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

### MAR 30 2001 

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

TENTH CIRCUIT

RICHARD NORMAN ROJEM,

Petitioner-Appellee/ Cross-Appellant,

v. GARY GIBSON, Warden, Oklahoma State Penitentiary,

Respondent-Appellant/ Cross-Appellee. Nos. 00-6056 & 00-6060

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

(D.C. No. CIV 96-CV-1337-M)
K. Leslie Delk, Norman, Oklahoma, for Petitioner-Ap pellee/Cross-Appellant. Seth S. Branham, Assistant Attorney General (W.A. D rew Edmondson, Attorney General of Oklahoma with him on the briefs), Oklaho ma City, Oklahoma, for Respondent-Appellant/Cross-Appellee.

Before TACHA , Chief Judge, BALDOCK , and LUCERO , Circuit Judges.

BALDOCK , Circuit Judge.-2-

Richard Norman Rojem was convicted of the first deg ree rape, kidnaping and murder of seven-year-old Layla Dawn Cummings, h is former step-daughter. He received the death penalty for the murder and on e thousand years’ imprisonment for both the kidnaping and rape. The Oklahoma Court of Criminal Appeals affirmed on direct appeal, Rojem v. State , 753 P.2d 359 (Okla. Crim. App.), cert. denied , 488 U.S. 900 (1988), and denied post-conviction r elief, Rojem v. State , 829 P.2d 683 (Okla. Crim. App.), cert. denied , 506 U.S. 958 (1992); Rojem v. State , 925 P.2d 70 (Okla. Crim. App. 1996). On federal habeas corpus review, see 28 U.S.C. § 2254, the district court upheld the convictions, but conditionally granted relief from the death sentenc e because the trial court failed to instruct the jury to weigh the aggravating and m itigating evidence when deciding whether to impose the death penalty. Both parties appeal. We affirm.
FACTS Between 10:00 p.m. on July 6, 1984, and 1:15 a.m. o n July 7, Layla was abducted from the apartment where she lived with he r mother, Mindy Cummings, and her brother, Jason Cummings. Rick Quimby, who worked at a motel across the street, notified Mindy at work that when he wen t to check on the children Layla was missing. Jason went to sleep when his mo ther went to work, but he woke up when he heard a noise. He testified that h e heard no cries or struggle but1 Rojem’s nickname was Rick. -3-

saw “Rick.” 1 Don Cummings, Layla’s and Jason’s father, testifi ed that Jason told him he thought Layla was with “Rick,” but he did no t see or hear anything. A farmer found Layla’s body in a field the morning of July 7. She died of stab wounds to her neck. She also had been stabbedin the vaginal area. There was blood on the crotch area of her nightgown, and blood had soaked the soil two to three inches under her neck and chest. Her butt ocks skin was torn, consistent with fingernail scratches. There was blunt force t rauma to her hymen, but no sperm were found in her body. Most evidence connecting Rojem to the crime was cir cumstantial. He recently had been divorced from Mindy and had triedto reconcile with her. He knew her work schedule and of the broken lock to th e apartment door. A plastic cup with his fingerprint on it was found near the apartment. Upon leaving a bar between 11:50 p.m and 12:20 a.m., his beer had been placed in a similar cup. At 1:14 a.m., Rojem called his employer and asked the dispatcher to log the call at 12:35 a.m. Later, he requested the call be logged at the correct time. The police found the outer wrappings of a condom inthe folds of Layla’s nightgown. Also at the crime scene was an order fo rm packed with that brand of condoms. When police searched Rojem’s room, they f ound a condom package and a used condom containing semen. All of this am ounted to one complete-4-

