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

### SEP 28 1999 

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

TENTH CIRCUIT

DEWEY GEORGE MOORE, Petitioner-Appellant and Cross-Appellee,

v. No. 98-6004 & 98-6010 GARY E. GIBSON, Warden, Oklahoma State Penitentiary, Respondent-Appellee and Cross-Appellant.

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

(D.C. NO. CIV-95-2018-A)

Steven M. Presson (Robert Wade Jackson, with him on the briefs), Jackson & Presson, P.C., Norman, Oklahoma, for Petitioner-App ellant and Cross-Appellee. Sandra D. Howard (W.A. Drew Edmondson, Oklahoma Att orney General with her on the brief), Assistant Attorney General, Chief, C riminal Appeals, Oklahoma City, Oklahoma, for Respondent-Appellee and Cross-Appellant.

Before BRORBY , KELLY , and MURPHY , Circuit Judges.

MURPHY , Circuit Judge.-2-

Petitioner Dewey George Moore appeals the district court’s denial of federal habeas relief from his Oklahoma first degree murder conviction and death

sentence. See 28 U.S.C. § 2254. Petitioner was convicted of fir st degree murder and kidnaping for the abduction and murder of twelv e-year-old Jenipher Gilbert. Respondent cross appeals, challenging the district court’s determination that the Antiterrorism and Effective Death Penalty Act of 19 96 does not apply to petitioner’s habeas petition. As grounds for habeas relief, petitioner asserts: 1) he is entitled to discovery and an evidentiary hearing on his allegat ions that police planted evidence against him; 2) the State’s chief witness, a forensic chemist, falsely testified at trial, depriving petitioner of due pro cess and a fair trial; 3) the trial court erred in dismissing a prospective juror for c ause; 4) the prosecutor’s misconduct deprived petitioner of a fair trial; 5) the application of Oklahoma’s “especially heinous, atrocious or cruel” aggravatin g circumstance was unconstitutional; 6) there was insufficient evidenc e to support the jury’s finding that the murder was “especially heinous, atrocious or cruel;” 7) Oklahoma’s continuing threat aggravating circumstance is uncon stitutionally overbroad; 8) petitioner’s trial and direct appeal attorneys w ere constitutionally ineffective; and 9) the cumulative effect of these errors depriv ed petitioner of a fair trial. The district court granted petitioner a certificate of appealability as to all of these-3-

issues. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). We affirm the district court’s denial of habeas relief, with the exception of its treatment of petitioner’s claim that police planted evidence against him, whi ch we remand to the district court for discovery.

I. FACTS The victim was abducted on September 27, 1984, at approximately 9:30 P.M., following a junior high school football game. Two adults and a fifteen-year-old student witnessed the abduction. All three indicated that the victim had been forced into a yellow car. At trial , both adults identified petitioner’s yellow car as looking like the car in which the victim was abducted. The day after the abduction, the student witness, P aulo Gomes, identified two men from a photo array, one of whom was petitio ner, as similar to the man he had seen abduct the victim. At trial, the student again identified petitioner as looking like the man who forced the victim into the yellow car. The victim’s partially clad body was found at 11:00 A.M. the morning after the abduction in a field ten miles from the school. She had been strangled and suffocated and had died several hours before her bo dy was found. The pep club uniform she had been wearing at the time of the abd uction was never found. There was duct tape in her hair and markings on herbody indicating that she had-4-

been bound with tape around her wrists, arms, ankle s, thighs, back, neck and face. There were also tape marks indicating placement ove r her nose and mouth. She had suffered bruising or abrasions to her face, nec k, back and buttocks. Petitioner lived near the junior high school. On t he night of the abduction, he had visited his brother’s family, who lived justthree quarters of a mile from the school. He left his brother’s home between 9:15 P.M. and 9:30 P.M. The next morning, petitioner left his yellow car pa rked in front of his home and walked an eighth of a mile to a grocery store. There, petitioner stole a car and drove to the construction site where he worked. Petitioner told his boss that he had suffered a “mild coronary” the previous nigh t and had been treated at a hospital. He further related that, as a result, he would have to quit his job. The boss described petitioner that morning as wide-eyed and very nervous. Petitioner collected his wages and left. Police arrested him later that morning for driving a stolen vehicle. On September 29, and again on October 4, 1984, poli ce executed search warrants for petitioner’s home, where he lived alon e, and his car. During the first search, officers found, among other things, a parti ally packed suitcase in petitioner’s home and a used feminine napkin under petitioner’s bed. At the time she was abducted, the victim had been menstruating. The used feminine napkin-5-

found in petitioner’s home, however, appeared to be of a different type than that found at the victim’s home. A week after the murder, a paper bag was found on t he roof of the grocery store located near petitioner’s home and near where he stole the car on the morning following the abduction. Inside the bag wa s a used feminine napkin of the same type found at the victim’s home, containin g blood of the same type as the victim. The bag also contained a knife, a belt matching markings made on the victim’s arms, a fingernail that did not match eith er petitioner or the victim, several pieces of duct tape, including a wad of tap e with hair stuck to it, a garment label, several cigarette butts, and an earr ing similar to that worn by the victim on the night she was abducted. At trial, the State presented the testimony of a fo rensic chemist, Janice Davis. Her testimony linked the victim, the conten ts of the paper bag, petitioner, his car, the stolen car, and petitioner’s home. Am ong other things, the chemist identified hair similar to the victim’s found on an d underneath a bed, on a couch, and in the living room in petitioner’s home; in a g love found in the stolen car; in petitioner’s yellow car; and on the duct tape in th e paper bag. In addition, fibers found on the victim’s body were similar to carpet f ibers taken from petitioner’s car, floor mats and his home, including those from an afghan in his living room. Fibers found in petitioner’s living room, bedroom, and hair brush, and from the-6-

knife found in the paper bag on the grocery store r oof, were similar to fibers taken from pep club uniforms like the one worn by t he victim on the night of the abduction. A single limb hair found on the victim was similar to petitioner’s limb hair. The chemist testified that, based upon the hair, fiber and serological evidence, she was convinced that the victim had bee n in petitioner’s car and home. The jury convicted petitioner of first degree murde r and kidnaping. During the capital sentencing proceeding, the trial court incorporated all of the guilt phase evidence. In addition, the State presented e vidence of petitioner’s prior felony convictions for attempted first degree rape, aggravated kidnaping, indecency with a child, assault and battery with a dangerous weapon, child beating, and robbery with a dangerous weapon. A woman who had previously lived with petitioner al so testified concerning an incident when petitioner entered her home, tied her up and stared at her. The woman’s daughter testified that petitioner sexually abused her. She also testified concerning an incident during which petitioner awak ened the witness, then five or six years old, and her two brothers, then ages fourand eight, in the middle of the night, tied them up without clothes and then stared at them while they struggled to get free.-7-

One of petitioner’s former wives testified to petit ioner’s abusive behavior towards her and their children, including incidents when he would tie her up, rape her and then attempt to choke or smother her. In mitigation, petitioner presented evidence of his regular involvement with his church, his generally polite and kind demeanor, his father’s abuse, other incidents of petitioner’s abuse of women and childr en, his significant mental health problems exacerbated by his drinking, and hi s good behavior while in prison. A defense psychologist specifically testif ied that petitioner suffers from an incurable borderline personality disorder, prima rily due to his father’s abuse, but that he could function well in a structured pri son environment. The psychologist indicated that petitioner would probab ly remain a threat if released back into society, but that he did not present a th reat to anyone in prison. The jury found the existence of three aggravating c ircumstances: petitioner had previously been convicted of a violent felony, he presented a continuing threat to society, and the murder was especially he inous, atrocious or cruel. The jury sentenced petitioner to death on the first deg ree murder conviction and to 999 years’ imprisonment on the kidnaping conviction. The Oklahoma Court of Criminal Appeals affirmed pet itioner’s convictions and sentences. See Moore v. State , 788 P.2d 387 (Okla. Crim. App. 1990). The United States Supreme Court denied certiorari. See Moore v. Oklahoma , 498 U.S.-8-

881 (1990). Petitioner then sought state post-conv iction relief, which the Oklahoma Court of Criminal Appeals denied. See Moore v. State , 889 P.2d 1253 (Okla. Crim. App. 1995). The United States Supreme Court again denied certiorari. See Moore v. Oklahoma , 516 U.S. 881 (1995). Petitioner commenced this proceeding seeking federal habeas relief from his murder conviction and death sentence. See 28 U.S.C. § 2254.

II. APPLICABILITY OF THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 A. Commencement of Habeas Proceeding On cross-appeal, respondent argues that the distric t court erred in finding that the date petitioner filed a request for the ap pointment of counsel determined the date the habeas corpus action was filed and the refore concluding the Antiterrorism and Effective Death Penalty Act of 19 96 (effective April 24, 1996) (AEDPA) did not govern. We agree and hold that the date of filing the petition, not the date of appointment of counsel, was the cor rect date for determining whether AEDPA governs. Petitioner filed his request for appointment of cou nsel on December 22, 1995, pursuant to 21 U.S.C. § 848(q)(4)(B), which p rovides for the appointment of counsel to indigent prisoners challenging a capi tal conviction or sentence “[i]n any post-conviction proceeding under [§] 2254.” Th e district court granted the1 Citing 28 U.S.C. § 2263(a), the district court also determined that if

