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

### FEB 13 2001 

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

TENTH CIRCUIT

JOHN JOSEPH ROMANO and DAVID WAYNE WOODRUFF,

Petitioners-Appellants,

v. GARY GIBSON, Warden of the Oklahoma State Penitentiary,

Respondent-Appellee. Nos. 99-6310 & 99-6323

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. Nos. 96-CV-882-C & 96-CV-1076-C)

Robert A. Nance of Riggs, Abney, Neal, Turpen, Orbi son & Lewis, (Gloyd L. McCoy of Coyle & McCoy, with him on the brief), Okl ahoma City, Oklahoma, for Petitioner-Appellant John Joseph Romano. Randy Bauman, Assistant Federal Public Defender, De ath Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for Petit ioner-Appellant David Wayne Woodruff. William L. Humes, Assistant Attorney General, and S andra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Dre w Edmondson, Attorney General of Oklahoma, with them on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before SEYMOUR , BALDOCK , and EBEL , Circuit Judges.1 Although these related appeals have not been consol idated, we address

them in one opinion because of the similarity of th e issues raised by the parties. -2- EBEL , Circuit Judge.

These death penalty appeals 1 present a number of issues. The most difficult, which we deal with at some length, inclu de: 1) whether the State violated Brady v. Maryland , 373 U.S. 83 (1963), by failing to disclose a detective’s unrecorded recollection of the temperat ure of the victim’s apartment; 2) what degree of mental torture or conscious serio us physical abuse preceding death is necessary to satisfy Oklahoma’s especiallyheinous, atrocious or cruel aggravating factor; and 3) the extent to which defense counsel, under Strickland v. Washington , 466 U.S. 668 (1984), is required to investigate and present psychiatric evidence and evidence of a defendant’s early childhood during a capital sentencing proceeding. During the course o f our analysis, we also clarify, with the approval of the en banc court, that the State does not need to appeal separately the district court’s adverse procedural bar determination in order to reassert that defense on appeal.-3-

I. FACTS Romano and Woodruff were convicted of killing a jew eler, Roger Sarfaty, during the course of a robbery. Sarfaty, Romano’s acquaintance, had been bound hand and foot and strangled, beaten about the head and stabbed five times. Because, at the time of this murder, Romano was serving a prison sentence and was only free on weekends, a critical issue in the case was how long Sarfaty had been dead before a friend first discovered his body , around 11:00 P.M. Tuesday, October 15, 1985. Romano had been out on weekend f urlough from Friday evening, October 11 through Sunday evening, October 13. The State’s theory was that the murder occurred on Saturday, October 1 2, between 2:00 A.M. and 2:00 P.M. Romano and Woodruff do not have alibis f or at least part of that time period. Evidence supporting the State’s theory included the fact that Sarfaty usually went to a bar, the Celebrity Club, every night. Th e last time he was seen there was when he left the club about 2:00 A.M. Saturday, October 12. And at the time the body was discovered, the October 12 edition of the newspaper was found opened on Sarfaty’s couch; the editions for October13, 14, and 15 were left delivered, but unopened, on his patio. There was also, however, evidence contradicting the State’s theory. When Sarfaty’s friend first discovered his body, the vol ume of the television in-4-

Sarfaty’s apartment was turned way up, yet none of the neighbors had ever complained about the noise. In addition, Sarfaty’s neighbor testified that he thought he saw Sarfaty arguing with a blonde woman early Sunday morning, October 13. Scientific evidence concerning the time of death wa s not conclusive, although it generally supported the State’s theory. The medical examiner’s investigator believed Sarfaty had died two to three days before the body’s discovery. The investigator based that determinati on, in part, on the apartment’s sixty-degree temperature, which he noted on the nig ht the body was found. The investigator recorded that temperature at approximately 4:30 A.M. Wednesday, October 16, although authorities had first entered the apartment two hours earlier. A police officer described the apartment, at the ti me they entered, as warm, but not hot. Based in part on the sixty-degree temperature, the medical examiner, Dr. Choi, testified that Sarfaty had been dead between two days and one week. The doctor’s best estimate was three or four days. Dr. Choi further testified, however, that, at a warmer temperature, Sarfaty might have b een dead only twelve to twenty-four hours. Apart from the opportunity to commit these crimes, the evidence linking Romano and Woodruff to the crime itself was primari ly circumstantial. Sarfaty,-5-

a jeweler, often kept a great deal of jewelry with him or in his apartment. He also usually wore rings on each finger. On Thursday, Oc tober 10, a friend had seen Sarfaty with a bag of ten to twelve gold necklaces, some older looking. And late Friday, October 11, Sarfaty had shown the CelebrityClub’s manager a “real big” diamond. Yet Sarfaty was not wearing any rings whe n his body was found and there were only a few items of costume jewelry in t he apartment at that time. Detectives did find a diamond in the living room, n ear where the body was discovered, and a packet of seventeen diamonds in o ne of Sarfaty’s suits. On Sunday, October 13, Woodruff’s girlfriend observ ed that Woodruff had a lot of jewelry, including some older looking gold necklaces and five or six rings. Although Woodruff was a trained gemologist, she had never before seen him with that much jewelry, nor did she think he ha d sufficient money at that time to buy such jewelry. Woodruff mailed this jewelry to an acquaintance in California. Sarfaty also kept as many as six large containers o f quarters in his apartment. There were, however, no such containers in the apartment following the murder. Further, on Saturday afternoon, Octobe r 12, Romano and Woodruff, who were then intoxicated, attempted to purchase a television at a mall store, using only quarters. Witnesses estimated the two h ad between ten and forty dollars’ worth of quarters. A saleswoman testifiedthat, at that time, Woodruff-6-

also had what appeared to be spots of blood on his jeans. She also noted a recent cut on Woodruff’s hand and that Romano was limping. Others who saw the pair later that day, however, did not notice any injurie s. When mall security took them into custody for being drunk and disorderly, Romano had a “lock blade” folding knife. He was also wearing an expensive-looking go ld necklace. Later that evening, Woodruff’s girlfriend delivered the two men from police custody to Woodruff’s car, still parked at t he mall. When she dropped them off, she noticed diamond papers--special paper s designed to hold gems securely--on the ground near Woodruff’s car. Sarfaty usually carried thirty to forty such papers with him. Woodruff, however, as a gemologist, also used diamond papers in his work. When police arrested Woodruff, ten months after Sar faty’s murder, he called his girlfriend and asked her to “clear” the house. In response, she removed a pair of gloves, a watch, and several pieces of ro pe. The medical examiner testified that these rope pieces could have caused the marks around Sarfaty’s neck, hands and feet. Additionally, one of the rop e pieces was fashioned like a garrote, which could be used to strangle a victim. The garrote would have left marks like those found on Sarfaty’s neck--marks on the front and sides of the neck, but with an area at the back of the neck with out any ligature marks at all.-7-

In addition to this evidence linking Woodruff and R omano to these crimes, there was also evidence that at least Romano had a motive to rob and kill Sarfaty. A few weeks before the murder, Romano was in need o f money and had asked a friend, Tracy Greggs, to help him rob Sarfaty. Rom ano was particularly interested in stealing the rings Sarfaty usually wo re. Romano had told Greggs that, because Sarfaty knew and would recognize him, Romano would have to kill Sarfaty. Greggs had refused to help Romano. Romano had also previously stolen a former girlfrie nd’s rings and had sold them to Sarfaty. When she discovered the jewelry w as missing, the girlfriend threatened to report the theft to her insurance company and police. Although he had promised to get the rings back, Romano later to ld his former girlfriend that the man who had her rings had been killed. The State jointly tried Woodruff and Romano. The j ury convicted both of first degree malice murder and robbery with a dange rous weapon, sentencing each to 1000 years in prison on the robbery conviction, which was after former conviction of a felony for both. At the capital se ntencing proceeding, the jury found three aggravating factors pertaining to both Woodruff and Romano: they had prior violent felony convictions; the murder wa s especially heinous, atrocious or cruel; and they were continuing threats to socie ty. The jury also found that Romano had committed the murder to avoid arrest or prosecution for Sarfaty’s-8-

robbery. The jury sentenced both Woodruff and Romano to death on the first degree murder convictions. In a related matter, prior to the Sarfaty trial, th e State had jointly tried Woodruff and Romano for murdering another Romano ac quaintance, Lloyd Thompson. In that case, a jury also convicted both men of first degree murder and sentenced them to death. The State introduced evidence of those Thompson convictions and death sentences during sentencing i n the Sarfaty trial. After the conclusion of the Sarfaty case, however, the Oklaho ma Court of Criminal Appeals overturned the Thompson convictions and death sente nces, holding the trial court had erred in jointly trying Woodruff and Romano for that murder. See Romano v.
State , 827 P.2d 1335 (Okla. Crim. App. 1992); Woodruff v. State , 825 P.2d 273 (Okla. Crim. App. 1992). The State subsequently re tried Woodruff and Romano for Thompson’s murder. Separate juries again convi cted both of first degree murder. Romano’s jury sentenced him to death, but Woodruff received a sentence of life imprisonment without parole. See Romano v. State , 909 P.2d 92, 106 & n.1 (Okla. Crim. App. 1995). The Oklahoma Court of Criminal Appeals affirmed the Sarfaty convictions and sentences on direct appeal. See Woodruff v. State , 846 P.2d 1124 (Okla. Crim. App.), cert. denied , 510 U.S. 934 (1993); Romano v. State , 847 P.2d 368 (Okla. Crim. App. 1993), aff’d , 512 U.S. 1 (1994). In affirming Romano’s-9-

death sentence, however, the state appellate court struck the prior violent felony aggravator, which was based solely on Romano’s conv iction for Thompson’s murder, and then reweighed the remaining aggravatin g circumstances and mitigating evidence. See Romano , 847 P.2d at 389, 393-94. The United States Supreme Court, in a 5-4 decision, affirmed, specifi cally holding that introduction of evidence of Romano’s earlier death sentence for the Thompson murder did not diminish the Sarfaty jury’s sense of responsibilityfor sentencing Romano for that murder. See Romano , 512 U.S. at 3, 6, 9-10. Subsequently, the Oklaho ma Court of Criminal Appeals affirmed the denial of state po st-conviction relief from the Sarfaty convictions and death sentences. See Romano v. State , 917 P.2d 12 (Okla. Crim. App. 1996) ; Woodruff v. State , 910 P.2d 348 (Okla. Crim. App. 1996).

