### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk
July 19, 1999

TO: ALL RECIPIENTS OF THE OPINION
RE: 98-6196, Hooks v. Ward Filed on July 16, 1999 The slip opinion filed in this matter contains two clerical errors. First, on pages 10-11, the citation sentence that begins at t he end of page 10, and continues to the top of page 11, should read:
See Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999). Second, the citation sentence that begins on page 4 5 and continues to the top of page 46, should read as follows:
See Walker v. Attorney General for the State of Oklaho ma , 167 F.3d 1339, 1349-50 (10th Cir. 1999) (evidence did not support a lesser included offense instruction); Stouffer v. Reynolds , 168 F.3d 1155, 1170-71 (10th Cir 1999) (same). Please make the corrections to your copy of the opi nion. Sincerely, Patrick Fisher, Clerk
By: Keith Nelson Deputy Clerk

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

### JUL 16 1999 

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

TENTH CIRCUIT

VICTOR WAYNE HOOKS, Petitioner-Appellant, v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent-Appellee. No. 98-6196

Appeal from the United States District Court

for the W.D. Okla. (D.C. No. CIV-96-732-M)

Vicki Ruth Adams Werneke, Assistant Federal Public Defender (Janet Chesley, Assistant Federal Public Defender and Patrick J. Eh lers, Jr., Assistant Public Defender, with her on the briefs), Oklahoma City, O klahoma, for PetitionerAppellant. Sandra D. Howard, Assistant Attorney General, Chief , Criminal Appeals (W. A. Drew Edmondson, Attorney General of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before ANDERSON , TACHA and EBEL , Circuit Judges.

EBEL , Circuit Judge, delivered the opinion of the courtexcept as to part III.C.- 2 -

In May 1989, an Oklahoma jury convicted Victor Wayn e Hooks of first degree murder and first degree manslaughter for beating to death, respectively, his common-law wife and the 24-week-old fetus she w as carrying. After a oneday sentencing hearing, Hooks was sentenced to deat h on the murder conviction and to 500 years’ imprisonment on the manslaughter conviction. On December 2, 1996, after direct and collateral appeals in the Ok lahoma courts, Hooks filed a petition for writ of habeas corpus in the United St ates District Court for the Western District of Oklahoma pursuant to 28 U.S.C. § 2254. The district court denied Hooks’ petition on all thirteen grounds adva nced, and granted a certificate of appealability (“COA”) under 28 U.S.C. § 2253 as to Hooks’ claims of ineffective assistance of trial counsel and denial of a fair trial. Hooks filed a timely appeal in this court and requested that we g rant a COA on several additional issues raised before the district court. We granted Hooks a COA on Issues I (ineffective assistance of trial and/or ap pellate counsel), II (trial court failure to instruct the jury on lesser included off enses), and V (constitutionality of certain aggravating sentencing factors), as raised in Hooks’ brief on appeal. We REMAND for the district court to consider the adequ acy of the state’s claim of procedural bar on all but one of Hooks’ claims of i neffective trial counsel. As to all other issues as to which a certificate of appea lability has been granted, we
AFFIRM.- 3 - BACKGROUND At approximately 7:00 p.m. on October 6, 1988, defe ndant Hooks showed up at the home of Ms. Virginia Plumley, the mother of his putative common-law wife, Shalimein Blaine, and told her that Shalimein had been beaten and raped. Hooks, father of Shalimein’s then-one-year old daug hter Vargus Shalimar and the father of the fetus she was carrying, implored Ms. Plumley to check on her daughter Shalimein — who had just moved into an apa rtment less than a block away from Ms. Plumley — and to take her to the hosp ital. When Ms. Plumley asked Hooks what happened to Shalimein, he responde d that he did not know. After the badly beaten Shalimein had been taken dow n the stairs of her apartment building and placed in Hooks’ Cadillac, M s. Plumley asked Hooks again what had happened. On the drive to the hospi tal Hooks told a number of stories to the effect that Shalimein had taken a wa lk earlier in the evening, and after about two hours had returned, knocked on the door or entered her upstairs apartment, and fell into his arms beaten and bloodi ed. At that point, Hooks said that either he removed her clothes or she removed t hem herself so he could wash her in the bathtub. During the drive, Ms. Plumley noticed that Shalimein’s hair was shaven and her face “was swollen real bad.” Ms . Plumley told Hooks that she thought Shalimein was dead, which made him “hys terical” and prompted him1 While her doctors succeeded in reestablishing Shali mein’s heartbeat for a

short time, she was pronounced dead at 9:16 a.m. on October 7, 1988. An ultrasound revealed that the twenty-four week old, unborn fetus she was carrying was dead as a result of a blunt force that had rupt ured its liver as well as bruises to its abdomen and head. - 4 - to exclaim, “That’s my baby, she’s not dead,” and “ I’m going to kill” the people who did this. Ms. Plumley asked Hooks why he had shaved Shalime in’s head. He said that he had not done it and that it must have been the person who raped and beat her. When they arrived at the hospital, Hooks carr ied Shalimein into the hospital, asking everybody to get out of his way because “his baby had to have medical attention.” After handing Shalimein over to hospit al staff, Hooks called the police (but Ms. Plumley testified that since the po lice arrived “about a minute or two after” Hooks called, she believed someone else had called first). As doctors began efforts to revive Shalimein, 1 the police interviewed Hooks, Ms. Plumley, and her daughter Amanda. During the preliminary investigation by Oklahoma Ci ty Police Officer Robert Ardle, Hooks told essentially the same story he had told Ms. Plumley. Then, while still at the hospital, Hooks signed a s earch warrant authorizing a search of Shalimein’s apartment. In the apartment, officers found her hair in a trash can, as well as blood on the bed, on the carp et near the bed, and on several wash cloths and towels that had been thrown in a cl othes hamper. Outside- 5 -

