UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

JOHN W. DUVALL,

Petitioner - Appellant,

v. DAN REYNOLDS,

Respondent - Appellee. No. 96-6329

ORDER Filed March 4, 1998

Before TACHA, BALDOCK, and KELLY , Circuit Judges.

The petition for rehearing by the panel is granted. The original opinion is withdrawn. This opinion is ordered substituted for the original opinion filed in this case. No member of the active court called for a poll, the en banc suggestion is denied.

ENTERED FOR THE COURT
PATRICK FISHER Clerk of Court

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

### MAR 4 1998 

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

TENTH CIRCUIT

JOHN W. DUVALL,

Petitioner - Appellant,

v. DAN REYNOLDS,

Respondent - Appellee. No. 96-6329 No. 97-6299

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

(D. Ct. No. CIV-94-404-M)
Don J. Gutteridge, Jr., Oklahoma City, Oklahoma, ap pearing for PetitionerAppellant. William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney General of Oklahoma and Sandra D. Howard, AssistantAttorney General, with him on the brief), Oklahoma City, Oklahoma, appeari ng for Respondent-Appellee.

Before TACHA , BALDOCK , and KELLY , Circuit Judges.

TACHA , Circuit Judge.

John Wayne Duvall, an Oklahoma state prisoner sente nced to death, appeals the district court’s denial of his petition for a w rit of habeas corpus under 28- 2 -

U.S.C. § 2254. We exercise jurisdiction pursuant t o 28 U.S.C. § 1291. For the reasons set forth below, we affirm.

BACKGROUND In August 1985, Mr. Duvall, his common-law wife Kar la, and their son Marcus, moved into a duplex in Duncan, Oklahoma. S everal months later, due to marital difficulties, Mr. Duvall moved out. On Thursday, September 18, 1986, Mr. Duvall went to the Stephens County Courthouse. He asked to speak with Alvie Chasteen, a county commissioner and former assistant police chief. At Mr. Duvall’s req uest, Mr. Chasteen accompanied him to an office in the Sheriff’s Department. Mr. Chasteen asked whether Mr. Duvall was in trouble. Mr. Duvall resp onded, “I killed my wife Monday night.” Mr. Chasteen immediately contacted Sheriff Bill Ale xander, who read Mr. Duvall his Mirandarights. Mr. Duvall executed a waiver form and stated that he desired to talk to the authorities. According to Mr. Duvall’s confession, he received acall from his wife, Karla, on Monday afternoon. He stated that she was angry with him because he arranged for her drug prescription to be canceled. She managed, however, to- 3 -

secure a supply of the drug in spite of Duvall’s ef forts to prevent her from obtaining drugs. Mr. Duvall explained that he went to a local bar th at evening. At about 9:00 pm, an acquaintance gave him a ride to the dup lex where his wife lived. He waited on the porch of an empty duplex next door. At about 10:30 pm, he knocked on his wife’s door. Karla answered the doo r and inquired about their son. He replied that their son was at his grandmot her’s home. Mr. Duvall then grabbed Karla by the throat, forced his way into th e apartment, and threw her on the floor. After Mr. Duvall dragged Karla into the kitchen, he took some knives from a drawer and stabbed her multiple times. At K arla’s request, Mr. Duvall helped her to the shower, washed her off, and laid her on the bed. Karla pleaded for Duvall’s help. Mr. Duvall replied, “[I]t’s jus t too late for that.” State’s Ex. 24 (transcript of police interview). He then place d a pillow over Karla’s head and suffocated her. On September 19, 1986, the State of Oklahoma charge d Mr. Duvall with murder in the first degree. On November 17, 1986, the State filed a Bill of Particulars seeking the death penalty based on two aggravating circumstances: (1) that Mr. Duvall was previously convicted of a f elony involving the use or threat of violence to the person and (2) that the m urder was especially heinous, atrocious, or cruel.- 4 -

During the guilt phase of the trial, a jury convict ed Mr. Duvall of one count of murder in the first degree. During the penalty phase of the trial, the jury found that both of the above statutory aggravating circum stances existed and recommended that Mr. Duvall be sentenced to death. On May 20, 1987, the trial judge sentenced Mr. Duvall to death in accordance w ith the jury’s recommendation. On May 28, 1991, the Court of Crim inal Appeals of Oklahoma affirmed Mr. Duvall’s conviction. Duvall v. State , 825 P.2d 621 (Okla. Crim. App. 1991). On October 5, 1992, the United States Supreme Court denied certiorari. Duvall v. Oklahoma , 506 U.S. 878 (1992). On December 4, 1992, Mr. Duvall filed an “Applicati on for PostConviction Relief” in the district court of Stephen s County. The district court denied the application on June 8, 1993. Duvall v. State , No. CRF-86-251 (Okla. Dist. Ct. 1993). On June 17, 1993, Mr. Duvall file d a “Notice of Intent to Appeal” the denial of post-conviction relief. On F ebruary 10, 1994, the Court of Criminal Appeals of Oklahoma dismissed the appeal f or lack of jurisdiction because Mr. Duvall failed to file a Petition in Err or and a copy of the district court’s order. Duvall v. State , 869 P.2d 332, 334 (Okla. Crim. App. 1994). The Court of Criminal Appeals ordered that Mr. Duvall b e executed on April 8, 1994. Id. On March 28, 1994, the Court of Criminal Appeals denied Mr. Duvall’s- 5 -

motion for reconsideration. Duvall v. State , 871 P.2d 1386 (Okla. Crim. App. 1994). On March 23, 1994, Mr. Duvall filed an “Application to Stay Execution” in the United States District Court of the Western Dis trict of Oklahoma. The district court determined that it lacked jurisdiction to gra nt a stay and dismissed the petition because Mr. Duvall did not file a habeas p etition with his motion. Duvall v. Reynolds , No. 94-CV-404-R (W.D. Okla. Mar. 24, 1994). On April 4, 1994, we granted the stay and remanded the case to the di strict court for further proceedings. Duvall v. Reynolds , No. 94-6106 (10th Cir. Apr. 4, 1994). On November 14, 1994, Mr. Duvall filed a petition f or a writ of habeas corpus with the United States District Court for th e Western District of Oklahoma. In his petition Mr. Duvall raised fourte en grounds of error, including ineffective assistance of counsel during both the g uilt and penalty phases of his trial. On November 27, 1995, at Mr. Duvall’s reque st, the district court conducted an evidentiary hearing to consider whethe r Mr. Duvall received ineffective assistance of counsel during the penalty phase of his trial. On July 10, 1996, the district court rejected Mr. Duvall’s habe as claim of ineffective assistance of counsel during the penalty phase of h is trial. On August 22, 1996, the district court concluded that Mr. Duvall was no t entitled to relief on his1 Mr. Duvall does not appeal the district court’s determination that he did not

receive ineffective assistance of counsel during the guilt phase of his trial. - 6 - remaining claims and dismissed his petition. The d istrict court granted Mr. Duvall’s motion for a certificate of appealability on September 26, 1996. On appeal from the denial of his habeas petition, M r. Duvall asserts that: (1) he received ineffective assistance of counsel at trial because his attorney failed to present any mitigating evidence during th e penalty phase, 1 (2) the State failed to disclose exculpatory evidence, (3) the tr ial court failed to instruct the jury on the lesser included offenses of murder in t he second degree and manslaughter in the first degree, (4) the trial cou rt erred in admitting Mr. Duvall’s prior bad acts, (5) the trial court prevented Mr. D uvall from introducing evidence of the decedent’s prior drug conviction in support of his defense, (6) the trial court failed to instruct the jurors that they could impose a life sentence even if they found an aggravating circumstance, (7) the jury instructions confused the jury regarding its responsibility to weigh mitigati ng circumstances, (8) the jury instruction concerning the aggravating circumstance “especially heinous, atrocious, or cruel” was unconstitutionally vague, (9) the prosecutor made improper statements during closing arguments, and ( 10) the State failed to give Mr. Duvall adequate notice of the witnesses and evi dence that the State intended to use during the penalty phase of the trial.- 7 - DISCUSSION Before we address the merits of Mr. Duvall’s claims , we must first address the applicability of the Antiterrorism and Effectiv e Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, to this case. Title I of the AEDPA, entitled “Habeas Corpus Reform,” altered the law governing habeas corpus petitions in two ways. First, the AEDPA mad e a number of procedural and substantive changes to the habeas corpus provisions in Chapter 153 of Title 28 of the United States Code. AEDPA §§ 101-106 (codifiedat 28 U.S.C. §§ 2244, 2253-55). Second, the AEDPA created chapter 154, w hich establishes special habeas corpus procedures that supplement the provis ions of Chapter 153 in capital cases. AEDPA § 107 (codified at 28 U.S.C. §§ 2261- 66). In Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997), the Supreme Court h eld that the amended provisions of Chapter 153 apply on ly to habeas cases filed after the AEDPA became effective on April 24, 1996. In c ontrast to the amendments to Chapter 153, Congress provided that Chapter 154’s n ew habeas procedures for capital cases “shall apply to cases pending on or a fter the date of enactment of this Act.” AEDPA § 107(c); Lindh , 117 S. Ct. at 2063 (quoting § 107(c)). Mr. Duvall’s habeas claim falls within this time frame. Chapter 154’s special procedures, however, are available only to states t hat qualify by ensuring that- 8 -

indigent capital defendants receive competent legal representation. See 28 U.S.C. § 2261(a)-(c). In this appeal, Oklahoma does not argue that it is a qualifying state for purposes of the AEDPA’s new capital habeas corpus p rocedures. Equally important, in a recent case Oklahoma conceded that it is not a qualifying state for purposes of the new capital habeas corpus provision s. Williamson v. Ward , 110 F.3d 1508, 1513 n.5 (10th Cir. 1997). In light of Lindhand Oklahoma’s concessions, we review the denial of Mr. Duvall’s h abeas petition under preAEDPA law.