II. STANDARDS OF REVIEW Because Woodruff and Romano filed their individual habeas petitions after the effective date of the Antiterrorism and Effecti ve Death Penalty Act of 1996 (AEDPA), that Act governs these appeals. See Williams v. Taylor , 529 U.S. 362, 402 (2000). Under AEDPA, petitioners will not be e ntitled to habeas relief unless they can establish that the state court dete rmination of their claims was contrary to, or an unreasonable application of, cle arly established Supreme Court precedent, see 28 U.S.C. § 2254(d)(1), or was an unreasonable det ermination of-10-

the facts in light of the evidence, see id. § 2254(d)(2). We presume the correctness of any state court findings of fact, ab sent clear and convincing proof to the contrary. See id. § 2254(e)(1). Where the state court did not address the merits of a habeas claim, this court reviews the district court’s resolution of that ground for relief de novo , reviewing for clear error any district court findings of fact. See, e.g., Thomas v. Gibson , 218 F.3d 1213, 1220 (10th Cir. 2000) (citing LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999)).

III. DISCUSSION A. Was there sufficient evidence to support petitione rs’ convictions for first degree malice murder and robbery with a d angerous weapon?

1. Applicable standard of review In federal habeas proceedings, the appropriate inqu iry into a sufficiency-of-the-evidence claim is “whether, afte r viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). AEDPA additionally dir ects that, where the state court has already addressed the claim, this c ourt’s review is further limited. See Valdez v. Ward , 219 F.3d 1222, 1237 (10th Cir. 2000). Romano ass erts that, even though the Oklahoma Court of Criminal Appeals did address the sufficiency2 This court’s authority is divided as to whether, un der AEDPA, we review

a sufficiency-of-the-evidence issue as a legal dete rmination under 28 U.S.C. § 2254(d)(1) or a factual finding under § 2254(d)(2) and (e)(1). See, e.g., Mayes v. Gibson , 210 F.3d 1284, 1293 (10th Cir.), cert. denied, 121 S. Ct. 586 (2000); see also Hale v. Gibson , 227 F.3d 1298, 1335 n.17 (10th Cir. 2000) (review ing sufficiency of evidence to support capital jury’s finding aggravating factor). We need not resolve this issue here because the resultwould be the same under either AEDPA section. See, e.g. , Hale , 227 F.3d at 1335 n.17; Mayes , 210 F.3d at 1293. -11- of the evidence supporting petitioners’ convictions, it failed to apply Jackson

. Therefore, this court’s review, according to Romano, should be de novo

. The state appellate court, because of the circumstantial nature of the evidence against Woodruff and Romano, did apply a s tate-law standard of review, considering whether the evidence was “incon sistent with any reasonable hypothesis other than the defendant’s guilt.” Romano , 847 P.2d at 378; Woodruff , 846 P.2d at 1133. That standard is actually more onerous than Jackson . Thus, if the evidence was sufficient to meet Okl ahoma’s stricter test, it would certainly also meet the Jackson standard. Applying AEDPA, 2 therefore, we review the reasonableness of the state appellate court’s determination that the evidence w as sufficient to support Woodruff’s and Romano’s convictions. In doing so, we consider only the evidence presented at trial and do not, at this jun cture, address any newly discovered evidence. See Herrera v. Collins , 506 U.S. 390, 402 (1993).

2. Sufficiency of the evidence-12-

Under Oklahoma law, see Jackson , 443 U.S. at 324 n.16, “‘[a] person commits murder in the first degree when that person unlawfully and with malice aforethought causes the death of another human bein g. Malice is that deliberate intention unlawfully to take away the life of a hum an being, which is manifested by external circumstances capable of proof.’” Bland v. State , 4 P.3d 702, 713 (Okla. Crim. App. 2000) (emphasis omitted) (quoting Okla. Stat. tit. 21, § 701.7(A)), cert. denied , 121 S. Ct. 832 (2001). A design to effect death [ i.e. , premeditation] is inferred from the fact of killing, unless the circumstances raise a reason able doubt whether such design existed. Premeditation sufficient to c onstitute murder may be formed in an instant[,] or it may be formed instantaneously as the killing is being committed. Malice aforetho ught may be proved by circumstantial evidence. Id. (citations, quotation omitted). In addition, “[t]o sustain a conviction for robberywith a dangerous weapon, the State must prove another’s wrongful tak ing of one’s personal property against one’s will, by force or fear.” Mitchell v. State , 884 P.2d 1186, 1199-1200 & 1200 n.39 (Okla. Crim. App. 1994) (citing, e.g. , Okla. Stat. tit. 21, § 791). Woodruff and Romano argue that they did not rob or kill Roger Sarfaty. They challenge, in particular, the largely circumst antial case underlying their convictions. The evidence, however, established th e following: Romano needed money and also sought the return of his former girl friend’s rings from Sarfaty.-13-

He had asked Tracy Greggs to help him rob Sarfaty, and had told Greggs that in doing so, Romano would have to kill Sarfaty. Although the time of the murder was critical and di sputed, in considering this claim, we must view the evidence in the light most favorable to the State.
See Jackson , 443 U.S. at 319. In that light, the evidence didsupport the State’s theory that the murder occurred between 2:00 A.M. and 2:00 P.M. Saturday, October 12. The medical examiner testified that Sarfaty could have died between two and seven days before his body was discovered. Additionally, employees of the Celebrity Club last saw Sarfaty alive during th e early morning of October 12. And police found the October 12 edition of the news paper open on Sarfaty’s couch, while the later editions were left delivered , but untouched, on his patio. Woodruff and Romano lack alibis for at least part o f this time frame. Romano was on furlough from State custody that week end. And, although he may have exchanged a number of telephone calls thatSaturday morning with a friend, the last one was before 10:00 A.M. In addi tion, although Woodruff had told his girlfriend that he would be visiting his p arents that Saturday, when she called his parents’ home, he was not there. Later that day, both Woodruff and Romano possessed a large number of quarters. Sarfaty was known to keep large amounts of quarters in his apartment, yet there were no containers of quarters found there after his death

.-14-

Further, although Sarfaty had several gold necklace s just before the murder and he usually wore a number of rings, none of this jewelry was found at his home after the murder

. When police took custody of Romano Saturday afternoon, October 12, he was wearing an expensive looking gold necklace. And the next day, Woodruff’s girlfriend saw him with a number of gold necklaces and rings. Sarfaty had been stabbed several times, beaten and strangled. Romano had a knife with him when police took the pair into cus tody the afternoon of October 12. A salesperson had noticed blood on Woodruff’s jeans that afternoon and a recent cut on his hand, and Romano was limping. An d when Woodruff was arrested months later, he asked his girlfriend to r emove from their home, among other things, several pieces of rope, including a g arrote, that could have produced the ligature marks found on Sarfaty’s body. Considered in the light most favorable to the government, see Jackson , 443 U.S. at 319, this evidence was more than suffic ient for a rational trier of fact to find the existence of all of the elements of the se charged offenses beyond a reasonable doubt. Therefore, the state appellate court reasonably upheld Romano’s and Woodruff’s convictions for first degre e malice murder and robbery with a dangerous weapon. See Romano , 847 P.2d at 378-80; Woodruff , 846 P.2d
at 1133-35.-15-

B. Did the trial court violate due process or the Six th or Eighth Amendments when it restricted petitioners’ ability to put on evidence arguably casting suspicion on other, uncharged indi viduals? Oklahoma has an evidentiary rule that a criminal de fendant cannot put on evidence that someone else might have committed the charged offense, absent proof that person took an overt act toward the commission of the crime. See,

e.g. , Dennis v. State , 879 P.2d 1227, 1232 (Okla. Crim. App. 1994). Pro of of another’s motive is not enough. See, e.g., id. In this case, Woodruff and Romano sought to cast su spicion for Sarfaty’s robbery and murder on T.R. “Tippy” Ballard, Kathy F ord, and Susan Babbitt. The state trial court admitted some evidence connec ting these three individuals with Sarfaty, but excluded other such evidence. Ap plying Oklahoma’s evidentiary rule, the Oklahoma Court of Criminal Ap peals upheld the trial court’s exclusion of this evidence. See Romano , 847 P.2d at 380-82; Woodruff , 846 P.2d
at 1137-38. Although, on direct appeal, Woodruff and Romano did challenge the trial court’s exclusion of this evidence on federal const itutional grounds, the Oklahoma Court of Criminal Appeals addressed these claims only under state law. See Romano , 847 P.2d at 380-82; Woodruff , 846 P.2d at 1137-38. We, therefore, review de novo the federal district court’s denial of habeas reli ef on3 The Chambers line of cases does not create a constitutional ent itlement to

present any evidence critical to a criminal defendant’s defense. See Montana v. (continued...) -16- these due process and Sixth and Eighth Amendment claims. See Thomas , 218 F.3d at 1220. Of course, sitting as a federal habeas court applyi ng 28 U.S.C. § 2254, it is not for us to review a state court’s evidentiary rulings. See, e.g., Estelle v.
McGuire , 502 U.S. 62, 67-68 (1991). Rather, a federal hab eas court reviews only for violation of “the Constitution, laws, or treaties of the United States.” Id. at 68 (citing, e.g. , 28 U.S.C. § 2241). Further, state evidentiary de terminations ordinarily do not present federal constitutional issues. See Crane v. Kentucky , 476 U.S. 683, 689 (1986) (noting Court’s “tradition al reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts”). However, the Supreme Court, in, e.g. , Chambers v. Mississippi , 410 U.S. 284, 302 (1973), and Green v. Georgia , 442 U.S. 95, 97 (1979) (capital sentencing proceeding), has provided an exception, under some circumstances, if a state court applies the State’s evidentiary rules unfairl y to prevent a defendant from presenting evidence that is critical to his defense. See also, e.g. , Washington v.
Texas , 388 U.S. 14, 16, 23 (1967). This, however, is no t such a case. The state trial court did not exclude any evidence critical t o Woodruff’s or Romano’s defense. 33 (...continued)