AEDPA applied, the 180-day statute of limitations w ould bar the habeas claims. That determination was in error because the limitat ions period set forth in § 2263(a) applies only to capital cases in which a state has adopted certain standards for appointment of counsel. See 28 U.S.C. § 2261. Oklahoma has not qualified under these provisions. See Duvall v. Reynolds , 139 F.3d 768, 776 (10th Cir.), cert. denied , 119 S. Ct. 345 (1998); Nguyen v. Reynolds , 131 F.3d 1340, 1345 (10th Cir. 1997), cert. denied , 119 S. Ct. 128 (1998). Therefore, the applicable limitations period is set forth in 28 U. S.C. § 2244(d)(1), and the petition was filed timely. See Miller v. Marr , 141 F.3d 976, 977 (10th Cir.), cert. denied , 119 S. Ct. 210 (1998); United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). -9- request on December 27. Petitioner filed his habea s petition on July 1, 1996. The district court determined that although the hab eas petition was filed after the effective date of AEDPA, the request for appointmen t of counsel, filed pre-AEDPA, actually commenced the proceedings there by precluding AEDPA’s application. 1 The district court relied on McFarland v. Scott , 512 U.S. 849 (1994).
In McFarland , the Supreme Court held that if a capital defendan t invokes his right to appointed counsel under § 848(q)(4), h e has a post-conviction proceeding pending and thus need not file a habeas corpus petition before a federal court may enter a stay of execution. See McFarland , 512 U.S. at 858-59 (citing 28 U.S.C. § 2251, which permits a federal c ourt to issue a stay “for any matter involved in the habeas corpus proceeding”). McFarland , however, recognized that neither the federal habeas corpus s tatute nor the rules governing-10-

habeas proceedings define a proceeding under § 2254 or state how such a proceeding shall be commenced. See id. at 854. The Court also recognized that § 848(q)(4) “indicates that the right to appointed counsel adheres prior to the filing of a formal, legally sufficient habeas corpu s petition,” because “a ‘post conviction proceeding’ within the meaning of § 848( q)(4)(B) is commenced by the filing of a death row defendant’s motion reques ting the appointment of counsel for his federal habeas corpus proceeding.” McFarland , 512 U.S. at 854-55, 856-57; see also id. at 857 n.3 (“preapplication legal assistance” included in § 848(q)(4)(B)). Indeed, the assistanc e of an attorney may be crucial before the actual filing of the petition. See id. at 854-56. The Court then determined that to give meaning to the right to app ointed counsel, the district court must be allowed to stay an execution under § 2251, regardless of whether the petitioner had filed a habeas petition. See McFarland , 512 U.S. at 858. Notably, McFarland does not hold that appointment of counsel also commences a post-conviction proceeding within the meaning of § 2254. Cf. Williams v. Cain , 125 F.3d 269, 274 (5th Cir. 1997) (stating McFarland does not determine what date habeas petition is “pending” fo r applicability of substantive statutes), cert. denied , 119 S. Ct. 144 (1998). McFarland merely ensured indigent capital defendants the right to counsel established by § 848(q)(4). See Williams , 125 F.3d at 274.-11-

Respondent argues that Lindh v. Murphy , 521 U.S. 320 (1997), not McFarland , defined AEDPA’s applicability. Respondent notes that Lindh , 521 U.S. at 326, 327, stated that AEDPA applied to cases filed after its enactment and that AEDPA referred to “‘an applicati on for a writ of habeas corpus.’” Br. of Appellee, Cross-Appellant at 7 (q uoting 28 U.S.C. §§ 2244(d)(1), 2254(a)). Thus, respondent maintain s the date of the request for appointment of counsel does not determine whether AEDPA applies. Lindh held that AEDPA did not apply to habeas corpus applicati ons pending when it was passed. See Lindh , 521 U.S. at 322-23, 327, 336. Lindh did not expressly define when a habeas case is pending for purposes of the applicability of AEDPA. Although neither McFarland nor Lindh addressed what constitutes a pending habeas corpus proceeding for purposes of de termining the applicability of AEDPA, the majority of circuits considering the issue have held that a case is pending for purposes of AEDPA only when the habeas petition is filed. See, e.g. , Gosier v. Welborn , 175 F.3d 504, 506 (7th Cir. 1999), petition for cert. filed (U.S. July 14, 1999) (No. 99-5282); Williams v. Coyle , 167 F.3d 1036, 1037, 1040 (6th Cir. 1999); Nobles v. Johnson , 127 F.3d 409, 414 (5th Cir. 1997), cert. denied , 118 S. Ct. 1845 (1998). Those circuits recognized that Lindh and McFarland did not address and did not resolve the issue befo re them and that McFarland focused on the need to expand the ordinary meaning of a pending2 The Sixth Circuit also pointed out that McFarland addressed an

ongoing problem, whereas the case before the court presented a question of the effective date of a statutory provision, a question which, in time, will become irrelevant. See Williams , 167 F.3d at 1039. -12- case to give effect to Congressional intent. 2 See Williams , 167 F.3d at 1038-39; Holman v. Gilmore , 126 F.3d 876, 879-80 (7th Cir. 1997); Nobles , 127 F.3d at
413-14. As support for its conclusion that a federal habeas corpus case is filed upon the filing of the habeas petition, the Sixth C ircuit looked at the language of 28 U.S.C. § 2254(e) which refers “to a proceeding i nstituted by an application for a writ of habeas corpus”; 28 U.S.C. § 1914(a) which requires payment of a filing fee upon the filing of an “application for a writ o f habeas corpus”; and Rule 1 of the Rules Governing § 2254 Cases which provides that the rules “govern the procedure in the United States district courts on applications under 28 U.S.C. § 2254.” See Williams , 167 F.3d at 1038. The Seventh Circuit did not di sagree that an application for counsel under § 848(q)(4) i s a case that may be reviewed by an appellate court. See Gosier , 175 F.3d at 506. “But a request for counsel under § 848(q)(4), part of Title 21, is not a case under Chapter 153 of Title 28

-- that is, the request is not a collateral attack on a criminal judgment.” Gosier , 175 F.3d at 506. “[T]he motion for counsel is not itself a petition, because it3 Calderon concluded that Hohn overruled prior precedent, which had

held that a habeas case is pending only upon the fi ling of a petition for writ of habeas corpus. See Calderon , 163 F.3d at 539-40.

4 Section 1254 sets forth the methods by which “[c]as es in the courts of appeals may be reviewed by the Supreme Court.” -13- does not call for (or even permit) a decision on th e merits. And it is ‘the merits’ that the amended § 2254(d)(1) is all about.” Holman , 126 F.3d at 880. Unlike the other circuits, the Ninth Circuit define s a pending federal habeas petition more broadly. See Nino v. Galaza , 183 F.3d 1003, 1005 (9th Cir. 1999). It has held that a habeas case begins with the appointment of counsel.
See Calderon v. United States Dist. Court for the Cent. Dist. of Cal. , 163 F.3d 530, 539-40 (9th Cir. 1998) (en banc), cert. denied , 119 S. Ct. 1377 (1999). Calderon based its decision on Hohn v. United States , 524 U.S. 236 (1998). 3
Hohn held that an application for a certificate of appe alability constituted a case under 28 U.S.C. § 1254, 4 and therefore the Supreme Court had jurisdiction t o review a court of appeals’ denial of an application for a certificate of appealability. See Hohn , 524 U.S. at 238-39, 241, 253. In reaching this decision, Hohn looked to Ex parte Quirin , 317 U.S. 1, 24 (1942), which held that a district court’s denial of a request for leave to file a petition for a writ of habeas corpus was a reviewable case on appeal. See Hohn , 524 U.S. at 246. Hohn is distinguishable. We agree with the Sixth Circu it that-14- Hohn and Ex parte Quirin stand only for the proposition that the denial by the district court of a motion for th e issuance of a [certificate of appealability], a motion for leave to file a petition for the writ, or, as in our case, a motion for the appo intment of counsel . . . would constitute an appealable case. This do es not imply, however, that the petitioner’s habeas corpus case has been initiated by the filing of such a preliminary motion. Althou gh the Court in Hohn rejected the contention that the filing of a preli minary motion “should be regarded as a threshold inquiry separate from the merits,” Hohn , [524 U.S. at 246], the holding and logic of the c ase were limited to the determination that the rejection by the district court of the preliminary motion constitutes an appealable ca se. Williams , 167 F.3d at 1040; see also Calderon , 163 F.3d at 545 (Hall, J., dissenting) (distinguishing Hohn ’s use of word “case” to interpret whether Supreme Court had jurisdiction from use of word “ca se” to interpret whether statute of limitations had run under AEDPA). Accordingly, this court joins the majority of circu its in holding that a case is pending under AEDPA only upon the filing of a pe tition for writ of habeas corpus. The filing of a request for counsel to pre pare a habeas petition does not govern the applicability of AEDPA as it is not a pe tition seeking substantive relief. B. Retroactivity Petitioner argues that if this court holds that the case commenced at the time he filed the habeas corpus petition, it is unc onstitutional to retroactively apply the new standards of review set forth in AEDP A to state court proceedings completed before enactment or effectiveness of AEDP A. This court has held to-15-

the contrary, determining that AEDPA applies to cas es filed after its effective date, regardless of when state court proceedings occurred. See Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999); see also Berget v. Gibson , No. 98-6381, 1999 WL 586986 (10th Cir. Aug. 5, 1999 ) (unpublished order and judgment citing Rogers and holding that application of AEDPA to cases fil ed after its effective date is not impermissibly retroactive); Mueller v. Angelone , 181 F.3d 557, 565-73 (4th Cir.) (addressing argument si milar to that raised here and holding AEDPA does not have impermissible retroactive effect), cert. denied , 1999 WL 720053 (U.S. Sept. 16, 1999) (No. 99-6143, 99A222). C. Standards of Review The review of a denial of habeas corpus relief is s ubject to two different types of analysis depending on whether a claim was heard on its merits by the state courts. “If the claim was not heard on the m erits by the state courts, and the federal district court made its own determination i n the first instance, we review the district court’s conclusions of law de novo and its findings of fact, if any, for clear error.” LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999). If a claim was adjudicated on its merits by the state courts, a petitioner will be entitled to federal habeas relief only if he can establish that the state court decision “was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28-16-

U.S.C. § 2254(d)(1), or “was based on an unreasonab le determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2). AEDPA thereby increases the degree o f deference afforded to state court adjudications. See Boyd v. Ward , 179 F.3d 904, 912 (10th Cir. 1999) (citing Houchin v. Zavaras , 107 F.3d 1465, 1470 (10th Cir. 1997)). Petitioner argues that if AEDPA applies, this courtmust define the standards of review set forth in § 2254(d)(1). We have applied these standards, but have not defined them, beyond the precise wording of AEDPA. See Bryson v. Ward , No. 97-6435, 1999 WL 590738, at n.3 (10th Cir. Au g. 6, 1999) (citing Matteo v. Superintendent , 171 F.3d 877, 885-91 (3d Cir. 1999), petition for cert. filed , 67 U.S.L.W. 3008 (U.S. June 22, 1999) (No. 98-2050), and Nevers v. Killinger , 169 F.3d 352, 357-62 (6th Cir.), cert. denied , 119 S. Ct. 2340 (1999), which set forth the various interpretations of the standards of deference afforded state court adjudications under both § 2254(d)(1)’s “contrary to” and “unreasonable application of” language by other fed eral courts of appeals). The United States Supreme Court has granted certiorari to review the Fourth Circuit’s interpretation of these standards. See Williams v. Taylor , 119 S. Ct. 1355 (1999); see also 67 U.S.L.W. 3608 (Apr. 6, 1999) (listing issues pr esented). Under any5 Even under the review afforded pre-AEDPA, we conclu de petitioner

would not be entitled to any further relief. -17- possible interpretation of the standards, the outco me of this appeal would be the same. Thus, we decline to interpret the standards in this case. 5

