UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ALFRED BRIAN MITCHELL, Petitioner - Appellant,

v. TOMMY SHARP, Interim Warden, Oklahoma State Penitentiary, Respondent - Appellee. No. 16-6258 (D.C. No. 5:11- CV-00429-F) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , MATHESON , and McHUGH , Circuit Judges.

________________ _________________ Alfred Brian Mitchell appeals from the fede ral district court’s denial of his application for a writ of habeas corpus und er 28 U.S.C. § 2254. In 1992, Oklahoma charged Mr. Mitchell with first degree murde r, robbery with a dangerous weapon, larceny of an automobile, first degree rape, and forc ible anal sodomy. Th e jury found him guilty on all counts and sentenced him to death. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his convictions and sentence on direct appeal. See Mitchell v. State ( Mitchell I ), 884 P.2d 1186 (Okla. Crim.

* This order and judgment is not binding precedent, exce pt under the doctrines of law of the case, res judicata, and collateral es toppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 10, 2019
Elisabeth A. Shumaker Clerk of Court2 App. 1994). 1 In a previous § 2254 habeas proceed ing, this court found that the Oklahoma prosecutors failed to provide the defense with exculpatory DNA evid ence before his guilt trial. We reversed Mr. Mitchell’s rape and sodomy convictions under Brady v. Maryland , 373 U.S. 83 (1963), and vacated his sentence. See Mitchell v. Gibson ( Mitchell III ), 262 F.3d 1036 (10th Cir. 2001). We di d not disturb Mr. Mitchell’s murder conviction. A newly constituted jury sent enced Mr. Mitchell to death a second time. On direct appeal, the OCCA reversed, citing “serious e rror in numerous aspect s of [Mr.] Mitchell’s resentencing.” Mitchell v. State ( Mitchell IV ), 136 P.3d 671, 712 (Okla. Crim. App. 2006). On remand to a new judge and a new jury, Mr. Mitchell was sentenced to death a third time. The OCCA affirmed, Mitchell v. State ( Mitchell V ), 235 P.3d 640 (Okla. Crim. App. 2010), and this § 2 254 habeas proceeding ensued.

1 From 1994 through 2016, multiple courts ha ve issued opinions in this case. The following chart provides the case citations and corresponding sh ort citations used in this opinion.
Decision Short Citation

Mitchell v. State , 884 P.2d 1186 (Okla. Crim. App. 1994) Mitchell I Mitchell v. Ward , 150 F. Supp. 2d 1194 (W.D. Okla. 1999) Mitchell II Mitchell v. Gibson , 262 F.3d 1036 (10th Cir. 2001) Mitchell III Mitchell v. State , 136 P.3d 671 (Okla. Crim. App. 2006) Mitchell IV Mitchell v. State , 235 P.3d 640 (Okla. Crim. App. 2010) Mitchell V Mitchell v. Duckworth , No. 11-429, 2016 WL 4033263 (W.D. Okla. July 27, 2016) Mitchell VI3 The district court denied relief on all of Mr. Mitchell’s claims and denied his request for a certificate of appealability (“COA”). Mitchell v. Duckworth ( Mitchell VI ), No. 11-429, 2016 WL 4033263 (W.D. Okla. July 27, 2016); see 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal “the final order in a habeas corpus proceeding in which the detenti on complained of arises out of process issued by a State court”). This court granted COAs as to whether: (1) “Oklahoma’s capital-sentencing statute is unconstitutional because it does not require a una nimous jury to find that the aggravating factors outweig h the mitigating factors by proof beyond a reasonable d oubt.” Order Granting COA, Doc. 10551958 at 2. (2) “Oklahoma’s ‘heinous, atrocious, or cruel’ (HAC) aggravating circumstance is unconstitutional.” Id. at 3. (3) “Mr. Mitchell had a state-create d liberty interest in being convicted and sentenced by the same jury under Okla. Stat. tit. 21, § 701.10, and that, under Hicks v. Oklahoma , 447 U.S. 343 (1980), his due process rights were unconstitutionally impaired when, on remand from this court, he was resentenced by a new jury in 2002.” Order Granting Third COA, Doc. 10579703 at 1-2. Exercising jurisdiction under 28 U. S.C. §§ 1291 and 2253, we affirm.
I. BACKGROUND We begin with the relevant factua l history as presented by the OCCA. 2 We then provide an overview of the procedural hist ory leading to this appeal. We present additional background below as relevant to our discussion of Mr. Mitchell’s claims.

2 See 28 U.S.C. § 2254(e)(1) (“[A] determinat ion of a factual issue made by a State court shall be presumed to be correct. The applicant shall have th e burden of rebutting4 A. Factual Background
In Mitchell V , the OCCA summarized th e facts as follows: Briefly stated, on January 7, 1991, Alfred Brian Mitchell found Elaine Scott alone at th e Pilot Recreation Center in Oklahoma City. The evidence presented at the resentencing established that [Mr.] Mitchell fi rst attacked [Ms.] Scott near the Center’s library, where a spot of blood, one of [Ms.] Scott’s earrings, and a sign that she had been hanging were later found on the floor. [Ms.] Scott apparently ran for the innermost room of the Center’s staff offices—as she had told her mother she would if she ever found herself in a dangerous situation at the Center—where there was a phone and a door that she could lock behind her. She almost made it. Although the exact sequence of events is unclear, the State established that [Ms.] Scott’s cl othing was taken off and that a violent struggle ensued, in which [Mr.] Mitchell beat and battered [Ms.] Scott, using his fists, a compass, a golf club (which ended up in pieces), a nd a wooden coat rack. The forensic evidence—including th e condition of [Ms.] Scott’s nude, bruised, and bloodied body—established that she was moving throughout the attack, until the final crushing blows with the coat rack, which pierced her skull and ended her life. 235 P.3d at 646 (quotations omitted). Because Mr. Mitchell does not dispute these facts, we presume they are correct. See 28 U.S.C. § 2254(e)(1) (“ In a [habeas corpus] proceeding instituted . . . by a person in custody pursuant to the judgment of a State court, a determination of factual issue made by a Stat e court shall be presumed to be correct.”).