Egelhoff , 518 U.S. 37, 51-53 (1996); see also United States v. Scheffer , 523 U.S. 303, 308, 316 (1998). Rather, “the introduction of relevant evidence can be limited by the State for a ‘valid’ reason.” Egelhoff , 518 U.S. at 53. In this case, however, because the trial court did not exclude any evidence critical to the defense, we need not weigh the State’s justificatio n for this evidentiary rule with petitioners’ right to present a defense. See Scheffer , 523 U.S. at 308-09; see also Boyd v. Ward , 179 F.3d 904, 921 (10th Cir. 1999) (holding evide nce excluded from capital sentencing stage would have had no eff ect on trial’s outcome, without further addressing State’s proffered intere sts in having evidence excluded), cert. denied , 120 S. Ct. 1188 (2000). -17- Here, Woodruff and Romano were in fact able to put on a significant amount of evidence concerning these three individuals. See Boyd , 179 F.3d at 921; see also Richmond v. Embry , 122 F.3d 866, 873-74 (10th Cir. 1997). They first presented evidence that it was generallywell known that Sarfaty frequently carried lots of jewelry and money with h im. Additionally, Sarfaty had been a crime victim on several previous occasions, having had things taken from his home and jewelry stolen from him. Sarfaty tolda friend he suspected “[s]ome woman” had perpetrated these crimes. Within two we eks prior to the murder, Sarfaty had reported separate incidents of assault and burglary and, immediately prior to the murder, Sarfaty told a friend that he anticipated another robbery attempt against him. His friend urged Sarfaty to c hange the way he did business, late at night in bars and clubs. Woodruff and Romano also presented evidence at tria l specifically pertaining to Ballard, Babbitt and Ford. T.R. Ball ard was Sarfaty’s acquaintance.-18-

They occasionally went to the same pool hall, and h ad, at times, also discussed business together at the Celebrity Club. Prior to Sarfaty’s death, Ballard had indicated that he was broke. Yet, immediately afte r the murder, Ballard appeared to have a large amount of money and jewelry. No on e had seen Ballard in the pool hall or Celebrity Club after Sarfaty was kille d. However, a detective investigating Sarfaty’s death testified that, altho ugh he had come across Ballard’s name early in the investigation, the detective neve r considered him a suspect. Nor could the detective find a link between Ballardand either Kathy Ford or Susan Babbitt. The detective did come across Kathy Ford’s name dur ing his investigation, but he was never able to find her or even verify th at she existed. He indicated she may have been a prostitute. The owner of a paw n shop and his employee testified that they knew Ford and had sold her a kn ife just before Sarfaty’s murder. The medical examiner could not rule out th at knife as the murder
weapon. The investigating detective had also come across th e name of Susan Babbitt, purportedly another prostitute, but the de tective was unable to link her to either Ballard or Ford. The only connection he cou ld make between Babbitt and Sarfaty was that they were acquaintances from the C elebrity Club.-19-

Based upon this evidence, defense counsel could hav e argued to the jury that someone other than Woodruff and Romano killed Sarfaty. Nonetheless, Woodruff and Romano assert that the trial court err ed in excluding additional evidence concerning Ballard, Ford and Babbitt. The record, however, does not support their contention that the trial court excluded evidence that Ballard had threatened Sarfaty. The trial court did sustain an objection to defense counsel’s cross-examination of Sarfaty’s friend as to whetherSarfaty ever had any problems with Ballard. In response, defense counsel asserte d to the court that one of the witnesses had indicated that, on one occasion, Ball ard had slapped Sarfaty, but defense counsel was not sure which witness it was. The trial court then instructed defense counsel to find out which witness it was be fore counsel posed the question, and indicated counsel could recall this w itness if it was necessary to do so. Defense counsel, however, never recalled that witness, nor did she attempt to elicit this information from any other witness. Th e trial court, therefore, did not preclude the defense from introducing this evidence. Cf. United States v.
Ramone , 218 F.3d 1229, 1237 (10th Cir.) (noting defense c ounsel’s failure to seize opportunity to cross-examine did not show that trial court unfairly limited right to confront witnesses), cert. denied , 121 S. Ct. 598 (2000). Nor could we find any instance in the record that the trial court prevented Woodruff or Romano from asserting any evidence spec ifically concerning Susan-20-

Babbitt. The trial court, therefore, did not depri ve petitioners of any opportunity to present evidence concerning these two uncharged individuals. The trial court did exclude some defense evidence c oncerning Kathy Ford. At trial, defense counsel made an offer of proof th at Sarfaty’s friends had mentioned that Kathy Ford had possibly set up and r obbed Sarfaty on previous occasions. Sarfaty himself had told friends that s he had robbed him and, on one occasion, Sarfaty had asked a pawn shop owner to he lp him find Ford so that he could get back the property she had stolen from him . Nonetheless, this evidence was not critical to Woodruff’s and Romano’s defense . Rather, the state court’s application of Oklahoma’s evidentiary rule pertaini ng to uncharged individuals only prevented Woodruff and Romano from presenting incremental evidence concerning another individual who might have been i nvolved in this crime. It did not deprive them of significant and fundamentally exculpatory evidence. See Boyd , 179 F.3d at 921 (holding evidence must be materia l; that is, that it might have affected trial’s outcome); see also Richmond , 122 F.3d at 872, 874-75. See generally United States v. Valenzuela-Bernal , 458 U.S. 858, 867 (1982). Woodruff and Romano argue that it is somehow unfairto apply the state-law overt act requirement concerning uncharge d individuals who may have committed the crime because no similar requirement applies in order for the State to convict the individual charged. This particularargument is like comparing-21-

apples and oranges. At trial, the jury unavoidablyhas to focus on whether the charged individual did or did not commit the crime alleged. Crimes can be proven by circumstantial evidence; there is no requ irement that substantive crimes must be proven only through direct evidence. See generally Lucero v. Kerby , 133 F.3d 1299, 1312 (10th Cir. 1998) (reviewing s ufficiency of both direct and circumstantial evidence to support convi ction). Moreover, the jury did have to find that Woodruff and Romano had committedovert acts toward commission of robbery and murder. The jury could d o so, however, based on circumstantial evidence. The ability to cast aspersions on uncharged individ uals, however, is a very different story. See Irvin v. State , 146 P. 453, 464 (Okla. Crim. App. 1915) (“While it is competent for the defendant to show, by any legal evidence, that some other person committed the crime with which he is charged, . . . evidence which could have no further effect than to cast a b are suspicion upon another is incompetent and inadmissible.”). The main purpose of Oklahoma’s evidentiary rule requiring proof of an overt act by an uncharge d individual is to prevent juries from embarking on wild goose chases. See, e.g., id. at 464-66 (citing authority). Here, there was no proof, either direc t or circumstantial, that Ballard, Ford or Babbitt ever took any overt act toward comm ission of these offenses. The jury, then, had to remain focused on the trial’ s central issue--whether the-22-

charged individuals committed the crimes alleged. See id. at 466 (citing Horn v.
State , 73 P. 705 (Wyo. 1903)). In any event, here, in light of Green and Chambers, we need ask no more than whether the trial court’s application of this state evidentiary rule excluded critical exculpatory evidence. See Green , 442 U.S. at 97; Chambers , 410 U.S. at 302. It did not.
C. Did the State violate Brady by failing to disclose a detective’s unrecorded opinion about the temperature of Sarfaty ’s apartment at the time the body was discovered?