III. ALLEGATIONS OF PLANTED EVIDENCE Petitioner first argues that the district court err ed in denying discovery on his claim that police officers planted evidence in his home and car, and did not disclose this fact, in violation of Brady v. Maryland , 373 U.S. 83 (1963). Petitioner asserts that police officers obtained ha ir from the victim’s body and fibers from a pep club uniform similar to the one w orn by the victim on the night of the abduction, planted those in his home and car between the first and second searches, and then “discovered” this evidence durin g the execution of the second search warrant. To establish a Brady violation, petitioner bears the burden of showing that the prosecution suppressed material evidence favorable to petitioner. See, e.g. , Moore v. Reynolds , 153 F.3d 1086, 1112 (10th Cir. 1998), cert. denied , 119 S. Ct. 1266 (1999). Knowledge of police officers or inves tigators will be imputed to the prosecution. See Kyles v. Whitley , 514 U.S. 419, 421, 437 (1995); Smith v. Secretary of N.M. Dep’t of Corrections , 50 F.3d 801, 824-25 (10th Cir. 1995).-18-

In support of this Brady claim, petitioner relies upon the statement of Bru ce Hawkins, the mortician who prepared the victim’s bo dy for burial. The Oklahoma Court of Criminal Appeals first considered this evi dence in the state post-conviction proceeding, determining Hawkins’ statement “could not have been discovered with due diligence before trial, an d is not cumulative of any evidence presented at trial.” Moore , 889 P.2d at 1257-58. The court further determined that this new evidence “certainly sugges ts that Midwest City police followed a somewhat unusual investigative procedure in this case.” Id. at 1257. Nonetheless, the Oklahoma appellate court declined to hold an evidentiary hearing or conduct any further factual inquiry. Th at court, instead, assumed the truth of petitioner’s factual allegations and denie d relief, holding that “mere evidence of unusual conduct on the detectives’ part , when evaluated in the context of the entire record, is not material, and does not create a reasonable probability that the trial’s outcome would be changed.” Id. at 1257-58. The determination of whether undisclosed evidence i s material is a mixed question of law and fact reviewed de novo by this court prior to AEDPA. See United States v. Trujillo , 136 F.3d 1388, 1393 (10th Cir.) (direct criminal appeal), cert. denied , 119 S. Ct. 87 (1998); see also Newsted v. Gibson , 158 F.3d 1085, 1094 (10th Cir. 1998) (reviewing de novo Brady claim asserted in pre-AEDPA habeas petition), cert. denied , 119 S. Ct. 1509 (1999). In this appeal governed by-19-

AEDPA, therefore, we consider whether the state app ellate court’s materiality determination amounts to an “unreasonable applicati on” of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). We conclude it does. Suppressed exculpatory evidence will be deemed mate rial “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Pennsylvania v. Ritchie , 480 U.S. 39, 57 (1987) (further quotation omitted); see also Strickler v.
Greene , 119 S. Ct. 1936, 1948 (1999). “The question is n ot whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles , 514 U.S. at 434. The State’s case against petitioner was entirely ci rcumstantial. The existence and cross-transference of the fiber and h air evidence was crucial to the State’s case against him. If proved, petitioner’s allegations that police officers planted this evidence, therefore, would be material -- i.e., there is a reasonable probability that the result of the proceeding would have been different. Petitioner’s allegations, therefore, if proved woul d entitle him to habeas relief. It remains for petitioner to prove the tru th of those allegations. We,-20-

therefore, turn to the question of whether petition er is entitled to discovery on this claim. See Bracy v. Gramley , 520 U.S. 899, 905-06 (1997). A federal habeas petitioner will be entitled to dis covery only “if, and to the extent that, the [district court] judge in the exer cise of his discretion and for good cause shown grants leave to do so, but not otherwis e.” Rule 6(a), Rules Governing Section 2254 Cases; see also LaFevers , 182 F.3d at 723. “‘[W]here specific allegations before the court show reason t o believe that the petitioner may, if the facts are fully developed, be able to d emonstrate that he is . . . entitled to relief, it is the duty of the court to provide t he necessary facilities and procedures for an adequate inquiry.’” Bracy , 520 U.S. at 908-09 (quoting Harris v. Nelson , 394 U.S. 286, 300 (1969)). Petitioner has met th is burden here. In his statement, Hawkins asserts that two detectiv es returned to the funeral home on three separate occasions to obtain samples of the victim’s pubic, scalp and limb hairs. They apparently returned the secon d time because, during the first visit, they had cut the hairs, instead of plucking them. On the third occasion, the detectives took up to two and one-half hours to obt ain additional evidence. The trial record corroborates part of Hawkins’ stat ement, indicating that detectives did go to the funeral home several times to obtain additional samples of the victim’s hair, after completion of the medical examiner’s examination. Detective Marston testified that he and Detective H oward went to the funeral-21-

home on Monday, October 1, 1984, to obtain the vict im’s fingerprints. Pursuant to the forensic chemist’s request, Detective Ingle also went to the funeral home on October 1 to obtain samples of the victim’s limb hair. In his statement, Hawkins further asserts that anot her funeral home employee, John Boeing, who is now deceased, followe d the detectives after their second visit to the funeral home. According to Haw kins, Boeing told him that the detectives went directly from the funeral home to p etitioner’s home, where one entered through an open window, then unlocked the d oor from the inside. Hawkins asserts that they had with them a red sweat er and the victim’s hair samples they had just collected at the funeral home . The detectives remained in petitioner’s home for some time, and then subsequen tly “appeared to be doing things” to petitioner’s yellow car, which was parke d in front of his home. Later that evening, Hawkins accompanied Boeing to petitio ner’s home and confirmed that a window remained open. According to Hawkins, both he and Boeing followed t he detectives to petitioner’s home after the detectives’ third visit to the funeral home. Hawkins asserts that the window to the home was still open at that time. The record confirms that key hair evidence was not discovered until the second search, on October 4, 1984. In addition, in vestigators did not discover the red fibers, consistent with pep club uniforms simil ar to the victim’s, until the6 Petitioner’s brother testified that he entered peti tioner’s home on

Sunday, September 30, to obtain petitioner’s medication. Jail records indicated that petitioner first received his medication on th at Sunday. The home appeared to have been searched. There was no evidence tape sealing the trailer, however, (continued...) -22- second search. Even though no one had seen them du ring the first search, the forensic chemist discovered these red fibers near t he front door of petitioner’s home, immediately upon her entry of the home to con duct the second search. During the second search, investigators also discov ered similar red fibers located under petitioner’s bed, in the same location where, during the first search, a used feminine napkin had been discovered. At trial, detectives gave contradictory testimony c oncerning whether they had obtained two or three pep club sweaters to comp are with any fibers found. Detectives Howard and Garner both testified that th ey had obtained three such sweaters, two new and one used, as part of three co mplete pep club outfits to be used for any necessary comparisons. Detective Garn er later testified, however, that he submitted only two sweaters to the forensic chemist for analysis. The forensic chemist testified that she had only reques ted two sweaters for analysis, one new and one used. No one could account for the whereabouts of the third

sweater. There was also contradictory testimony at trial con cerning whether, and in what manner, police officers had secured petitioner’s home after the first search. 66 (...continued)

and a window was open and the doors may or may not have been locked. On the other hand, Detectives Howard and Garner bo th testified that petitioner’s brother obtained medicine from petitio ner’s home late afternoon on Friday, September 28. The detectives further testi fied that they searched petitioner’s home on Saturday, September 29, after which Garner secured the home by locking the door and taping the trailer wit h evidence tape. The tape remained undisturbed until the second search, on October 4. -23- The trial record, therefore, lends some support and does not contravene petitioner’s allegations which, if proved, would wa rrant habeas relief. In light of those specific allegations, supported by Hawkins’s statement, the district court abused its discretion in denying discovery. See Bracy , 520 U.S. at 909. We, therefore, remand for limited discovery on this one ground for habeas relief. In remanding, however, we note that “Rule 6(a) makes i t clear that the scope and extent of such discovery [remains] a matter confide d to the discretion of the District Court.” Bracy , 520 U.S. at 909.

IV. EXPERT TESTIMONY OF FORENSIC CHEMIST Petitioner next argues that the trial court’s admis sion of the expert testimony of the State’s forensic chemist, Janice D avis, concerning hair and fiber evidence linking petitioner to the crime, deprived petitioner of due process and a fair trial. On direct appeal, petitioner challenge d Davis’ testimony only on state law grounds. See Duncan v. Henry , 513 U.S. 364, 366 (1995) (per curiam) (“If a-24-

habeas petitioner wishes to claim that an evidentia ry ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in stat e court.”). Because respondent does not argue that this claim is unexhausted or pr ocedurally barred, however, we address the merits of petitioner’s federal claim. See 28 U.S.C. § 2254(b)(2) (federal habeas court may deny relief on merits of unexhausted claim); see also Hooks v. Ward , No. 98-6196, 1999 WL 502608, at *9 (10th Cir. Jul y 16, 1999) (to be reported at 184 F.3d 1206) (State is obligated t o raise procedural default as affirmative defense or lose right to do so). Because the state courts did not address the federa l claim, however, the district court addressed the merits of this issue i n the first instance. This court, therefore, reviews the legal conclusions underlying the district court’s decision de novo, and any factual findings for clear error. See LaFevers , 182 F.3d at 711. Petitioner is not entitled to federal habeas relief unless “the error, if any, was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process.” Williamson v. Ward , 110 F.3d 1508, 1522 (10th Cir. 1997) (pre-AEDPA). The district court determined that any question concerning the admissi on of Davis’ testimony did not rise to the level of a due process violation. Petitioner argues this evidence was unduly prejudicial because it was unreliable, i naccurate or false; the nature of-25-

hair and fiber comparisons is inexact; Davis testif ied in a biased and subjective manner; and she was “probably” unqualified to testi fy as an expert. Hair and fiber comparison evidence is not per se inadmissible. See id. at 1522-23 (addressing admissibility of hair analysis evidence). Davis did possess expertise in hair and fiber analysis, having been t rained in forensic science generally and having attended several law enforceme nt training seminars specifically addressing hair and fiber analysis. See Story v. Collins , 920 F.2d 1247, 1255 (5th Cir. 1991) (addressing admission of expert testimony concerning sexually abused children). We cannot say that it w as fundamentally unfair for the trial court to allow her to testify as an expert. See Bennett v. Lockhart , 39 F.3d 848, 857 (8th Cir. 1994). On cross-examination and in argument before the tri al judge, defense counsel ably challenged the hair and fiber evidence , Davis’ qualifications, and her testing methods. See Little v. Johnson , 162 F.3d 855, 863 & n.11 (5th Cir. 1998) (citing Barefoot v. Estelle , 463 U.S. 880, 898-99 (1983)), cert. denied , 119 S. Ct. 1768 (1999); see also Adams v. Leapley , 31 F.3d 713, 715 (8th Cir. 1994). He also had a defense expert available to guide and in form his cross-examination. Cf. Little , 162 F.3d at 863 (counsel could offer rebuttal exp ert evidence and cross-examine purported state expert).-26-

