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 federal district court’s denial of his 

application for a writ of habeas corpus under 28 U.S.C. § 2254. In 1992, Oklahoma 

charged Mr. Mitchell with first degree murder, robbery with a dangerous weapon, larceny 

of an automobile, first degree rape, and forcible anal sodomy. The 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 This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. 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 Court
2 

App. 1994).1

 In a previous § 2254 habeas proceeding, this court found that the Oklahoma 

prosecutors failed to provide the defense with exculpatory DNA evidence 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 did not disturb Mr. Mitchell’s murder 

conviction. 

 A newly constituted jury sentenced Mr. Mitchell to death a second time. On direct 

appeal, the OCCA reversed, citing “serious error in numerous aspects 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 § 2254 habeas proceeding ensued. 

 1

 From 1994 through 2016, multiple courts have issued opinions in this case. The 

following chart provides the case citations and corresponding short 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 VI 
3 

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 detention 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 unanimous jury to find that 

the aggravating factors outweigh the mitigating factors by 

proof beyond a reasonable doubt.” 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-created 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 factual history as presented by the OCCA.2

 We then 

provide an overview of the procedural history 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] determination of a factual issue made by a State 

court shall be presumed to be correct. The applicant shall have the burden of rebutting 
4 

A. Factual Background 

 In Mitchell V, the OCCA summarized the facts as follows: 

Briefly stated, on January 7, 1991, Alfred Brian Mitchell 

found Elaine Scott alone at the Pilot Recreation Center in 

Oklahoma City. The evidence presented at the resentencing 

established that [Mr.] Mitchell first 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 clothing 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), and a wooden coat rack. The 

forensic evidence—including the 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 State 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 court 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 aforethought murder, in violation of Okla. Stat. tit. 21, § 701.7; 

robbery with a dangerous weapon, in violation of Okla. Stat. 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 same 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 prison for the other felonies. Id. 

First Sentencing 

Mr. Mitchell’s jury based its death sentence recommendation 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 prosecution; 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 affirmed the convictions and sentence. 

Mitchell I, 884 P.2d at 1209. 

In 1997, Mr. Mitchell filed his first federal 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 because 
6 

(1) the State failed to disclose exculpatory evidence in violation of Brady v. Maryland; 

(2) testimony from the state’s forensic chemist (Joyce Gilchrist) 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 charges 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 indefensible. [Ms.] 

Gilchrist’s trial testimony that 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 and 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 demonstrate that she, too, was confident that 

only Ms. Scott’s DNA was present 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 above 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.] Gilchrist’s test results, which 

admittedly have a much lower degree of certainty than the 

DNA testing. [Ms.] Gilchrist testified at trial that the results 

of her blood tests were consistent 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 jury 
7 

the DNA testing was “inconclusive.” At the same time, the 

prosecution withheld the true facts from the defense, thereby 

preventing effective cross-examination. . . . 

 In closing argument, the 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 “inconclusive” because of “low 

molecular weight and degraded sample of DNA.” It is clear 

that this statement is entirely 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 court, however, declined to vacate Mr. Mitchell’s death 

sentence, explaining that “[t]he jury had sufficient 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 district court’s decision to this court, arguing the 

invalid rape and sodomy convictions required vacatur of his death sentence. We 

agreed and explained that “[s]exual assault 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 had 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 that] evidence 

impacted all three of the aggravating circumstances found 

by the jury: that the murder was heinous, atrocious, and 

cruel; that it was committed to avoid arrest for the rape and 
8 

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 Oklahoma 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 numerous aspects of [his] resentencing.” Id. at 712.3

 

It vacated Mr. Mitchell’s sentence and ordered 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 jury recommended that Mr. Mitchell be sentenced to 

death. This time, the jury found only 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 abused its discretion by (1) allowing the 

state to make certain arguments about the “avoid arrest” aggravating circumstance, (2) 

denying defense counsel the opportunity to question certain prospective jurors, and (3) 

allowing the State to present graphic photographic and video evidence. Mitchell IV, 136 

P.3d at 712. The OCCA also found the trial court erroneously excluded Mr. Mitchell’s 

mitigating character evidence, allowed testimony from certain witnesses, and failed “to 

prevent or ameliorate” “serious prosecutorial misconduct” by the resentencing 

prosecutor. Id.
9 

sentenced Mr. Mitchell in accordance with the jury’s recommendation, and Mr. 