the presumption of correctness by clear and convincing evidence.”); see also Al-Yousif v. Trani , 779 F.3d 1173, 1181 (10th Cir. 2015) (“The presumption of correctness also applies to factual findings made by a state co urt of review based on the trial record.” (quotations omitted)).5 B. Procedural Background In 1992, in the District Court of Oklahoma County, a jury convicted Mr. Mitchell of first-degree malice aforethough t murder, in violation of Ok la. Stat. tit. 21, § 701.7; robbery with a dangerous weapon, in violation of Okla. St at. tit. 21, § 801; larceny of an automobile, in violation of Okla. Stat. tit. 21, § 1720; first-degree rape, in violation of Okla. Stat. tit. 21, §§ 1111, 1114; and forcible anal sodomy, in violation of Okla. Stat. tit. 21, § 888. See Mitchell I , 884 P.2d at 1191. The sa me jury recommended a death sentence for the murder. Id. The trial court sentenced Mr . Mitchell to death for the murder and to 170 years in pr ison for the other felonies. Id. First Sentencing Mr. Mitchell’s jury base d its death sentence re commendation on three aggravating circumstances: (1) the murder was especially heinous , atrocious, or cruel (“HAC”); (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or pros ecution; and (3) Mr. Mitchell posed a continuing threat to society. Mitchell I , 884 P.2d at 1191; see Okla. Stat. tit. 21, § 701.11 (requiring Oklahoma juries to find at least one aggravating circumstance beyond a reasonable doubt before imposing the death penalty). The OCCA a ffirmed the convictions and sentence. Mitchell I , 884 P.2d at 1209. In 1997, Mr. Mitchell filed his first fe deral habeas application under 28 U.S.C. § 2254 after seeking post-conviction relief in state court. Among other things, he asserted that his convictions for rape and sodomy were constitutionally infirm because6 (1) the State failed to disclose ex culpatory evidence in violation of Brady v. Maryland ; (2) testimony from the state’s forensic ch emist (Joyce Gilchr ist) was false and misleading; and (3) the prosecution engaged in egregious misconduct by capitalizing on her testimony to mislead the jury. Mr. Mitchell further argued that any constitutional error on the rape and sodomy ch arges should result in habeas relief from his death sentence. Following an evidentiary hearing, the district court granted the writ on the rape and sodomy convictions. It explained: [T]he State’s blatant withholding of unquestionably exculpatory evidence is absolutely inde fensible. [Ms.] Gilchrist’s trial testimony th at the DNA analysis performed by the FBI was “inconclusive” “as to [Petitioner]” was, without question, untrue. Over a year before Petitioner was tried and convicted of rape a nd anal sodomy, Agent Vick’s DNA testing revealed that Petitioner’s DNA was not present on the samples tested

. Petitioner’s trial counsel did not receive copies of the autoradiographs developed by Agent Vick. Petitioner’s trial counsel did not receive copies of [Ms.] Gilchrist’s notes, which demonstrat e that she, too, was confident that only Ms. Scott’s DNA was pres ent on the vaginal swab and that only Ms. Scott and [Ms. Scott’s boyfriend, Phil Taylor’s,] DNA was present on the panties. Instead, the prosecution turned over only the formal FBI report discussed a bove which, at best , is unclear and ambiguous. Just as troubling to this Court is the fact that the State labored extensively at trial to obscure the true DNA test results and to highlight [Ms.] Gi lchrist’s test results, which admittedly have a much lower degree of certainty than the DNA testing. [Ms.] Gilchrist test ified at trial that the results of her blood tests were consis tent with both [Mr.] Taylor and [Mr.] Mitchell. While the only foreign DNA found was consistent only with [Mr. ] Taylor, the prosecution emphasized [Ms.] Gilchrist’s test results and told the jury7 the DNA testing was “inconclusiv e.” At the same time, the prosecution withheld the true facts from the defense, thereby preventing effective cro ss-examination. . . . In closing argument, th e prosecution capitalized on the FBI report and placed its own twist on the report. The prosecution told the jury there were no DNA results because the testing was “inc onclusive” because of “low molecular weight and degraded sa mple of DNA.” It is clear that this statement is enti rely unsupported by evidence and is misleading—the prosecution had DNA results which excluded [Mr.] Mitchell as the donor of the samples tested. Mitchell v. Ward ( Mitchell II ), 150 F. Supp. 2d 1194, 1226-27 (W.D. Okla. 1999) (citations omitted). The c ourt, however, decl ined to vacate Mr . Mitchell’s death sentence, explaining that “[t]he jury had su fficient evidence to justify its conclusion that the three aggravating circumstances it found were present, even without the rape and sodomy convictions.” Id . at 1230. Mr. Mitchell appealed the di strict court’s decision to this court, arguing the invalid rape and sodomy convictions requi red vacatur of his de ath sentence. We agreed and explained that “[s]exual a ssault charges are by their nature highly inflammatory and prejudicial.” Mitchell III , 262 F.3d at 1065. We added that if those charges had not been before the jury, “[b]oth the guilt and sentencing stages would necessarily have ha d a different focus and character.” Id. We explained: [W]e simply cannot be confident that the jury would have returned the same sentence had no rape and sodomy evidence been presented to it [because th at] evidence impacted all three of the ag gravating circumstances found by the jury: that the murder was heinous, atrocious, and cruel; that it was commi tted to avoid arrest for the rape and8 sodomy; and that Mr. Mitchell posed a continuing threat to society. Id

. We reversed Mr. Mitchell’s death sentence and granted a conditional writ of habeas corpus requiring that he be resentenced. Id. at 1066. Second Sentencing After our decision, a newly constituted state court jury again recommended that Mr. Mitchell be sentenced to death. The Oklaho ma state district court reimposed the death penalty, and Mr. Mitchell appealed to the OCCA. Mitchell IV , 136 P.3d at 676. The OCCA “found serious error in numer ous aspects of [his] resentencing.” Id. at 712. 3
It vacated Mr. Mitchell’s sentence and or dered a new re-sentencing before a different judge and jury “because of the substantial evidence of trial court bias contained in the record.” Id . at 713. Third Sentencing On remand, yet another ju ry recommended that Mr. Mi tchell be sentenced to death. This time, th e jury found on ly the HAC aggravator —that the murder was “especially heinous, atrocious, or cruel.” Mitchell V , 235 P.3d at 645. The trial court