1. Procedural default As an initial matter, respondent argues Romano proc edurally defaulted this claim because he failed to raise it on direct appeal. Respondent, however, did not appeal from the district court’s rejection of this procedural bar defense. Nonetheless, a federal habeas court can always raise procedural bar sua sponte

. See Duvall v. Reynolds , 139 F.3d 768, 796 n.11 (10th Cir. 1998), and case s cited therein; see also, e.g., Hale , 227 F.3d at 1334 n.16. Further, this court can a ffirm the district court’s decision on any legal ground the record supports. See, e.g., Hernandez v. Starbuck , 69 F.3d 1089, 1093 (10th Cir. 1995)

. Therefore, this court can address procedural default even though re spondent did not separately appeal the district court’s determination. Cf. Jones v. United States , 527 U.S.-23-

373, 396 (1999) (holding, in direct criminal appeal where circuit court held aggravating factors were invalid, but error was harmless, that government could argue on appeal validity of aggravators without fil ing cross appeal). Admittedly, previous Tenth Circuit law has not beenconsistent on whether the State must specifically appeal an adverse proce dural bar determination. In Robison v. Maynard , 829 F.2d 1501, 1502 (10th Cir. 1987), this court did hold that the State’s failure to appeal from a district court’s adverse procedural default determination precluded the State from raising thatissue to this court on appeal. In several subsequent cases, however, this court ha s held that the State’s separate appeal was unnecessary. See, e.g., Walker v. Gibson , 228 F.3d 1217, 1226 n.2 (10th Cir. 2000); Jones v. Gibson , 206 F.3d 946, 955 n.4 (10th Cir.), cert. denied , 121 S. Ct. 496 (2000); see also Smith v. Massey , 235 F.3d 1259, 1273 n. 9 (10th Cir. 2000). When confronted, as we are here, with inconsistent Tenth Circuit holdings, we are generally bound by the first decision. See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1187 (10th Cir. 1999); Haynes v. Williams , 88 F.3d 898, 900 n.4 (10th Cir. 1996). That would require the State here to appeal from the district court’s procedural bar det ermination in order to raise that issue now on appeal. We believe, however, that thi s court’s earlier authority addressing this issue was incorrect. We have submi tted this determination to the-24-

entire en banc court, which agrees. See, e.g., United States v. Meyers , 200 F.3d 715, 721 & n.3 (10th Cir. 2000); Murphy v. Klein Tools, Inc. , 935 F.2d 1127, 1128 n.2 (10th Cir. 1991). Therefore, following Walker and Jones , we overrule Robison in this regard. Other circuits have reached this same conclusion. See Hull v. Kyler , 190 F.3d 88, 98 n.2 (3d Cir. 1999) ; Moore v. Ponte , 186 F.3d 26, 31 & n.4 (1st Cir.), cert. denied , 528 U.S. 1053 (1999); Nichols v. McCormick , 929 F.2d 507, 509 n. 2 (9th Cir. 1991); Washington v. Lane , 840 F.2d 443, 445-46 (7th Cir. 1988); see also Young v. Catoe , 205 F.3d 750, 762 n.12 (4th Cir.) (noting, in dicta, government’s cross-appeal unnecessary), cert. denied , 121 S. Ct. 164 (2000). See generally El Paso Natural Gas Co. v. Neztsosie , 526 U.S. 473, 479 (1999) (noting even without cross-appeal appell ee may assert any ground for affirmance that is apparent on record, even if thatground challenges lower court’s reasoning so long as it does not enlarge the relief previously given appellee below). We turn, then, to respondent’s procedural bar argum ent. In these cases, the Oklahoma Court of Criminal Appeals ruled incons istently on this procedural default issue when it considered the merits of this claim in Woodruff’s post-conviction proceeding, but declined to do so i n Romano’s post-conviction case. The Oklahoma Court of Criminal Appeals held Romano had waived this claim because, with due diligence, he could have di scovered its factual basis and4 At oral argument, the State argued the Oklahoma app ellate court did not

treat petitioners’ post-conviction claims inconsist ently because the precise issue in Romano’s state post-conviction proceeding was di fferent than the issue in Woodruff’s post-conviction action. The State asserts Romano’s state post-conviction application presented the issue nowbefore this court, whereas Woodruff’s state post-conviction proceeding address ed only an ancillary issue--whether the state courts should grant him anevidentiary hearing on this claim. We disagree. The Oklahoma Court of Crimina l Appeals noted Woodruff “claims newly discovered evidence regarding the temperature in the victim’s apartment after the murder warranted an evidentiaryhearing . . . , and presumably post-conviction relief.” Woodruff , 910 P.2d at 350. That court denied Woodruff an evidentiary hearing because “there was no reason able probability that if the evidence had been introduced, different results would have been reached.” Id. at 351. Thus, in denying Woodruff an evidentiary hear ing, the Oklahoma Court of Criminal Appeals ultimately reached and rejected the merits of this claim. That was inconsistent with its refusal to address the merits of Romano’s post-conviction claim because he failed to raise iton direct appeal. -25- asserted it on direct appeal. See Romano , 917 P.2d at 15-16. Conversely, the same court concluded Woodruff could not have raised this claim on direct appeal. 4 See Woodruff , 910 P.2d at 350-51. One of the requirements of an adequate and independ ent state procedural bar, see, e.g., Lambrix v. Singletary , 520 U.S. 518, 522-23 (1997), is that the state courts must have applied it consistently, see, e.g. , Johnson v. Mississippi , 486 U.S. 578, 587 (1988), and cases cited therein. “[T]he procedural rules must be applied evenhandedly to all similar claims.” Maes v. Thomas , 46 F.3d 979, 986 (10th Cir. 1995) (further quotation omitted). Here the Oklahoma Court of Criminal Appeals applied the same procedural rule i nconsistently in the cases of two co-defendants charged with the very same offens es and tried together. In-26-

light of that inconsistency, this procedural bar wi ll not preclude our consideration of the merits of these habeas claims. See, e.g., Gutierrez v. Moriarty , 922 F.2d 1464, 1469-71 (10th Cir. 1991) (holding state proce dural bar, which state courts had not strictly or regularly applied, did not prov ide adequate state law grounds precluding federal habeas review).

2. Merits Because both Woodruff and Romano had access to Sarf aty and did not have an alibi for the morning and early afternoon o f October 12, it was important to determine Sarfaty’s date of death. Sarfaty’s fr iend discovered the body late Tuesday night, October 15. At trial, the medical examiner, Dr. Choi, testified Sarfaty had been dead no less than two and no more than seven days. This would have included the time Woodruff and especially Romano had access to Sarfaty. Woodruff and Romano, on the other hand, argued thatSarfaty may have been dead less than two days, which would have precluded at least Romano’s opportunity to commit these crimes. Further, it is undisputed that the apartment’s temp erature is relevant to this time-of-death determination because it would affecthow quickly the body decomposed. And at trial, the medical experts reli ed at least in part on the decomposition rate to estimate the time of Sarfaty’ s death.-27-

Of course, date of death was not strictly based on the decomposition rate. There was other evidence suggesting Sarfaty died on October 12: The last time Celebrity Club employees saw Sarfaty, a nightly cus tomer, was early morning October 12. And police found the October 12 editio n of the newspaper open on Sarfaty’s couch, while the October 13, 14, and 15 e ditions were found delivered, but unopened, on his patio. On the other hand, the re was also evidence suggesting a later time of death--Sarfaty’s neighbo r testified that he saw Sarfaty arguing with a woman early Sunday morning, October 13. In any event, the evidence at trial concerning the temperature of Sarfaty’s apartment during the time in question included the following: Sarfaty’s friend discovered the body at approximately 11:00 P.M. Tue sday, October 15, and called police. Officer Tom Dale reported finding the body at approximately 1:00 A.M. Wednesday morning. Authorities, however, did not enter the apartment until 2:30 A.M. At that time, Officer Dale describ ed the apartment as “warm but not hot.” Two hours later, at approximately 4:30 A.M., the medical examiner’s investigator noted the apartment’s thermostat regis tered sixty degrees. The investigator believed Sarfaty had been dead two or three days. Relying on the investigator’s sixty-degree temperature, the medica l examiner testified Sarfaty had been dead no less than two and no more than sev en days, and most probably-28-

three to four days. Both the medical examiner and the investigator noted the body’s “moderate decomposition.” Almost nine years after Sarfaty’s murder, during th e sentencing stage of Woodruff’s retrial for the Thompson murder, Detecti ve Jerry Martin testified that when he entered Sarfaty’s apartment that morning, the apartment was “quite warm . . . probably about 80 degrees.” Detective M artin, however, indicated that he was just estimating that temperature. He had no t determined the temperature scientifically by, for example, checking the thermo stat. Nor was it Martin’s job specifically to note the apartment’s temperature; r ather, his responsibility at the crime scene was to investigate evidence outside the apartment, including interviewing neighbors. And Detective Martin neverrecorded his temperature observation in any written document or report. In light of these facts, the State challenges wheth er Detective Martin’s recollection of the apartment’s temperature, unreco rded and not recalled until nine years after the investigation, was in fact extant Brady material at the time of the Sarfaty trial. For purposes of these appeals, we will accept, without adopting, petitioners’ characterization of the detective’s temperature recollection as Brady material. Under Brady , therefore, Woodruff and Romano must establish that Detective Martin’s recollection was “favorable to t he accused, either because it is exculpatory, or because it is impeaching; [it] musthave been suppressed by the-29-

State, either willfully or inadvertently; and preju dice must have ensued.” Strickler v. Greene , 527 U.S. 263, 281-82 (1999). Although the state appellate court, in Woodruff’s s tate post-conviction proceeding, did address the newly discovered eviden ce of the apartment’s temperature, that court did not specifically address Woodruff’s Brady claim. See Woodruff , 910 P.2d at 350-51. Nor did that court address the merits of
Romano’s Brady claim, because it deemed Romano to have waived that issue.
See Romano , 917 P.2d at 15 n.2, 16. We, therefore, review these Brady claims de novo