Shalimein’s apartment, in a trash dumpster, police found bloody clothing and wash cloths as well as a large clump of hair. In the course of the investigation, Hooks was interviewed by Oklahoma Police Detectives Eric Mullenix and Randy Scott at approximately 1:00 a.m. on October 7th. At first, Hooks told the detectives aversion of the same story he had told Ms. Plumley and Officer Ardle; however, af ter the detectives confronted him with questions about the hair and blood found i n the apartment and the nearby dumpster, Hooks broke down crying and explai ned that he wanted to come clean. Hooks admitted that he and Shalimein had fo ught on the evening of October 6, 1988. He explained that their verbal fi ght over money escalated into a physical one when Shalimein slapped him in the face . Hooks admitted that he struck Shalimein with his fist, and that when she f ell to the floor by the bed, he began kicking her in the stomach and the face “real hard.” Hooks admitted that he beat her until she lay still on the floor with b lood coming from her mouth and

nose. At that point, Hooks explained that he picked her up, took her into the bathroom, removed her clothes, and began trying to clean her up in the bathtub. In response to the detectives’ inquiry about why th ey had found hair in the dumpster, Hooks said that he had shaved some of herhair with a razor in an effort to locate her head injuries. He further explained that Shalimein was having- 6 -

trouble breathing and that she eventually lost cons ciousness, at which point he began cleaning up the apartment and the couple’s on e-year old daughter Vargus Shalimar, who had gotten blood on her in the course of witnessing Hooks beat her mother. The detective then stopped the interview a nd asked if Hooks would restate his new story on audio tape. Hooks agreed. That tape was played for members of the jury, who were also provided with a written transcript in order to follow along. At trial, in an effort to show the graphic and viol ent nature of the beating that caused Shalimein’s death the state put on Okla homa City Police Lieutenant Tom Bevel, an expert in geometric blood stain patte rn interpretation and crime scene reconstruction. Lieutenant Bevel testified t hat the blood stains found on the blue jeans Hooks was wearing when he beat Shalimein to death were consistent with the state’s theory that Hooks “stomped” Shalim ein. The state also presented the testimony of Shanna K. (Allen) Dinh, a former girlfriend of Hooks. Ms. Dinh testified that she b egan a sexual relationship with Hooks when she was 13 years-old — approximately 10 years his junior — and earned money for Hooks through prostitution and nude dancing. Ms. Dinh testified that Hooks was a violent man, and that if one of his girls refused to follow his orders she “got [her] butt kicked.” Further, she explained that- 7 -

“whenever [Hooks] would get mad, he would look at u s and say, ‘One of these days I’m going to end up killing one of you bitches .’” Ms. Dinh testified that she had Hooks’ child when she was 15 years-old ; and, that when she became pregnant for the second t ime with Hooks, “[a] beating by Victor [Hooks]” caused a miscarriage. She expla ined that Hooks had informed her and all the other women with whom he was involv ed that “if anyone ever got pregnant again [a second time], that he was going t o kick it out of their ass.” As to Shalimein’s second pregnancy (the one she was in when Hooks killed her), Ms. Dinh testified that Hooks said “he didn’twant no more babies and that he was mad because she was pregnant again.” Moreov er, Ms. Dinh testified that she saw Hooks inflict violence on Shalimein “severa l” times, including one beating approximately one month prior to the fatal beating, during which Hooks hit Shalimein with a two-by-four, then “pushed her down on the couch, . . . spread her legs open and . . . kick[ed] her in her vagina [with cowboy boots], saying that he doesn’t want this baby.” At trial, Hooks’ attorney conceded that Hooks kille d Shalimein, but argued that he did so unintentionally. Based on this theo ry, Hooks’ counsel moved the trial court to instruct the jury on the lesser incl uded offenses of second degree murder and first degree manslaughter as to Shalimei n. The judge refused, and instead instructed the jury only on first degree mu rder.- 8 -