3 The OCCA found that the trial court ab used its discretion by (1) allowing the state to make certain arguments about the “avoid arrest” aggravatin g circumstance, (2) denying defense counsel the op portunity to question certain prospective jurors, and (3) allowing the State to present graphi c photographic and video evidence. Mitchell IV , 136 P.3d at 712. The OCCA al so found the trial court errone ously excluded Mr. Mitchell’s mitigating character evidence, allowed testim ony from certain witnesses, and failed “to prevent or ameliorate” “serious prosecu torial misconduct” by the resentencing prosecutor. Id.9 sentenced Mr. Mitchell in accordance with the jury’s recommendatio n, and Mr. Mitchell appealed to the OCCA, raising 18 claims of error. Id. at 645-46. The OCCA found no reversible erro r and affirmed Mr. Mitc hell’s death sentence. Id. at 666. Mr. Mitchell filed for post-convic tion relief, which the OCCA denied. The Supreme Court also denied his petition fo r a writ of certiorari. Mitchell v. Oklahoma , 562 U.S. 1293 (2011). Section 2254 Application and COAs Mr. Mitchell filed the und erlying § 2254 habeas app lication, asserting 21 grounds for relief. See Mitchell VI , 2016 WL 4033263, at *2. Th e district court denied relief, id. , and denied a COA on al l claims, ROA at 387-88. Mr. Mitchell then requested COAs from this court. See 28 U.S.C. § 2253(c)(1)(A) (requiring habeas petition ers to obtain a COA); Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003) (same). We granted COAs on three issues: (1) whether Oklahoma’s sentencing statute is unconstitutional und er the Sixth Amendment because it allows imposition of the death penalty without a jury finding that the HAC aggravator outweighed any mitigating circumstan ces beyond a reasonable doubt (the “ Hurst claim”), (2) whether the Oklahoma HAC aggravator is uncons titutional under the Eighth Amendment (the “HAC claim”), and (3) wh ether Mr. Mitchell was deprived of due10 process because the same jury did not de termine his guilt and punishment (the “ Hicks claim”). 4
We address each issue below.
II. DISCUSSION
A. Standard of Review The three issues in this appeal are “g overned by the Antiterro rism and Effective Death Penalty Act of 1996 (‘AEDPA’), which requ ires federal courts to give significant deference to state court decisions.” Lockett v. Trammell , 711 F.3d 1218, 1230 (10th Cir. 2013). Under AEDPA, when a state court ha s decided a claim on the merits, we must defer to the court’s adjudication unless it: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

4 In his initial request for a COA, Mr. Mitchell presented four claims: (1) a Brady claim, (2) the Hurst claim, (3) the HAC claim, and (4) an Eighth Amendment claim under Roper v. Simmons , 543 U.S. 551, 578 (2005). See Aplt. Stmt. of Issues, Doc. 10486954. He acknowledged the court could not grant a COA on the fourth claim but nonetheless presented it to preserve it for Supreme Court review. Id. at 83. After this court denied a COA on all claims, Mr. Mitchell submitted a renewed motion, which raised only the Hurst claim, the HAC claim, and the Hicks claim. See Renewed Request for COA, Doc. 10507440 at 2.11 “Clearly established Federal law for purp oses of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall , 572 U.S. 415, 419 (20 14) (alterations and quot ations omitted). It “consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice .” House v. Hatch , 527 F.3d 1010, 1016 (1 0th Cir. 2008) (discussing Carey v. Musladin , 549 U.S. 70 (2006)). “An OCCA decisi on is ‘contrary to’ a clearly established law if it applies a rule different from the g overning law set forth in Supreme Court cases, or if it decides a case differen tly than the Supreme Court has done on a set of materially indistinguishable facts.” Lockett , 711 F.3d at 1231 (alterati ons and quotations omitted); see also Bell v. Cone , 543 U.S. 447, 452-54 (2005). “An OCCA decision is an ‘unreasonable application’ of clearly estab lished federal law if it identifies the correct governing legal principle . . . but unreasonabl y applies that principle to the facts of petitioner’s case.” Lockett , 711 F.3d at 1231 (quotations omitted).
B. Analysis of the Three Issues on Appeal We address the three issues for which we have granted a COA: (1) the Sixth Amendment Hurst claim, (2) the Eighth Amendment HAC claim, and (3) the due process Hicks claim. As to all three, we conclude th e OCCA’s adjudication was not contrary to or an unreasonable application of cl early established Supreme Court law. 5 We therefore affirm the district court’s denial of habeas relief on all claims.

5 Mr. Mitchell does not argue that the OCCA’s decisions involved unreasonable factual determinations. See 28 U.S.C. § 2254(d)(2) (allowing for habeas relief where a12 Sixth Amendment Hurst Claim Before the OCCA and in hi s § 2254 application, Mr. Mitchell claimed his death sentence was unconstitutional under the Sixt h Amendment because the jury was not instructed to find beyond a reasonable doubt that the HAC aggravator ou tweighed the mitigating evidence. He argued that Hurst v. Florida , 136 S. Ct. 616 (2016), “requires the weighing decision to rest on proof beyon d a reasonable doubt.” Pet’r. Corr. First Supp. Br., Doc. 10558627 at 20. Mr. Mitchell first raised this claim in his direct appeal from his third sentencing. See Mitchell V , 235 P.3d at 665. The OCCA rejected it on the merits, see id. , and the district court denied habeas relief, see Mitchell VI , 2016 WL 4033263, at *37. Below, we provide additiona l legal background on the Hurst claim. We then examine the OCCA’s merits d ecision under § 2554(d)(1). We affirm the district court because the OCCA’s decision was not contrary to or an unreasonable application of Supreme Court law. Mr. Mitchell concedes that circuit preced ent compels th is result.

a. Additional legal background The Fourteenth Amendment right to due process and the Sixth Amendment right to a jury trial entitle a crimina l defendant to “a jury determin ation that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” Apprendi v. New Jersey , 530 U.S. 466, 477 (2000) (alt erations and quotations omitted).