. See Thomas , 218 F.3d at 1220. We review for clear error the federal district court’s factual findings, made in this cas e after an evidentiary hearing. See id.Detective Martin’s temperature estimate was not nec essarily exculpatory. It was not inconsistent with, but rather was merelycumulative of, Officer Dale’s testimony at the Sarfaty trial that the apartment w as “warm but not hot.” See Foster v. Ward , 182 F.3d 1177, 1192 (10th Cir. 1999), cert. denied , 120 S. Ct. 1438 (2000) (holding cumulative evidence, which added only marginally to defense, was not exculpatory). Using Detective Martin’s eighty-degree temperature estimate as their foundation, however, Woodruff and Romano presented, during their federal habeas proceedings, the testimony of three experts whose opinions support-30-

petitioners’ contention that Sarfaty had been dead only twelve to thirty hours before the body’s discovery. A thermodynamics expe rt, Dr. Sutton, conducted a study indicating the temperature in Sarfaty’s apartment during the days preceding the body’s discovery was approximately ni nety degrees. An anthropologist, Dr. Marks, testified that Sarfaty h ad probably been dead only thirty to forty-eight hours. And a Texas medical e xaminer thought Sarfaty had died no more than one and one-half days before his body was discovered, and “quite probably sooner than that.” Woodruff and Ro mano claim that, had they known about Detective Martin’s eighty-degree temper ature estimate earlier, they could have garnered and presented this expert testi mony at trial in support of their defense. Petitioners’ experts, however, predicated their tim e-of-death opinions on a more rapid decomposition rate, which in turn was ba sed upon Dr. Sutton’s thermodynamics study indicating the temperature in the apartment was actually around ninety degrees or more. If anything, then, Detective Martin’s eighty-degree estimate undercuts, rather than suppo rts, Dr. Sutton’s temperature estimate which, in turn, undercuts the premise of the decomposition experts’ testimony. Nonetheless, we will assume, for purposes of our an alysis here, that Detective Martin’s temperature estimate was favorab le to Woodruff and Romano.5 While the State had an open file policy, that polic y would not have revealed

Detective Martin’s undocumented and as yet unarticu lated opinion. Nevertheless, “defense counsel may reasonably rely on that file t o contain all materials the State is constitutionally obligated to disclose under Brady .” Strickler , 527 U.S. at 283 n.23. -31- We also assume that the State suppressed this evidence. 5 See, e.g., Strickler , 527 U.S. at 280-81 ( Brady includes information known only to police investigators and not to prosecutors). We, therefo re, need address here only whether the State’s suppression of Detective Martin ’s eighty-degree temperature estimate prejudiced Woodruff and Romano. Brady evidence will be material, and thus prejudicial, “ if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,” Strickler , 527 U.S. at 280 (further quotation omitted). The appropriate inqui ry, then, is whether, absent knowledge of Detective Martin’s eighty-degree tempe rature estimate, Woodruff and Romano received “a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Id. at 289-90 (further quotation omitted). Brady ’s prejudice inquiry is equivalent to the prejudice analysis that applies to an ineffective assistance of counsel claim under Strickland , 466 U.S.
668. See United States v. Bagley , 473 U.S. 667, 681-83 (1985) (separate opinion of Justice Blackmun); see also Kyles v. Whitley , 514 U.S. 419, 436 (1995). The state appellate court did not address the merits of petitioners’ Brady claims,-32-

deeming Romano’s claim procedurally barred and addr essing Woodruff’s claim only in terms of newly discovered evidence. We will, therefore, review Brady ’s materiality determination de novo, see Moore v. Gibson , 195 F.3d 1152, 1165 (10th Cir. 1999) (noting pre-AEDPA review of Brady materiality is de novo ), cert. denied , 120 S. Ct. 2206 (2000), just as we would Strickland ’s prejudice inquiry, see Smith v. Gibson , 197 F.3d 454, 461 (10th Cir. 1999), cert. denied , 121 S. Ct. 102 (2000). We also review for prejudice against the backdrop o f the other objective evidence pertaining to Sarfaty’s date of death. See Banks v. Reynolds , 54 F.3d 1508, 1518 (10th Cir. 1995) (determining materiality in light of entire record). The rate of decomposition, therefore, was not the s ole, or even the most compelling, evidence of the time of death. See Foster , 182 F.3d at 1192. Accordingly, the importance of the decomposition rate diminishes. In addition, Detective Martin’s recollection that the apartment’ s temperature was approximately eighty degrees was again not inconsis tent with Officer Dale’s testimony at the Sarfaty trial that the apartment w as warm, but not hot. Thus, the allegedly new material pertaining to the apartm ent’s temperature is largely cumulative of other evidence presented at trial. Additionally, Detective Martin’s temperature estimate is itself not entitled to much weight because it was based on the detectiv e’s unrecorded and-33-

subjective recall nine years after the investigatio n. The detective acknowledged his duties at the crime scene did not include recor ding the apartment’s temperature. Nor did Detective Martin objectively make that determination. He did not check his observation with the prevailing ambient temperatures during the period. Rather, his testimony concerning the apartment’s temperature represented merely an after-the-fact effort to recall an ancien t subjective impression of a detail upon which he did not focus even at the time . It is, therefore, of little relevance. Lastly, petitioners’ decomposition experts’ based their time-of-death opinions on Dr. Sutton’s conclusion that the apartm ent’s temperature remained at approximately ninety degrees. The district court, however, afforded Dr. Sutton’s testimony little weight, determining cross-examinat ion had exposed several weaknesses in his study and faulting his demeanor and manner of responding to questions posed at the evidentiary hearing. We mus t defer to the district court’s credibility determinations. See, e.g., Anderson v. City of Bessemer City , 470 U.S. 564, 575 (1985). For all of these reasons, we conclude the State’s f ailure to disclose Detective Martin’s temperature observation, even assuming it was extant Brady material, did not prejudice Woodruff’s and Romano’s defense.6 Giglio v. United States , 405 U.S. 150 (1972).

7 Although Woodruff also raises a habeas challenge to Myers’ testimony, that testimony was directed primarily against Roman o. In any event, because we determine Romano is not entitled to habeas relief o n this claim, Woodruff would not be, either. Woodruff further asserts that his trial attorney wa s ineffective for failing to investigate adequately whether Myers had a deal wit h prosecutors. As we have said, however, Myers’ testimony at sentencing had o nly very limited impact upon Woodruff. Myers’ testimony only indirectly linked Woodruff to Thompson’s (continued...) -34- D. Did the State violate Brady and Giglio 6 by failing to disclose its deal exchanging the favorable disposition of pendin g forged check charges against Greg Myers for Myers’ testimony in this cas e? Greg Myers, Romano’s former cellmate, testified dur ing sentencing that Romano admitted to Myers that Romano and his partne r had killed Lloyd Thompson, and Romano had then solicited Myers, every day for a week, to kill several witnesses in the Thompson case. After the Sarfaty trial, however, Myers recanted this testimony, asserting instead that Rom ano had never admitted any involvement in Thompson’s murder; neither had Roman o solicited Myers to kill any witnesses. According to Myers, he had testifie d falsely against Romano in exchange for the State’s favorable disposition of t hen pending felony bogus check charges against Myers. In this habeas procee ding, Romano challenges both the State’s failure to disclose its deal with Myers and Myers’ false testimony providing part of the basis for his death sentence. 77 (...continued)

murder. And it implicated only Romano in the schem e to have witnesses to that murder killed. Moreover, we affirm here the distri ct court’s factual finding that there was no deal between Myers and the State. Forthese reasons, Woodruff cannot establish the requisite prejudice to succeed on this ineffective-assistance claim. See Strickland , 466 U.S. at 687. -35- 1. Did the State fail to disclose a deal it had with Greg Myers? Romano shared a jail cell with Greg Myers during Oc tober and November 1985. Myers was at that time facing felony bogus c heck charges filed by the same district attorney’s office prosecuting Woodruf f and Romano. Because he had a prior felony conviction for committing lewd a cts with a child, Myers was concerned that he might be charged as a former felo n. If so, Myers faced a minimum ten-year prison sentence. See Okla. Stat. tit. 21, § 51(A)(1) (repealed effective July 1, 1999). When Myers bonded out of county jail, on approximat ely November 6, 1986, authorities transferred him to the Oklahoma C ity jail. There, Myers gave a detective a sworn statement against Romano and later met with those prosecuting the Thompson murder trial, District Att orney Bob Macy and Lou Keel. Myers subsequently testified against Romano during the Thompson trial. Just a few weeks after that, Myers pled guilty to the felony check charges and received a one-year deferred sentence, notwithstand ing the fact that, under Oklahoma law, he was not eligible to receive such asentence because of his-36-

previous felony conviction. See Okla. Stat. tit. 22, § 991c (subsequently amended). Several months later, Myers similarly te stified against Romano at the Sarfaty trial. During Romano’s Sarfaty direct appeal, however, Mye rs recanted his testimony, instead asserting that Romano had never admitted to Myers any involvement in Thompson’s murder; neither had Roman o ever solicited Myers to kill any witnesses. According to Myers, he had tes tified falsely against Romano in exchange for the State’s favorable disposition o f the then pending felony check charges. Romano challenged Myers’ testimony on direct appeal and in his state post-conviction proceedings. The state appellate c ourt did not specifically address the issue on direct appeal. In state post- conviction proceedings, the Oklahoma Court of Criminal Appeals denied relief wi thout benefit of an evidentiary hearing, noting, in part, that “[t]he i ssue of an alleged deal between the State and Greg Myers was raised at trial. Myer s’ attorney testified there was no deal. The prosecutor testified there was no dea l. The trial judge determined there was no deal.” Romano , 917 P.2d at 17. The trial court, during the Sarfaty sentencing proceeding, did conduct an in