Mitchell appealed to the OCCA, raising 18 claims of error. Id. at 645-46. The OCCA 

found no reversible error and affirmed Mr. Mitchell’s death sentence. Id. at 666. Mr. 

Mitchell filed for post-conviction relief, which the OCCA denied. The Supreme Court 

also denied his petition for a writ of certiorari. Mitchell v. Oklahoma, 562 U.S. 1293 

(2011). 

Section 2254 Application and COAs 

 Mr. Mitchell filed the underlying § 2254 habeas application, asserting 21 

grounds for relief. See Mitchell VI, 2016 WL 4033263, at *2. The district court denied 

relief, id., and denied a COA on all claims, ROA at 387-88. 

Mr. Mitchell then requested COAs from this court. See 28 U.S.C. § 2253(c)(1)(A) 

(requiring habeas petitioners 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 under the Sixth Amendment because it allows 

imposition of the death penalty without a jury finding that the HAC aggravator 

outweighed any mitigating circumstances beyond a reasonable doubt (the “Hurst claim”), 

(2) whether the Oklahoma HAC aggravator is unconstitutional under the Eighth 

Amendment (the “HAC claim”), and (3) whether Mr. Mitchell was deprived of due 
10 

process because the same jury did not determine 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 “governed by the Antiterrorism and Effective 

Death Penalty Act of 1996 (‘AEDPA’), which requires 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 has 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 purposes 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 (2014) (alterations and quotations 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 (10th Cir. 2008) (discussing Carey v. 

Musladin, 549 U.S. 70 (2006)). “An OCCA decision is ‘contrary to’ a clearly established 

law if it applies a rule different from the governing law set forth in Supreme Court cases, 

or if it decides a case differently than the Supreme Court has done on a set of materially 

indistinguishable facts.” Lockett, 711 F.3d at 1231 (alterations and quotations omitted); 

see also Bell v. Cone, 543 U.S. 447, 452-54 (2005). “An OCCA decision is an 

‘unreasonable application’ of clearly established federal law if it identifies the correct 

governing legal principle . . . but unreasonably 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 the OCCA’s adjudication was not contrary to 

or an unreasonable application of clearly 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 a 
12 

Sixth Amendment Hurst Claim 

Before the OCCA and in his § 2254 application, Mr. Mitchell claimed his death 

sentence was unconstitutional under the Sixth Amendment because the jury was not 

instructed to find beyond a reasonable doubt that the HAC aggravator outweighed the 

mitigating evidence. He argued that Hurst v. Florida, 136 S. Ct. 616 (2016), “requires 

the weighing decision to rest on proof beyond 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 additional legal background on the Hurst claim. We then 

examine the OCCA’s merits decision 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 precedent compels this result. 

a. Additional legal background 

The Fourteenth Amendment right to due process and the Sixth Amendment right 

to a jury trial entitle a criminal defendant to “a jury determination 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) (alterations and quotations omitted). 

 

state court’s decision “resulted in a decision 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 required the judge alone to find the existence 

of an aggravating circumstance”). 

Under Oklahoma’s capital sentencing scheme, the death penalty may not be 

imposed “[u]nless at least one of the statutory 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 instructed 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 jury should have been instructed 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] us 
14 

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 Court 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 unreasonable 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 the jury to find the aggravating 

circumstances outweigh the mitigating circumstances beyond a reasonable doubt. See 

Matthews, 577 F.3d at 1195. “We are bound by the precedent of prior panels absent en 

banc reconsideration or a superseding contrary 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 decision was contrary to or an unreasonable 

application of Apprendi. 