state court’s decision “resulted in a deci sion that was based on an unreasonable determination of the facts”). We therefore review his claims under only § 2254(d)(1).13 In Apprendi , the Supreme Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490; see also Hurst , 136 S. Ct. at 624 (invalidating Florida’s capital sentencing scheme, “which re quired the judge alone to find the existence of an aggravating circumstance”). Under Oklahoma’s capital sentencing sc heme, the death penalty may not be imposed “[u]nless at least one of the statutor y aggravating circumstances . . . is [found by a unanimous jury beyond a reasonable doubt] or if it is found that any such aggravating circumstance is outweighed by the finding of one or more mitigating circumstances.” Okla. Stat. tit. 21, § 701.11. In Matthews v. Workman , 577 F.3d 1175 (10th Cir. 2009), a habeas petitioner brought an Apprendi challenge to this scheme, arguing the jury should “have been inst ructed that it had to find beyond a reasonable doubt that aggravating factors outweighed the mitigating.” Id. at 1195. We denied relief, holding that the weighing of aggravating and mitigating circumstances is not subject to the Apprendi rule because it “is not a finding of fact . . . but a highly subjective, largely moral judgment regarding the punishment that a particular person deserves.” Id. (quotations omitted). We likewise rejected an Apprendi challenge to Oklahoma ’s capital sentencing scheme in Underwood v. Royal , 894 F.3d 1154 (10th Cir. 2018 ). In that case, as in Matthews , the petitioner argued the ju ry should have been inst ructed to find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances. Underwood , 894 F.3d at 1185. We held that “ Matthews foreclose[d] us14 from concluding . . . that the OCCA contradicted or unreasonably applied Apprendi in [denying the petitioner’s] claim.” Id. at 1185-86. We also concluded “ Hurst [did] not supply a superseding contrary Supreme Cour t decision that would allow us to overrule Matthews .” Id. at 1186. We therefore denied the petitioner’s request for habeas relief. b. Analysis Reviewing under § 2254(d)(1), we conclude the OCCA’s denial of Mr. Mitchell’s
Hurst claim was not contrary to or an unreas onable application of clearly established Supreme Court law. We therefore affirm the district court’s denial of habeas relief. As discussed above, Matthews held that Oklahoma’s capital sentencing scheme does not violate Apprendi even though it does not require th e jury to find the aggravating circumstances outweigh the mitigating circ umstances beyond a reasonable doubt. See Matthews , 577 F.3d at 1195. “We are bound by th e precedent of prior panels absent en banc reconsideration or a superseding co ntrary decision by the Supreme Court.” United States v. Meyers , 200 F.3d 715, 720 (10th Cir. 2000) (emphasis and quotations omitted). We therefore cannot hold that the OCCA de cision was contrary to or an unreasonable application of Apprendi

. In his early briefing, Mr. Mitchell urge d us to reconsider our holding in Matthews in light of “ Hurst , which condemned Florida for removing the weighing decision from the jury [and] undercuts the Tenth Circuit’s a pproach.” Pet’r. Corr. First Supp. Br., Doc. 10558627 at 27. Underwood forecloses this argument. It held that “ Hurst does not supply a superseding contrary Supreme Cour t decision that would allow us to overrule15 Matthews .” Underwood , 894 F.3d at 1186. Mr. Mitchell now concedes as much. In response to this court’s request for su pplemental briefing on the impact of Underwood on this appeal, he said, “[Mr.] Mitc hell is forced to concede that [ Underwood ] precludes this panel from granting relief on [this claim]. Reli ef must come from a higher court.” Pet’r. Second Supp. Br., Doc. 10574880 at 1.
Because Matthews held that Oklahoma’s capital sentencing scheme does not violate Apprendi , and because we rejected an identical challenge in Underwood , we cannot conclude that the OCCA’s decision wa s contrary to or an unreasonable application of clearly established Supreme Court law. We therefore affirm the district court’s denial of habeas relief on Mr. Mitchell’s Hurst claim. Eighth Amendment HAC Aggravator Claim Mr. Mitchell argues Oklahoma’s HAC ag gravator is unconstitutional under the Eighth Amendment. See Pet’r. Corr. First Supp. Br., Doc. 10558627 at 1-8, 11. 6 The OCCA rejected this argument when Mr. Mitchell raised it in his direct appeal from his second and third sentencings. See Mitchell IV , 136 P.3d at 711; Mitchell V , 235 P.3d at

6 In Pavatt v. Carpenter , 928 F.3d 906 (10th Cir. 2 019) (en banc), we recognized that a petitioner may bring two types of HAC aggravator claims: (1) a Jackson claim, “which relies on the Due Process Clause of the Fourteenth Amendm ent” to allege there was insufficient evidence to establish the aggravator, or (2) an Eighth Amendment claim challenging the constitutionality of the aggravator. Id. at 924 n.6; see Jackson v. Virginia , 443 U.S. 307, 315-16 (1979). In the OCCA and in fed eral district court, Mr. Mitchell made both a suffici ency-of-the evidence and an Eighth Amendment vagueness challenge to the HAC aggravator. But he did not seek—nor have we granted—a COA on his separate sufficiency-of-th e-evidence claim. We thus address only his Eighth Amendment challenge.16 662. The district court likewise rejected th e claim when it denied relief in the underlying habeas proceeding. See Mitchell VI , 2016 WL 4033263, at *34. We (a) provide additional legal backgr ound on Mr. Mitchell’s HAC aggravator claim and (b) examine the OCCA ’s merits decision under § 2254(d). We conclude the decision was not contrary to or an unreasonab le application of Supreme Court law. We therefore affirm the district court’s denial of habeas relief on Mr. Mitchell’s HAC claim.