Davis, herself, testified that a comparison of hair s could only establish either that the known and unknown hairs were not fr om the same source, or that the hairs were microscopically similar and, therefo re, could have come from the same source. She also stressed that hair compariso n could not result in a positive identification. The trial court instructed the jury that it was to determine the weight to be given any expert testimony. See Little , 162 F.3d at 863; Bachman v. Leapley , 953 F.2d 440, 442 (8th Cir. 1992). “Because this evide ntiary issue was fully and competently aired in the state courts,” petitioner has failed to show a “violation of fundamental fairness under the due process clause.” Spence v. Johnson , 80 F.3d 989, 1000 (5th Cir. 1996). In support of this federal habeas claim, petitionersubmits the affidavit of another hair and fiber expert who further challenge s the credibility of Davis’ testimony and testing methods. Based upon the affi davit, petitioner asserts he is entitled to discovery on this claim. This evidence , however, was available to petitioner at trial. In addition, he had a defense expert at trial to inform his challenge to this evidence. Cf. Siripongs v. Calderon , 167 F.3d 1225, 1227-28 (9th Cir. 1999) (rejecting habeas claims based upon opinion of newly hired defense expert, where test results were available a nd reviewed by defense expert prior to trial). Petitioner, therefore, has failed to establish good cause for7 Contrary to the district court’s opinion, petitione r did assert in

district court a Sixth Amendment violation. -27- discovery on this issue. See Rule 6(a), Rules Governing Section 2254 Cases; see also Bracy , 520 U.S. at 908-09.

V. REMOVAL OF VENIRE MEMBER Petitioner argues the trial court violated his Sixt h, Eighth, and Fourteenth Amendment rights by improperly removing a venire me mber for cause without allowing him an opportunity to rehabilitate the juror. 7 “‘[A] juror may not be challenged for cause based on his views about capit al punishment unless those views would prevent or substantially impair the per formance of his duties as a juror in accordance with his instructions and his oath.’” Wainwright v. Witt , 469 U.S. 412, 420 (1985) (quoting Adams v. Texas , 448 U.S. 38, 45 (1980)) (emphasis omitted). A trial judge’s determination of a potential juror’s bias under this standard is a factual finding entitled t o a presumption of correctness.
See id. at 428-29 (pre-AEDPA); Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 777 (10th Cir. 1996) (same); see also Pitsonbarger v. Gramley , 141 F.3d 728, 734 (7th Cir.) (applying AEDPA), cert. denied , 119 S. Ct. 448 (1998); Fuller v. Johnson , 114 F.3d 491, 500-01 (5th Cir. 1997) (same). In making such a determination, the trial judge must a ssess the credibility of the-28-

prospective juror, a task an appellate court cannot easily do based upon a record.
See Witt , 469 U.S. at 429; see also Castro v. Ward , 138 F.3d 810, 824 (10th Cir.) (“Because issues of credibility and demeanor are cr ucial to the trial judge’s determination, our review of that determination is quite deferential.”), cert. denied , 119 S. Ct. 422 (1998). Petitioner argues that a juror who opposes the deat h penalty may not be excused for cause if he is able to follow the trial judge’s instructions and set aside his own beliefs in deference to the law. Her e, petitioner maintains the trial judge did not properly question the prospective jur or to determine whether he could do so. The following colloquy occurred:

THE COURT: Mr. Parrish, I will ask you, the defend ant in this case is charged with murder in the first degre e. It is your duty to determine whether the defendant is not guilty or gu ilty of murder in the first degree. The law provides that the punishment for murder in the first degree is life or death. If you find beyond a reas onable doubt that the defendant is guilty of murder in the first degr ee, can you consider both legal punishments, life or death?
MR. PARRISH: No. THE COURT: Let me ask you this question, sir. If you found beyond a reasonable doubt that the defendant was gu ilty of murder in the first degree and if, under the evidence, facts and circumstances of the case, the law would permit you to consider asentence of death, are your reservations about the death penalty such that regardless of the law, the facts and circumstances of the case, you would not consider inflicting the death penalty?8 Thereafter, counsel made a record of the additional questions he

would have asked the prospective juror if the trial court had allowed him to do so. The following is illustrative of the record trial c ounsel made.

Judge, . . . this juror has to at least be asked, c an he set aside his opinions and follow the law, because if he can, he can sit on this (continued...) -29- MR. PARRISH: Yes. Tr. vol. I at 60-61. After the prosecution moved t o excuse the juror, defense counsel asked for a bench conference, during which he requested an opportunity to further question the juror.

MR. RAVITZ: Judge, we contend that two questions c an not properly determine a juror’s feelings, and if we’re not allowed to explore, this Court can not make any type of factua l judgment on it. We would request that we be permitted to ask the ju ror -- explain to the juror the law, the fact that all he is required to do is consider the death penalty, that this defendant is entitled to a representative jury of his peers, that if the jurorwants to consider it and reject it, he has that right to do it as long a s he’s willing to consider it. That as long as he is willing -- as long as it will not affect his decision on guilt or innocence, he has a right to s it on it. If you don’t let me inquire on this, we can’t make -- this record will be totally insufficient for an appellate court to revi ew whether this Court was correct in excusing him. When I finish, the Court may be entirely correct in excusing, but I think I’m entitled to that opportunity. Id. at 62-63. The trial court overruled defense couns el’s request and excused the juror. 88 (...continued)

jury. And none of those questions ever asked that. We contend that the Supreme Court’s standard in Witt and Witherspoon is being totally violated by an excusal without giving me an opportunity to ask these questions because we believe this juror, if assured of his civic responsibility, woul d in fact say he could sit on this jury and do what he thinks is proper in the case. Tr. vol. I at 64-65. -30- On direct criminal appeal, the Oklahoma Court of Cr iminal Appeals held that the juror was properly excluded under Witt because the trial court’s questioning established he would not consider impos ing the death penalty in a
proper case. See Moore , 788 P.2d at 397. That court determined the trial court did not err in disallowing further questioning by d efense counsel, because further questioning may have resulted in confusion and the relevant questions had been asked and clearly answered. See id. Petitioner contends that the second question asked by the trial court “is virtually identical to a question this Court descri bed as ‘confusing, and because of its negative phrasing, invites ambiguous answers .’” Appellant’s Opening Br. at 44 (quoting Davis v. Maynard , 869 F.2d 1401, 1408 (10th Cir. 1989), vacated on other grounds by Saffle v. Davis , 494 U.S. 1050 (1990), opinion reinstated in part by Davis v. Maynard , 911 F.2d 415, 418 (10th Cir. 1990)). The followi ng question was at issue in Davis :9 In Davis , defense counsel asked a follow-up question: “Do I hear

that to mean that you could possibly impose the Death Penalty in some particular case?” Id. at 1408. The juror responded “yes.” Id. -31- If you found beyond a reasonable doubt that the Def endant in this case was guilty of Murder in the First Degree and i f under the evidence, facts and circumstances of the case the l aw would permit you to consider a sentence of death, are your reser vations about the Death Penalty such that regardless of the law, the facts and the circumstances of the case, you would not inflict th e Death Penalty?
Davis , 869 F.2d at 1408. This court determined that a “ no” answer to this question could ambiguously mean either that the jur or could not inflict the death penalty despite the law and evidence or that any re servations the juror had would not impair the juror’s ability to inflict the proper sentence. See id. at 1408-09. 9
Davis , however, refused to conclude that the exclusion o f the juror for cause was reversible error. See id. at 1409. In so refusing, Davis looked to Witt where the Supreme “Court established that prospective jurors’ bias towards the death pen alty need not be proved with ‘unmistakable clarity’” in order to excuse a juror for cause. Id. (quoting Witt , 469 U.S. at 424). This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results i n the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enou gh questions to reach the point where their bias has been made “ unmistakably clear”; these veniremen may not know how they will react when faced with imposing the death sentence, or may be u nable to articulate, or may wish to hide their true feelings . Despite this lack-32-

of clarity in the printed record, however, there wi ll be situations where the trial judge is left with the definite imp ression that a prospective juror would be unable to faithfully and impartially apply the law. . . .[T]his is why deference must be paid to the trial judge who sees and hears the juror.
Witt , 469 U.S. at 424-26 (footnote omitted). Thus, eve n where there is ambiguity, the trial court, aided by its assessmentof the juror’s credibility, may resolve the ambiguity in favor of the State. See id. at 434. Nor do we believe the trial court was required to a fford petitioner an opportunity to further examine and rehabilitate the juror. “[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors.” Morgan v. Illinois , 504 U.S. 719, 729 (1992). Here, the voir dire was adequate to detect whether the prospective juror would have been qualified to serve as a juror. See Yeatts v. Angelone , 166 F.3d 255, 265 (4th Cir.) (corollary of right to impartial jury is requiremen t of voir dire sufficient to identify unqualified jurors), cert. denied , 119 S. Ct. 1517 (1999). Thus, the trial court was not constitutionally required to grant de fense counsel an opportunity to conduct a searching inquiry. Cf. Sellers v. Ward , 135 F.3d 1333, 1341 (10th Cir.) (where defense attorney wanted to inquire whe ther prospective jurors would find specific facts mitigating), cert. denied , 119 S. Ct. 557 (1998). The trial court’s decision not to permit further questioning by defense counsel did not exceed the bounds of that court’s considerable discretion. See Neely v. Newton ,-33-

149 F.3d 1074, 1083-84 (10th Cir. 1998) (holding fe deral courts are deferential to what questions should be asked), cert. denied , 119 S. Ct. 877 (1999). Even assuming additional questions would have been helpf ul, the trial court’s failure to allow defense counsel to ask the questions did not render the trial fundamentally unfair. See id. at 1084. Petitioner has failed to rebut the presumption the trial court was correct in finding that the juror’s views would have prevented or substantially impaired his performance of his duties as a juror. The OklahomaCourt of Criminal Appeals’ determination that the juror’s answers clearly indi cated that he could not consider imposing the death penalty regardless of the eviden ce and the instructions was not contrary to or an unreasonable application of Witt

.