camera hearing concerning the existence of a possible dea l. Contrary to the state appellate court’s determination, however, none of t he prosecutors testified during8 The transcript actually indicates that, in light of the evidence, the trial court could find that there was a deal. Nonetheless, the parties have consistently treated this as a typographical error, interpreting that passage to indicate instead that the trial court could not find that there had been a deal. This interpretat ion is consistent with the rest of the trial court’s remarks. -37- that in camera hearing. Only one of Myers’ two defense attorneys testified, and he stated only that he was not aware of any deal My ers had with prosecutors to testify against Romano, but that he had entered the case late and did not know what had occurred prior to that time. Romano’s att orney asserted to the trial court that she had spoken with Myers’ first defense attorney, but had not asked that attorney if she had helped arrange any deal be tween Myers and the State. And, although the trial court, at the conclusion of the in camera hearing, did indicate that it could not find, on that evidence, that Myers had a deal, the trial court did inform Romano’s attorney that she was fre e to recall Myers and ask him, in the jury’s presence, whether he had a deal. 8 This evidence does not support the state appellate court’s determination. See Jones , 206 F.3d at 953 (determining evidence did not support Oklahoma Court of Criminal Appeals’ finding that victim pleaded for his life). We, the refore, focus our habeas review on the federal district court’s denial of relief. The government must disclose any understanding or a greement it has with its witnesses. See Giglio , 405 U.S. at 150-51, 154-55. Nonetheless, the dis trict9 Because the district court already conducted a hear ing, we need not now

address whether Romano was entitled to an evidentiary hearing under 28 U.S.C. § 2254(e)(2). See Williams v. Taylor , 529 U.S. 420, 424, 437 (2000) (holding, under § 2254(e)(2), habeas petitioner who failed di ligently to pursue development of factual basis of habeas claim in state court mus t meet § 2254(e)(2)’s stringent requirements before being entitled to federal evide ntiary hearing). Romano did have an opportunity, at trial, to cross-examine Mye rs concerning whether he was testifying pursuant to a deal, but Romano failed to take advantage of that opportunity. And, while Romano did raise the possi bility that Myers had a deal during the trial’s in camera hearing, he did not diligently pursue that inquiry. See Smith , 235 F.3d at 1275 (noting, in dicta, habeas petiti oner had failed to develop, in state court, evidence supporting her claim that State did not disclose complete transcript of its interview with key government witness, where petitioner received state evidentiary hearing, but failed to present any evidence there supporting her transcript claim); see also Smallwood v. Gibson , 191 F.3d 1257, 1266 (10th Cir. 1999) (holding petitioner failed diligently to seekto develop factual basis of habeas claim where, although Oklahoma appellate cou rt invited petitioner to assert ineffective assistance claim, petitioner failed to do so), cert. denied , 121 S. Ct. 88 (2000). Nonetheless, since the district court held an evid entiary hearing and we have benefitted from that court’s fact findi ng, there is no utility at this time in addressing whether Romano was entitled to that hearing. Moreover, respondent, on appeal to this court, does not challenge the district court’s decision to hold an evidentiary hearing. See Weaver v. Thompson , 197 F.3d 359, 362 n.3 (9th Cir. 1999). -38- court, after conducting an evidentiary hearing, 9 found that there was no deal between Myers and the State. We review such factua l findings only for clear

error. See Thomas , 218 F.3d at 1220. Although, on this record, we r emain suspicious about whether Myers in fact had a deal w ith the State, particularly in light of the timing of these events and the signifi cant benefit Myers derived from avoiding a ten-year prison sentence when the State did not charge him as a former felon, we are unable to conclude the distric t court’s factual finding is10 The district court, alternatively, held that even i f the State had violated

Giglio and Brady by failing to disclose a deal it had with Myers, t here was no reasonable probability that, had such a deal been b rought to the sentencing jury’s attention, the jury would have returned a different sentencing determination. See, e.g., Foster , 182 F.3d at 1183, 1192 (applying same standard inpre-AEDPA case). Myers’ testimony strongly supported the State’s allegation that Romano presented a continuing threat to society. Althoughthe State did present other evidence that Romano was involved in Thompson’s mur der, Myers’ testimony that Romano, from his prison cell, had sought to have wi tnesses in the Thompson case murdered would have had to impact strongly the jury ’s continuing threat determination. See, e.g., Smith , 50 F.3d at 830 (holding police report was material where its nondisclosure clearly impacted d efense preparation and presentation and could reasonably have affected tri al’s outcome). -39- clearly erroneous. The district court heard testim ony directly from Myers, as well as the prosecutor and Myers’ first defense attorney . We must defer to the district court’s implicit credibility determination underlying its factual finding. See Smith , 197 F.3d at 459 (deferring to state court’s impli cit credibility determination); see also Smith v. Secretary of N.M. Dep’t of Corr. , 50 F.3d 801, 831 (10th Cir. 1995). On that basis, we affirm the district court’s denial of habeas relief. 10 2. Is Romano entitled to habeas relief because Myers recanted his testimony? After trial, Myers recanted his testimony, assertin g instead that Romano had never admitted any involvement in Thompson’s mu rder; neither had he solicited Myers to kill any witnesses. A prosecuto r’s knowing use of false testimony deprives a criminal defendant of due proc ess, warranting a new trial-40-

if there is a reasonable likelihood the false testi mony affected the judgment.
See Giglio , 405 U.S. at 153-54, citing cases; see also Kyles , 514 U.S. at 433 & n.7; Bagley , 473 U.S. at 678-79 & 679 nn.8, 9, citing cases. Even assuming the truth of Myers’ recantation, however, Romano ha s failed to assert any evidence indicating prosecutors knew Myers’ testimony was false. See, e.g., Van Woudenberg ex rel. Foor v. Gibson , 211 F.3d 560, 569 (10th Cir. 2000), petition for cert. filed , (U.S. Dec. 8, 2000) (No. 00-7387); Smith , 197 F.3d
at 459-60. E. Was there sufficient evidence to support the espec ially heinous, atrocious or cruel aggravating factor? Woodruff and Romano challenge the sufficiency of th e evidence supporting the jury’s finding that Sarfaty’s murderwas especially heinous, atrocious or cruel. The question presented is whet her the evidence of what Woodruff and Romano did was sufficient to satisfy aconstitutional aggravating circumstance. A constitutional aggravating factor channels and limits the capital “sentencer’s discretion in imposing the death penal ty” in order to minimize sufficiently the risk of “wholly arbitrary and capricious action.” Maynard v. Cartwright , 486 U.S. 356, 362 (1988). It must provide a prin cipled means by which a sentencer can distinguish between those mur ders warranting a death sentence and those that do not. See id. at 363. In Cartwright , the Supreme Court-41-

held that Oklahoma’s especially heinous, atrocious or cruel aggravating factor was unconstitutionally vague and overbroad because it failed to give a capital sentencer sufficient guidance--“an ordinary person could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous.’” Id. at 363-64; see also, e.g., Medlock v. Ward , 200 F.3d 1314, 1321 (10th Cir.), cert. denied , 121 S. Ct. 197 (2000). Oklahoma subsequently narrowed the application of t his aggravator to only cases involving torture or serious physical abuse. See Stouffer v. State , 742 P.2d 562, 563 (Okla. Crim. App. 1987). The Supreme Court held that was one means by which Oklahoma could constitutionally narrow this aggravating factor. See Cartwright , 486 U.S. at 364-65. Oklahoma has since further refined that narrowing. A murder is especially heinous, atrocious or cruel under Oklahoma law if i t is “preceded by torture or serious physical abuse. Torture includes the infli ction of either great physical anguish or extreme mental cruelty, while physical abuse requires evidence of conscious physical suffering.” Hale , 227 F.3d at 1335 (further quotation, citations omitted); see also, e.g., Thomas , 218 F.3d at 1226-27, citing cases. We have upheld the facial validity of this aggravat ing factor, as thus narrowed. See, e.g. , Medlock , 200 F.3d at 1321.-42-

Recent Oklahoma cases, however, have begun to blur the common understanding of the requisite torture and consciou s serious physical suffering, more and more often finding the existence of these elements in almost every murder. See, e.g., Fluke v. State , 14 P.3d 565, 568 & n.9 (Okla. Crim. App. 2000) (noting evidence that victim was aware of att ack is sufficient to show torture, citing cases); Washington v. State , 989 P.2d 960, 974-75 (Okla. Crim. App. 1999) (holding sufficient evidence supported t his aggravator where victim may have consciously suffered for less than one min ute after defendant shot her eight times during brief encounter). There is cert ainly a concern that Oklahoma’s interpretation of its narrowing language could agai n render this aggravating factor unconstitutional. See Thomas , 218 F.3d at 1228 & n.17; see also Medlock , 200 F.3d at 1324 (Lucero, J., concurring) (noting that if Oklahoma permitted capital sentencers to find the especially heinous, atrocious or cruel aggravator, “based merely on the brief period of conscious suff ering necessarily present in virtually all murders [it] would fail to narrow the sentencer’s discretion” as constitutionally required, citing Godfrey v. Georgia , 446 U.S. 420 (1980)). This court, for example, noted in Thomas that Oklahoma’s application of the especially heinous, atrocious or cruel aggravating factor in cases where there is evidence of multiple injuries, but no other evidenc e of conscious suffering, raised “serious constitutional questions about whether Okl ahoma’s heinous, atrocious,-43-

or cruel aggravator legitimately narrows the class of those eligible for death.” Id.
at 1228 n.17. In this case, however, petitioners’ challenge to th is aggravating circumstance is an evidentiary one. Jackson ’s rational factfinder standard, therefore, governs our review. See, e.g., Hale , 227 F.3d at 1335. The issue thus presented is whether there was sufficient evidence to meet the especially heinous, atrocious or cruel aggravating factor, as Oklahoma has constitutionally narrowed that aggravator. Although the trial evidence does not compel a jury finding of torture or conscious serious physical abuse, we, ne vertheless, conclude that the evidence is constitutionally sufficient. Here, there is evidence Sarfaty suffered abrasions and scrapes, prior to his death, on his left knee and shin, right elbow and b ack, indicating a struggle did take place. Further, Sarfaty’s wrists and ankles w ere bound; he was injured due to the force with which his limbs were tied. The f act that Sarfaty’s killers bound his arms and legs is evidence in this case that he was conscious during at least part of the attack; there would be no need to bind a dead person, although there could be a motive to bind an unconscious person to guard against the possibility that the person would regain consciousness. Further, Sarfaty suffered a number of nonlethal wou nds, which the jury could have concluded preceded his loss of consciousness and death. But see-44-