a. Additional legal background Oklahoma’s HAC aggravator permits the im position of the death sentence if a jury unanimously finds beyond a reasonable doubt th at “[t]he murder wa s especially heinous, atrocious, or cruel.” Okla . Stat. tit. 21, § 701.12(4); see id. at § 701.11. In Maynard v. Cartwright , 486 U.S. 356 (1988), the Supreme Court held that Oklahoma’s HAC aggravator was unconstitutionally vague. Id. at 363-64. In a previous case, Godfrey v. Georgia , 446 U.S. 420 (1980), the Court stated that even if an aggravator is unconstitutionally vague on its face, it may be constitutional if the state “tailor[s] and appl[ies] [the aggravator] in a manner that avoi ds the arbitrary and capricious infliction of the death penalty.” Id. at 428. Consistent with this precedent, the Maynard Court said that a “limiting construction” requiring “tor ture or serious physical abuse . . . would [make Oklahoma’s HAC aggravator] constitutiona lly acceptable.” 486 U.S. at 365. After Maynard , the OCCA adopted such a limiting construction. See Stouffer v.
State , 742 P.2d 562, 563 (Okla. Crim. App. 19 87) (“[W]e now . . . restrict [the HAC aggravator’s] application to those murders in which torture or serious physical abuse is17 present.”); Cheney v. State , 909 P.2d 74, 80 (Okla. Crim. App. 1995) (“Absent evidence of conscious physical su ffering of the victim prior to death, the required torture or serious physical abuse standard is not met.” (quotatio ns omitted)). This court has repeatedly held that under this limiting construction, Oklahoma’s HAC aggravator is not unconstitutionally vague. See, e.g. , Medlock v. Ward , 200 F.3d 1314, 1319 (10th Cir. 2000) (“Our Circuit has . . . upheld the facial constitutionality of [the HAC aggravator] as ‘narrowed’ by the State of Oklahoma, and we are bound by that body of precedent.”); Hatch v. State , 58 F.3d 1447, 1468-69 (10th Cir. 1995) (“In response to [ Maynard ], the [OCCA] adopted a limiting constr uction . . . . That narrow ing interpretation of the [HAC] aggravator has been cited w ith approval by the Supreme Court.”), overruled on other grounds by Daniels v. United States , 254 F.3d 1180, 1188 n.1 (10th Cir. 2001) (en banc). b. Analysis Reviewing under § 2254(d)(1), 7 we conclude the OCCA’s application of the HAC aggravator was not contrary to or an unr easonable application of clearly established

7 Mr. Mitchell presented his HAC aggravat or argument on direct appeal from his second and third sentencings. On direct appeal from the second sentencing, the OCCA rejected the argument, explaini ng “[it had] repeatedly reject ed the claim that [the HAC] aggravator, as narrowed by this co urt, is unconstitutionally vague.” Mitchell IV , 136 P.3d at 711. On appeal from the third sentencing, the OCCA rejected the claim because “[Mr. Mitchell’s] argument [was] res judicata as he ha[d] previously challenged the constitutionality of the aggravator.” Mitchell V , 235 P.3d at 662. A state court’s reliance on res judicata “p rovides strong evidence that the claim has already been given full consideration by the state courts.” Cone v. Bell , 556 U.S. 449, 467 (2009). Further, Mr. Mitchell “accep ts that 28 U.S.C. § 22 54(d) governs review18 Supreme Court law. We therefore affirm the district court’s denial of relief as to Mr. Mitchell’s HAC aggravator claim. 8 Mr. Mitchell argues Oklahoma’s HAC aggr avator is unconstitutionally vague. Pet’r. Corr. First. Supp. Br., Doc. 10558627 at 17. 9 He concedes that after Maynard , Oklahoma courts adopted a constitutionally permissible construction of the HAC aggravator. Oral Arg. at 0:34-1:15. But he claims “Oklahoma has veered off course, returning to its prior, unlawful position.” Pet’r. Corr. First Supp. Br., Doc. 10558627 at 1. This argument fails for two reasons.

of” his HAC claim. Pet’r. Second Supp. Br., Doc. 10574880 at 2. We therefore review the issue under the AEDPA standard.

8 The State failed to argue procedural defau lt either in district court or on appeal. Because of this, any affirmative defense ba sed on the OCCA’s re s judicata ground for denying relief is waived. See Hooks v. Ward , 184 F.3d 1206, 1216 (10th Cir. 1999) (“There is no doubt that ‘state-court procedural default . . . is an af firmative defense,’ and that the state is ‘obligated to raise procedural default as a defense or lose the right to assert the defense thereafter.’” (quoting Gray v. Netherland , 518 U.S. 152, 165-66 (1996)).