I. I NEFFECTIVE A SSISTANCE OF C OUNSEL In his first claim, Mr. Duvall asserts that his Sixth Amendment rights were violated because he received ineffective assistance of counsel. In particular, Mr. Duvall argues that his trial counsel, Robert Prince , failed to investigate, prepare, or present any mitigating evidence during the penal ty phase of the trial in violation of his Sixth Amendment rights. “A claim of ineffective assistance of counsel presents a mixed question of law and fact w hich we review de novo.” Brewer v. Reynolds , 51 F.3d 1519, 1523 (10th Cir. 1995). To prevail on his ineffective assistance of counsel claim, Mr. Duvall must first show that his counsel “committed serious erro rs in light of ‘prevailing- 9 -

professional norms’” such that his legal representation fell below an objective standard of reasonableness. United States v. Haddo ck , 12 F.3d 950, 955 (10th Cir. 1993) (quoting Strickland v. Washington , 466 U.S. 668, 688 (1984)). The petitioner must overcome a “strong presumption thatcounsel’s conduct falls within the wide range of reasonable professional as sistance [that] ‘might be considered sound trial strategy.’” Strickland , 466 U.S. at 689 (quoting Michel v. Louisiana , 350 U.S. 91, 101 (1955)). He must, in other word s, overcome a presumption that his counsel’s conduct was constitutionally effective. See Haddock , 12 F.3d at 955. A claim of ineffective assistanc e “must be reviewed from the perspective of counsel at the time,” Porte r v. Singletary , 14 F.3d 554, 558 (11th Cir. 1994), and therefore may not be pred icated on “the distorting effects of hindsight.” Strickland , 466 U.S. at 689. We consider “not what is prudent or appropriate, but only what is constituti onally compelled.” United States v. Cronic , 466 U.S. 648, 665 n.38 (1984). Moreover, “[t]he reasonableness of counsel’s actions may be determined or substanti ally influenced by the [accused’s] own statements or actions.” Strickland , 466 U.S. at 691. If Mr. Duvall is able to show constitutionally defi cient performance, he must then demonstrate that “there is a ‘reasonable probability’ that the outcome would have been different had those errors not occu rred.” Haddock , 12 F.3d at 955 (quoting Strickland , 466 U.S. at 694). Thus, where the alleged ineffe ctive- 10 -

assistance occurred during the penalty phase of a c apital trial, we consider whether there is a “reasonable probability that, ab sent the errors, the sentencer—including an appellate court, to the exte nt it independently reweighs the evidence—would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” S trickland , 466 U.S. at 695. A. The Duty to Investigate, Prepare, and Present Pot ential Mitigating Evidence The duty to investigate derives from an attorney’s basic function, which is “to make the adversarial testing process work in th e particular case.” Strickland , 466 U.S. at 690. “Because that testing process gen erally will not function properly unless defense counsel has done some inves tigation into the prosecution’s case and into various defense strateg ies, [the Supreme Court has] noted that ‘counsel has a duty to make reasonable i nvestigations or to make a reasonable decision that makes particular investigations unnecessary.’” Kimmelman v. Morrison , 477 U.S. 365, 384 (1986) (quoting Strickland , 466 U.S. at 691). “In a capital case the attorney’s duty to investigate all possible lines of defense is strictly observed.” Coleman v. Brown , 802 F.2d 1227, 1233 (10th Cir. 1986); see also Stafford v. Staffle , 34 F.3d 157, 1563-64 (10th Cir. 1994) (finding that counsel’s failure to conduct any investigation for possible mitigating evidence was unreasonable); Osborn v. Shillinger , 861 F.2d 612, 626-31 (10th- 11 -

Cir.1988) (finding that counsel’s lack of investigation and preparation was unreasonable). An attorney’s duty to investigate, however, is not unlimited. As we explained in Brecheen v. Reynolds , 41 F.3d 1343 (10th Cir. 1994): In stating that an attorney has an affirmative duty to conduct an investigation into the existence of potential mitig ating evidence, we do not imply that this duty is boundless. To the c ontrary, an attorney is not required to investigate all leads as long as the decision not to pursue a particular lead, or to pursue a particularlead only so far, is reasonable under the circumstances. Id. at 1366 (citations and internal quotation marks om itted). In Brecheen , we also addressed an attorney’s duty to present m itigating evidence. We stated:

We agree . . . that counsel has no absolute duty to present mitigating character evidence at all. From this, i t follows a fortiori that the failure to present available mitigating ev idence is not per se ineffective assistance of counsel. If counsel has mitigating evidence available but el ects not to present that evidence, then the inquiry must focus on the reason or reasons for the decision not to introduce that evid ence. If counsel had a reasonable basis for his strategic decision t hat an explanation of petitioner’s history would not have minimized th e risk of the death penalty, then that decision must be given a strong presumption of correctness and the inquiry is generally at an end. If, however, the decision is not tactical, and counsel’s performance is therefore deficient, then the first prong of Strickland is satisfied. Id. at 1368 (citations and internal quotation marks om itted). The duty to present mitigating evidence, of course, is not independent of the duty to investigate and prepare. As we emphasized in Brecheen :- 12 -

[T]he relevant inquiry is whether trial counsel’s d ecision was an informed tactical decision that was reasonable unde r the circumstances of the case. Having delineated the appropriate legal framework, it is important to note that the mere in cantation of “strategy” does not insulate attorney behavior from review; an attorney must have chosen not to present mitigating evidence after having investigated the defendant’s background, andthat choice must have been reasonable under the circumstances. Id. at 1369 (citations and internal quotation marks om itted) (emphasis in original). “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professiona l judgments support the limitations on investigation.” Strickland , 466 U.S. at 690-91. With these standards in mind, we now turn to whether Mr. Princ e’s decision not to present any mitigating witnesses constituted a reasonable t actical choice based on reasonable investigative efforts. B. Investigation, Preparation, and Presentation of M itigating Evidence During the Penalty Phase of the Trial At the evidentiary hearing, Mr. Prince testified ab out his investigation and preparation for Mr. Duvall’s trial. Mr. Prince stated that he had spoken to all of the police officers and detectives in the case, as well as Jim Minter, a jailer. Mr. Prince also contacted Russell Bill and Tony Link, attorneys who had previously represented Mr. Duvall. He interviewed Hazel Branc h and Gene Christian about collateral matters involving Karla, such as a prote ctive order she obtained against Mr. Duvall. Mr. Prince spoke with a number of doct ors about Mr. Duvall’s- 13 -

competency and mental condition at the time of the murder. Three psychological examinations were performed on Mr. Duvall, one at t he direction of Mr. Prince. Mr. Prince acknowledged that he did not “really tal k to any of the family members to that great an extent.” He testified, ho wever, that he did speak with Mr. Duvall’s mother (Pearl Duvall), his brother (Je rry Duvall), and his brother-inlaw (Eric Gorbid). More importantly, Mr. Prince st ated that in preparing for the trial, he spent “several hundred hours” talking to Mr. Duvall. Evid. Hear. at 82. At the evidentiary hearing, Mr. Prince also testifi ed about his trial strategy and how it changed as the trial unfolded. Based on his investigation, Mr. Prince had concluded that Mr. Duvall should take the stand during both the guilt and penalty stages of the trial. Mr. Prince acknowledg ed that Mr. Duvall had “flipflopped” several times in deciding whether to testi fy. Id. at 94. Nevertheless, Mr. Prince emphasized that when the trial started, Mr. Duvall had decided that he would testify. Thus, Mr. Prince voir dired prospec tive jurors about Mr. Duvall testifying. Mr. Prince also was prepared to present mitigating witnesses: I had Dr. Mynatt and Virginia Hoover on subpoena. I had Dr. Bonner on stand-by. I had his mother. As I recall , the brother -- and I don’t remember if the brother-in-law had started backing up on me at that point or not. I had some witnesses that co uld have testified about some of these good things . . . . Id. at 79. Although Mr. Prince was prepared to present these witnesses, he planned to call them only if Mr. Duvall first testi fied. Mr. Prince stated that he- 14 -

had expected Mr. Duvall to testify and had planned to use the witnesses to bolster Mr. Duvall’s testimony. Id. at 81. Three days into the trial, Mr. Duvall deci ded not to testify and expressed that he did not want a nyone else to testify, forcing Mr. Prince to change his trial strategy. Id. at 78-79. Once Mr. Duvall refused to testify during either ph ase of the trial, the trial judge, at Mr. Prince’s request, conducted an in cam erahearing concerning Mr. Duvall’s decision and its impact on Mr. Prince’s de fense strategy. The following exchange transpired between Mr. Prince and Mr. Duva ll at that hearing, which occurred before the penalty phase: Q: Previously, we had made a Record concerning wheth er or not you should testify in the first stage of the procee dings? A: True. Q: You and I have discussed this matter concerning the second stage as well, have we not? A: True. Q: And I had advised you that if you did take the st and [i]n the second stage that there are certain matters that yo u are aware of that the District Attorney would be able to cross examin e you concerning, as well as perhaps bringing in additional evidence and additional witnesses. Is that correct? A: True. Q: And you and I discussed the pros and cons, pluses and minuses of your testimony, and you decided you did not wishto testify in the second stage? A: Right. Q: You understand that by not testifying in the seco nd stage that we also had some other witnesses that could have co me in and testified concerning your--your mental condition, i n the sense of your suicidal efforts at the time of this transaction, a s well as your examination by Dr. Mynatt and Dr. Bonner, but that by you not- 15 -

testifying in the second stage, we did not feel it would be beneficial to bring any other witnesses to testify in the seco nd stage either? A: (John Duvall moved his head up and down.) Q: Have you done that knowingly and intelligently, w aiving your right to take the stand in the second stage? A: Yes, sir. Q: And you do agree that you did not want these othe r witnesses called as well? A: Yes, I did. Q: So the Record is silent as far as any defense to this second stage, but that is done with your consent, your ful l knowledge-- A: Yes. Q: --and you believe that it was done in your best i nterest? A: Yes. Q: No one forced or threatened you to do that, did t hey? A: No. Q: You did it based on our evaluation of the evidenc e from the prosecution standpoint, as well as from a defense s tandpoint? A: Right. Q: Do you have any complaints about the way we condu cted this trial? A: No.
Tr. at 761-72. Following the in camerahearing, the trial judge read the penalty phase instructions to the jury. Instruction No. 8 provid ed:

Evidence has been offered as to the following mitig ating circumstances: 1. Defendant surrendered himself; 2. Defendant informed the Sheriff of the killing a nd its details; 3. No law enforcement agency had previous knowledg e of the death of Karla Duvall; 4. Defendant exhibited remorse; 5. Defendant cooperated with law enforcement authorities;- 16 - 6. Defendant was under the influence of alcohol or drugs at the time of the incident; 7. The Defendant did not attempt to flee the jurisd iction of the State. Whether these circumstances existed, and whether th ese circumstances are mitigating, must be decided by yo u. R. at 176. After the trial judge read the jury instructions, t he parties made their closing statements. During his argument, Mr. Princ e commented on the mitigating circumstances identified in Instruction No. 8, attempting to persuade the jury to spare Mr. Duvall from the death penalty . Nevertheless, the jury found the existence of both aggravating circumstances and recommended that Mr. Duvall receive the death penalty. Despite Mr. Duvall’s request that Mr. Prince forego the introduction of mitigating evidence at trial, he now complains thatMr. Prince should have introduced such evidence. In particular, Mr. Duval l contends that his attorney should have introduced evidence of: (1) Mr. Duvall ’s family history, (2) Mr. Duvall’s alcohol abuse, (3) Mr. Duvall’s recent chu rch activity, (4) Mr. Duvall’s remorse, and (5) the victim’s drug abuse. In revie wing Mr. Duvall’s contentions, we note that “[t]he reasonableness of counsel’s act ions may be determined or substantially influenced by the [accused’s] own statements or actions,” Strickland , 466 U.S. at 691, but the ultimate decision to int roduce mitigating- 17 -

evidence (other than the defendant’s own testimony) is vested in the defendant’s trial counsel, see Brecheen , 41 F.3d at 1368-69.