In his early briefing, Mr. Mitchell urged 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 approach.” 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 Court decision that would allow us to overrule 
15 

Matthews.” Underwood, 894 F.3d at 1186. Mr. Mitchell now concedes as much. In 

response to this court’s request for supplemental briefing on the impact of Underwood on 

this appeal, he said, “[Mr.] Mitchell is forced to concede that [Underwood] precludes this 

panel from granting relief on [this claim]. Relief 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 was 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 aggravator 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. 2019) (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 Amendment” 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 federal district court, Mr. 

Mitchell made both a sufficiency-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-the-evidence claim. We thus address only his Eighth 

Amendment challenge. 
16 

662. The district court likewise rejected the claim when it denied relief in the underlying 

habeas proceeding. See Mitchell VI, 2016 WL 4033263, at *34. 

We (a) provide additional legal background 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 unreasonable 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 imposition of the death sentence if a jury 

unanimously finds beyond a reasonable doubt that “[t]he murder was 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 avoids 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 “torture or serious physical abuse . . . would 

[make Oklahoma’s HAC aggravator] constitutionally 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. 1987) (“[W]e now . . . restrict [the HAC 

aggravator’s] application to those murders in which torture or serious physical abuse is 
17 

present.”); Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App. 1995) (“Absent evidence 

of conscious physical suffering of the victim prior to death, the required torture or serious 

physical abuse standard is not met.” (quotations 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 construction . . . . That narrowing interpretation of the 

[HAC] aggravator has been cited with 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 unreasonable application of clearly established 

 7

 Mr. Mitchell presented his HAC aggravator argument on direct appeal from his 

second and third sentencings. On direct appeal from the second sentencing, the OCCA 

rejected the argument, explaining “[it had] repeatedly rejected the claim that [the HAC] 

aggravator, as narrowed by this court, 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 “provides 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 “accepts that 28 U.S.C. § 2254(d) governs review 
18 

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 aggravator 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 default either in district court or on appeal. 

Because of this, any affirmative defense based on the OCCA’s res 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 affirmative 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 various points throughout this case, treated 

the HAC claim as both an as-applied and a facial challenge. Mr. Mitchell has recently 

resisted this distinction, arguing “[f]acial and as-applied challenges are not categorically 

different . . . .” Pet’r. Corr. First Supp. Br., Doc. 10558627 at 9. But on the eve of oral 

argument, he filed a letter under Federal Rule of Appellate Procedure 28(j), 

“acknowledge[ing] he poses a facial challenge” to Oklahoma’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 authority if, after briefing, “pertinent and 

significant authorities come to [the] party’s attention”). 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 aggravator] to cases in which the State 

proves beyond a reasonable doubt that the murder . . . was preceded by torture or serious 

physical abuse . . . .”). This circuit has approved that narrowing construction, see 

Medlock, 200 F.3d at 1319, and Mr. Mitchell concedes it is constitutional, see Oral Arg. 

at 0:34-1:15 (statement from Mr. Mitchell’s counsel that “from the decision by the 

Supreme Court in [Maynard] [un]til about the end of the ’90s . . . the Oklahoma courts 

were appropriately limiting [HAC]”). On appeal from Mr. Mitchell’s third sentence, the 

OCCA applied this very construction, stating, “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 debate 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. Mitchell makes an affirmative 
20 

showing to the contrary. Bell, 543 U.S. at 456. In Bell, the Sixth Circuit determined that 

the Tennessee Supreme Court failed to apply a constitutional narrowing 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 aggravating circumstance narrowly and . . . followed 

that precedent numerous times; absent an affirmative indication to the contrary, we must 

presume that it did the same thing here.” Id. at 456. 

Mr. Mitchell cannot overcome this presumption. Like the state courts in Bell, the 

OCCA adopted a constitutionally permissible narrowing of the HAC aggravator and 

“followed that precedent numerous times.” Id. We therefore presume the OCCA 

continued to apply its constitutional narrowing construction unless Mr. Mitchell can 

provide an “affirmative indication 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 federal 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 construction, that would not demonstrate that 

the OCCA has abandoned its constitutionally permissible 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 law 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 the 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 constitutional 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 accept reasoned that the OCCA had drifted from 

the previously approved narrowing construction and had “not appl[ied] a constitutionally 

acceptable interpretation of [the] HAC aggravator.” Amended Pavatt Panel Op. at 1132. 