9 Mr. Mitchell and the OCCA have, at vari ous points throughout this case, treated the HAC claim as both an as-applied and a fa cial challenge. Mr. Mitchell has recently resisted this distinction, ar guing “[f]acial and as-applied ch allenges are not categorically different . . . .” Pet’r. Corr. First Supp. Br., Do c. 10558627 at 9. But on the eve of oral argument, he filed a letter under Federa l Rule of Appellate Procedure 28(j), “acknowledge[ing] he poses a facial challenge” to Ok lahoma’s HAC aggravator. Pet’r. 28(j) Letter, Doc. 10693978 at 2; see also Fed. R. App. P. 28(j) (allowing parties to provide a letter containing supplemental au thority if, after briefing, “pertinent and significant authorities come to [the] party’s a ttention”). He conceded the same at oral argument. See Oral Arg. at 0:27-0:31.19 First, the OCCA applied the previously approved narrowing construction to Mr. Mitchell’s appeal from his third sentencing. See Mitchell V , 235 P.3d at 664. The narrowing construction Oklahoma adopted after Maynard restricts the HAC aggravator “to those murders in which torture or serious physical abuse is present.” Stouffer , 742 P.2d at 563; see also Cheney , 909 P.2d at 80 (“In accordance with the concerns raised in Maynard , [the OCCA] has limited [the HAC aggr avator] to cases in which the State proves beyond a reasonable doubt that the murd er . . . was preceded by torture or serious physical abuse . . . .”). This circuit has approved that narrowing construction, see Medlock , 200 F.3d at 1319, and Mr. Mitche ll concedes it is constitutional, see Oral Arg. at 0:34-1:15 (statement from Mr. Mitchell’ s counsel that “fro m the decision by the Supreme Court in [ Maynard ] [un]til about the end of the ’90s . . . the Oklahoma courts were appropriately limiting [HAC]”). On ap peal from Mr. Mitchell’s third sentence, the OCCA applied this very construction, st ating, “To prove the ‘especially heinous, atrocious or cruel’ aggravator, the State must show that the murder of the victim was preceded by torture or serious physical abuse, which may include the infliction of either great physical anguish or extreme mental cruelty.” Mitchell V , 235 P.3d at 664. Mr. Mitchell therefore cannot argue that the OCCA applied an unconstitutional aggravator at his sentencing. Second, even if there were room for deba te as to whether the OCCA applied the constitutional construction, under Bell v. Cone , we must presume the state court applied the appropriately narrowed construction unless Mr. Mitc hell makes an affirmative20 showing to the contrary. Bell , 543 U.S. at 456. In Bell , the Sixth Circuit determined that the Tennessee Supreme Court failed to appl y a constitutional narrow ing construction of the state’s HAC aggravator. Id. at 451-52, 455. The Supreme Court reversed, noting that “[f]ederal courts are not free to presume that a state court did not comply with constitutional dictates.” Id. at 455. The Court further explained, “[T]he [Tennessee] Supreme Court . . . construed the aggravatin g circumstance narrowl y and . . . followed that precedent numerous times; absent an affirm ative indication to the contrary, we must presume that it did the same thing here.” Id. at 456. Mr. Mitchell cannot overcome this presum ption. Like the state courts in Bell , the OCCA adopted a constitutionally permissibl e narrowing of the HA C aggravator and “followed that preceden t numerous times.” Id. We therefore presume the OCCA continued to apply its constitutional narro wing construction unless Mr. Mitchell can provide an “affirmative indi cation to the contrary.” Id. He offers no such “affirmative indication.” Id. Mr. Mitchell cites DeRosa v. State , 89 P.3d 1124 (Okla. Crim. App. 2004), claiming it represents an “express[] reject[ion]” of the OCCA’s post- Maynard narrowing construction. Oral. Arg. at 2:20-2 :55. But he acknowledges that DeRosa did not explicitly abandon the OCCA’s constitutional narrowing. Id. at 3:51-4:02. Further, the Supreme Court has explained that “a fe deral court may consider state court formulations of a limiting construction to ensure that they are consistent” but may not “review . . . state court cases to determine whether a limiting construction has been applied consistently.”21 Arave v. Creech , 507 U.S. 463, 477 (1993). Thus, even if Mr. Mitchell were correct that the DeRosa court applied an impermissible construc tion, that would not demonstrate that the OCCA has abandoned its cons titutionally permi ssible narrowing. Mr. Mitchell also relies on this court’s panel opinion in Pavatt v. Royal ( Amended Pavatt Panel Op. ), 894 F.3d 1115 (10th Cir. 2017). 10 The panel held that the OCCA acted contrary to clearly established la w because it “did not apply the narrowing construction [of the HAC aggravator] that [the Tenth Circuit] previously approved.” Id. at 1132. The Tenth Circuit en banc court later vacated the panel’ s opinion and decided the HAC claim was procedurally barred. See Pavatt v. Carpenter , 928 F.3d 906, 911 (10th Cir. 2019) (en banc). Mr. Mitchell acknowledges the panel’s decision no longer has precedential value. See Pet’r. Fourth Supp. Br., Doc. 10677634 at 2. But because “[t]he en banc court never considered th e merits of the Eighth Amendment/vagueness claims,” id. at 1 (emphasis omitted), he urges us to adopt the Pavatt panel’s conclusion that the OCCA has “veered ” away from its constitutiona l narrowing and “no longer limit[s] this clearly vague aggravating circumstance,” id. at 4 (quotations omitted). Like Mr. Mitchell’s arguments about DeRosa , this argument is unpersuasive. The panel opinion Mr. Mitchell urges us to accep t reasoned that the OCCA had drifted from the previously approved narrowing constructi on and had “not appl[i ed] a constitutionally acceptable interpretation of [the] HAC aggravator.” Amended Pavatt Panel Op. at 1132.

10 This panel opinion amended and s uperseded a previous panel opinion, Pavatt v. Royal , 859 F.3d 920 (10th Cir. 2017).22 But because the Supreme Court’s “decisions do not authorize review of state court cases to determine whether a limiting construc tion has been applied consistently,” Arave , 507 U.S. at 477 (emphasis omitted), a misapplicat ion of the HAC aggrav ator in the OCCA decisions leading to and including Pavatt would not establish that the OCCA used an unconstitutional construction in Mr. Mitchell’s case. Thus, even if we agreed with the
Pavatt panel’s view that the OCCA has applied an unconstitutional construction in some cases, that would not provid e the “affirmative indication” required for Mr. Mitchell to

overcome Bell . 543 U.S. at 456. Because Mr. Mitchell offers no “affirmative indication,” id. , to suggest the OCCA has “not compl[ied] with constitutional dictates,” id. at 455, “we must presume” the OCCA construed the HAC aggravator narrowly, id. at 456. The OCCA ’s application of the HAC aggravator was therefore not “contrary to” or “an unreasonabl e application of[] clearly established Federal law.” 28 U.S.C. § 2254(d). We t hus affirm the district court’s denial of habeas relief on Mr. M itchell’s HAC aggravator claim.
Due Process Hicks Claim Mr. Mitchell argues his resentencing viol ated Oklahoma Stat utes §§ 701.10 and 701.10a, which provide that in a death penalty case, guilt and sentencing proceedings must be conducted before the same trial jury . He contends this state law violation qualifies as a due process violation under Hicks . The OCCA rejected this claim as “barred by the doctrine of res judicata. ” Mitchell V , 235 P.3d at 653. We (a) provide23 an overview of the relevant law and (b ) examine the merits of Mr. Mitchell’s Hicks claim under § 2254(d)(1). We affi rm the district court’s denial of habeas relief.

a. Legal background The following (i) quotes the relevant Oklahoma statutes, (ii) summarizes the Supreme Court’s Hicks decision, and (iii) provides additional legal background on the AEDPA standard. i. Oklahoma statutes Title 21 Oklahoma Statute § 701.10 states: Upon conviction or adjudication of guilt of a defendant of murder in the fi rst degree, wherein the state is seeking the death penalty, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death . . . . The proceeding shall be conducted by the trial judge before the same trial jury