1. Duvall’s Family History Mr. Duvall first asserts that Mr. Prince should hav e conducted more extensive interviews with his family members and ca lled several of them to testify about the mitigating aspects of Mr. Duvall’s history. The evidentiary hearing in the court below revealed much about Mr. Duvall’s di fficult upbringing and troubled history. The evidentiary hearing indicated that Mr. Duvall w as born on May 21, 1951, into a very poor family. The youngest of twe lve children, he grew up in a three-bedroom house in the small town of Duncan, Ok lahoma. His father died when Duvall was ten years old. His mother providedthe sole support for the family. By the time he reached his early teens, Mr. Duvall had developed a problem with alcohol and drugs. Although Mr. Duvall mainta ined a good disposition when he was sober, he often became violent when he consu med alcohol or drugs. Mr. Duvall dropped out of school after the ninth gr ade and eventually left home when he was sixteen or seventeen. He worked p rimarily as a laborer in oil refineries and as a pipe fitter. His alcohol probl em and associated behavioral problems continued.- 18 -

Following two failed marriages and another long-term relationship, Mr. Duvall became involved with Karla in 1981. When he met Karla, she was using narcotic pain killers. The couple soon began using drugs together. Although their drug use diminished during Karla’s pregnancy, the couple resumed heavy use of narcotic pain killers following the birth of their son in the summer of 1982. In 1985, Mr. Duvall began working part time for Joe Howard at Joe’s Electric. Due to the encouragement of Joe Howard a nd his wife Wanda, Mr. Duvall began attending church. According to Wanda Howard, Mr. Duvall was trying to overcome his substance abuse problem to c reate a more stable family environment for his son. Family members and friend s indicated that Mr. Duvall wanted Karla to stop using drugs as well. A month or two before she was murdered, Karla obtai ned a restraining order against Mr. Duvall. Days before her death, J oe Howard overheard Mr. Duvall making calls to local doctors asking them to stop giving Karla drugs. According to Mr. Duvall, on September 15th, the dayof Karla’s death, Karla phoned Duvall at work and informed him that she hadresumed taking drugs. In conjunction with his continual substance abuse, Mr. Duvall had many encounters with the local law enforcement. Some of these encounters resulted in convictions for violent felonies. For example, in August 1969, Mr. Duvall pled guilty to a charge of assault with a dangerous weap on when he threatened two- 19 -

men with a shotgun. In May 1976, Mr. Duvall was co nvicted of another charge of assault and battery with a dangerous weapon. In Ju ly 1984, Mr. Duvall was convicted on two counts of assault with a dangerous weapon after he threatened to kill Karla and two other women with a knife in a co nvenience store. During the evidentiary hearing, Mr. Prince admitted that he could have called mitigating witnesses during the penalty phas e of the trial. He explained, however, that “for everything someone would say goo d about [Duvall] they would have to say other things that were so negative thatit got to the point where we were afraid that the negative outweighed the positi ve.” Evid. Hear. at 78. Thus, Mr. Prince feared that the testimony of the defense ’s own potential witnesses would result in the introduction of evidence on cro ss-examination such that the overall effect of these witnesses would be more agg ravating than mitigating. In addition, he was concerned that the prosecution wou ld call members of Karla’s family to rebut and contradict much of the mitigati ng testimony that he was able to elicit from others. We hold that Mr. Prince’s decision not to present m itigating evidence involving Duvall’s family history was a reasonable one based on a constitutionally sufficient investigation. Mr. Pri nce was aware of most of Mr. Duvall’s history prior to the trial, and the record gives us no reason to believe that Prince’s investigation of Duvall’s family history w as inadequate. Based on his- 20 -

conversations with Mr. Duvall and his family member s, Mr. Prince concluded that his client’s interests would not be served by intro ducing testimony concerning Mr. Duvall’s family history. Mr. Prince’s reluctance to present the above eviden ce was justifiable. Although grievous, Mr. Duvall’s life history does n ot automatically mitigate the aggravating circumstances that the jury found prese nt here. As the Supreme Court has stated regarding evidence of a defendant’ s life history: On one hand, a jury could react with sympathy over the tragic childhood [the defendant] endured. On the other ha nd, since [the defendant’s] sanity was not in issue in this case, the prosecution could use this same testimony, after pointing out t hat petitioner was nevertheless responsible for his acts, to emphasize that it was this same unpredictable propensity for violence which pl ayed a prominent role in the death of [the defendant’s] vi ctim. Mitigation, after all, may be in the eye of the beholder. Burger v. Kemp , 483 U.S. 776, 794 (1987) (citations, alterations, and internal quotation marks omitted). See also Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 762 (10th Cir. 1996) (“[W]e agree w ith the district court that a decision to present mitigation testimo ny from family members was fraught with peril, because [the defendant’s] backg round contained numerous instances of conduct that [were] more likely to mak e a jury feel unsympathetic towards him, than sympathetic towards him.”), cert. denied , 117 S. Ct. 1703 (1997); Brewer v. Reynolds , 51 F.3d 1519, 1527 (10th Cir. 1995) (finding that evidence of a defendant’s turbulent and violent upb ringing could justify either the2The record indicates that Pearl Duvall did not know about much of Mr. Duvall’s

violent history. Mr. Prince explained that “because of his mother’s age, he wasn’t sure whether she remembered very much about the previous episodes and that he felt like the family had probably tried to keep some of that from her.” Evid. Hear. at 98, 14-15. - 21 - inference that the defendant was an unfortunate vic tim of his environment or that the defendant’s crime was the culmination of defend ant’s own voluntary violent behavior and irresponsibility). For example, altho ugh the State introduced evidence that Mr. Duvall had been convicted of assa ult with a deadly weapon three times, the jury was unaware of the factual ci rcumstances underlying these convictions. The jury also was unaware of Mr. Duva ll’s uncharged violent conduct. Once Mr. Duvall declined to testify durin g the penalty phase, Mr. Duvall’s family members were the primary remaining source of evidence concerning Duvall’s family history. Mr. Prince kne w that each of Mr. Duvall’s family members were aware of his prior convictions and violent tendencies. 2 Testimony on cross-examination concerning the factu al circumstances of Mr. Duvall’s prior violent conduct “could have been dev astating.” Brewer , 51 F.3d at 1527. This observation is particularly true regard ing Duvall’s prior assaults of Karla. Moreover, Mr. Prince was rightly concerned that the district attorney might call members of Karla’s family as rebuttal witnesse s to testify about the violent past between Mr. Duvall and Karla. In short, the t estimony of Mr. Duvall’s- 22 -

family members would have presented the jury with i nformation about his troubled background that could have also adversely affected the jury by introducing damaging facts not otherwise disclosed at trial. Thus, we hold that Mr. Prince’s decision to forego evidence of Mr. Duv all’s family history was a reasonable tactical decision based upon a constitut ionally adequate investigation.

2. Substance Abuse Mr. Duvall next argues that Mr. Prince should have introduced evidence of Mr. Duvall’s alcohol abuse. According to Mr. Duval l, the jury would have considered evidence of his troubled history with al cohol and the fact that he was drinking on the day of the murder as compelling mit igating evidence. The evidentiary hearing testimony of Jerry Duvall, Mr. Duvall’s brother, is indicative of the available evidence concerning Mr. Duvall’s s ubstance abuse: Well, when Johnny was -- when he wasn’t on anything , I mean he was real jovial; everybody liked him and he got alo ng great with everybody. But when he got on alcohol and drugs, I mean it was -- I mean it was a hundred percent turnaround. He could be sarcastic, belligerent. It didn’t make any difference, I don’ t care if you were ten-foot tall and if you said anything to him and i t just happened to hit him wrong, he was liable to hit you. Evid. Hear. at 24. Whatever the mitigating effect of such testimony might have been standing alone, Mr. Prince’s decision not to i ntroduce such testimony was reasonable in light of two complicating factors. F irst, even though Mr. Duvall contended that he had been drinking on the day of t he murder, see Evid. Hear. at- 23 -

88, there was evidence that Mr. Duvall’s decision t o murder his wife had nothing to do with his consumption of alcohol. As Mr. Prin ce explained: [S]everal of the witnesses, the two guys that took him over to the house, one said he didn’t even have an odor of alco hol; the other said, Well, he had a couple of beers but he certain ly wasn’t out of control. He was very calm, deliberate, very normal . They had known him. Evid. Hear. at 83-84. Second, Mr. Prince faced the same strategic dilemmaas he did with the evidence of Mr. Duvall’s family history. Testimonyconcerning Mr. Duvall’s substance abuse would have resulted in the introduc tion of details of Mr. Duvall’s prior convictions and violent conduct, which invari ably resulted from his substance abuse. The jury could have perceived suc h evidence as aggravating rather than mitigating. See Davis , 100 F.3d at 763 (“We agree that it is just as likely the jury would react negatively to [the defe ndant’s] repeated failures to effectively address his alcoholism.”); Jones v. Pa ge , 76 F.3d 831, 846 (7th Cir.) (noting that failure to introduce evidence of the d efendant’s long history of substance abuse “was a reasonable tactical choice b ecause such evidence was a ‘double-edged sword,’ that is, it could easily have been considered either aggravating or mitigating evidence”), cert. denied , 117 S. Ct. 363 (1996). Under these circumstances, we hold that Mr. Prince reason ably decided not to introduce evidence of Mr. Duvall’s substance abuse.- 24 - 3. Church Activity Mr. Duvall asserts that Mr. Prince should have pres ented evidence of his recent church attendance and his relationship with Wanda and Joe Howard. At the evidentiary hearing, the Howards testified thatMr. Duvall had begun attending church on a regular basis in the two mont hs preceding the murder. Mr. Prince testified that Mr. Duvall contended that he was trying to turn his life around and that Mr. Duvall and his son had attendedchurch within the couple of weeks preceding the murder, but Mr. Prince admitted that he did not interview Joe or Wanda Howard regarding Mr. Duvall’s recent churc h activity. Although Mr. Prince admitted that such evidence mig ht have constituted a mitigating circumstance, he explained why he did no t investigate the matter more fully or present this line of defense:

I think it would have been rather difficult. Becau se at the same time frame that he was supposedly trying to tu rn his life around was when he went over to Connie McKinney’s, the lady next door, and tried to assault his wife just a week or two be fore the murder. So this was during the same time frame that he was supposedly turning his life around. Evid. Hear. at 77. In our view, Mr. Prince acted reasonably in conclud ing that this line of defense did not require further investigation. The record indicates that the prosecution likely would have questioned Wanda and Joe Howard about their knowledge of Mr. Duvall’s long history of drug and alcohol abuse, his tendency- 25 -

toward violence when drunk, and his prior physical abuse of Karla. Furthermore, Mr. Duvall’s behavior during the weeks preceding Karla’s murder belied the sincerity of his alleged reform. Mr. Prince’s deci sion not to present evidence of Mr. Duvall’s turnaround was reasonable because of the substantial risk that this highly disputable evidence would lead directly to t he introduction of evidence with a negative impact that would far outweigh any mitigating effect.

4. Remorse Mr. Duvall also asserts that Mr. Prince should have presented evidence regarding Mr. Duvall’s remorse. In particular, Mr. Duvall asserts that Mr. Prince should have told the jury that Mr. Duvall was depre ssed and suicidal after the murder. Contrary to Mr. Duvall’s assertions, the record dis closes that the jury was well aware of Mr. Duvall’s remorse. The jury heard Mr. Duvall cry during one or more of his confessions. Instruction No. 8 express ly required the jury to consider Mr. Duvall’s remorse as a mitigating circumstance. The instruction also reminded the jury that Mr. Duvall had surrendered himself, h ad informed the authorities about the killing and its details, and that no law enforcement agency had previous knowledge of Karla’s death. Mr. Prince emphasized Mr. Duvall’s remorse in closing arguments: Now, remorse. What does it take for remorse. Some people cry inside. Some people don’t. You heard the statemen ts. You heard- 26 -

the tape. What did the tape show you. The very fi rst tape. No one forced him to say anything. He came to the Distric t Attorney’s Office to look for Assistant D.A. . . . . They aske d him, John, are you telling us this because you regret it. Naturally I regret it . . . .
Tr. at 778. In sum, our review of the record indicates that Mr. Prince presented substantial evidence of Mr. Duvall’s remorse. Thus , we hold that Mr. Prince’s failure to specifically mention Mr. Duvall’s depres sion and suicidal tendencies was not unreasonable and did not constitute ineffec tive assistance of counsel.