 10 This panel opinion amended and superseded 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 construction has been applied consistently,” Arave, 507 

U.S. at 477 (emphasis omitted), a misapplication of the HAC aggravator 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 provide 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 unreasonable application of[] 

clearly established Federal law.” 28 U.S.C. § 2254(d). We thus affirm the district court’s 

denial of habeas relief on Mr. Mitchell’s HAC aggravator claim. 

Due Process Hicks Claim 

Mr. Mitchell argues his resentencing violated Oklahoma Statutes §§ 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) provide 
23 

an overview of the relevant law and (b) examine the merits of Mr. Mitchell’s Hicks claim 

under § 2254(d)(1). We affirm 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 first 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). Section 701.10a further provides:

Notwithstanding [the above], which requires that the 

same jury sit in the sentencing 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 shall 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 receiving an instruction to apply Oklahoma’s thenexisting habitual offender statute, the jury sentenced Mr. Hicks 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—rather 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 “acknowledged that the [habitual 

offender] provision was unconstitutional, but nonetheless 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 range of punishment that could have been 

imposed in any event.” Id.

 The United States Supreme Court reversed. It noted that Mr. Hicks had a 

“statutory right [under Oklahoma law] to have a jury fix his punishment in the first 

instance” and that this right “substantially 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 years [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 habitual offender statute and stated, “It is . . . 
25 

wholly incorrect to say that the petitioner 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 intentionally 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 analysis 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 clearly established federal law is dispositive under 

§ 2254(d)(1),” House, 527 F.3d at 1018, and “without clearly established federal law, a 

federal habeas court need not assess whether a state court’s decision was contrary to or 

involved an unreasonable application of such law,” id. at 1017 (quotations omitted). 

“[C]learly established law consists of Supreme Court holdings in cases where the 

facts are at least closely-related or similar to the case sub judice.” Id. at 1016. Such 
26 

holdings “must be construed narrowly 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 our 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 denial of habeas relief because (1) Mr. Mitchell 

has not advanced any argument as to why the OCCA’s sentencing decision was contrary 

to or an unreasonable application of clearly established Supreme Court law, and (2) Hicks 

does not supply the clearly established law necessary 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 existing 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 distinction between existing 

Supreme Court cases and the particular 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 provisions 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 governs 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 decide the claim on the merits, the stringent 

principles of deference under . . . § 2254 are inapplicable.” (quotations omitted)). Mr. 

Mitchell argues “there was no adjudication on the 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 claim 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. Mitchell 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 waive the argument that a state court decision 
28 

does not constitute a merits adjudication for purposes 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. Mitchell 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 explicit argument . . . . I accept that,” id. at 21:23-31; see 

also id. at 16:10-21:35 (discussing whether AEDPA 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 relief 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 the 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 contrast, alleges a due process right to have the 

same jury decide both guilt and punishment in a capital case. He does not contend his 

resentencing jury was instructed 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 proceedings, they are materially different. Hicks addressed 

the defendant’s right to be sentenced by a properly instructed jury. Mr. Mitchell alleges a 

right to be convicted and sentenced 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 Fifth 
30 

Amendment’s prohibition on unlawful extraction 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 State 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 will be deprived of his liberty only 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 clearly 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 clearly established Federal law, 

as determined by the Supreme Court.” Id. at 512 (quotations omitted). And in House, we 

said “federal courts may [not] extract clearly established law from the general legal 

principles developed in factually distinct 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 threshold inquiry,” and “[u]nder § 2254(d)(1) 

our analysis ends.” Id. at 1022; see also id. at 1021 (“Absent controlling Supreme Court 
31 

precedent, it follows ineluctably that the [state court’s] decision . . . cannot be either 

contrary to, or an unreasonable application of, clearly established Federal law.” 

(alterations and quotations 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