VI. PROSECUTORIAL MISCONDUCT Petitioner alleges the prosecution engaged in misco nduct at both stages of his trial by: 1) eliciting sympathy for the victim ; 2) vouching for the credibility of state witnesses; 3) stating personal opinion abo ut petitioner’s guilt; and 4) undermining the jury’s sense of responsibility i n selecting the appropriate punishment. On direct criminal appeal, petitioner raised only the first claim and did so only on state law grounds. The Oklahoma Cou rt of Criminal Appeals determined that state law was not violated. See Moore , 788 P.2d at 401. On-34-

post-conviction, petitioner raised all four claims, doing so on state law grounds with respect to the first three and on federal grou nds with respect to the fourth. Without citing state or federal law, the Oklahoma C ourt of Criminal Appeals recognized that the prosecutor’s comments occasiona lly skirted the boundaries of permissible argument, but considered in the contextof the entire closing arguments, did not require reversal or modification . The court determined the prosecutor primarily made permissible comments base d on the evidence or merely responded to defense counsel’s closing arguments. See Moore , 889 P.2d at 1255
n.4. Because respondent does not argue petitioner failed to exhaust the first three claims on federal grounds and does not argue procedural bar with respect to all four claims, we address the merits of all claims. See 28 U.S.C. § 2254(b)(2) (permitting federal court to deny relief on merits of unexhausted claim); Hooks , 1999 WL 502608, at *9 (holding State must raise pro cedural bar or it is waived). The federal district court addressed the merits of the first three claims on federal law grounds in the first instance. We review the district cou rt’s legal conclusions de novo and its factual findings for clear error. See LaFevers , 182 F.3d at 711. We assume the state appellate court r eviewed the merits of the fourth claim under federal law, as petitioner reque sted. Accordingly, we review-35-

the Oklahoma Court of Criminal Appeals determinatio ns on the fourth claim for reasonableness. See 28 U.S.C. § 2254(d)(1). Allegations of prosecutorial misconduct are mixed q uestions of law and fact. See Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994). Not every improper and unfair remark made by a prosecutor wil l amount to a federal constitutional deprivation. See Caldwell v. Mississippi , 472 U.S. 320, 338 (1985). A prosecutor’s improper comment or argument will re quire reversal of a state conviction only where the remarks sufficiently infe ct the trial so as to make it fundamentally unfair and, therefore, a denial of due process. See Donnelly v. DeChristoforo , 416 U.S. 637, 643, 645 (1974); see also Darden v. Wainwright , 477 U.S. 168, 181 (1986); Hoxsie v. Kerby , 108 F.3d 1239, 1243 (10th Cir. 1997). Inquiry into the fundamental fairness of a trial ca n be made only after examining the entire proceedings. See Donnelly , 416 U.S. at 643. To view the prosecutor’s statements in context, we look first at the strength of the evidence against the defendant and decide whether the prosecutor’s statements plausibly could have tipped the scales in favor of the prosecution. . . . We also ascertain whether curative instructions by the trial judge, if given, might ha ve mitigated the effect on the jury of the improper statements. . . . When a prosecutor responds to an attack made by defense counsel, we e valuate that response in light of the defense argument. . . . U ltimately, we must consider the probable effect the prosecutor’s [stat ements] would have on the jury’s ability to judge the evidence fairly.
Fero , 39 F.3d at 1474 (quotations omitted). With these standards in mind, we turn to petitioner’s individual claims of prosecuto rial misconduct.10 The prosecutor made the following comments: 1) “Di d he have this

knife in his hand then or did he pull it out when h e got in the car?” 2) “[F]rom th[e] time [he got her inside the car] until her br uised, battered and lifeless little body was found the next morning beside the road, we don’t know exactly what he did to her.” 3) “We have a pretty good idea of som e of the things he did.” 4) “She was probably scared to death and struggling.” 5) “She died in order for this baby killer to satisfy his own sadistic sexual desi res.” 6) “Can you imagine what that baby was going through? Took her out to his t railer, taped her up with that tape, took that knife right there and cut that unif orm off of her and kept her there for hours.” 7) “Jenipher will never be a teenager. ” 8) “[Her mom] is never going to drive her to school again.” 9) “[The victim’s f amily] will never be the same”. -36- A. Eliciting Sympathy for the Victim Petitioner first argues that during closing argumen ts at both stages, the prosecution sought to ensure a conviction and death sentence by appealing to the emotions of the jury and attempting to elicit sympa thy for the victim. During the first stage closing arguments, the prosecutor refer red to the victim by a nickname not supported by the evidence. Also, the prosecuto r asked the jury to speculate about what may have happened to the victim, despite admitting that he did not know exactly what happened to her, and commented on the suffering of the victim’s family. 10 During the second stage, the prosecution continue d with its pleas for victim sympathy by speculating about whathappened to the victim and her responses, pointing out the loss to her family, stating petitioner gets the benefit of the doubt but the victim did not despite her innocence, and stating that11 The prosecutor made the following comments: 1) “[W ]e don’t really

know what he did to her that evening.” 2) “Can you imagine the terror, the fear that baby girl had when he snatched her. She cried for help there in the parking lot. And those may well have been the last words t hat ever came out of her mouth.” 3) “What must have been going through thatlittle girl’s mind when he trussed her up with duct tape everywhere? . . . And cut the clothing off her body.” 4) “Nobody should have to go through the kind of te rror he put that little girl through[.]” 5) “She was alone and scared and helpl ess, and she died in silence with his hands around her neck.” 6) “The sort of p ain and fear she experienced must be unimaginable.” 7) “Can [the victim’s paren ts] ever visit [her]?” 8) “We’re giving him every benefit of the doubt, ev ery right our justice system prevails. Jenipher didn’t get any of those.” 9) “ She was totally innocent.” 10) “There’s no way little Jenipher could have been more innocent or less deserving of what happened to her on that night.” 11) “[B]ring back a death verdict out of love for the [victims and parents] o f the world and the future and the past victims of [petitioner].” -37- a death verdict was proper out of love for the vict im and her parents and the past and the future victims of petitioner. 11 To the extent the prosecutor speculated about what petitioner did to the victim, the federal district court determined the c omments were a tenable explanation based on evidence and logical inference s from the evidence. With respect to the comments about the suffering of the victim’s mother and family, the federal district court determined the comments were improper, but petitioner failed to show the comments were so egregious as to render the trial fundamentally unfair, especially in light of the ov erwhelming evidence of guilt and the jury instructions regarding sympathy.-38-

This court does not condone prosecutorial remarks e ncouraging the jury to allow sympathy to influence its decision. See Duvall , 139 F.3d at 795. After reviewing the record, however, we cannot conclude t he comments affected the outcome at either stage of trial. The prosecution’ s speculations about what happened to the victim were reasonable possible inf erences based on the evidence. Cf. Hooks , 1999 WL 502608, at *15 (references not “so far of f the actual evidence nor so central to the prosecutor’s case that they were likely to have affected the jury’s verdicts”). The State’s e vidence makes it probable that the murder of the young victim produced sympathy be fore the prosecution made any closing remarks. See Duvall , 139 F.3d at 795. “Some emotion is inevitable in capital sentencing[,]” and the prosecutor’s appe als to emotion in this case were not sufficient to render the argument improper. Coleman v. Brown , 802 F.2d 1227, 1239 (10th Cir. 1986). The trial court instructed the jury at both stages to consider the evidence and testimony received at trial and not to allow sy mpathy to enter into its deliberations. These instructions, which the jury presumably followed, helped to mitigate the effect on the jury of any possible imp roper prosecutorial statements.
See Fero , 39 F.3d at 1474.-39-

In light of the evidence and the instructions, this court is not persuaded that the prosecution’s remarks denied petitioner a fair trial or his right to due
process. B. Vouching for the Credibility of State Witnesses In responding to the petitioner’s claim that eviden ce had been planted, the prosecutor apologized, on behalf of the State, to t he officers who worked on the case, “the men who go out and work the streets and try to make this society safe.” According to petitioner, the prosecution was attemp ting to make the jurors feel a debt of gratitude to these officers, who had been w ronged by petitioner’s challenge to their testimony. In addition, petitio ner challenges the prosecutor’s comment that petitioner’s attack on the searches wa s an attack on both himself and another prosecutor. The federal district court determined that there had been no improper vouching, as the first instance was gra ndstanding and the second was merely skirting the boundaries, but did not war rant relief. Generally, prosecutors should not personally vouch for the credibility of state witnesses or place their own integrity and credibility in issue. See Hopkinson v. Shillinger , 866 F.2d 1185, 1209 (10th Cir.), reh’g on other grounds , 888 F.2d 1286 (10th Cir. 1989). Here, however, t he statements were made in response to comments of defense counsel. See Darden , 477 U.S. at 182; see also Hopkinson , 866 F.2d at 1210 (recognizing that improper state ment made-40-

in response to defense counsel’s arguments does not make statement proper, but it may affect context in which jury views improper statement). Also, the statements were made in isolation. See Donnelly , 416 U.S. at 647 (determining court should not lightly infer prosecutor intended isolated, ambiguous remark to have most damaging meaning or that jury will draw t hat meaning from other less damaging interpretations); see also United States v. Ludwig , 508 F.2d 140, 143 (10th Cir. 1974) (reversing conviction in direct cr iminal appeal where prosecutor vouched for integrity of state police and vouching was not isolated incident). Nor did the prosecutor cross the line from advocate to witness with these isolated statements. Furthermore, the trial court instructe d the jury to consider the evidence in the case in making its decision. We conclude the remarks, viewed in the context of the entire trial, did not prejudice petitioner by influencing the jury to stray from its responsibility to be fair and unbiased. See United States v. Young , 470 U.S. 1, 12, 18 (1985). C. Expressing Personal Opinion About Petitioner’s Guilt The prosecutor told the jury the odds that petition er committed the crime are a quarter of a million to one. Petitioner argu es that this statement jeopardized his right to be tried based on the evidence present ed and instead indicated the jury should trust the government’s judgment over it s own view of the evidence.
See id. at 18-19.12 “[Petitioner’s counsel] says in 40 capital cases yo u hear that this is a

proper case for the death penalty 40 times. That’s right. That’s what a capital case is. That’s when I file the bill of particular s and ask for the death penalty. That’s not in every first degree murder case.” -41- The federal district court determined this comment did not implicate any due process violations. See Duvall , 139 F.3d at 794. Although the prosecutor should not have expressed his personal opinion rega rding guilt, there is no suggestion that, in doing so, he relied on evidence beyond that presented at trial.
See Young , 470 U.S. at 19. Moreover, the prosecutor also re marked that the jury should find petitioner guilty based on the evidence and not because the prosecution said he was guilty. D. Undermining Jury’s Responsibility in Selecting Punishment The prosecutor stated in his second stage closing a rgument that when he files a bill of particulars and asks for the death penalty, it is a proper case for the death penalty. 12 Also, he informed the jury it is “only one piece, one little cog in the community.” Additionally, the prosecutor told the jury that before any case can be presented to you for your co nsideration in terms of what sentence is appropriate in that sente nce, a number of things have to happen. The decision--the evidence has to be brought before you upon which you can base that decision. It would be impr oper for you to go in that jury room and bring back a decision with out having the proper evidence before you, as Mr. Deason and I hav e done.13 “If we were going to let [petitioner] out tomorrow, he would be a

threat.”