. . . . Okla. Stat. tit. 21 , § 701.10 (emphasis added). S ection 701.10a further provides: Notwithstanding [the above], which requires that the same jury sit in the sentenci ng phase of a capital murder trial, the following shall apply: Upon any appeal by the defendant where the sentence is of death, the appellate court, if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of death and remand the case to the trial court . . . . No error in the sentencing proceeding shall result in the reversal of the conviction for a capital felony. When a capital case is remanded after vacation of a death sentence, the prosecutor may[] . . . move the trial court to impanel a new sentencing jury who shall determine the sentence of the defendant[] . . . [and] the trial court sha ll impanel a new jury for the purpose of conducting new sentencing proceedings[.] Okla. Stat. tit. 21, § 701.10a (emphasis added).24 ii. Hicks v. Oklahoma
In Hicks v. Oklahoma , an Oklahoma jury convicted Mr. Hicks of distributing heroin. 447 U.S. at 344-45. After receivi ng an instruction to apply Oklahoma’s thenexisting habitual offender stat ute, the jury sentenced Mr. Hi cks to 40 years in prison, the statute’s mandatory sentence. Id. at 345-46. Shortly after, the OCCA held in Thigpen v.
State , 571 P.2d 467, 471 (Okla. Crim. App. 1977), that the habitual offender statute was unconstitutional. See Hicks , 447 U.S. at 345. Without the unconstitutional habitual offender statute, a 10-year minimum—rath er than a 40-year minimum—would have applied to Mr. Hicks’s sentencing. See id. at 346. Mr. Hicks thus appealed, seeking to have his sentence vacated. Id. at 345. The OCCA “acknow ledged that the [habitual offender] provision was unconstitutional, but no netheless affirmed the . . . conviction and sentence, reasoning that [Mr. Hicks] was not prejudiced by the impact of the invalid statute, since his sentence was within the ra nge of punishment that could have been imposed in any event.” Id. The United States Supreme Court revers ed. It noted that Mr. Hicks had a “statutory right [under Oklahoma law] to ha ve a jury fix his punishment in the first instance” and that this right “substantia lly affects the punishment imposed.” Id. at 347. It also noted that without the unconstitutional 40-year minimum, “[t]he possibility that the jury would have returned a sentence of less than 40 year s [was] . . . substantial.” Id. at 346. The Court rejected the OCCA’s conclusion that Mr. Hicks had not been prejudiced by the application of the invalid hab itual offender statute and stated, “It is . . .25 wholly incorrect to say that the petitione r could not have been prejudiced by the instruction requiring the jury to impose a 40-year prison sentence.” Id. The Court therefore held that “the State deprived [Mr. Hicks] of his liberty without due process of law,” id. at 347, and reversed and remanded for resentencing. iii. Additional AEDPA background AEDPA permits reversal of a state court’ s judgment only if the court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d )(1)-(2). “It is the petitioner’s burden to make this showing and it is a burden intentiona lly designed to be ‘difficult to meet.’” Owens v. Trammell , 792 F.3d 1234, 1242 (10th Cir. 2015) (quoting Cullen v. Pinholster , 563 U.S. 170, 181 (2011)). “[T]he threshold question” in an AEDPA an alysis is “[w]hether the law is clearly established.” House , 527 F.3d at 1015 (emphasis omitted); see also Yarborough v. Alvarado , 541 U.S. 652, 660 (2004) (“We begin by determining the relevant clearly established law.”). “The absence of clearl y established federal la w is dispositive under § 2254(d)(1),” House , 527 F.3d at 1018, and “without cl early established federal law, a federal habeas court need not assess whether a state court’s decision was contrary to or involved an unreasonable a pplication of such law,” id. at 1017 (quotations omitted). “[C]learly established law c onsists of Supreme Court holdings in cases where the facts are at least closely-re lated or similar to the case sub judice .” Id. at 1016. Such26 holdings “must be construed na rrowly and consist only of something akin to on-point holdings.” Id. at 1015. 11
b. Analysis Because it is not clear whether § 701.10 and § 701.10a apply to proceedings like Mr. Mitchell’s, we do not decide whether Mr. Mitchell suffered a state-law violation. 12 Instead, we assume he did and proceed to ou r AEDPA analysis. Below, we (i) explain why AEDPA review applies and (ii) analyze the merits of the claim under the AEDPA standard. We affirm the district court’s de nial of habeas relief because (1) Mr. Mitchell has not advanced any argument as to why th e OCCA’s sentencing decision was contrary to or an unreasonable application of clearl y established Supreme Court law, and (2) Hicks does not supply the clearly established law necessa ry for Mr. Mitchell to overcome AEDPA deference.

11 Although “clearly established federal law” must be factually comparable to the case at issue, “factual identity between ex isting Supreme Court cases and the case sub judice ” is neither necessary nor sufficient. House , 527 F.3d at 1016 n.5. As this court explained in House , “[I]t is not enough for courts to mechanistically seek to determine whether there are Supreme Court holdings that involve facts that are indistinguishable from the case at issue.” Id. Instead, courts “must exercise a refined judgment and determine the actual materiality of the lines (or points) of distin ction between existing Supreme Court cases and the partic ular case at issue . . . .” Id.