5. Victim’s Drug Use Mr. Duvall contends that Mr. Prince should have inv estigated and produced evidence that Karla Duvall was a drug user and that , during the weeks before Karla’s death, John Duvall repeatedly encouraged he r to stop using drugs. Although Mr. Prince initially thought that Karla’s drug use might be the source of mitigating evidence because it could support Duvall ’s claim that he was frustrated by her drug abuse, after investigation he concluded otherwise. As a result of conversations with Mr. Duvall, Mr. P rince investigated a number of leads dealing with Karla’s recent drug us e. One doctor from whom Karla had purportedly illegally obtained drugs indi cated that Karla’s drug prescriptions “were just normal.” Evid. Hear. at 7 2. Two potential witnesses, Stanley Puet and Kenneth Atkinson, denied that theyhad ever helped Karla obtain drugs. When Mr. Prince spoke with Jerry Duvall bef ore trial about Karla’s drug- 27 -

use, Mr. Prince concluded that Jerry Duvall had no direct knowledge that Karla had recently used drugs. At the time of trial, Mr. Prince was unable to find any witnesses willing to testify that they gave or sold drugs to Karla or that they witnessed Karla using drugs in the months leading up to the murder. In fact, Mr. Duvall himself disclosed to Mr. Prince that Mr. Duv all had overstated Karla’s drug use: “[Mr. Duvall] told me on many occasions that she wasn’t really that much of a pill user . . . .” Evid. Hear. at 90. In addition to a lack of witnesses to Karla’s drug use, the record contains substantial evidence that she was not using drugs at the time of the murder. The state’s medical examiner, Dr. Fred Jordan, testifie d that he found no needle marks on Karla’s body and no drugs in her system at the t ime of the murder. Evid. Hear. at 86, 90. Connie McKinney, the victim’s neighbor, testified that Karla did not appear to be under the influence of drugs when she spoke with Karla on the evening of her death. Tr. at 666. Ms. McKinney al so testified that she had not observed Karla using drugs during the year that she had known the victim. Id. Faced with no objective evidence of Karla’s drug us e and reliable evidence to the contrary, Mr. Prince was unable to find a si ngle witness to testify firsthand about Karla’s drug purchases or abuse. We therefor e conclude that Mr. Prince’s decision not to present evidence that John Duvall u rged Karla Duvall to stop- 28 -

abusing drugs in the weeks prior to her death was areasonable strategic choice based upon reasonable investigative efforts.

6. Summary After carefully reviewing the record, we are unpers uaded that Mr. Duvall’s trial counsel inadequately investigated and prepare d for the penalty phase of the trial. Although Mr. Duvall’s trial counsel could h ave investigated several other leads, we agree with the courts below that Mr. Prin ce’s decision not to conduct more exhaustive investigation was supported by reas onable professional judgment. Moreover, Mr. Prince’s decisions concern ing the presentation of evidence of Mr. Duvall’s family history, substance abuse, remorse, church attendance, and attempts to stem Karla’s purported drug consumption fall within the broad range of reasonable trial strategy. This is especially true given the complications created by Duvall’s decision not to t estify three days after the trial had begun. Thus, we hold that the representation r eceived by Mr. Duvall during the penalty phase of his trial fell within the rang e of reasonable legal assistance that complies with the Sixth Amendment. C. Prejudice In addition to our conclusion that Mr. Prince acted reasonably, we find that there is no reasonable probability that the omitted evidence would have changed the jury’s conclusion that the balance of aggravati ng and mitigating circumstances- 29 -

warranted death. See Strickland , 466 U.S. at 695. In evaluating the probability of a different outcome, we must “keep in mind the s trength of the government’s case and the aggravating factors the jury found as well as the mitigating factors that might have been presented.” Stafford , 34 F.3d at 1564. Both the government’s case against Mr. Duvall and the aggrav ating factors weighing in favor of a death sentence were particularly strong. No one disputes that Karla Duvall was brutally murdered by a man who had been convicted of violent felonies in the past. Moreover, the record clearly indicates that if Mr. Prince had introduced the omitted evidence, the jury would hav e learned about the details of Mr. Duvall’s criminal record and violent tendencies , possibly offsetting any potential mitigating effect. Under these circumsta nces, Mr. Duvall has failed to demonstrate a reasonable probability that the outco me of his sentencing would have been different. Thus, we conclude that Mr. Du vall is not entitled to habeas relief on his ineffective assistance of counsel cla im.
II. E XCULPATORY E VIDENCE In his second claim, Mr. Duvall asserts that the pr osecution violated his Fourteenth Amendment due process rights by failing to disclose a material exculpatory statement to the defense. On January 8 , 1987, Mr. Duvall’s attorney filed a “Motion to Produce Information Necessary to Receive a Fair Trial.” In the motion, Mr. Duvall specifically requested:- 30 -

6. Any information within the District Attorney’s p ossession or control which tends to negate the guilt of the accu sed or which would tend to reduce his punishment. 7. Any statement pertaining to this cause of any p erson taken by the District Attorney or his assistants, or any of thei r agents.

. . . . 11. The District Attorney’s entire file on the vic tim or any reports prepared by law enforcement personnel that relate t o the victim. R. at 40. At a hearing on April 9, 1987, the State advised Mr. Duvall’s attorney that he had disclosed all exculpatory evidence in t he government’s files. The trial judge nevertheless concluded that he would review t he files. No additional information was produced as a result of the trial j udge’s review. Mr. Duvall contends that despite the district attor ney’s assurances and the trial judge’s review, the district attorney failed to reveal the substance of an assistant district attorney’s conversation with Lyn n Howard, a former neighbor of the Duvalls. Ms. Howard allegedly stated that she had observed Karla Duvall “shooting up drugs.” Ms. Howard also allegedly tol d the assistant district attorney that the abscesses on Karla’s body resulte d from “shooting drugs.” Duvall v. Reynolds , No. CIV-94-404-M, slip op. at 11 (W.D. Okla. Aug. 22, 1996). In Brady v. Maryland , 373 U.S. 83, 87 (1963), the Supreme Court held th at “suppression by the prosecution of evidence favorab le to an accused upon request- 31 -

violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad f aith of the prosecution.” The materiality requirement is met “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the res ult of the proceeding would have been different.” United States v. Bagley , 473 U.S. 667, 682 (1985). In other, words, evidence is material “when the Gov ernment’s evidentiary suppression ‘undermines confidence in the outcome o f the trial.’” Kyles v. Whitley , 514 U.S. 419, 434 (1995) (quoting Bagley , 473 U.S. at 678); see also United States v. Hernandez , 94 F.3d 606, 610 (10th Cir. 1996). Mr. Duvall concedes that Ms. Howard’s statement wou ld not have altered the outcome of the guilt phase of the trial. Mr. D uvall does argue, however, that there is a reasonable probability that Ms. Howard’s information would have changed the result in the penalty phase of the tria l. Mr. Duvall asserts that Ms. Howard’s statements would have supported his theorythat he had spent the morning of the murder trying to stop his wife’s dru g use. Such mitigating evidence, Mr. Duvall contends, would have been crit ical during the penalty phase of the trial. We disagree. After reviewing the entire record, we conclude that there is no reasonable probability that disclosure of Ms. Ho ward’s statement would have produced a different verdict. The jury was already aware that Mr. Duvall claimed3 Under Oklahoma law, “[a] person commits murder in the first degree when he

unlawfully and with malice aforethought causes the death of another human being. Malice is that deliberate intention unlawfully to take away the life of a human being, which is manifested by external circumstances capable of proof.” Okla. Stat. Ann. tit. 21, § 701.7(A) (West 1983). The design to effect death “is inferred from the fact of killing, unless the circumstances raise a reasonable doubt whether such design existed.” Okla. Stat. Ann. tit. 21, § 702 (West 1983). Moreover, “[a] design to effect death sufficient to constitute murder may be formed instantly before committing the act by which it is (continued...) - 32 - that he murdered his wife because of her drug use. Moreover, when Mr. Duvall’s attorney investigated Mr. Duvall’s claims that Karl a abused drugs, he found no other objective evidence to support these claims. For example, the state’s medical examiner, Dr. Fred Jordan, testified that he found no evidence of drug use by the victim. In addition, Connie McKinney, the victim’s neighbor, testified that Karla did not appear to be using drugs when she spoke with her on the evening of her death. Ms. McKinney also testified that she had no t observed Karla using drugs in the year that Ms. McKinney had known the victim. Under these circumstances, we are confident that the outcome of the penalty ph ase would have been the same had this evidence been disclosed to the defense. T hus, Mr. Duvall is not entitled to habeas relief on this ground.

III. L ESSER -I NCLUDED O FFENSE Mr. Duvall next contends that the district court vi olated his Fourteenth Amendment due process rights by instructing the jury only on first degree murder 33 (...continued)

carried into execution.” Okla. Stat. Ann. tit. 21, § 703 (West 1983).

4A homicide constitutes second degree murder “[w]hen perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Okla. Stat. Ann. tit. 21, § 701.8(1) (West 1983).

5A person commits manslaughter in the first degree when the homicide is “perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumstances as constitute excusable or justifiable homicide.” Okla. Stat. Ann. tit. 21, § 711(2) (West 1983). - 33 - and refusing to instruct the jury on second degree murder 4 and first degree manslaughter. 5 In Beck v. Alabama , 447 U.S. 625, 638 (1980), the Supreme Court held that in a capital case, due process requ ires that a jury be given the option of convicting a defendant on a lesser includ ed noncapital offense if the evidence would support conviction on that offense. The Court in Becksought to avoid presenting juries with a “death or nothing” c hoice between conviction of a capital crime and finding the defendant not guilty. Id. Such a choice, the Court explained, is unacceptable because “the unavailabil ity of the third option of convicting on a lesser included offense may encoura ge the jury to convict for an impermissible reason—its belief that the defendant is guilty of some serious crime and should be punished.” Id. at 642. The risk of such a choice “cannot be tolerated in a case in which the defendant’s life i s at stake.” Id. at 637; see also- 34 -

Hopper v. Evans , 456 U.S. 605, 610 (1982); Schad v. Arizona , 501 U.S. 624, 646 (1991); Trujillo v. Sullivan , 815 F.2d 597, 601 (10th Cir. 1987). A state, however, is not required to “create a nonc apital murder offense for every set of facts under which a murder may be comm itted.” Hatch v. State , 58 F.3d 1447, 1454 (10th Cir. 1995). A trial court mu st instruct the jury on a noncapital offense as defined by state law only if the evidence would have supported such a verdict. Beck , 447 U.S. at 627. Mr. Duvall argues that the record contains sufficient evidence to support a ve rdict of second degree murder or first degree manslaughter instruction. We disag ree. At trial, the jury heard Mr. Duvall’s confession to law enforcement officers three days after the murder. Mr. Duvall explained that he received a telephone call from his wife at 3:00 pm on the afternoon of t he murder. He stated that he was angry because she told him that she had resumedtaking illegal drugs. At about 9:00 pm, he arrived at his wife’s duplex. He waited on the porch of the duplex next door. At about 10:30 pm, after the nei ghbors left, he knocked on his wife’s door. In his confession, Mr. Duvall stated: Karla came to the door and said, where’s Mark. I s aid, he’s at mom’s, and I just grabbed her by the throat and thr ew her down and grabbed the ashtray. I hit her in the head with it , and drug her into the kitchen. Opened the drawer and grabbed a knife and stabbed her several times. She pulled the drawer out. She pul led both those drawers out, and knives and all those things all ov er the floor. But that didn’t--that wasn’t what killed her. She want ed me to put her in- 35 -

bed--wash her off. So I took her in the shower andwashed her off, and put her in the bed and suffocated her. Tr. at 616. He continued: [A]fter I took her back to bed, she asked me to hel p her, and I said well, Karla, I think it’s too late for that, and th at’s when I--she was laying with a pillow under her head. I got the oth er one. I put it over her head.
Tr. at 624. After reviewing the record, we find no evidence that Mr. Duvall acted in the “heat of passion” as required by section 711(2) (first degree manslaughter) or “without any premeditated design” as required by se ction 701.8(1) (second degree murder). Karla’s death occurred around 11:00 pm—ov er seven hours after she allegedly made the provoking phone call to Mr. Duva ll. There is no evidence of new provocation between the time of the phone call and her death. The time between the alleged provocation and Karla’s death w as sufficient for the passion of a reasonable man to cool. Moreover, Mr. Duvall made a conscious decision to suffocate his wife after washing her off in the sho wer. The evidence is insufficient for a reasonable jury to conclude thatMr. Duvall acted without any premeditated design. Because the evidence did not support an instruction on murder in the second degree or manslaughter in the first degree, Mr. Duvall was not entitled to such an instruction. We therefore deny Mr. Duvall habeas relief on this ground.- 36 -

IV. P RIOR B AD A CTS In his fourth claim, Mr. Duvall contends that his F ourteenth Amendment rights were violated because the trial court permitted the State to introduce evidence of a number of his prior “bad acts.” In p articular, Mr. Duvall argues that the testimony of Connie McKinney and Donald Bo bbett violated his due process rights. “[S]tate court rulings on the admissibility of evid ence may not be questioned in federal habeas proceedings unless the y render the trial so fundamentally unfair as to constitute a denial of f ederal constitutional rights.” Tucker v. Makowski , 883 F.2d 877, 881 (10th Cir. 1989) (internal quot ation marks and citations omitted). “[W]e will not distu rb a state court’s admission of evidence of prior crimes, wrongs or acts unless the probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that the admission denies defendant due process of law.” Hopkinson v. Shillinger , 866 F.2d 1185, 1197 (10th Cir. 1989). At trial, the prosecution introduced evidence of Mr . Duvall’s prior acts of violence towards Karla in order to rebut Mr. Duvall ’s anticipated defense of provocation. Ms. McKinney, the victim’s neighbor, testified about an incident that occurred one to two weeks before the murder. Ms. McKinney stated that Karla ran over to her apartment and asked Ms. McKin ney’s son to lock the door.6In admitting the testimony of Ms. McKinney, the court advised the jury:

Ladies and gentlemen, let me interrupt at this point to speak concerning the statement that you have heard that was made. That statement is introduced, not for the truth of the matter related in the statement, but only as that statement relates to the state of mind of the deceased, Karla Duvall, in relation to the defendant, John Duvall. Not for the truth of the statement, (continued...) - 37 - Karla then hid under Ms. McKinney’s kitchen table. Karla was so frightened that her trembling caused the table to shake. Ms. McKin ney offered to call the police. Karla stated that her husband would kill her if he was arrested. When Mr. Duvall arrived, Ms. McKinney refused to open the door. Mr . Duvall then threatened to “get” Ms. McKinney as well as his wife. Tr. at 678 . When Ms. McKinney informed Mr. Duvall that she had called her brother , Mr. Duvall threatened to “get” him in addition to the women. Id. Mr. Bobbett, the victim’s brother, testified about an incident that occurred about three weeks before Karla Duvall’s death. Mr. Bobbett stated that he received a phone call from Karla after she had foug ht with Mr. Duvall. Karla asked Mr. Bobbett to come and pick her up. When Mr . Bobbett arrived at Karla’s, she told him that Mr. Duvall would kill he r if she left him. In admitting the testimony of Ms. McKinney and Mr. Bobbett, the trial court advised the jury that the statements were notintroduced for the truth of the matter asserted. The court emphasized that the tes timony related only to the issue of provocation. 6 Because Mr. Duvall failed to introduce sufficientevidence of6 (...continued)

but only as it may shed light as to the state of mind of the decedent. Tr. at 674-75. Similarly, in admitting the testimony of Mr. Bobbett, the court explained to the parties out of the presence of the jury: The only reason I’m letting them in, statements made by defense counsel that he believes by the time the evidence is over, that the Court would instruct this jury on manslaughter. Now, manslaughter requires adequate provocation, and I’m using by analogy, or reasoning by analogy that that’s very close to self-defense type of matter, or although that’s not being pled. In other words, the Defendant indicated some action by the decedent in this matter that would cause, or adequate provocation, sufficient to cause heat of passion. Now, if that doesn’t occur, I don’t know where we stand in this matter. Otherwise, these type of statements are irrelevant.
Tr. at 703-04. - 38 - provocation, however, the trial judge instructed th e jury to disregard the testimony. Instruction No. 10 provided:

During the trial, you heard the testimony of Connie McKinney and Don Bobb[e]tt as to certain statements made by the decedent, Karla Duvall, as to threats related to her by the d efendant. You were instructed during the trial that you could considerthe statements only as they might relate to the Decedent’s state of min d. At this point, you are instructed to disregard all statements of the decedent, as they are not relevant to any of th e issues you will be called upon to decide.
R. at 151. Mistakenly admitted evidence of prior crimes or con victions can, in some instances, “imping[e] upon the fundamental fairness of the trial itself.” United States v. Parker , 604 F.2d 1327, 1329 (10th Cir. 1979), overruled o n other- 39 -

grounds byUnited States v. Pennon , 816 F.2d 527, 528 (10th Cir. 1987). This court, however, as well as other circuits, has foun d that the improper admission of evidence of prior acts does not rise to the level o f constitutional error if the trial judge later instructs the jury to disregard the evi dence. See Scrivner v. Tansy , 68 F.3d 1234, 1239-40 (10th Cir. 1995); Warden v. Wyri ck , 770 F.2d 112, 116 (8th Cir. 1985); McAffee v. Procunier , 761 F.2d 1124, 1127 (5th Cir. 1985) (“This Court has held that such instructions to disregard often cure error.”); cf. United States v. Parker , 604 F.2d 1327, 1329 (10th Cir. 1979) (finding gui lty verdict fundamentally unfair where the court improperly adm itted evidence of prior conviction with no corrective instruction). The tr ial judge in this case instructed the jury to “disregard all statements of the decede nt” about which Ms. McKinney and Mr. Bobbett had testified. R. at 151. Because the court gave this instruction, and because there is no reason to believe that the jury did not adhere to it, we conclude that there was no error at the trial. Even if we were to find that the admission of the p rior acts testimony was constitutionally erroneous, we would conclude that the error was harmless. Federal courts grant habeas relief for errors of th e “trial type” only when the error had a substantial and injurious effect in determini ng the jury’s verdict. Tuttle v. Utah , 57 F.3d 879, 883 (1995) (quoting Brecht v. Abrahamson , 507 U.S. 619, 623 (1993)). The evidence in this case, including the confession of Mr. Duvall, amply- 40 -

supports the guilty verdict and sentence, regardles s of the testimony of Ms. McKinney and Mr. Bobbett. Thus, we have no doubt t hat any error that might have occurred here was harmless. Cf. O’Neal v. McAninch , 513 U.S. 435, 436-42 (1995) (requiring relief to be granted if harmlessn ess of the error is in “grave doubt”). For the above reasons, Mr. Duvall is not entitled to habeas relief on this ground.

V. E VIDENCE OF THE V ICTIM ’ S D RUG C HARGE In his fifth claim, Mr. Duvall asserts that his Fou rteenth Amendment rights were violated because the trial court refused to al low Mr. Duvall to present evidence that Karla had pled guilty to a felony dru g charge. At trial, the jury heard an audiotape of Mr. Duvall’s confession to Sh eriff Alexander. In his confession, Mr. Duvall stated that he killed his wi fe after she told him in a telephone conversation that she was resuming her us e of illegal drugs. He explained that Karla was angry because he had calle d her doctor to cancel her prescription. Mr. Duvall stated that his wife told him that she had secured an alternate supply of the drug despite his efforts to prevent her from using drugs. The defense sought to cross-examine Sheriff Alexand er by introducing evidence that Karla Duvall had pled guilty to a fel ony drug charge. The trial judge sustained the state’s objection:7Under Oklahoma law, after a defendant enters a plea of guilty, the court may

defer further proceedings upon specific conditions. Upon completion of the conditions, the defendant is discharged without a court judgment of guilt, and the court orders the guilty plea to be expunged from the record. See , e.g. , O KLA
. S TAT . tit. 22, § 991(c) (West 1986). - 41 - I do want to point out for the Record a synopsis of conversations that occurred in Chambers yesterday following an objecti on by the State to Mr. Prince’s attempt to elicit from the Sheriff evidence concerning drug usage of the decedent, Karla Duvall. The gene ral objection was made on the basis of character evidence. We went i nto Chambers and reviewed the Statutes, including Section 2404 o f Title 12, and at the end of all the conversations, the Court’s rulin g was that Mr. Prince could go into the general reputation and cha racter of the decedent for drug use, but the sticking point was i n reference to this charge that had been filed, which was a . . . case that Mrs. Duvall had received a Deferred Imposition of Sentence, and the Court’s ruling was that Mr. Prince could not elicit testimony conc erning that, since it was not a conviction. 7
Tr. at 753. As discussed above in Part IV, on habeas review we are not concerned with whether the trial court properly excluded evidence of Karla Duvall’s drug charge under the Oklahoma rules of evidence. Hopkinson , 866 F.2d at 1200. Instead, to be eligible for federal habeas relief, a petitionermust prove that the state trial court’s evidentiary ruling rendered the “trial so f undamentally unfair as to constitute a denial of federal constitutional right s.” Id. at 1197. Our inquiry “hinges on the materiality of the excluded evidence to the defense.” Matthews v. Price , 83 F.3d 328, 331 (10th Cir. 1996).- 42 -

We hold that the trial court’s exclusion of the vic tim’s drug charge did not render Mr. Duvall’s trial so fundamentally unfair a s to warrant habeas relief. As the Oklahoma Court of Criminal Appeals noted in Mr. Duvall’s direct appeal, the victim’s death occurred approximately seven hours a fter the telephone call. Duvall , 825 P.2d at 627-28. Although the evidence may have had some relevance to Mr. Duvall’s theory of provocation, the evidence would nonetheless be ineffectual in light of the other undisputed eviden ce that Mr. Duvall did not meet the requirements for an instruction on manslaughteror second degree murder, as discussed in Part III. The admission of Karla’s drug charge would not have required the trial judge to instruct the jury on any lesser-included offense. The seven-hour cooling off period and the absence of any other evidence that would tend to support a charge of manslaughter or second degree murder rendered Karla’s drug conviction immaterial to any issue in the case. As such, we conclude that the exclusion of Karla Duvall’s drug conviction did not render the trial fundamentally unfair. We therefore conclude that Mr. Duvall is not entitled to habeas relief on this ground.