condom package. This common brand of condoms was s old in a dispenser in the restroom at the bar where Rojem had been. He had g one to the restroom immediately before leaving the bar. Tire track impressions near the body were consistent with the two rear tires and one front tire on Rojem’s car. The other fronttire track impression was inconsistent with the corresponding tire on Rojem’s car. The State, however, presented evidence that Rojem had changed that tire the morning of July 7. That tire was a fourteen inch radial, whereas the others were fifteen inch non-radials. Rojem had asked a co-worker to tell police that the co-worker and another had changed Rojem’s tire after a blowout. Rojem to ld the co-worker that “‘[t]he police have got a tire and it may be the tire they put me in jail with’” and if the co-worker did not tell he had changed a tire it wou ld be “capital punishment” and “two lives instead of one.” Tr. vol. II at 211-12. The co-worker refused to lie. Rojem told another co-worker that his car was used in a homicide and that he had the car the whole time.
STANDARD OF REVIEW The Antiterrorism and Effective Death Penalty Act o f 1996 (AEDPA) applies to this appeal. See Williams v. Taylor , 529 U.S. 362, 402 (2000). Under AEDPA, if a claim is adjudicated on its merits in s tate court, a petitioner is entitled to federal habeas relief only if he can es tablish that the state court2 OUJI-CR 440 (now OUJI-CR 4-80) provided: “If you u nanimously find

that one or more of the aggravating circumstances e xisted beyond a reasonable doubt, unless you also unanimously find that any su ch aggravating circumstance or circumstances outweigh the finding of one or mor e mitigating circumstances, the death penalty shall not be imposed.”

-5- decision “was contrary to, or involved an unreasonable application of, clearly established” Supreme Court precedent or “was based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1), (2). We presume state court factual findings are correct, absent clear and convincing evidence rebutting that presumption. Id. § 2254(e)(1). “If [a] claim was not heard on the merits by the state courts, and the federal district court made its own determination in the first insta nce, [this court] review[s] the district court’s conclusions of law de novo and its findings of fact, if any, for clear error.” LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999).
APPEAL NO. 00-6056 The trial court failed to give the Oklahoma uniform jury instruction 2 directing the jury to weigh the aggravating and mit igating circumstances when deciding whether to impose the death penalty. The federal district court held the failure to provide this instruction denied Rojem hi s Eighth Amendment right to a reliable sentence and his Fourteenth Amendment right to due process. The court therefore ordered the State to provide Rojem with anew capital-sentencing3 Because the state appellate court considered this c laim on its merits, we do

not consider whether appellate counsel was ineffect ive for failing to raise this claim until rehearing. -6- proceeding. The State argues that despite the omis sion of this instruction, the instructions actually given and the context of the entire trial show no reasonable probability the jury applied the instructions in a way that allowed it to ignore mitigating evidence, act outside the scope of its s entencing authority, or sentence Rojem to death without determining the aggravating circumstances outweighed the mitigating evidence. On direct appeal rehearing, Rojem first argued the trial court violated his constitutional rights by failing to give the weighi ng instruction. After determining Rojem waived this claim because he fail ed to raise it on direct appeal, the Oklahoma Court of Criminal Appeals then rejected it on its merits. 3 Citing only Davis v. State , 665 P.2d 1186, 1203-04 (Okla. Crim. App. 1983), the court decided the instructions properly informed th e jury it was authorized to consider imposing the death penalty if it found agg ravating circumstances and allowed the jury to fairly consider life or death p unishment.
Davis , however, is distinguishable. The trial court in that case gave a proper weighing instruction. Id. at 1202. The federal district court found that Oklahoma law requires a weighing instruction and its omission violated the Fourteenth Amendment, allowing the-7-