12 We are not convinced that Mr. Mitchell’ s resentencing violated the same-jury requirement set forth in § 701. 10 and § 701.10a. These provis ions state a same-jury rule for the guilt and sentencing stages of a capital trial, but they do not address what must happen if a federal habeas court vacates a death sentence. Mr. Mitchell acknowledges this uncertainty. At oral argument, his counsel recommended certifying the Hicks question to the Oklahoma courts, see Oral Arg. at 22:17-34, and stated, “I’m forced to concede . . . that there’s some ambiguity in the Oklahoma law,” id. at 22:54-23:00.27 i. AEDPA standard applies The AEDPA standard go verns Mr. Mitchell’s Hicks claim because the OCCA addressed the issue on the merits. See Stouffer v. Duckworth , 825 F.3d 1167, 1179 (10th Cir. 2016) (“[I]f the state court did not deci de the claim on the merits, the stringent principles of deference under . . . § 2254 are inapplicable.” (quotations omitted)). Mr. Mitchell argues “there was no adjudication on th e merits by the state court” and that we should therefore review his claim de novo . Renewed Request for COA, Doc. 10507440 at 31. But where, as here, “a federal clai m has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Johnson v. Williams , 568 U.S. 289, 298 (2013) (quoting Harrington v. Richter , 562 U.S. 86, 99 (2011)). Mr. Mitche ll has not overcome this presumption because he has not identified any “state-law procedural principles” or other “indication” showing the state court did not resolve his claim. Id. He also has waived any argument that AEDPA review does not apply because he did not argue in district court that the OCCA did not decide his Hicks claim on the merits. See Brian R. Means, Fed. Habeas Manual § 3:7 (2019) (“[A] prisoner may waiv e the argument that a state court decision28 does not constitute a merits adjudication for purp oses of AEDPA . . . if not raised in the district court . . . .”). 13 We therefore review the claim under § 2254(d)(1). 14
ii. AEDPA analysis 1) Failure to argue AEDPA Mr. Mitchell advances no arguments as to whether or how his Hicks claim should prevail under the AEDPA framework. At oral argument, his counsel effectively conceded the Hicks claim cannot withstand AEDPA review. See Oral Arg. at 23:00-04 (Mr. Mitchell’s counsel accepting the panel’s suggestion that the Hicks claim “could not prevail under AEDPA deference”). Mr. Mitche ll has therefore failed to demonstrate that the OCCA’s decision was contrary to or an unreasonable application of clearly established federal law. See Owens , 792 F.3d at 1242 (“It is the petitioner’s burden to make this showing . . . .”). We could reject the Hicks claim on the sole basis that Mr. Mitchell has not advanced any arguments relating to the AEDPA standard.

13 Mr. Mitchell’s counsel confirmed this at oral argument. When the panel asked, “You don’t disagree with me that there were no arguments in district court that the standard of review is not AEDPA deference?,” Oral Arg. at 21:12-23, counsel responded, “Correct. There was not an explic it argument . . . . I accept that,” id. at 21:23-31; see also id. at 16:10-21:35 (discussing whether AE DPA review applies to Mr. Mitchell’s Hicks claim).

14 As explained above in footnote 8, the state waived any defense based on the OCCA’s res judicata ground for denying relie f by failing to argue procedural default either in district court or on appeal. See Hooks , 184 F.3d at 1216.29 2) No clearly established law Even if we proceed to the merits, the Hicks claim fails because Mr. Mitchell cannot show that Hicks supplies clearly established Supreme Court law. See House , 527 F.3d at 1018 (“The absence of clearly established federal law is dispositive . . . .”). Hicks is not “closely-related or similar to the case sub judice .” Id. at 1016. In Hicks , an Oklahoma trial court instructed the jury to sentence the defendant under Oklahoma’s habitual offender statute, which was later held unconstitutional. See 447 U.S. at 344-45. The Supreme Court found this prejudiced th e defendant and violated his due process rights. Id. at 346. Hicks thus decided that when a state law provides for a jury to impose a sentence, a defendant has a due process right for the jury to be instructed under a constitutional standard. Mr. Mitchell, by contra st, alleges a due proce ss right to have the same jury decide both guilt an d punishment in a capital case. He does not contend his resentencing jury was inst ructed to apply an unconstitutional sentencing statute. Hicks thus does not provide “something akin to [an] on-point holding[].” House , 527 F.3d at 1015. Although the claims in Hicks and this case both involved due process challenges to jury sentencing proceedi ngs, they are materially different. Hicks addressed the defendant’s right to be sentenced by a prop erly instructed jury. Mr. Mitchell alleges a right to be convicted and sentence d by the same jury. Applying Hicks to this case would “require us inappropriately to extend [ Hicks ] to a novel context.” Littlejohn v. Trammell , 704 F.3d 817, 850 (10th Cir. 2013). Hicks therefore cannot serve as clearly established federal law to resolve Mr. Mitchell’s claim. See id. at 849-50 (determining Fifth30 Amendment’s prohibition on unlawful extracti on of confessions did not provide clearly established law for defendant’s claim that his voluntary confessions violated his due process rights). Mr. Mitchell argues that “ Hicks unquestionably gave [Mr.] Mitchell a constitutional right to the ‘same jury’ following . . . a remand from a federal court.” Pet’r. Third Supp. Br., Doc. 10593597 at 7-8. But Hicks stands for the general due process principle that “[w]here . . . a Stat e has provided for the imposition of criminal punishment in the discretion of the trial jury, . . . [t]he defendant . . . has a substantial and legitimate expectation that he w ill be deprived of his liberty on ly to the extent determined by the jury in the exercise of its statutory discretion.” 447 U.S. at 346. General principles, however, do not provide clearl y established law under AEDPA. As the Supreme Court said in Nevada v. Jackson , 569 U.S. 505 (2013 ), “framing [Supreme Court] precedents at . . . a high level of generality” would “defeat the substantial deference that AEDPA requires” by allowing “a lower federal court [to] transform even the most imaginative extension of existing case law into clea rly established Federal law, as determined by the Supreme Court.” Id. at 512 (quotations omitted). And in House , we said “federal courts may [not] extract cl early established law from the general legal principles developed in factually distin ct contexts.” 527 F.3d at 1016 n.5. “Because there is no clearly established federal law” to resolve Mr. Mitchell’s Hicks claim, “[his] challenge fails at the th reshold inquiry,” and “[u]nder § 2254(d)(1) our analysis ends.” Id. at 1022; see also id. at 1021 (“Absent controlling Supreme Court31 precedent, it follows ineluctably that the [state court’s] decision . . . cannot be either contrary to, or an unreasonable applica tion of, clearly established Federal law.” (alterations and qu otations omitted)). We therefore affirm the district court’s denial of relief as to Mr. Mitchell’s Hicks claim.
III. CONCLUSION For the foregoing reasons, we affirm the decision of the district court.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge