to the level of “substantial impairme nt” to render the confession unknowing. See
Burson , 531 F.3d at 1258, 1260 (finding that the defendant—who was allegedly “exhausted” and under the influence of dr ugs during an interrogation—voluntarily and knowingly waived his rights where his “mental faculties we re sufficient for him to engage in an intelligent, rational dialogue with [the officer]”). Similarly, for intoxication to render a confession involuntary, the circum stances of the confession must show that the suspect’s will was overborne. See Smith , 606 F.3d at 1276–77. The OCCA’s decision was consistent with these legal principles. Looking first to the knowingness of Coddington’s confession, the OCCA observed that “[s]elf-induced intoxication, short of mania, or such an impa irment of the will and mind as to make the person confessing uncons cious of the meaning of his wo rds, will not render a confession inadmissible, but goes only to the weight to be accorded to it.” Coddington , 142 P.3d at 448 (quotations omitted). The OCCA then held that Coddington’s will was not23 sufficiently impaired to render his confession inadmissible. See id. This was not an unreasonable application of federal law. C oddington was able to recall “specific details about the robberies and Hale’s murder, and appeared to understand exactly what was going on.” Id. This shows that, like the defendant in Burson , Coddington’s “mental faculties were sufficient” enou gh for him to voluntarily and k nowingly waive his rights.
Burson , 531 F.3d at 1260. Coddington also argued before the OCCA, as he does here, that his heightened intoxication is demonstrated by the fact that he confessed to crimes that authorities in Oklahoma were unable to corrobo rate. However, we agree with the OCCA that this fact on its own “does not show he was so intoxicated that his Miranda waiver was not knowingly and voluntarily made.” Id. Coddington confessed to nu merous crimes that Oklahoma was able to verify, and he recalled spec ific details from those crimes. Finally, the OCCA did not unreasonably a pply federal law in concluding that Coddington’s drug use did not rend er his confession involuntary. See id. at 447–48. The totality of the circumstances demonstrate th at Coddington was aware of his surroundings and that the officers did not pressure or coerce him into confessing. Accordingly, even if Coddington was intoxicated at the time of th e confession, Coddington has not shown that his “will was overborne.” Smith , 606 F.3d at 1276 (quot ation marks omitted).
V. For the reasons set forth above, we AF FIRM the district court’s denial of Coddington’s petition for habeas relief.