jury to act outside the scope of its statutory auth ority and permitting it to sentence Rojem to death without finding the aggravating circ umstances outweighed the mitigating circumstances. The court interpreted th e entire instructions as indicating the jury could sentence Rojem to death o nce it unanimously agreed upon the existence of at least one aggravating circ umstance. Without a weighing instruction, the court determined the mitigating in struction suggested consideration of mitigating circumstances was optio nal. Also, the court decided the instruction informing the jury to record the ag gravating circumstances it found may have suggested to the jury the aggravators, notthe mitigators, were the important consideration. The court found no refere nce to a weighing requirement anywhere in the trial transcript which could have p ossibly cured the omission. In addition, the court found an Eighth Amendment vi olation because there was a reasonable likelihood the jury applied the in structions in a way that it was prevented from considering the mitigating evidence and in fact failed to consider Rojem’s constitutionally relevant mitigating eviden ce. The court noted the second-stage instructions did not inform the jury i t should consider all evidence. Furthermore, it found no clarification of the jury’ s obligation to consider mitigating evidence within the entire context of th e trial and the mitigating evidence, comprising only twenty-nine pages of the transcript, was not so-8-

voluminous that there could be no reasonable likeli hood the jury failed to consider it. The State argues the district court’s finding of anEighth Amendment violation is contrary to Boyde v. California , 494 U.S. 370 (1990), and Buchanan v. Angelone , 522 U.S. 269 (1998). Rather, it maintains there is no reasonable likelihood the jury applied the instructions in a w ay that prevented consideration of constitutionally relevant mitigating evidence. The State points to instructions permitting the jury to select life imprisonment, ev en upon a finding of aggravating circumstances; authorizing the jury to consider imposing a death sentence only upon a unanimous finding of one or mo re aggravators; defining mitigating circumstances as “those which, in fairne ss and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame,” O.R. vol. II at 575; and informing the jury it mustdecide what circumstances are mitigating under the facts and circumstances of the case. Also, the State suggests the jury received indirect instruction to consider all of the evidence in reaching its decision. See id. at 573 (Instruction No. 3: “If, upon consideratio n of all the evidence, facts, and circumstances in the case, you entertain a reasonable doubt of the guilt of the defendant of the charges made agai nst him in the Bill of Particulars, you must give him the benefit of that doubt and return a sentence of life imprisonment.”), 577 (instructing jury to cons ider all appropriate first-stage-9-

instructions, which required jury to consider all e vidence before making guilt decision). Additionally, the State suggests the co ntext of the proceedings, along with the mitigation evidence and Rojem’s counsel’s closing argument that Rojem should receive a life sentence, led the jury to con sider Rojem’s background and character in making its sentencing decision. “The Eighth Amendment requires that the jury be abl e to consider and give effect to all relevant mitigating evidence offered by petitioner.” Boyde , 494 U.S. at 377-78. The standard for determining whether th e jury instructions, which must be viewed in total, Cupp v. Naughten , 414 U.S. 141, 146-47 (1973), satisfy these principles is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that pr events the consideration of constitutionally relevant evidence,” Boyde , 494 U.S. at 380; see also Buchanan , 522 U.S. at 276. A state, however, need not struct ure in a particular way the manner in which juries consider mitigating evidence. Buchanan , 522 U.S. at 276. The instructions here only expressly directed the j ury to base its sentencing decision on all of the evidence when considering wh ether the aggravators listed in the Bill of Particulars had been proven. Cf. id. at 277 (instructing jurors to consider all evidence gave them opportunity to cons ider mitigating evidence). No instructions required the jury in this case to cons ider the mitigating evidence. Nor did the entire context in which the trial courtgave the instructions expressly-10-

inform the jury to consider mitigating evidence. See id. at 278; Boyde , 494 U.S. at 383. We agree with the language in Boyde , 494 U.S. at 384, that counsel’s argument to spare Rojem’s life probably carried les s weight with the jury than the court’s instructions. In addition, the defense didnot present extensive mitigating evidence. Cf. Buchanan , 522 U.S. at 278 (two days of mitigation testimony ); Boyde , 494 U.S. at 383 (four days of mitigation testimony). And even the presentation of that evidence did not guarantee the “jury w[ould] feel entitled to consider” it. Boyde , 494 U.S. at 384. Rather, the jury must have a me ans to consider and give effect to the mitigating evidence. See Penry v. Lynaugh , 492 U.S. 302, 319 (1989). The trial court did not provide clear, objective st andards providing specific, detailed guidance to the jury to decide whether to impose the death penalty. See Godfrey v. Georgia , 446 U.S. 420, 428 (1980) (citing cases). And a w eighing requirement was not inherent in the given instructi ons. Thus, the jury could have based its decision to impose the death penalty on c aprice or emotion, rather than

on reason. Zant v. Stephens , 462 U.S. 862, 885 (1983) (citing Gardner v. Florida , 430 U.S. 349, 358 (1977)). We therefore conclude there is a reasonable likelihood the jury applied the instructions in a w ay that prevented it from considering the mitigating evidence. This violated the Eighth Amendment.4 The State argues any error in failing to provide th e weighing instruction

was harmless under Brecht v. Abrahamson , 507 U.S. 619, 627, 637 (1993). We will not review for harmless error. Cf. Mills v. Maryland , 486 U.S. 367, 375-77 384 (1988) (requiring resentencing if jury’s verdic t was based on improper ground or “jury conducted its task improperly,” such as fa iling to consider mitigating evidence). -11- With respect to the district court’s finding of a F ourteenth Amendment violation, the State argues Rojem received all the process he was due, despite the absence of the weighing instruction, because the ju ry knew it must consider all of the evidence in determining punishment and the jurywas instructed that it must decide whether to sentence Rojem to life or death. 4 “The 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 exercis e of its statutory discretion, and that liberty interest is one that the Fourteenth Am endment preserves against arbitrary deprivation by the State.” Hicks v. Oklahoma , 447 U.S. 343, 346 (1980) (citation omitted); see also Williams v. Cain , 125 F.3d 269, 281, 284 (5th Cir. 1997) (holding capital defendant has constitutional ly protected liberty interest in having his sentence imposed by jury instructed to a ct within bounds of its statutory discretion). Oklahoma requires weighing by the fact finder, in this case the jury. See Okla. Stat. tit. 21, § 701.11; Rojem , 753 P.2d at 369. Thus, the trial court deprived Rojem of his legitimate expectation under state law–he did not receive5 The State argues no certificate of appealability (C OA) was granted on this

claim and it therefore is not properly before this court. Rojem, however, received a COA on the merits claims, and he did request an e videntiary hearing with respect to those claims. Thus, we are not prohibit ed from considering this claim.

-12- the assurance the death penalty would be imposed on ly if the aggravating circumstances outweighed the mitigating circumstances. See Hicks , 447 U.S. at 346. Instead, the trial court permitted the jury u nguided discretion to impose the death penalty. Nor did the state appellate court attempt to cure the deprivation.
See id. at 347. The State therefore deprived Rojem of his liberty without due
process. We conclude the Oklahoma appellate court’s decisionwas contrary to and an unreasonable application of Supreme Court precedent, see 28 U.S.C. § 2254(d)(1), and the federal district court correc tly held Rojem’s Eighth and Fourteenth Amendment rights were violated.
APPEAL NO. 00-6060 I. Denial of an Evidentiary Hearing Rojem argues he should have received an evidentiaryhearing due to newly discovered evidence and allegations of ineffective assistance of counsel. 5 “His attempt to develop the factual basis of these claim s in state court frees him from the limitations of 28 U.S.C. § 2254(e)(2).” Walker v. Gibson , 228 F.3d 1217, 1231 (10th Cir. 2000). Rojem, therefore, “is entit led to an evidentiary hearing if-13-

his allegations, if true and not contravened by the record, entitle him to habeas relief.” Id. (quotation omitted). Based on the following discu ssion, we conclude Rojem is not entitled to an evidentiary hearing. II. Denial of Funds for Investigative and Expert A ssistance Rojem argues the state courts and federal district court violated his constitutional rights, including his right to effec tive assistance of counsel, by denying him funds for investigative and expert assi stance. He believes having an investigator to pursue potential suspects and new evidence may prove someone else committed the crime. Although the federal dis trict court granted broad discovery, Rojem contends this had limited value wi thout assistance. On direct appeal, the Oklahoma Court of Criminal Ap peals in part concluded the trial court properly denied funds bec ause (1) Rojem made undeveloped assertions, insufficient to qualify for funds, Caldwell v. Mississippi , 472 U.S. 320, 323-24 n.1 (1985); (2) counsel cross- examined state experts and elicited the limitations of the tests and examinati ons performed and (3) the State need not provide an indigent defendant with an inve stigator simply because a wealthier defendant could afford one. Rojem , 753 P.2d at 364. On review of the denial of Rojem’s first post-conviction application , the court found any lack-of-funds argument unpersuasive, because Rojem did not assert newly discovered evidence and the constitutional issues h e raised did not require expert6 This newly discovered evidence is discussed infra in section III. -14- witnesses to examine evidence. Rojem , 829 P.2d at 684. Also, because experts were unnecessary and irrelevant, the court did not analyze counsel’s effectiveness. Id. In reviewing denial of the second post-convictionapplication, the court again refused to consider a funding issue , given the limited value of Rojem’s newly discovered evidence. 6 Rojem , 925 P.2d at 76. A state must provide an indigent defendant with the basic tools to present an adequate defense or appeal. Ake v. Oklahoma , 470 U.S. 68, 77 (1985). We consider three factors to determine what tools are required: (1) the effect on [Rojem’s] private interest in the accuracy of the trial if the requested service is not provided; (2) the b urden on the government’s interest if the service is provided; and (3) the probable value of the additional service and the risk of err or in the proceeding if such assistance is not offered. Moore v. Reynolds , 153 F.3d 1086, 1112 (10th Cir. 1998) (quotation o mitted). The third factor is the critical factor, Johnson v. Gibson , 169 F.3d 1239, 1246-47 (10th Cir. 1999), and it is dispositive in this cas e. Rojem’s requests for experts and an investigator we re speculative, merely suggesting, without more, that such assistance woul d have been beneficial. Rogers v. Gibson , 173 F.3d 1278, 1287 (10th Cir. 1999), cert. denied , 528 U.S. 1120 (2000). He has not shown the value of the req uested services or how their denial caused him substantial prejudice. See Johnson , 169 F.3d at 1247. And-15-

counsel was not rendered ineffective. See Strickland v. Washington , 466 U.S. 668, 687 (1984) (requiring petitioner to show couns el’s performance was deficient and he was prejudiced thereby). Accordin gly, we conclude the Oklahoma appellate court’s determinations were not unreasonable. See 28 U.S.C. § 2254(d)(1). In federal district court, Rojem was entitled to experts and an investigator only upon a showing of reasonable necessity. See 21 U.S.C. § 848 (q)(4)(B), (q)(9); McFarland v. Scott , 512 U.S. 849, 855 (1994). Because Rojem did not show necessity, the district court did not abuse it s discretion in denying funding for an investigator or experts. See, e.g. , Hill v. Johnson , 210 F.3d 481, 487 (5th Cir. 2000), petition for cert. filed , (U.S. Aug. 28, 2000) (No. 00-5947); Bonin v. Calderon , 59 F.3d 815, 837 (9th Cir. 1995).
III. **Brady** Violation Rojem argues the State withheld exculpatory, materi al evidence in violation of Brady v. Maryland , 373 U.S. 83 (1963), and thereby interfered with h is right to effective assistance of counsel. First, Rojem cont ends the State failed to disclose evidence of alleged suspects and an expert witness. He also contends the federal7 The State has waived an exhaustion defense with res pect to the Delp

Report. See 28 U.S.C. § 2254(b)(3). The federal district court denied any claim based on this Report on its merits. See 28 U.S.C. § 2254(b)(2).

-16- district court incorrectly found that newly discove red evidence, the Delp Report, was not material. 7 To prove a Brady violation, a petitioner must establish that the St ate suppressed exculpatory, material evidence. Strickler v. Greene , 527 U.S. 263, 281-82 (1999). Evidence is material if there is a reasonable probability that, had the State disclosed the evidence, the result of the trial would have been different. Id. at 280. In assessing materiality, this court revi ews the undisclosed evidence in light of the record as a whole. Moore , 153 F.3d at 1112. A. Evidence Considered by State Courts After finding undisclosed evidence, Rojem filed a s econd post-conviction application based on this newly discovered evidence . The Oklahoma Court of Criminal Appeals concluded the newly discovered evi dence of alleged suspects Carl Bounds and Bobby Schoonover was not exculpatory and material and did not undermine confidence in the outcome of the trial. Rojem , 925 P.2d at 73-75. The court further concluded Rojem knew or should have known about the expert witness and Donald Cummings’ investigation of otheralleged suspects at the time Rojem filed his first application for post-convicti on relief; therefore, the court-17-

refused to review these claims based on waiver and issue preclusion. Id. at 75-76. The court also rejected a claim of ineffect ive assistance of counsel resulting from undisclosed evidence. Id. at 76. We review the state court’s materiality determinati on under § 2254(d)(1). Moore v. Gibson , 195 F.3d 1152, 1165 (10th Cir. 1999), cert. denied , 120 S. Ct. 2206 (2000). Upon review of the entire record, we conclude the state appellate court’s rejection of the Brady claim with respect to Bounds and Schoonover was not an unreasonable application of Supreme Court pr ecedent. No record evidence indicates the State considered these two suspects. Rojem recognizes the remainder of this claim is pro cedurally barred. But we cannot determine if the State is arguing procedu ral bar. Regardless of whether this portion of the claim is barred, we conclude, a s did the district court, that the State did not withhold exculpatory, material eviden ce. B. Delp Report Rojem found the Delp Report after the federal distr ict court granted discovery. The Report indicated that between 2:55 a.m. and 3:25 a.m., when Rojem allegedly was at home, Lawana Delp saw headli ghts of a vehicle she could not identify by make or model one-third mile from t he Delp home in the field where Layla’s body was later found. The car was st ill there at 3:25 a.m. when she-18-

went to bed. Her husband stated that the road was used as a shortcut by people coming and going from the bars. The federal district court agreed with Rojem that t he State should have given him this Report because it had exculpatory va lue. Nonetheless, the court determined the Report was not material because ther e was no reasonable probability disclosure would have resulted in a dif ferent outcome at trial. Reviewing de novo , see LaFevers , 182 F.3d at 711, we agree. Even if someone was near the crime scene at the time noted, the Report does not preclude Rojem as a suspect or even strongly suggest someone other than Rojem committed the crime. Other than the timing and location of t he headlights, Rojem presented no evidence connecting the vehicle to the murder. In light of the Delp Report, Rojem argues counsel s hould have known to investigate Schoonover and Bounds as potential susp ects. No evidence connects either one with the crime, however. In contrast, t he evidence presented at trial pointed to Rojem as the killer. Further, the possi bility counsel could have investigated other alleged suspects does not establ ish a reasonable probability the trial’s outcome would have been different. Considering the undisclosed evidence collectively, the State did not fail to disclose material evidence. See Johnson , 169 F.3d at 1255 (citing Kyles v. Whitley , 514 U.S. 419, 436-37, 438-39 (1995)). We therefo re conclude there is8 Rojem also argues the failure to disclose evidence denied him his Sixth and

Fourteenth Amendment rights to confront and cross-e xamine witnesses. This argument is so inadequately developed on appeal that we deem it waived. See Thomas v. Gibson , 218 F.3d 1213, 1220 n.4 (10th Cir. 2000).