14 “[D]o you really want to kill [petitioner] or do yo u really want to kill the disease.” -42-

Prior to that time, decision has to be made as to w hat penalty will be sought in that case. That decision is then made. Prior to that time, before that kind of decision can be made, an investigation has to be made by the police departme nt--

. . . --in this case. And the evidence has to be brought forth. That evidence has to be gathered. It was done in this c ase. Before that. Before that evidence can be gathered, the one person who voluntarily enters into this whole scene is [pe titioner] . . . . Tr. vol. VII at 1626-27. Petitioner believes that these statements violated Caldwell and were designed to make the jury surrender its j udgment to the judgment of the prosecution and law enforcement, rather than to make a decision based on the strength of the evidence. On post-conviction review, the Oklahoma Court of Cr iminal Appeals, apparently deciding petitioner’s Caldwell argument, determined that these comments merely responded to petitioner’s counsel’s second stage closing argument. See Moore , 889 P.2d at 1255 n.4. The federal district court determined that defense counsel invited these comme nts by his own comments regarding petitioner’s continuing threat to society, 13 petitioner’s disease, 14 the15 “Taking someone’s life . . . has the greatest perso nal and social

consequences in one’s lifetime.”

16 Defense counsel stated “if you sat on 40 capital ju ries, you would hear it 40 times” and gave examples of what he beli eved were proper cases for the death penalty. -43- social and personal consequences of the jury’s decision, 15 and the types of cases appropriate for the death penalty. 16 Further, the district court determined the remarks did not place the ultimate sentencing decis ion on anyone other than the jury. See Caldwell , 472 U.S. at 328-29. The court believed that the comments merely underscored the jury’s part in the system of justice. See Dutton v. Brown , 812 F.2d 593, 597 (10th Cir. 1987). The prosecutor’s statements viewed in the context o f the entire trial did not affirmatively mislead the jury regarding its respo nsibility for determining punishment, and thus did not violate Caldwell

. See Romano v. Oklahoma , 512 U.S. 1, 8-9 (1994). Furthermore, the trial cou rt’s instructions informed the jury that it had the duty to determine the penalty to be imposed. We conclude the prosecutor’s statements did not render the death penalty verdict unreliable. See Sellers , 135 F.3d at 1343 (prosecutor’s suggestion that he personally approved of death penalty and statements that “many hurdles had to be jumped before a capital murder trial could ever occur” were insuffi cient to suggest that anyone other than jury had burden to make ultimate sentencing decision); see also
Moore , 153 F.3d at 1113 (prosecutor’s comments that jury was small part of-44-

machinery to put petitioner on death row and prosec utor made decision to seek death penalty, even if improper, were not significant enough to influence jury’s sentencing decision); Parks v. Brown , 840 F.2d 1496, 1503-04 (10th Cir. 1987) (prosecutor’s comments did not minimize importance of jury’s role in fixing sentence), rev’d on other grounds by Saffle v. Parks , 494 U.S. 484 (1990). Petitioner has failed to show the Oklahoma Court of Criminal Appeals’ decision was contrary to or an unreasonable application of Caldwell

. See 28 U.S.C. § 2254(d)(1). E. Combined Impact of Comments Even if the prosecutor’s comments viewed in isolati on do not warrant relief, petitioner maintains that their combined impact does. “‘Cumulative-error analysis applies where there are two or more actual errors. It does not apply, however, to the cumulative effect of non-errors.’” Castro , 138 F.3d at 832 (quoting Hoxsie , 108 F.3d at 1245); see Newsted , 158 F.3d at 1097 (“A non-error and a non-prejudicial error do not cumulatively amo unt to prejudicial error.”). This court has considered, in context, each of the alleged instances of prosecutorial misconduct identified by petitioner and concludes that, even when taken together, the comments did not render petitio ner’s trial fundamentally unfair.-45-

VII. ESPECIALLY HEINOUS, ATROCIOUS OR CRUEL AGGRAVATING CIRCUMSTANCE In his fifth ground for habeas relief, petitioner c hallenges the constitutionality of Oklahoma’s “especially heinous , atrocious or cruel” aggravating circumstance. In his sixth argument, p etitioner asserts that there was insufficient evidence to support the jury’s finding the existence of this aggravator.

A. Constitutionality The constitutionality of an aggravating circumstanc e is a question of law. See, e.g. , Hooks , 1999 WL 502608, at *32. The Oklahoma Court of Cr iminal Appeals’ rejection of this claim was neither contra ry to, nor an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). The language of Oklahoma’s “especially heinous, atr ocious or cruel” aggravating circumstance is unconstitutionally vagu e without further narrowing.
See Maynard v. Cartwright , 486 U.S. 356, 363-64 (1988). The trial court, however, did further narrow the application of this aggravator by instructing the jury that [t]he term “heinous” . . . means extremely wicked o r shockingly evil. “Atrocious” means outrageously wicked and vile. “C ruel” means pitiless or designed to inflict a high degree of pa in, utter indifference to or enjoyment of the suffering of others. You ar e further instructed that the phrase “especially heinous, atrocious or c ruel” is direct[ed]-46-

to those crimes where the death of the victim was p receded by torture of the victim or serious physical abuse. Post-Conviction R. vol. II at 252. The first part of this instruction, by itself, insu fficiently narrowed the application of this aggravator. See Shell v. Mississippi , 498 U.S. 1, 1 (1990) (per curiam); id. at 2 (Marshall, J., concurring) (setting forth lan guage of challenged instruction). Nonetheless, the last sentence did c onstitutionally narrow this aggravating circumstance. See Walton v. Arizona , 497 U.S. 639, 652-55 (1990) (plurality) (upholding limiting application of “esp ecially heinous, cruel, or depraved” aggravating factor to murders involving m ental anguish or physical abuse occurring prior to death); see also, e.g. , Hooks , 1999 WL 502608, at *33-*34 (upholding constitutionality of jury instru ction identical to instruction challenged here); LaFevers , 182 F.3d at 720-21 (same); Cooks v. Ward , 165 F.3d 1283, 1290 & n.3 (10th Cir. 1998) (same), petition for cert. filed (U.S. May 14, 1999) (No. 98-9420). Further, the instruction’s us e of the “direct[ed] to” language does not result in any ambiguity. Petitioner next argues that the Oklahoma Court of C riminal Appeals has interpreted this aggravating circumstance inconsist ently and that this inconsistency deprived petitioner of adequate notic e. Federal habeas review of the consistency with which state courts have applie d an aggravating circumstance, however, is inappropriate. See Arave v. Creech , 507 U.S. 463, 477 (1993); see-47-

also Walton , 497 U.S. at 655-56. In any event, Oklahoma court s have consistently applied this aggravator. See, e.g. , LaFevers , 182 F.3d at 721; Cooks , 165 F.3d at 1290. Petitioner argues that, although the Oklahoma Courtof Criminal Appeals further limits the application of this aggravating circumstance to crimes in which the victim consciously suffered “serious physical a buse,” the jury was never instructed on the need to find conscious suffering. Petitioner also asserts that the trial court failed to instruct that, under Oklahoma law, jurors were first to determine whether the victim suffered torture or se rious physical abuse and then, if so, whether the crime was “especially heinous, a trocious or cruel.” These arguments primarily implicate only state law errors. See Lewis v. Jeffers , 497 U.S. 764, 783 (1990). “[F]ederal habeas revi ew of a state court’s application of a constitutionally narrowed aggravat ing circumstance is limited, at most, to determining whether the state court’s find ing was so arbitrary or capricious as to constitute an independent due proc ess or Eighth Amendment violation.” Id. at 780 (pre-AEDPA). “A state court’s finding of a n aggravating circumstance in a particular case . . . is arbitrary or capricious if and only if no reasonable sentencer could have so concluded.” Id. at 783; see also Creech , 507 U.S. at 478. As discussed more fully below, that i s not the case here. B. Sufficiency of Supporting Evidence-48-

Petitioner asserts that there was insufficient evid ence to support the jury’s finding the existence of this aggravating circumsta nce. The Oklahoma Court of Criminal Appeals rejected this claim as well. See Moore , 788 P.2d at 401-02. The appropriate standard of review of this claim “i s the ‘rational factfinder’ standard established in Jackson v. Virginia , 443 U.S. 307 . . . (1979) . . . whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the [aggrav ating circumstance] beyond a reasonable doubt.’ [ Id. ] at 319.” LaFevers , 182 F.3d at 723. Prior to AEDPA, a habeas claim challenging the sufficiency of evidence under Jackson presented a question of law. See, e.g. , Romero v. Tansy , 46 F.3d 1024, 1032 (10th Cir. 1995). But cf. Bryson , 1999 WL 590738 (post-AEDPA habeas claim raising q uestion of whether there was sufficient evidence to instruct j ury on lesser included offense in capital case presented factual issue). Under AE DPA, if the sufficiency of evidence is treated as a question of law, then unde r § 2254(d)(1), the question is whether the Oklahoma Court of Criminal Appeals unre asonably applied this standard. Nonetheless, it appears that this court has, at tim es, treated the question of whether there was sufficient evidence to support th e sentencer’s finding the existence of an aggravating circumstance as a factual determination. See, e.g. , Hooks , 1999 WL 502608, at *32, *34 (noting Oklahoma Court of Criminal-49-