VI. J URY I NSTRUCTION ON A GGRAVATING C IRCUMSTANCES B EYOND A R EASONABLE D OUBT In his sixth claim, Mr. Duvall contends that his Ei ghth and Fourteenth Amendment rights were violated because the districtcourt failed to instruct the8The Oklahoma Court of Criminal Appeals did not address the merits of this issue

on either direct or habeas review. We note that the Court of Criminal Appeals has consistently rejected this argument. See, e.g. , Valdez v. State , 900 P.2d 363, 385 (Okla. Crim. App. 1995); Bryson v. State , 876 P.2d 240, 262-63 (Okla. Crim. App. 1994); Pickens v. State , 850 P.2d 328, 339 (Okla. Crim. App. 1993); Romano v. State , 847 P.2d 368, 392 (Okla. Crim. App. 1993); Fisher v. State , 845 P.2d 1272, 1277-78 (Okla. Crim. App. 1992). We express no opinion on the rationale for these decisions, that to give such an instruction would constitute “jury nullification,” seeWalker v. State , 723 P.2d 273, 284 (Okla. Crim. App. 1986), because we hold that the instruction adequately informed the jury of its discretion to impose the death penalty, including by implication the option to impose life imprisonment even if the aggravating circumstances outweighed the mitigating. - 43 - jury that it had the option to return a life senten ce regardless of its finding that the aggravating circumstances outweighed the mitigating circumstances. 8 Under Oklahoma law, a jury is free to decline to impose t he death penalty even if it finds that the aggravating circumstances outweigh the mit igating circumstances. See
Burrows v. State , 640 P.2d 533, 544 (Okla. Crim. App. 1982). Nonetheless, the Constitution does not demand “that the state must a ffirmatively structure in a particular way the manner in which juries consider mitigating evidence.” Buchanan v. Angelone , 118 S. Ct. 757, 761 (1998). Instead, “the state may shape and structure the jury’s consideration of mitigatio n so long as it does not preclude the jury from giving effect to any relevant mitigat ing evidence. . . . [T]he standard for determining whether jury instructions satisfy these principles [is] ‘whether there is a reasonable likelihood that the jury has applied the challenged- 44 -

instruction in a way that prevents the consideratio n of relevant evidence.’” Id. (quoting Boyde v. California , 494 U.S. 370, 380 (1990)). In accordance with these principles, Instruction No . 6 provided: Should you unanimously find that one or more aggrav ating circumstances existed beyond a reasonable doubt, yo u would be authorized to considerimposing a sentence of death. If you do not unanimously find beyond a reasonable doubt that one or more of the aggravating circumstances existe d, you are prohibited from considering the Death Penalty. In that event, the sentence must be Imprisonment for Life. R. at 174 (emphasis added). We hold that Instruction No. 6 adequately afforded the jury an opportunity to consider mitigating evidence. The trial court d id not instruct the jury that they must assess death if they found the aggravating cir cumstances outweighed the mitigating circumstances. Instead, the trial courtinstructed the jury that they were “authorized to consider imposing a sentence of death” upon the finding of an aggravating circumstance. Because the instruction d id not prevent consideration of mitigating circumstances, and because no juror w ould have understood it to do so, the instruction is constitutionally permissible . See Buchanan , 118 U.S. at 761 (approving instruction stating that when an aggravating circumstance is present beyond a reasonable doubt, “then you mayfix the punishment at death.”) (emphasis added).- 45 -

Mr. Duvall’s reliance on Moore v. Kemp , 809 F.2d 702 (11th Cir. 1987) is misplaced. In Kemp , like this case, the jury instructions stated thatthe jury “would be authorized to consider” the death penalty upon finding a statutory aggravating circumstance. Id. at 732. Unlike this case, however, the instructio ns in Kemp then stated that if an aggravating circumstance we re found, “the form of your verdict would be . . . death.” Id. The Eleventh Circuit held that the jury instruction was unconstitutional because the incons istency created by the use of both permissive and mandatory language created an u nacceptable risk that an average juror would conclude “that the existence of an aggravating circumstance necessitated a death sentence.” Id. at 733. Unlike the instruction in Kemp , the instruction in this case contains only permissive language, which informs the jury that th ey were not required to impose the death penalty upon a finding of an aggravating circumstance. Instruction No. 6 does not contain the same inconsistency as the in struction at issue in Kemp , and thus does not suffer from the same constitutional i nfirmity. See Thomas v. State , 811 P.2d 1337, 1347 (Okla. Crim. App. 1991) (distin guishing Kemp ). We are confident that “the instruction adequately apprised the jury of its option not to recommend the death sentence.” Moore v. Butler , 819 F.2d 517, 521 (5th Cir. 1987) (approving instruction that informed the jurythat it “may consider” imposing the death penalty upon finding an aggravat ing circumstance beyond a- 46 -

reasonable doubt). In sum, we hold that “the instr uctions sufficiently preserved, under the Constitution, the jury’s responsibility and authority to exercise its discretion in the sentencing determination.” Colem an v. Saffle , 869 F.2d 1337, 1394 (10th Cir. 1989). Therefore, Mr. Duvall is no t entitled to habeas relief on this ground.

VII. J URY U NANIMITY ON THE E XISTENCE OF M ITIGATING C IRCUMSTANCES In his seventh claim, Mr. Duvall asserts that his E ighth and Fourteenth Amendment rights were violated because the jury ins tructions did not inform the jury that unanimous agreement upon the existence of a mitigating circumstance is not required before each juror can consider such ev idence. Relying primarily on McKoy v. North Carolina , 494 U.S. 433 (1990), and Mills v. Maryland , 486 U.S. 367 (1988), Mr. Duvall contends that the jury instructions erroneously implied that the jury was required to find a mitigating cir cumstance unanimously before each juror could consider the mitigating circumstan ce in determining whether to impose the death penalty. In McKoyand Mills , the Supreme Court held that a unanimity requireme nt concerning mitigating circumstances resulted in an unconstitutional death sentence. McKoy , 494 U.S. at 944; Mills , 486 U.S. at 375. In both cases, the Court reasoned that allowing a holdout juror to pre vent the other jurors from9The Oklahoma Court of Criminal Appeals did not address the merits of this issue

on either direct or habeas review. Nevertheless, the Court of Criminal Appeals has consistently held that similar jury instructions comply with McKoyand Mills . See Ledbetter v. State , 933 P.2d 880, 898-99 (Okla. Crim. App. 1997); Knighton v. State , 912 P.2d 878, 896 (Okla. Crim. App.), cert. denied , 117 S. Ct. 120 (1996); LaFevers v. State , 897 P.2d 292, 309-10 (Okla. Crim. App. 1995); Mayes v. State , 887 P.2d 1288, 1320 (continued...) - 47 - considering mitigating evidence violated the princi ple established in Lockett v. Ohio , 438 U.S. 586 (1978), i.e. , that a sentencer may not be precluded from giving effect to all mitigating evidence. McKoy , 494 U.S. at 438; Mills , 486 U.S.
at 375. A trial court need not, however, expressly instructa capital sentencing jury that unanimity is not required before each juror ca n consider a particular mitigating circumstance. See Buchanan v. Angelone , 118 S.Ct. 757, 761 (1998) (“[T]he State may shape and structure the jury's co nsideration of mitigation so long as it does not preclude the jury from giving e ffect to any relevant mitigating evidence.”). Instead, as noted above, our standard for determining whether jury instructions violate the constitution is “whether t here is a reasonable likelihood that the jury has applied the challenged instructio n in a way that prevents the consideration of constitutionally relevant evidence .” Boyde v. California , 494 U.S. 370, 380 (1990), quoted inBuchanan , 118 S.Ct. at 761; accordDavis v. Executive Dir. of Dept. of Corrections , 100 F.3d 750, 775 (1990) (10th Cir. 1996). 99 (...continued)

(Okla. Crim. App. 1994); Harjo v. State , 882 P.2d 1067, 1081 (Okla.. Crim. App. 1994); Stiles v. State , 829 P.2d 984, 997 (Okla.. Crim. App. 1992). - 48 - In pertinent part, the trial court in this case gav e the following instructions relevant to the mitigating and aggravating circumst ances: Instruction No. 6 Should you unanimously findthat one or more aggravating circumstances existed beyond a reasonable doubt, you would be authorized to consider imposing a sentence of death

. If you do not unanimously findbeyond a reasonable doubt that one or more of the aggravating circumstances existed, you are prohibited from considering the Death Penalty. In that event, the sentence must be Imprisonment for Life.
Instruction No. 7 Mitigating circumstances are those which, in fairne ss and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of w hat are mitigating circumstances is for you as Jurors to resolve underthe facts and circumstances of this case.

Instruction No. 8 Evidence has been offered as to the following mitig ating circumstances: [list] Whether these circumstances existed, and whether th ese circumstances are mitigating, must be decided by yo u. Instruction No. 9 If you unanimously findthat one or more of the aggravating circumstances existed beyond a reasonable doubt, unless you also unanimously findthat any such aggravating circumstance or circumstances outweigh the finding of one or more m itigating circumstances, the Death Penalty shall not be impos ed.- 49 -

Instruction No. 10 If you unanimously findthat one or more of the aggravating circumstances existed beyond a reasonable doubt, the Law require s that you reduce such findings to writing by stating specifically what aggravating circumstances existed, if any. This fi nding must be made a part of your Verdict. You must indicate this finding by checking the box next to such aggravating circumstances on the appropriate V erdict form furnished you, and such Verdict form must be signedby your Foreman. The Law does not require you to reduce to writing t he mitigating circumstances you find , if any. R. at 174-78 (emphasis added). The instructions consistently require unanimity onl yon the jury’s finding of aggravating circumstances. Instruction Nos. 6 and 10 require the jury to “unanimously find” aggravating circumstances. In c ontrast, none of the instructions involving mitigating circumstances imp ose an express or implied unanimity requirement on the jury’s consideration o f mitigating evidence. Instruction Nos. 7, 8, and 10 respectively requiredthe jury to “determin[e],” “decide[],” and “find” whether mitigating circumsta nces existed without any reference to unanimity. Although Instruction No. 9 requires the jury to find unanimously that the aggravating circumstances outw eigh any mitigating circumstances before imposing the death penalty, th e unanimity requirement there refers only to the jury’s balancing of aggravating versus mitigating circumstances, and not to the initial determination of whether mit igating circumstances exist in- 50 -

the first place. Thus, Instruction No. 9 is consis tent with the instructions describing the proper evaluation of mitigating evid ence. We hold that there is no reasonable likelihood thatthe jury applied these instructions in a way that required them to agree u nanimously upon the existence of a mitigating circumstance before considering it. Thus, Mr. Duvall is not entitled to habeas relief on this ground.