-19- no reasonable probability the trial result would have been different if all of this evidence had been disclosed before trial. Rojem ha d a fair trial resulting in a verdict worthy of confidence. See Kyles , 514 U.S. at 434. And the alleged Brady violation did not render his counsel constitutionally ineffective. 8 IV. Sufficiency of the Evidence to Prove Guilt Bey ond a Reasonable Doubt Rojem argues there is insufficient evidence to prov e him guilty beyond a reasonable doubt of murder or rape. In assessing s ufficiency of the evidence, “the relevant question is whether, after viewing the evi dence 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).
A. Murder Rojem challenged the sufficiency of the evidence to support the murder conviction in his first application for post-convic tion relief. The Oklahoma Court of Criminal Appeals determined Rojem waived the claim. Rojem , 829 P.2d at 684. The federal district court found this claim p rocedurally barred because Rojem did not argue either cause and prejudice or afundamental miscarriage of9 Even if we were to consider the newly discovered ev idence, we would

conclude sufficient evidence supported the murder c onviction. -20- justice. See Coleman v. Thompson , 501 U.S. 722, 750 (1991) (holding where “a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, fed eral habeas review of the claim is barred unless the prisoner” can satisfy ei ther cause and prejudice standard or fundamental miscarriage of justice stan dard). Relying on the newly discovered evidence, Rojem argues on appeal, for th e first time, that procedural default would result in a fundamental miscarriage o f justice. We will not consider this argument. See Jones v. Gibson , 206 F.3d 946, 958 (10th Cir.) (holding this court does not consider arguments rai sed for first time on appeal), cert. denied , 121 S. Ct. 496 (2000). Accordingly, we conclude this claim is procedurally barred. Even if it were not barred, we agree with the feder al district court that sufficient evidence presented at trial supported the murder conviction. 9 See Herrera v. Collins , 506 U.S. 390, 402 (1993) (holding newly discovere d evidence should not be considered). While there often are s ome unresolved questions in a case based on circumstantial evidence, here, much e vidence, viewed in the light most favorable to the State, clearly points to Roje m as the murderer.-21-

B. Rape Rojem argues there is insufficient evidence of pene tration to support the rape conviction. On direct appeal, the Oklahoma Co urt of Criminal Appeals determined there was sufficient evidence of penetration:

Oklahoma law provides that rape requires actual pen etration, but that any sexual penetration, however slight, is sufficient to complete the crime of rape. In the present case, t he medical examiner testified that the dead child’s hymen, lab ia minor, labia major and vaginal wall were bruised. It was Dr. Ch oi’s opinion that the bruising resulted from a blunt force trauma to the hymen consistent with being caused by a male penis. She further stated the injuries were inflicted while the victim was yet li ving. We find this evidence sufficient to allow any ratio nal trier of fact to find that penetration occurred beyond a rea sonable doubt. . . . [M]edical testimony of the bruised and lacerated co ndition of the victim’s hymen and labia minora would sufficiently prove sexual penetration of at least one half inch, it being est ablished that the hymen is located approximately that distance within the vagina. Although the medical examiner herein was unwilling to render an opinion whether “penetration in the legal sense” oc curred, there was adequate testimony from which the jury could deduce that it had in fact occurred. Rojem , 753 P.2d at 362-63 (citations omitted). Recogniz ing the state court correctly articulated and applied the Jackson standard, we conclude, after reviewing the record, the state court’s determination was reasonable. See 28 U.S.C. § 2254(d); see also Valdez v. Ward , 219 F.3d 1222, 1237 (10th Cir. 2000) (declining to decide whether § 2254(d)(1) or (d)(2) applies), petition for cert. filed , (U.S. Feb. 7, 2001) (No. 00-8528).-22-

V. Prosecutorial Misconduct Rojem argues prosecutorial misconduct denied him a fair trial. A. First Stage 1. Opening Statement. Rojem challenges various prosecutorial opening statement remarks. On post-conviction revi ew, the Oklahoma Court of Criminal Appeals found the claim waived. Rojem , 829 P.2d at 684. And the federal district court found it procedurally barred . We agree. We do not consider Rojem’s assertion made for the first time on appeal that counsel was ineffective for failing to object to the comments. See Jones , 206 F.3d at 958.