Appeals “found” there was sufficient evidence to support sentencer’s finding of aggravating circumstances and affirming district co urt’s “finding” that especially heinous aggravator’s “serious physical abuse” stand ard had been met; although also noting Oklahoma Court of Criminal Appeals “con cluded” evidence was sufficient); Ross v. Ward , 165 F.3d 793, 800-01 (10th Cir. 1999) (“find[ing] ” record contained sufficient evidence to support jury’s finding of aggravating circumstances), petition for cert. filed (U.S. July 6, 1999) (No. 99-5138); Nguyen , 131 F.3d at 1344 (noting Oklahoma Court of Criminal Appeals “found” evidence was insufficient to support especially heinous aggr avator). At other times, this court has treated the resolution of this issue as a legal conclusion. See, e.g. , Foster v. Ward , 182 F.3d 1177, 1194-95 (10th Cir. 1999) (“conclud [ing]” record supported jury’s finding of conscious physical suff ering sufficient to establish Oklahoma’s especially heinous aggravator); LaFevers , 182 F.3d at 723 (affirming district court’s conclusion that there was sufficie nt evidence for rational trier of fact to have found aggravating circumstance beyond reasonable doubt); Cooks , 165 F.3d at 1290 (“conclud[ing]” record supported j ury’s finding of aggravating circumstance). If we treat the issue of the sufficiency of the evi dence supporting the sentencer’s finding of the “especially heinous, atr ocious or cruel” aggravating circumstance as a legal determination, the question for our consideration, under-50-

28 U.S.C. § 2254(d)(1), would be whether the state court’s rejection of this claim was contrary to or an unreasonable application of c learly established Supreme Court precedent. On the other hand, if we treat th is issue as one of fact, the applicable inquiry under § 2254(d)(2) would be whet her the state court’s rejection of this claim represented an unreasonable determination of the facts in light of the evidence. Further, § 2254(e)(1) requires this court to afford a presumption of correctness to a state court’s factual findings, un less petitioner can rebut that presumption with clear and convincing evidence. In this case, however, we need not determine which is the more appropriate analysi s because petitioner’s claim lacks merit under either line of reasoning. At the time of the abduction, petitioner held his h and across the victim’s mouth and hit her across the face, knocking her bac k into the car. At the time her body was found, at 11:00 A.M. the next morning, she had been dead only a few hours. In the interim, she had been bound with duc t tape around her wrists, arms, ankles, thighs, back, neck and face, and tape had b een placed over her nose and mouth. Her clothes had been removed, her underwearpulled down on her thighs, and her bra pulled up above her breasts. On severa l prior occasions, petitioner had bound children in order to watch them struggle to get free. Further, the victim had suffered bruising or abrasi ons to her face, neck, back and buttocks, and had been strangled and suffo cated. The medical examiner-51-

testified that her face was puffy and smeared with pinkish foam coming mainly from her mouth while she was still alive. Her face and eyes exhibited numerous small hemorrhages as a result of the compression of the veins in her neck. This evidence was sufficient to support the jury’s findi ng that this murder was “especially heinous, atrocious or cruel.” See, e.g. , Cooks , 165 F.3d at 1290.

VIII. CONTINUING THREAT AGGRAVATING CIRCUMSTANCE Petitioner next argues that Oklahoma’s continuing t hreat aggravating circumstance is unconstitutionally vague and overbr oad. Petitioner asserted this claim to the Oklahoma Court of Criminal Appeals onl y in a petition for rehearing following his direct criminal appeal. The Oklahoma Court of Criminal Appeals denied rehearing without comment. Although respond ent argues that this claim is unexhausted and procedurally barred, because this i ssue is so easily resolved, we address its merits. We have previously rejected this same argument cha llenging the constitutionality of Oklahoma’s continuing thre at aggravating circumstance.
See Castro , 138 F.3d at 815-17; see also Hooks , 1999 WL 502608, at *32; Foster , 182 F.3d at 1194; LaFevers , 182 F.3d at 720; Boyd , 179 F.3d at 922. Petitioner further contends that Oklahoma has not c onsistently applied this aggravator. A federal habeas court, however, may n ot address the consistency of-52-

the state courts’ application of an aggravating factor. See, e.g. , Creech , 507 U.S.
at 477.

IX. INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner argues that the district court erred in denying relief on his four claims of ineffective assistance of trial counsel and two claims of ineffective assistance of appellate counsel. The Oklahoma Cour t of Criminal Appeals, deciding one claim of ineffective assistance of tri al counsel on its merits, and the federal district court, deciding all other claims o f ineffective assistance of trial and appellate counsel on their merits in the first instance, held that neither trial nor appellate counsel rendered constitutionally ine ffective assistance of counsel. Because respondent does not argue petitioner failed to exhaust any claims or that any claims are procedurally barred, see 28 U.S.C. § 2254(b)(1) (exhaustion); Hooks , 1999 WL 502608, at *9 (procedural bar), we review the claim decided by the Oklahoma Court of Criminal App eals under the standards set forth in 28 U.S.C. § 2254(d) and the remainder of the claims de novo, see LaFevers , 182 F.3d at 711. A. Ineffective Assistance of Trial Counsel Claims of ineffective assistance of counsel are mix ed questions of law and fact, reviewed de novo. See Miller v. Champion , 161 F.3d 1249, 1252, 1254-53-

(10th Cir. 1998) (applying AEDPA). To establish in effective assistance of counsel, a petitioner must prove 1) counsel’s perfo rmance was deficient, such that counsel made errors so serious that counsel wa s not acting as the counsel guaranteed by the Sixth Amendment and 2) counsel’s deficient performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result. See Strickland v. Washington , 466 U.S. 668, 687 (1984). To succeed under the first prong, a petitioner must overcome t he presumption that counsel’s conduct was constitutionally effective. See Boyd , 179 F.3d at 914. Specifically, a petitioner “must overcome the presumption that, u nder the circumstances, the challenged action might be considered sound trial strategy.” Strickland , 466 U.S. at 689 (quotation omitted). For counsel’s performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong. See
Hoxsie , 108 F.3d at 1246. Under the second prong, a petitioner must show that , but for counsel’s errors, the result of the proceedings would have been different. See Strickland , 466 U.S. at 694. If the alleged ineffective assist ance occurred during the guilt stage, the question is whether there is a reasonabl e probability the jury would have had reasonable doubt regarding guilt. See id. at 695. In assessing prejudice, this court looks at the totality of the evidence, not just the evidence helpful to the petitioner. See Boyd , 179 F.3d at 914. If the alleged ineffective-54-

assistance of counsel occurred during the sentencin g phase, this court considers whether there is a “reasonable probability that, ab sent the errors, the sentencer . . . would have concluded that the balance of aggr avating and mitigating circumstances did not warrant death.” Strickland , 466 U.S. at 695. “This court may address the performance and prejudi ce components in any order, but need not address both if [petitioner] fa ils to make a sufficient showing of one.” Cooks , 165 F.3d at 1292-93; see also Davis , 100 F.3d at 760. Petitioner alleges four instances of ineffective as sistance of trial counsel. First, he argues that counsel did little to demonst rate Janice Davis’ lack of training or experience in hair and fiber analysis. If counsel had done so, petitioner believes that the jury likely would have disregarded her testimony. Petitioner, however, recognizes that “counsel did acommendable job cross-examining Davis on the accuracy of her opinio ns, and of the general validity of hair and fiber analysis.” Appellant’s Opening Br. at 88. The federal district court found that counsel’s cross-examinati on of Davis satisfied Strickland . Reviewing de novo, we agree. Contrary to petition er’s argument, the record shows that counsel did cross-e xamine Davis about her background and training. During his first stage cl osing argument, defense counsel questioned Davis’ credentials and reminded the jury of how little education and training she had in hair and fiber co mparison. Even if counsel had-55-

not challenged Davis’ credentials, we have conclude d that Davis was qualified to serve as an expert. Petitioner has not suggested h ow further cross-examination would have shown that she lacked expertise to testi fy as an expert. Thus, we conclude counsel’s cross-examination was not defici ent and petitioner cannot show prejudice. Petitioner next argues that counsel failed to condu ct sufficient pre-trial investigation concerning Paulo Gomes’ identificatio n of petitioner in a photographic line-up. If counsel had interviewed G omes before trial, petitioner believes that counsel would have learned that Gomes had selected another person before selecting petitioner and that the magistrate judge who issued the search warrants was not informed of that fact. According to petitioner, this evidence would have created doubt as to his guilt and would have bolstered the suppression motion filed prior to trial. On direct criminal appeal, the Oklahoma Court of Cr iminal Appeals, citing Strickland , determined petitioner failed to meet his burden o f proving deficient performance or resulting prejudice with respect to his argument that counsel failed to conduct a proper investigation. See Moore , 788 P.2d at 401. Likewise, on post-conviction review, that court again cited Strickland and determined that “counsel ably brought out Gomes’s inconsistencies a nd weak identification at trial. [Petitioner] cannot show that counsel’s fail ure to contact Gomes pretrial-56-

constituted a deficient performance which prejudiced his client.” Moore , 889 P.2d at 1257 n.14. Although counsel did not interview Gomes before tri al, counsel established through cross-examination and later reminded the ju ry during first stage closing argument that Gomes had picked out someone else fro m the photo line-up. Counsel’s performance was not deficient. Even assu ming deficient performance, petitioner has failed to show that if defense couns el had interviewed Gomes before trial his cross-examination would have yield ed any more and the result of the trial would have been different. Considering t he evidence in total, we conclude there is no reasonable probability the jury would have reached a different result. The Oklahoma Court of Criminal A ppeals’ decision was not an unreasonable application of Strickland