VIII. “H EINOUS , A TROCIOUS , OR C RUEL ” A GGRAVATING C IRCUMSTANCE Mr. Duvall next challenges the “especially heinous, atrocious, or cruel” aggravating circumstance under the Eighth and Fourt eenth Amendments. He asserts that Instruction No. 5, which defines the a ggravating circumstance, is unconstitutionally vague as applied. Instruction N o. 5 provides:

As used in these Instructions, the term “heinous” m eans extremely wicked or shockingly evil; “atrocious” me ans outrageously wicked and vile; “cruel” means pitiless, or designe d to inflict a high degree of pain, utter indifference to, or enjoymentof, the suffering of others. The phrase “especially heinous, atrocious or cruel” is directed to those crimes where the death of the victim was p receded by torture of the victim or serious physical abuse.
R. at 173. A statutory aggravating factor is unconstitutionall y vague if it fails to furnish principled guidance for the choice between death and a lesser penalty. See, e.g. , Godfrey v. Georgia , 446 U.S. 420, 427-33 (1980) (invalidating an- 51 -

“outrageously or wantonly vile, horrible and inhuman” aggravating circumstance). Based on this principle, in Cartwright v. Maynard , 822 F.2d 1477, 1478-79 (10th Cir. 1987) (en banc), we held that an “especially h einous, atrocious, or cruel” aggravator was unconstitutional because it failed t o channel the jury’s discretion as required by the Eighth Amendment. Affirming ourdecision, the Supreme Court reasoned that without precise explanatory lan guage to guide the sentencing decision, “an ordinary person could honestly believ e that every unjustified, intentional taking of human life is ‘especially hei nous.’” Maynard v. Cartwright , 486 U.S. 356, 364 (1988). In Cartwright , the Supreme Court noted that Oklahoma could have cured the unconstitutionally vague aggravator by adopting a narrowing construction. Id. at 364-65. In particular, the Court suggested thatif the Oklahoma courts had construed the aggravating circumstance to require “ torture or serious physical abuse,” such a construction “would be constitutiona lly acceptable.” Id. ; see also Walton v. Arizona , 497 U.S. 639, 654-55 (1990). In response to the Cartwrightdecision, the Oklahoma Court of Criminal Appeals adopted a limiting construction of the “esp ecially heinous, atrocious, or cruel” aggravator, mandating that the murder involv e “torture of the victim or serious physical abuse.” See Stouffer v. State , 742 P.2d 562, 563 (Okla. Crim. App. 1987). In Hatch v. State , 58 F.3d 1447, 1468-69 (10th Cir. 1995), we agreed- 52 -

that such a narrowing interpretation of the “especi ally heinous, atrocious, or cruel” aggravator was constitutionally permissible. Despite our holding in Hatch , Mr. Duvall argues that the “especially heinous, atrocious, or cruel” aggravator is unconst itutionally vague. He asserts that the Oklahoma Court of Criminal Appeals has app lied this factor with “remarkable inconsistency.” Appellant’s Br. at 37. Thus, he contends that as applied, the aggravating circumstance does not “‘ge nuinely narrow the class of persons eligible for the death penalty.’” Lowenfie ld v. Phelps , 484 U.S. 231, 244 (1988) (quoting Zant v. Stephens , 462 U.S. 862, 877 (1983)). We disagree with Mr. Duvall’s characterization of t he case law from the Oklahoma Court of Criminal Appeals. In our view, t he court has consistently interpreted the “especially heinous, atrocious, or cruel” aggravator to require “torture” and “serious physical abuse” as evidencedby proof of conscious physical suffering. See Stafford v. State , 832 P.2d 20, 23 (Okla. Crim. App. 1992) (“Absent evidence of conscious physical suffe ring of the victim prior to death, the required torture or serious physical abu se standard is not met.” (quoting Battenfield v. State , 816 P.2d 555 (Okla. Crim. App. 1991), cert. denie d , 503 U.S.10In addressing this issue, we have reviewed cases in which the Oklahoma Court

of Criminal Appeals upheld the application of the “especially heinous, atrocious, or cruel” aggravator. SeeMollett v. State , 939 P.2d 1, 13-14 (Okla. Crim. App. 1997); Ledbetter v. State , 933 P.2d 880, 896 (Okla. Crim. App. 1997); Smith v. State , 932 P.2d 521, 535-36 (Okla. Crim. App. 1996), cert. denied , 117 S. Ct. 2522 (1997); Charm v. State , 924 P.2d 754, 771 (Okla. Crim. App. 1996), cert. denied , 117 S. Ct. 1560 (1997); Johnson v. State , 928 P.2d 309, 313, 321 (Okla. Crim. App. 1996), cert. denied , 1997 WL 291877 (U.S. Oct. 6, 1997) (No. 96-9106); Hain v. State , 919 P.2d 1130, 1146-47 (Okla. Crim. App.), cert. denied , 117 S. Ct. 588 (1996); Neill v. State , 896 P.2d 537, 555 (Okla. Crim. App. 1994); Long v. State , 883 P.2d 167, 175 (Okla. Crim. App. 1994); Revilla v. State , 877 P.2d 1143, 1154-55 (Okla. Crim. App. 1994); Woodruff v. State , 846 P.2d 1124, 1146-47 (Okla. Crim. App. 1993); Boltz v. State , 806 P.2d 1117, 1125 (Okla. Crim. App. 1991); Nuckols v. State , 805 P.2d 672, 675-76 (Okla. Crim. App. 1991); Rojem v. State , 753 P.2d 359, 369 (Okla. Crim. App. 1988); Hale v. State , 750 P.2d 130, 143 (Okla. Crim. App. 1988). We also have reviewed cases in which the court reversed the jury’s finding of the aggravator. SeeCudjo v. State , 925 P.2d 895, 901-02 (Okla. Crim. App. 1996); cert. denied , 117 S. Ct. 981 (1997); Battenfield v. State , 816 P.2d 555, 565 (Okla. Crim. App. 1991); Moore v. State , 809 P.2d 63, 65 (Okla. Crim. App. 1991); Nguyen v. State , 769 P.2d 167, 174 (Okla. Crim. App. 1988); Brown v. State , 753 P.2d 908, 913 (Okla. Crim. App. 1988); Stouffer v. State , 742 P.2d 562, 563-64 (Okla. Crim. App. 1987). - 53 - 943 (1992))). In addition, that court has applied its standard consistently in evaluating whether or not the evidence justifies a finding of this aggravator. 10
We conclude that the record contains sufficient evi dence for a jury to find that Karla Duvall suffered torture or serious physi cal abuse as interpreted by the Oklahoma courts. The record indicates that Karla w as initially hit on the head with an ashtray. Tr. at 616. The state’s medical examiner, Dr. Jordan, testified that Karla suffered “scattered bruises, generally r elatively small, . . . a few very superficial puncture wounds,” and “twenty-five defi nitive stab wounds, involving head, chest, abdomen and back.” Tr. at 520. Dr. J ordan estimated that Karla- 54 -

“died . . . within five or ten minutes after receiv ing these wounds.” Tr. at 535. Dr. Jordan also testified that the victim’s “wounds would have been painful.” Tr. at 536. He concluded that “[t]here [was] no head i njury, including the stab wounds that would necessitate her being unconscious , or that would say yes, this lady was unconscious before these wounds [were infl icted].” Tr. at 571. In addition, during Mr. Duvall’s confession on Septemb er 18, 1986, he admitted that his wife “never was unconscious.” State’s Ex. 24. Mr. Duvall told law enforcement officers that after he stabbed her, Kar la asked for help. Id. Mr. Duvall responded, “[W]ell Karla, it’s just too late for that.” Id. He then took a pillow and suffocated her. Id. In sum, we hold that the record sufficiently supports the jury’s finding of serious physical abuse or torture under the “especi ally heinous, atrocious or cruel” aggravator. The aggravator is not unconstitutional on its face or as applied. We therefore conclude that Mr. Duvall is not entitled to habeas relief on this ground.

IX. P ROSECUTORIAL M ISCONDUCT In his ninth claim, Mr. Duvall argues that the pros ecutor’s conduct during closing arguments deprived him of due process. We review allegations of prosecutorial misconduct de novo. Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994). Prosecutorial misconduct does not warrant f ederal habeas relief unless the- 55 -

conduct complained of “so infected the trial with u nfairness as to make the resulting conviction a denial of due process.” Don nelly v. DeChristoforo , 416 U.S. 637, 643 (1974); see also Mahorney v. Wallman , 917 F.2d 469, 472 (10th Cir. 1990). In evaluating whether improper prosecutorial comments render a trial fundamentally unfair, we view the comments within t he context of the trial as a whole. United States v. Young , 470 U.S. 1, 11-12 (1985). “[N]ot every trial error or infirmity constitutes a ‘failure to observ e that fundamental fairness essential to the very concept of justice.’” Donnel ly , 416 U.S. at 642 (quoting Lisenba v. California , 314 U.S. 219, 236 (1941)). On appeal, Mr. Duvall complains that the prosecutorengaged in four improper tactics designed to inflame the passion an d prejudice of the jury. We address each in turn. First, Mr. Duvall argues that the prosecutor improp erly informed the jury of his personal opinion of Mr. Duvall’s guilt. During the guilt phase closing argument, the prosecutor stated: [I]f you find from the evidence . . . and in my min d, in my way of thinking, it’s more than beyond a reasonable doubt

. . . . Tr. at 748. Although the prosecutor’s personal co mments on the evidence were improper, we hold that the comment did not deprive Mr. Duvall of due process. In so holding, we note that the defense attorney co ntemporaneously objected to the prosecutor’s comment. The trial court then sus tained the objection and- 56 -

admonished the prosecutor for the comment in the pr esence of the jury. Moreover, as the Oklahoma Court of Criminal Appeals emphasized on direct appeal, “the strong evidence of [Duvall]’s guilt is clearly not circumstantial.” Duvall , 825 P.2d at 629. Second, Mr. Duvall argues that the prosecutor impro perly made repeated comments on the blood and foul smell at the murder scene. In particular, he directs us to the following statements during closi ng arguments: If you will recall, [Sheriff Alexander] said there was blood all over the house. I’ll ask you, ladies and gentlemen, to look at State’s Exhibit Number 4. Number 3. There is indeed blood all over the house. As a matter of fact, it looks like a slaugh ter house there in that—in that kitchen. Tr. at 744 (guilt phase). The evidence was that the smell of decaying flesh w as so strong that Sheriff Alexander had to make three attempts to ent er into the premises to examine—to find Karla—to find out what happened to Karla. Tr. at 771 (penalty phase). We hold that such rema rks do not entitle Mr. Duvall to habeas relief. In making these statements, the prosecutor did not misstate or misrepresent the crime scene. Although “these rema rks were unnecessary and are not to be condoned,” Duvall , 825 P.2d at 628, the statements did not render Mr

. Duvall’s trial fundamentally unfair. Third, Mr. Duvall asserts the prosecutor improperlyremarked that Mr. Duvall had “butchered” the victim during the penalty phase closing argument:- 57 -

He didn’t tell them that . . . after he had butcher ed her with these knives and forks and left her body there dead . . .

. Tr. at 774. We do know however it was after he butchered her up there with those meat forks and other sharp instruments . . .