2. Closing Statement. Rojem argues the prosecutor (1) expressed his opinion that Rojem was guilty, the State had me t its burden of proof, Layla had been killed in the field, it was an insult to t he jury’s intelligence to suggest Layla was killed elsewhere and Rojem was less than human; (2) attacked defense counsel; (3) suggested the defense had labeled the prosecutor, Oklahoma State Bureau of Investigation (OSBI) and sheriff’s office liars; (4) vouched for Jason’s and an OSBI agent’s credibility and (5) went outsid e the record to speculate what Rojem said to Layla when he abducted her. Rojem ch allenged these remarks in his first application for post-conviction relief. The Oklahoma Court of Criminal Appeals deemed these challenges waived. Rojem , 829 P.2d at 684. The federal district court, however, reviewed each remark on it s merits because the State did-23-

not assert procedural bar. The State now asks this court to sua sponte apply procedural bar. See Hardiman v. Reynolds , 971 F.2d 500, 504 (10th Cir. 1992). We decline to do so, and review de novo the district court’s conclusion that the remarks did not render the trial fundamentally unfair, see LaFevers , 182 F.3d at
711. When, as here, prosecutorial misconduct does not implicate a constitutional right, such misconduct does not warrant habeas reli ef unless it rendered the trial fundamentally unfair. Donnelly v. DeChristoforo , 416 U.S. 637, 643, 645 (1974); Paxton v. Ward , 199 F.3d 1197, 1217 (10th Cir. 1999). In reviewi ng this claim, we assess the prosecutor’s conduct in context, cons idering the strength of the State’s case and determining whether the prosecutor ’s challenged remarks “plausibly could have tipped the scales in favor of the prosecution.” Tillman v. Cook , 215 F.3d 1116, 1129 (10th Cir.) (quotation omitted), cert. denied , 121 S. Ct. 664 (2000). Ultimately, we consider the probab le effect the prosecutor’s remarks had on the jury’s ability to judge the evidence fairly. Id. After reviewing the transcript, we are unable to conclude any of the challenged comments, even if improper, influenced the jury’s d ecision and rendered the trial fundamentally unfair.-24-

B. Second Stage Rojem argues the prosecutor engaged in name calling and attempted to invoke a regional bias. Although this claim was ne ver raised in state court, the State does not argue failure to exhaust or procedur al bar. Accordingly, we proceed to the merits. Moore , 195 F.3d 1171

. In light of the considerable evidence supporting guilt and the aggravating facto rs, the prosecutor’s comments did not influence the jury’s verdict. Smallwood v. Gibson , 191 F.3d 1257, 1275-76 (10th Cir. 1999), cert. denied , 121 S. Ct. 88 (2000). C. Evidentiary Misconduct Rojem challenges the prosecutor’s attempt to impugnhis character by telling the jury he was not a Christian and by elic iting testimony about his sexual practices. The Oklahoma Court of Criminal Appeals found no fundamental error. Rojem , 753 P.2d at 366. This determination was reasonable. See 28 U.S.C. § 2254(d)(1). Rojem argues the prosecutor misled the jury by (1) having Sheriff Ferraro testify about blood in the trunk of Rojem’s car; (2 ) stating the time of death could not be estimated and (3) implying Layla had been fo und with panties in her mouth. The prosecutor did not mislead the jury. R ojem’s counsel questioned Sheriff Ferraro about the blood; the exact time of death cannot be established and one witness testified it appeared panties were stuf fed into Layla’s mouth.-25-

Rojem argues the prosecutor improperly presented ev idence of extramarital affairs and illegal drug use. The Oklahoma Court o f Criminal Appeals determined this evidence did not affect the outcome at trial. Rojem , 753 P.2d at 366. This determination was reasonable. See 28 U.S.C. §2254(d)(1).
CONCLUSION We have considered all of Rojem’s guilt stage argum ents and are not persuaded constitutional error affected that stage of his trial. Also, we agree with the federal district court that the trial court violated Rojem’s constitutional rights by failing to give the weighing instruction. Accordingly, we AFFIRM the district court’s decision.