. See 28 U.S.C. § 2254(d)(1). Third, petitioner argues that counsel should have o bjected to admission of the evidence found in the sack on top of the grocery store because many of the items in the sack were never conclusively linked to petitioner. Petitioner, however, has failed to even attempt to show that ab sent the evidence in the sack the result of the trial would have been different. Thus, petitioner has failed to prove prejudice. Petitioner’s final ineffective trial assistance arg ument is that counsel did not act as his advocate during second stage closing arguments. During argument,-57-

counsel conceded 1) the State had proved all three aggravating circumstances beyond a reasonable doubt; 2) petitioner would be athreat if he is not incarcerated for life; 3) petitioner should be kill ed if he always acted as he did at the time of the murder; 4) the Oklahoma Department of Corrections realizes petitioner is dangerous; and 5) if petitioner is a threat to other prisoners, he should be executed. Without elaboration, petitione r maintains, contrary to the federal district court’s determination, that confes sing the heinous, atrocious or cruel aggravating circumstance and suggesting execu tion if a danger to other prisoners cannot be considered strategy. We disagree. De novo review reveals that it was co unsel’s strategy to ask that petitioner’s life be spared because he would n ot be a threat to society if imprisoned and he might contribute to society. In light of the strong evidence supporting the aggravating factors, and the psychol ogical evidence indicating petitioner would not be a threat if he remained inc arcerated for the remainder of his life, and the deferential scrutiny given counsel’s performance, see Strickland , 466 U.S. at 689, counsel’s strategy was not deficie nt performance. Petitioner has failed to overcome the presumption that under the c ircumstances trial counsel’s argument was sound trial strategy. See id. B. Ineffective Assistance of Appellate Counsel17 Petitioner suggests without further argument or sup port that appellate

counsel should have attacked each of the other aggr avators. We do not consider unsupported and undeveloped issues. See United States v. Kunzman , 54 F.3d 1522, 1534 (10th Cir. 1995). -58- A claim of ineffective assistance of appellate coun sel presents a mixed question of law and fact. See Newsted , 158 F.3d at 1090. When claiming ineffective assistance of appellate counsel, a peti tioner must show both constitutionally deficient performance and prejudice as required by Strickland

. See Newsted , 158 F.3d at 1090. This court’s review of counsel ’s decision to omit an issue on appeal is highly deferential. See United States v. Cook , 45 F.3d 388, 394 (10th Cir. 1995). An appellate counsel’s perfo rmance may be deficient and may prejudice the defendant only if counsel fails t o argue a “dead-bang winner.” Id. at 395 (defining “dead-bang winner” as “an issue w hich was obvious from the trial record, . . . andone which would have resulted in reversal on appea l”). Petitioner argues that appellate counsel should hav e attacked the continuing threat aggravating circumstance on direc t criminal appeal and should not have first raised the issue on rehearing. 17 The federal district court found no merit because petitioner conceded he had raised an issue of sufficiency of the evidence to support the aggravator on rehearing. W e agree the claim has no merit, but for another reason. Because, as discuss ed above, there is no merit to-59-

an attack on the continuing threat aggravator, this argument is not a “dead-bang” winner, and appellate counsel was not ineffective. Petitioner argues that if any claims of ineffective assistance of trial counsel should have been raised on direct appeal, appellate counsel was ineffective for failing to raise them. The federal district court determined it had considered petitioner’s claims of ineffective assistance of tr ial counsel and had found them to be without merit. Accordingly, the federal dist rict court determined this claim of ineffective assistance of appellate counsel was without merit. Because we too reject petitioner’s claims on their merits, we conc lude appellate counsel was not ineffective for failing to raise the claims on dire ct appeal. C. Cumulative Ineffective Assistance of Counsel Petitioner believes that the district court should have considered the entire scope of counsel’s representation, rather than look ing at each item in isolation. Petitioner, however, failed to make this assertion in the district court. Thus, the district court’s failure to consider the entire sco pe of counsel’s representation was not error. We decline to address this argumentraised for the first time on appeal. See Oyler v. Allenbrand , 23 F.3d 292, 299 n.8 (10th Cir. 1994).

X. CUMULATIVE ERROR-60-

If this court fails to grant relief on any one issu e, petitioner argues that this court should consider the cumulative effect of two or more seemingly harmless errors. Considering all of petitioner’s claims, except his Brady claim for which we are remanding, we conclude petitioner has not me t his burden of demonstrating that either his conviction or death s entence is constitutionally infirm.

XI. CONCLUSION In conclusion, we agree with respondent’s position argued in his cross appeal and, therefore, we review petitioner’s habea s claims under AEDPA. We REVERSE the district court’s denial of habeas relie f on petitioner’s claim that police officers planted evidence against him, and REMAND that claim to the district court to permit discovery and, if necessary, an evidentiary hearing. In all other respects, we AFFIRM the district court’s deni al of habeas relief.Nos. 98-6004, 98-6010 – Moore v. Ward

BRORBY, Circuit Judge, dissenting. I respectfully dissent from that portion of the maj ority opinion that holds the Oklahoma Court of Criminal Appeals’ “materiality determination” concerning allegations of planted evidence represents an unrea sonable application of clearly established Supreme Court precedent. My difference of opinion is twofold. First, I believe the majority fails to honor the deferenti al standard of review mandated under the AEDPA. Second, even if we venture beyond the AEDPA standard and substitute our best guess as to the probable impactof the undisclosed evidence on the outcome of Petitioner’s trial, Mr. Hawkins’ statements concerning multiple hair sample collections, and his recollection of a deceased co-workers’ comments concerning the detectives’ unusual entry into the P etitioner’s home following those collections, in no way undermine my confidenc e in the jury’s verdict. Accordingly, I am unable to conclude the Oklahoma C ourt of Criminal Appeals was unreasonable in reaching the same conclusion.

I have no quarrel with the substantive law underlyi ng Petitioner’s Brady claim or the standard of review we apply to that cl aim. It is well settled (1) “the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or p unishment”; (2) “evidence is-2-

material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceed ing would have been different”; and (3) “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Pennsylvania v. Ritchie , 480 U.S. 39, 1001 (1987) (quotation marks and citations omitted). Because t he Oklahoma Court of Criminal Appeals considered Petitioner’s evidence i n support of his planted evidence claim, and rejected that claim on the meri ts, it is further settled under the AEDPA that we may disturb the Oklahoma court’s ruling only if it is “contrary to,” or involves “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). As the majority acknowledges, the AEDPA mandates that we increase the degree of deference afforded state court adjudications. See Boyd v. Ward, 179 F.3d 904, 912 (10th Cir. 1999). My quarrel l ies with what I deem to be the majority’s misapplication of the AEDPA stand ard.

The majority recites the appropriate standard, but then concludes, without further reference to or analysis of the Oklahoma Co urt of Criminal Appeals’ ruling, that because the “State’s case against peti tioner was entirely circumstantial,” and the “existence and cross-trans ference of the fiber and hair evidence was crucial to the State’s case,” the Peti tioner’s allegations that police1 In my experience, most habeas petitioners make al legations which, if

proved, would change the outcome of their convictio n and sentence, and thus could be considered “material.” Few, however, pres ent the quality and/or quantity of evidence sufficient to warrant habeas r elief. It is for this reason a federal habeas petitioner is entitled to discovery only “if, and to the extent that, the [district court] judge in the exercise of his d iscretion and for good cause shown grants leave to do so, but not otherwise.” Rule 6(a), Rules Governing Section 2254 Cases; see also LaFevers v. Gibson , 182 F.3d 705, 722 (10th Cir. 1999).

-3- officers planted hair and fiber evidence, if proved, “would be material,” thus creating a reasonable probability that the result o f Petitioner’s trial would have been different. 1 As I understand our role under the federal habeas statutes, this court is not to reevaluate the evidence or second-g uess the Oklahoma court’s conclusion, but rather, must simply determine wheth er the Oklahoma court reasonably applied the appropriate federal constitu tional standard to the facts or evidence presented.

It is clear the Oklahoma Court of Criminal Appeals applied precisely the same legal standard to evaluate the materiality of the Petitioner’s proffered evidence of planted hair and fiber samples as that applied by the United States Supreme Court. After considering Mr. Hawkins’ affi davits, the Oklahoma Court of Criminal Appeals concluded that, when “evaluated in the context of the entire record,” Mr. Hawkins’ statements were “not material ,” and did not “create a-4-

reasonable probability that the trial’s outcome wou ld be changed.” Moore v.
State , 889 P.2d 1253, 1258 (Okla. Crim. App.), cert. denied, 516 U.S. 881 (1995). Although we might have benefited from a more extens ive discussion of the relative weight of that evidence compared to the re st of the evidence, in my view, the Oklahoma Court of Criminal Appeals unquestionab ly applied the correct rule of law and did not unquestionably err in its charac terization of Mr. Hawkins’ statements or its ultimate disposition of this fact -dependent issue. To delve beyond this analysis is to substitute this court’s speculation as to the outcome of Petitioner’s trial for the considered opinion of th e Oklahoma Court of Criminal Appeals. I do not believe the AEDPA sanctions suc h interference. See 28 U.S.C. § 2254(d)(1); see also Kyles v. Whitley , 514 U.S. 419, 456-58 (1995) (Scalia, J. dissenting) (recognition, even prior to AEDPA-mandated deference, “that responsibility for factual accuracy, in capit al cases as in other cases, rests elsewhere – with trial judges and juries, state app ellate courts, and the lower federal courts”).

Notwithstanding my hesitation to delve further, I s imply do not believe there exists a reasonable probability the disclosur e of Mr. Hawkins’ statements to the defense would have changed the outcome of Petit ioner’s trial. The materiality of undisclosed favorable evidence “must be evaluate d in the context of the entire-5-

record.” United States v. Agurs , 427 U.S. 97, 112 (1979). “It is simply not enough to show that the undisclosed evidence would have allowed the defense to weaken, or even to destroy the particular prosecuti on witnesses or items of prosecution evidence to which the undisclosed evide nce relates.” Kyles , 514 U.S. at 460 (Scalia, J. dissenting). The Petitioner mus t demonstrate that “in light of all the evidence, including that untainted by the Brady violation, it is reasonably probable that a jury would have entertained a reaso nable doubt regarding petitioner’s guilt.” Id . (citing United States v. Bagley , 473 U.S. 667, 682 (1985); Agurs , 427 U.S. at 112-13).

To the extent Mr. Hawkins’ statements reflect his p ersonal knowledge of the integrity of the detectives’ investigation of M s. Gilbert’s death, he states only that the detectives returned to the funeral home on three separate occasions to obtain samples of the victim’s pubic, scalp and lim b hairs, that they should have plucked instead of cut the hairs the first time, an d that they took up to two and one-half hours to obtain additional evidence on the third visit. He further claims the hair samples were undoubtedly affected by the e mbalming process, and he witnessed an open window at the Petitioner’s home o n two occasions after the detectives’ second and third visits to the funeral home. These facts, even accepted as true, simply do not constitute material evidence to support-6-

Petitioner’s claim the police planted evidence. As the majority points out, the remainder of Mr. Hawkins’ statements reflect his re collection of a now deceased co-worker’s comments concerning the co-worker’s all eged surveillance of the detectives’ activity following their second visit t o the funeral home. Here again, even accepting this obvious hearsay evidence as tru e, it simply does not undermine my confidence in the outcome of Petitione r’s trial.

For all these reasons, I would affirm the district court’s denial of habeas relief on Petitioner’s Bradyclaim.