. Tr. at 791. [H]e can make excuses if he wants to, but there is no legal justification, ladies and gentlemen, for butchering this woman like he did, and he should be punished for it. Tr. at 793. We hold that these statements did not render Mr. Duvall’s trial fundamentally unfair. As before, the prosecutor’s statements constituted accurate descriptions of the crime scene. “The prosecutor i s allowed a reasonable amount of latitude in drawing inferences from the evidence during closing summation.” United States v. Manriquez Arbizo , 833 F.2d 244, 247 (10th Cir. 1987). We agree with the Oklahoma Court of Criminal Appeals t hat “[t]he number of stab wounds suffered by the victim and the evidence of b lood at the scene certainly supports a reasonable inference [of ‘butchering’] c onsistent with the evidence.” Duvall , 825 P.2d at 628. Thus, we hold that such stateme nts did not deny Mr. Duvall due process. Finally, Mr. Duvall contends that the prosecutor improperly appealed to the jury’s sympathy for the victim during the penalty p hase closing argument: Ladies and gentlemen, in this case you may find that only those who show mercy shall seek mercy, and that as a verdict of this jury, that- 58 -

you may show him the same mercy that he showed Karl a Duvall on the night of the 15th of September.
Tr. at 775. I want you, ladies and gentlemen, throughout your d eliberations not to forget that there is more than one person that’s involved in this situation. That Karla Duvall is not here, but Karl a Duvall had rights also. Now we have spent four days here, ladies and gentlemen, trying to insure and guarantee that this Defendant, John Duvall, was shown, and it’s in the instructions, concerning mit igation, fairness and mercy. He’s had his day in court, and he’s bee n treated fairly, and I submit to you, ladies and gentlemen, that Joh n Duvall has been treated much more fairly, and with much more mercy than he showed Karla Duvall on September 15th of 1986. Tr. at 788-89. We do not condone comments encourag ing the jury to allow sympathy, sentiment, or prejudice to influence its decision. See Booth v. Maryland , 482 U.S. 496 (1987). Nevertheless, after reviewi ng the record, we cannot conclude that these comments affected the ou tcome of the penalty phase. The State’s strong evidence of the aggravating circ umstances of Karla’s murder, from Duvall’s confession and from the State’s witne sses, makes it probable that the nature of the crime produced sympathy for the v ictim long before the prosecutor gave his closing remarks. See Robison v. Maynard , 829 F.2d 1501, 1509 (10th Cir. 1987) (finding that the strength of the State’s case made it unlikely that prosecutor’s comments encouraging sympathy forthe victim affected the outcome). Thus, we are unable to find that the pro secutor’s comments denied Mr. Duvall due process during the penalty phase.- 59 -

In sum, the prosecutor’s statements during closing arguments—separately or in conjunction with one another—would not have chan ged the outcome of the penalty phase and, therefore, did not so infect Mr. Duvall’s trial with unfairness as to deny him due process. Accordingly, we conclude that Mr. Duvall is not entitled to habeas relief on this ground.

X. A DEQUATE N OTICE OF S TATE ’ S E VIDENCE In his last claim, Mr. Duvall argues that he is ent itled to habeas relief because the district attorney’s office failed to gi ve his trial counsel adequate notice of the State’s evidence in support of the “especial ly heinous, atrocious or cruel” aggravator. Mr. Duvall asserts that the Bill of Pa rticulars did not list the particular acts that fell within this aggravator or identify t he witnesses which the State intended to use to establish this aggravating circu mstance. Mr. Duvall contends that the State’s failure to provide him with signif icant critical facts resulted in trial by ambush in violation of due process. In response, the State argues that Mr. Duvall is pr ocedurally barred from raising this claim. Mr. Duvall did not raise this issue in his direct appeal. Although he attempted to raise the issue in his state post-conviction appeal, the Oklahoma Court of Criminal Appeals held that it lac ked jurisdiction to reach the11 Before the federal district court, the State argued that the procedural default rule

applied to Mr. Duvall’s ineffective assistance of counsel claim and his inadequate notice claim. In denying Mr. Duvall habeas relief, the district court did not address the procedural default rule. On appeal, the State argues only that the procedural default rule applies to Mr. Duvall’s inadequate notice claim. Given these circumstances, we hold that the procedural default rule is applicable only to Mr. Duvall’s inadequate notice claim. We emphasize that the State may waive the procedural default defense by failing to timely raise the issue. SeeJenkins v. Anderson , 447 U.S. 231, 234 n.1 (1980) (“[T]he respondent failed to raise the [procedural default] question in either the District Court or the Court of Appeals. Ordinarily, we will not consider a claim that was not presented to the courts below.”); Bailey v. Cowley , 914 F.2d 1438, 1439 (10th Cir. 1990) (per curiam) (“Respondents did not raise petitioner’s procedural default as a defense below, however, nor have they raised it on appeal. Therefore, we will deem the defense waived and will proceed to consider the petition on the merits.”). Moreover, we decline to raise the question sua spontewith respect to any other issue. SeeUnited States v. Hernandez , 94 F.3d 606, 612 (10th Cir. 1996) (declining to apply the procedural default rule when the petitioner had not had the opportunity to demonstrate cause and prejudice); United States v. Allen , 16 F.3d 377, 378-79 (10th Cir. 1994) (“[I]f the government does not raise procedural bar, either the district court or court of appeals may raise and enforce it sua sponte, if doing so furthers the interests of judicial efficiency, conservation of scarce judicial resources, and orderly and prompt administration of justice.” (citations and internal quotation marks omitted); Manlove v. Tansy , 981 F.2d 473, 476 n.4 (10th Cir. 1992) (“A court can raise the state procedural bar defense sua sponte, but is not required to do so. We choose not to raise the issue sua sponte because of the late stage of the proceedings.” (citation omitted)). - 60 - merits because Mr. Duvall failed to file a Petition in Error and a copy of the district court’s order with the court pursuant to Rule 5.2(C) of the Rules of the Court of Criminal Appeals. 11 Duvall , 869 P.2d at 334. At the time of Mr. Duvall’s appeal, Rule 5.2(C) provided:

The applicant, or the state, desiring to appeal fro m the final order of the district court under [the rules govern ing post-conviction appeals], must file a petition in error WITH A COPYOF THE ORDER ATTACHED with the Clerk of this Court within thirty (30) days from the date of the final order of the distri ct court; and at the- 61 -

same time the applicant, or the State, must file any brief to be submitted. . . . . Failure to file a petition in error, with or without a brief, within the time provided, shall bar this Court from considering the appeal. Id. at 333 (quoting Okla. Stat. Ann. tit. 22 ch. 77, s ec. V, Rule 5.2(C) of the Oklahoma Court of Criminal Appeals). “In all cases in which a state prisoner has default ed his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the pr isoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson , 501 U.S. 722, 750 (1991); see also Smith v. Murray , 477 U.S. 527 (1986) (applying the procedural default rule in a death penalty case). A state court finding of procedural default is inde pendent if it is separate and distinct from federal law. See Ake v. Oklahoma , 470 U.S. 68, 75 (1985). In this case, the procedural bar was an “independent” state ground because “it was the exclusive basis for the state court’s holding.” Maes v. Thomas , 46 F.3d 979, 985 (10th Cir. 1995). A state court finding of procedural default is adeq uate if it is “strictly or regularly followed” and applied “evenhandedly to al l similar claims.” Hathorn v.- 62 -

Lovorn , 457 U.S. 255, 263 (1982). In other words, a stat e procedural bar “must have been ‘firmly established and regularly followe d’ by the time as of which it is to be applied.” Ford v. Georgia , 498 U.S. 411, 424 (1991). After reviewing the relevant case law, we have foun d no other case in which a petitioner seeking to appeal the denial of post-c onviction relief has failed to file a Petition in Error and the district court’s order denying relief. Thus, such a procedural bar is not “firmly established” in a tec hnical sense under Oklahoma case law. Nevertheless, Rule 5.2(C) clearly requir es compliance with such procedures. The need for an appellate court “to de termine in what way the district court addressed [a defendant’s or petitioner’s] cla ims below, or if those claims were addressed at all,” Duvall , 871 P.2d at 1388, is firmly established in the procedures for appellate review, see , e.g. , Yingst v. State , 480 P.2d 276, 277 (Okla. Crim. App. 1971). A copy of the district co urt’s order filed with the reviewing court is necessary for proper evaluation of the judgment below. Thus, we also conclude that the state court’s procedural rule was “adequate.” Because Mr. Duvall has defaulted his federal claims in state court under an adequate and independent state procedural rule, hab eas review of the petitioner’s federal claim is barred unless he demonstrates “cau se for the default and actual prejudice as a result of the alleged violation of f ederal law, or . . . that failure to consider the claims will result in a fundamental mi scarriage of justice.” Hoxsie v.- 63 -

Kerby , 108 F.3d 1239, 1243 (10th Cir. 1997). We conclud e that Mr. Duvall failed to demonstrate, or even argue, either cause and pre judice for his procedural default or that failure to consider his claim will result i n a fundamental miscarriage of justice. Accordingly, we hold that Mr. Duvall is n ot entitled to relief on this ground because his claim is barred. Even if we were to conclude that Mr. Duvall is not barred from raising this claim, Mr. Duvall would still not be entitled to ha beas relief on the merits of the claim. The Due Process Clause mandates that a defe ndant receive adequate notice that he could receive the death penalty. See Lankford v. Idaho , 500 U.S. 110, 127 (1991). Similarly, a defendant must have a meaning ful opportunity to deny or explain the State’s evidence used to procure a deat h sentence. See Gardner v. Florida , 430 U.S. 349, 362 (1977). We find nothing in the record to suggest that the s tate denied Mr. Duvall due process in this case. The Bill of Particulars In Rem Punishment advised Mr. Duvall that the State was seeking the death penalty because the “murder was especially heinous, atrocious or cruel.” The State later gave Mr. Duvall a written list of all the witnesses the State intended to use at trial. At a pretrial hearing, Mr. Duvall asked the State to specifically endorse all of the witnesses that the State intended to call during the penalty phase of the tr ial. The district attorney indicated that the State would not present any witn esses during the penalty phase- 64 -

whose identity was not already disclosed to the def ense. The State would call only witnesses who had testified during the guilt phase of the trial. Tr. at 40-43. Mr. Duvall was not denied a meaningful opportunity to explain or rebut the State’s evidence because his own confession contain ed much of the evidence in support of the “especially heinous, atrocious or cr uel” aggravator. In addition, before trial the State identified all of the witnes ses upon whom it would (and did) rely in the guilt and penalty phases of the trial. In short, the record indicates that “[t]he problem of trial by ambush did not arise in this case.” Long v. State , 883 P.2d 167, 172 (Okla. Crim. App. 1994). Thus, Mr. D uvall was not denied due process of law and is not entitled to habeas relief on this ground.

CONCLUSION “Review of a death sentence is among the most serio us examinations any court of law ever undertakes.” Brecheen , 41 F.3d at 1370. After giving serious and exhaustive consideration to each of Mr. Duvall’ s claims, we conclude that his trial suffered from no constitutional error. Accor dingly, we AFFIRM the district court’s denial of Mr. Duvall’s habeas corpus petiti on. In a related appeal, Duvall v. Reynolds , No. 97-6299 (10th Cir. filed Aug. 7, 1997), Mr. D uvall appeals from the district court’s denial of his Rule 60(b)(6) Mo tion for Relief from Judgment- 65 -

and Order entered in Petitioner’s 28 U.S.C. § 2254 death penalty habeas action. We AFFIRM the order of the district court denying that motion.