Thomas , 218 F.3d at 1227-29 & 1229 n.17 (rejecting infere nce that, because killer inflicted multiple blows, victim had to be c onscious during part of attack, where there was no evidence victim consciously suff ered and two wounds were in fact postmortem). The medical examiner, Dr. Cho i, testified that Sarfaty died of strangulation by ligature. It would have taken a minimum of three minutes for Sarfaty to be strangled to death, and two to three minutes before he would lose consciousness from the strangulation. Sarfaty also suffered five stab wounds, two of whic h were to the heart and potentially fatal, and five or six blows to the hea d, lacerating his scalp. While the wounds to the head could have caused immediate loss of consciousness and the injuries to the heart could have been immediate ly fatal, the evidence supported an inference that Sarfaty was strangled p rior to the infliction of these wounds. According to Dr. Choi, she would have expe cted a great loss of blood from Sarfaty’s stab wounds and the wounds to his he ad if he were alive at the time those wounds were administered, yet in this ca se there was very little bleeding from those wounds. Dr. Choi testified that, although this absence of bleeding could result from the stab wounds to the h eart immediately stopping its beating, it was more likely because Sarfaty’s hearthad been stopped or slowed, and the body sent into shock, due to the earlier st rangulation. This evidence would support a finding that Sarfaty consciously su ffered serious physical abuse.11 We reach the same result under either § 2254(d)(1) or (2). See, e.g. , Hale ,

227 F.3d at 1335 n.17. -45- Further, this evidence could also support the infer ence that Sarfaty’s killers bound and tortured him, perhaps in an effort to gethim to reveal the location of his money and valuable jewelry. Although this evidence does not compel these inferences, the evidence permits them. In light of this record, therefore, the state appellate court’s decisions upholding the jury’s fi nding this aggravating factor,
see Romano , 847 P.2d at 386-87; Woodruff , 846 P.2d at 1146-47, were not unreasonable. See 28 U.S.C. § 2254(d); 11 cf. Thomas , 218 F.3d at 1226-29 (holding no reasonable factfinder could have found murder was especially heinous, atrocious or cruel where, although victim suffered severe beating, there was no evidence of struggle or defensive wounds, an d no evidence indicating order in which killer inflicted wounds). F. Was there sufficient evidence supporting the conti nuing threat aggravating factor? Romano asserts there was insufficient evidence to s upport the jury’s finding that there was a probability that he would commit future violent criminal acts such that he should be considered a continuing threat to society. The question presented is whether, viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact coul d have found this aggravating-46-

factor beyond a reasonable doubt. See, e.g. , LaFevers , 182 F.3d at 723 (citing, e.g., Jackson , 443 U.S. 307). Although Romano presents this as an evidentiary iss ue, there is also a legal question subsumed within that evidentiary challenge . Romano’s argument suggests that the continuing threat aggravator shou ld be evaluated only within the context of a prison population. Oklahoma courts, h owever, have held that this aggravating factor is not limited to the threat Rom ano poses within a prison population. See Salazar v. State , 973 P.2d 315, 326 (Okla. Crim. App. 1998) (noting continuing threat aggravator is not limitedto any particular segment of society), cert. denied , 528 U.S. 895 (1999); see also, e.g., McCarty v. State , 977 P.2d 1116, 1137 (Okla. Crim. App. 1998). That is especially true here, where one of the sentencing options before the jury was life imprisonment, which admits the possibility Romano might someday o btain his release on parole. Myers’ testimony that Romano solicited him to kill witnesses indicates Romano may present a continuing threat, within, as well as outside, a prison population. As so construed, the evidence was more than suffici ent to support the jury’s factual determination. In addition to Myers ’ testimony, the evidence indicated that Romano, with Woodruff, robbed and mu rdered another of Romano’s acquaintances, Lloyd Thompson. In light o f this evidence of other dangerous criminal conduct, as well as the facts of Sarfaty’s murder, the state-47-

appellate court’s determination that there was suff icient evidence to support this aggravating factor, see Romano , 847 P.2d at 389, 394, was not unreasonable under either 28 U.S.C. § 2254(d)(1) or (2), see, e.g. , Hale, 227 F.3d at 1335 n.17. See also, e.g. , Van Woudenberg , 211 F.3d at 574. G. Did the State’s charging Romano with the continuin g threat aggravating factor violate double jeopardy? In the first Thompson trial, the capital sentencing jury rejected the aggravating factor that Woodruff and Romano present ed continuing threats to society. During the Sarfaty trial, the State again charged, and the jury this time found, that both petitioners were continuing threat s to society. Romano asserts the State’s charging him with the continuing threataggravator in the Sarfaty murder prosecution violated double jeopardy because the first Thompson jury, having heard essentially the same evidence presente d in the Sarfaty trial, previously rejected that aggravating factor. The Supreme Court rejected a similar argument in Poland v. Arizona , 476 U.S. 147 (1986). In Poland , the Court determined the relevant inquiry, in applying the Double Jeopardy Clause to a capital se ntencing proceeding, is “whether the sentenc[er] or the reviewing court has ‘decid[ed] that the prosecution has not proved its case’ for the death penalty and hence has ‘acquitted’ petitioner[].” Id. at 154 (quoting Bullington v. Missouri , 451 U.S.-48-

430, 443 (1981)); see also id. at 155; Osborn v. Shillinger , 997 F.2d 1324, 1327-28 (10th Cir. 1993). The Court rejected the p remise that “a capital sentencer’s failure to find a particular aggravatin g circumstance alleged by the prosecution always constitutes an ‘acquittal’ of th at circumstance for double jeopardy purposes.” Poland , 476 U.S. at 155. “Aggravating circumstances are not separate penalties or offenses, but are ‘standards to guide the making of [the] choice’ between the alternative verdicts of death and life imprisonment.” Id. at 156 (quoting Bullington , 451 U.S. at 438); see also Walton v. Arizona , 497 U.S. 639, 648 (1990). Like the Arizona capital sentencing scheme at issue in Poland , under Oklahoma law, the capital sentencer’s “find ing of any particular aggravating circumstance does not of itself ‘convict’ a defendant ( i.e. , require the death penalty), and the failure to find any particu lar aggravating circumstance does not ‘acquit’ a defendant ( i.e. , preclude the death penalty).” Poland , 476 U.S. at 156. In further support of this habeas claim, Romano relies in part on Ashe v.
Swenson , 397 U.S. 436, 444-46 & 445 n.10 (1970), holding d ouble jeopardy includes the concept of collateral estoppel. See also Schiro v. Farley , 510 U.S. 222, 232 (1994). “[W]hen an issue of ultimate fact has once been determined by a valid and final judgment,” collateral estoppel pr ecludes the same parties from litigating that same issue in any future lawsuit. Ashe , 397 U.S. at 443. We need-49-

not explore this argument in detail, however, becau se the first Thompson trial, upon which Romano relies, was not a “valid and fina l” judgment; rather, the state appellate court overturned the jury’s decision in that case because the state court erred in jointly trying Woodruff and Romano. See United States v. Lacey , 982 F.2d 410, 412 (10th Cir. 1992) (judgment has no pre clusive effect, for res judicata and collateral estoppel purposes, if it ha s been vacated, reversed or set aside) ; see also, e.g., United States v. Sackett , 114 F.3d 1050, 1052 (10th Cir. 1997) (state judgment that had been set aside had n o preclusive effect in federal civil action); In re Hedged-Investments Assocs., Inc. (Sender v. N ancy Elizabeth R. Heggland Family Trust) , 48 F.3d 470, 472-73 (10th Cir. 1995) (no final judgment existed, as required by collateral estoppe l, where earlier decision had been reversed on appeal). See generally Schiro , 510 U.S. at 232 (holding preclusive effect of the state court’s judgment, in a habeas action, is matter of federal law). Collateral estoppel principles, ther efore, do not support Romano’s claim for relief. See Goff v. United States , 446 F.2d 623, 627 (10th Cir. 1971).
H. Was there sufficient evidence that Romano killed S arfaty to avoid arrest or prosecution? Under Oklahoma law, the focus of this aggravator is on the defendant’s intent, which can be proved either by his own state ments or through circumstantial evidence. See, e.g. , Hale , 227 F.3d at 1334. Additionally,-50-

Oklahoma requires proof of a predicate crime, otherthan the murder, for which the defendant seeks to avoid arrest or prosecution. See id. The state appellate court’s determination that there was sufficient evi dence to support this aggravating factor, see Romano , 847 P.2d at 387, was reasonable under either 28 U.S.C. § 2254(d)(1) or (2). See Hale , 227 F.3d at 1335 n.17. Tracy Greggs testified that Romano asked him to hel p rob Sarfaty. Romano further told Greggs that Romano would have t o kill Sarfaty because he knew and could identify Romano. Although Romano challenged Greggs’ credibility, the jury appropriately resolved that dispute. See, e.g., Valdez , 219 F.3d at 1238 & n.4. Furthermore, Sarfaty’s robbery provides the requis ite predicate crime for which Romano sought to avoid arrest or prosecution. There is, therefore, ample evidence to support this aggravating factor. See, e.g, Hale , 227 F.3d at 1334-35; LaFevers , 182 F.3d at 723; Moore v. Reynolds , 153 F.3d 1086, 1115 (10th Cir. 1998). I. Was the failure of Woodruff’s attorney to investig ate and present mitigating evidence at the sentencing stage such that Woodruff received ineffective representation? Woodruff argues there was mitigating evidence, not presented during sentencing, that his natural mother abandoned him at age eighteen months and his natural father’s girlfriend then gave him away to acustomer at the coffee shop-51-

where she worked. Further, at the time the Woodruf fs adopted petitioner, there was evidence of cigarette burns on his legs and diaper area. His natural mother had abused alcohol during her pregnancy with him an d, as a toddler, he had almost drowned while left in the care of his seven- year-old brother. Woodruff also contends trial counsel should have had Woodruf f’s mental health evaluated because such an exam would have shown that he had b rain damage and a fourteen year old’s reasoning ability, was a follower ratherthan a leader, and would not pose a threat while in a structured prison environm ent. Woodruff now argues his attorney’s failure to investigate and present this evidence amounted to ineffective assistance of counsel. The Oklahoma Court of Criminal Appeals held Woodruf f had waived this claim because he failed to raise it on direct appeal. See Woodruff , 910 P.2d at 351-52. Contrary to respondent’s assertion, howeve r, the trial record before the state appellate court on direct appeal did not cont ain sufficient evidence concerning either the extent of defense counsel’s s entencing preparation or the additional evidence Woodruff asserts counsel shouldhave discovered and presented. The State’s procedural bar, therefore, is inadequate to preclude federal habeas review. See English v. Cody , 146 F.3d 1257, 1264 (10th Cir. 1998); see also McGregor v. Gibson , 219 F.3d 1245, 1252-53 (10th Cir. 2000), reh’g granted on other grounds . Because the state appellate court did not addres s the-52-

merits of Woodruff’s ineffective assistance claim, our review is de novo

. See Thomas , 218 F.3d at 1220 ; Smith , 197 F.3d at 461. The sentencing stage is the most critical phase of a death penalty case. Any competent counsel knows the importance of thoroughl y investigating and presenting mitigating evidence. “As a practical matter, the defendant probably has little or no chance of avoiding the death sente nce unless the defense counsel gives the jury something to counter both the horrorof the crime and the limited information the prosecution has introduced about th e defendant.” Jonathon P. Tomes, Damned If You Do, Damned If You Don’t: The Use of Mitigation Experts in Death Penalty Litigation , 24 Am. J. Crim. L. 359, 364 (1997). Mitigating evidence plays an overwhelmingly important role in the “just imposition of the death penalty.” Mayes , 210 F.3d at 1288. It “affords an opportunity to humanize and explain -- to individualize a defendant outside the constraints of the normal rules of evidence.” Id. In light of its importance, investigation and pre paration of a case in mitigation should begin prior to trial , well before any determination of guilt at the first stage. See Williams , 529 U.S. at 395 (noting counsel’s deficient preparation for sentencing did not begin until one week prior to trial). To prevail here on this ineffective assistance claim, Strickland requires Woodruff to establish that counsel’s deficient perf ormance prejudiced Woodruff’s-53-

defense. See Strickland , 466 U.S. at 687. The “ultimate focus of inquiry mu st be on the fundamental fairness” of the challenged proceeding. Id. at 696. Counsel’s representation will be constitutionally d eficient if it “fell below an objective standard of reasonableness,” measured “under prevailing professional norms,” and considered in light of all of the circumstances. Id. at 688. “Judicial scrutiny of counsel’s performance must be highly de ferential[,]” making every effort “to eliminate the distorting effects of hind sight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689. We “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome th e presumption that, under the circumstances, the challenged action might be consi dered sound trial strategy.” Id. (further quotation omitted). To establish prejudice, Woodruff must show there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Woodruff need not, however, go so far as to establish that counse l’s deficient performance “more likely than not altered the outcome.” Nix v. Whiteside , 475 U.S. 157, 175 (1986); see also Strickland , 466 U.S. at 693. In the context of a capital sen tencing12 Although the district court did not address whethercounsel’s performance

was deficient, this court is free to affirm on any basis supported by the record. See United States v. Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). -54- proceeding, the relevant inquiry is “whether there is a reasonable probability that, absent the errors, the sentencer . . . would have c oncluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland , 466
U.S. at 695. This court can affirm the denial of habeas relief on whichever Strickland prong is the easier to resolve. See Smith v. Robbins , 528 U.S. 259, 286 n.14 (2000) (citing Strickland , 466 U.S. at 697). Here, we determine trial couns el’s performance was not deficient. 12 “Because [the adversarial] testing process generall y will not function properly unless defense counsel has done some inves tigation into the prosecution’s case and into various defense strateg ies, . . . ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’” Kimmelman v. Morrison , 477 U.S. 365, 384 (1986) (quoting Strickland , 466 U.S. at 691). “[S]trategic choices made afte r thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland , 466 U.S. at 690. “[A]nd strategic choices made after less than complete investigation are reasonab le precisely to the extent that-55-

reasonable professional judgments support the limit ations on investigation.” Id. at 690-91. Nonetheless, “[t]he reasonableness of counsel’s act ions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly , on informed strategic choices made by the defendant and on information supplied by the defendant.” Id. at 691; see also, e.g. , James v. Gibson , 211 F.3d 543, 557 (10th Cir. 2000), cert. denied , 121 S. Ct. 886 (2001); Wallace v. Ward , 191 F.3d 1235, 1247 (10th Cir. 1999), cert. denied, 120 S. Ct. 2222 (2000). In this case, Woodruff in structed his attorney not to have his parents and friends testif y. Although trial counsel has an independent duty to investigate and make a case in mitigation, counsel also has to be responsive to the wishes of his client, see Wallace , 191 F.3d at 1247-48 (holding counsel’s performance during capital sente ncing proceeding was not deficient, where counsel acquiesced in petitioner’s wishes not to present any mitigating evidence or challenge State’s evidence). In any event, notwithstanding Woodruff’s wishes, tr ial counsel did present a significant amount of mitigating evidence on Wood ruff’s behalf, including the testimony of a family friend, Woodruff’s mother andhis girlfriend. The family friend testified about Woodruff’s Little League act ivities as a youth, his love and concern for the witness’s children, and Woodruff’s carpentry work with his-56-

adoptive father. Woodruff’s girlfriend also testif ied about Woodruff’s love for children and for people in general, as well as his work history, his training as a gemologist and the fact that he had never harmed he r, nor had she seen him harm anyone else. Woodruff’s mother testified that she and her husband adopted Woodruff at age eighteen months and that she had ne ver met his natural parents. She asserted that he had a “very normal upbringing. ” She also described Woodruff’s anguish upon discovering, at age eightee n, that he was adopted. Woodruff himself related details concerning his chi ldhood, schooling, sports activities, work history, military service, gemology training and his love of children. He described his childhood as “outstandi ng.” He further explained to the jury his difficulty coping with the discovery t hat he was adopted. He informed the jury that he did not like having his f riends and family testifying on his behalf and that his defense attorney had presented what mitigating testimony he had against Woodruff’s wishes. The childhood evidence Woodruff now wishes his atto rney had presented was potentially in tension with his attorney’s logi cal strategy to portray Woodruff’s childhood as normal and happy. Showing a dysfunctional and difficult childhood basically asks a jury not to ho ld a defendant responsible for his own dysfunctional or antisocial conduct. On th e other hand, showing a defendant had a normal and socially acceptable ba ckground goes toward-57-

showing the defendant does not present a continuing threat to society because his baseline personality is not antisocial. Counsel’s strategic choice here to portray Woodruff’s childhood as normal and happy was “well within the range of professionally reasonable judgments.” Strickland , 466 U.S. at 699. That reasonable strategic choice justifies counsel’s fai lure to search further for any information of a possibly dysfunctional background. See id. Moreover, nothing in the record would have reasonab ly required a prudent attorney to do the additional investigation Woodruff now suggests. See Mayes , 210 F.3d at 1289 n.3 (holding counsel’s failure to obtain psychiatric evaluation did not amount to deficient performance where there was nothing in record that would have caused reasonable attorney to believe pe titioner’s mental condition was potentially mitigating factor). Through his pr etrial preparation, counsel did discover that Woodruff had been adopted, but both W oodruff and his mother asserted he had a happy and normal childhood. Noth ing the attorney knew suggested an abusive childhood prior to the adoption. See Strickland , 466 U.S. at 691 (noting where petitioner has given counsel fact s concerning potential defense or reason to believe pursuing further investigationwould be fruitless, petitioner may not later challenge reasonableness of counsel’s failure to investigate those matters further).-58-

Nor did counsel’s failure to pursue further psychiatric evaluation amount to deficient performance. See Mayes , 210 F.3d at 1289 n.3. There was no indication, at the time of trial, that a mental status exam would produce mitigating evidence. A report compiled during a competency ev aluation prior to his first trial indicated he did not suffer from any psychiat ric disorders and his test results at that time appeared normal. Considering all of the above, we do not believe that the lawyer’s failure to investigate Woodruff’s adoption and to obtain a psy chiatric evaluation was “‘outside the wide range of professionally competent assistance.’ He ‘has made no showing that the justice of his sentence was ren dered unreliable by a breakdown in the adversary process caused by defi ciencies in counsel’s assistance.’” Burger v. Kemp , 483 U.S. 776, 795-96 (1987) (quoting Strickland , 466 U.S. at 690, 700).

IV. CONCLUSION For the reasons stated above, we, therefore, AFFIRMthe district court’s denial of habeas relief on Woodruff’s and Romano’s first degree murder and armed robbery convictions and their resulting deathsentences.