After the foregoing events had been introduced overa two-day trial and the court issued its instructions, an Oklahoma jury con victed Hooks of first degree murder for intentionally causing Shalimein’s death, and of first degree manslaughter for causing the death of the unborn qu ick fetus she was carrying. After a one-day sentencing hearing, during which Ho oks’ counsel put on the testimony of an Oklahoma County Deputy Sheriff, a c linical psychologist, and Hooks’ mother and sister, the jury fixed Hooks’ sen tence at death for Shalimein’s murder and at 500 years’ imprisonment for the mansl aughter of the unborn child. Regarding Shalimein’s murder, the jury specifically found that three statutory aggravating circumstances supported a death sentenc e: (1) Hooks had been previously convicted of a felony involving the use or threat of violence to a person; (2) the murder was especially heinous, atro cious, or cruel; (3) there existed a probability that Hooks would commit crimi nal acts of violence that would constitute a continuing threat to society. O n May 19, 1988, the trial judge sentenced Hooks to death in accordance with the jury’s recommendation. Hooks’ trial counsel filed a direct appeal in the O klahoma Court of Criminal Appeals. On September 7, 1993, that courtaffirmed Hooks’ conviction and sentence. Hooks v. State of Oklahoma , 862 P.2d 1273 (Okla. Crim. App. 1993) (Hooks I ). Hooks’ new counsel then filed an application fo r state postconviction relief, which was denied by the Dist rict Court of Oklahoma- 9 -

County, Oklahoma, on December 9, 1994. On Septembe r 18, 1995, the Oklahoma Court of Criminal Appeals affirmed the denial of po stconviction relief. Hooks v. State of Oklahoma , 902 P.2d 1120 (Okla. Crim. App. 1995) (Hooks II ). On December 2, 1996, Hooks filed a petition for a w rit of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States D istrict Court for the District of Western Oklahoma. Hooks raised thirteen issues bef ore the federal district court, many of which directly alleged, or were tied to all egations of, ineffective assistance of counsel. Prior to ruling on Hooks’ p etition, the district court conducted an evidentiary hearing on April 3- 4, 199 7. During the federal evidentiary hearing, Hooks’ counsel put on the test imony of Hooks’ mother, Clara Hooks; his ex-wife, Virginia Betts; Hooks himself; an expert in psychology and neuropsychology, Dr. Michael Gelbort; Hooks’ counse l on direct appeal, Robert Boren and Patrick Lavelle; Hooks’ trial counsel, Ro n Evans; and an expert in death penalty defense, David Ruhnke. Hooks’ counse l also introduced into evidence an affidavit of Hooks’ sister, Vargas Hook s. After the evidentiary hearing and briefing from both sides, the district court denied Hooks’ petition on all thirteen grounds. Pursuant to 28 U.S.C. § 2253 , the district court issued a certificate of appealability (“COA”) as to Ground I (ineffective assistance of trial2 Despite the district court granting Hooks a COA on the issue of whether

Hooks was denied his right to a fair trial by the t rial court’s exclusion at stage one of the testimony of Dr. Philip J. Murphy regarding Hooks’ mental state at the time of the killing, Hooks does not press this issue as an independent ground for relief before this court. Instead, Hooks raises this clai m only in the context of his lesser included offense argument. Accordingly, we address it in our discussion of that issue. See infra , Section III.

3 We denied a COA as to all other issues raised on ap peal. - 10 - counsel) and Ground II (denial of right to a fair t rial because of the court’s exclusion of the proffered expert testimony of two clinical psychologists) 2

. On appeal, Hooks raises essentially all the claims denied by the district court and requests that we grant a COA as to the cl aims the district court had refused. We granted a COA on the following issues: (1) whether Hooks received ineffective assistance of counsel at trial, and/or on appeal; (2) whether Hooks was denied his constitutional right to due process and a fair trial by the trial court’s failure to instruct the jury on lesser-included off enses to first degree murder; and (3) whether the sentencing phase instructions regar ding aggravating factors were unconstitutional. 3
DISCUSSION I. Applicability and standards under the Antiterrori sm and Effective Death Penalty Act of 1996 (“AEDPA”). Because Hooks filed his habeas petition after AEDPA ’s April 24, 1996 effective date, AEDPA governs our review of the ins tant habeas petition. See- 11 -

Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999). Accordingly, we may not grant Hooks’ application fo r a writ of habeas
corpus: with respect to any claim that was adjudicated on t he merits in State court proceedings unless the adjudication of the cl aim— (1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

II. Whether Hooks received ineffective assistance of counsel at trial and on appeal. A. State Procedural Bar As an initial matter, the appellee asserts state pr ocedural bar because Hooks failed to raise his claims of ineffective assistanc e of counsel on direct appeal in the Oklahoma courts. “On habeas review, this courtdoes not address issues that have been defaulted in state court on an independen t and adequate state procedural ground, unless the petitioner can demons trate cause and prejudice or a fundamental miscarriage of justice.” English v. Co dy , 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman v. Thompson , 501 U.S. 722, 749-50 (1991)).- 12 -

On direct appeal, Hooks raised only one issue of in effective assistance of trial counsel. All of his other claims of ineffect ive assistance of trial counsel were first raised in his state postconviction proce eding. His direct appeal claim was denied on the merits, see Hooks I , 862 P.2d at 1283, and his other ineffective counsel claims raised in his application for postco nviction relief were denied on the grounds of “res judicata ,”see Hooks II , 902 P.2d at 1122 & n.4. As a matter of state law, Oklahoma generally bars r eview in postconviction proceedings of ineffective assistance of trial coun sel claims not raised on direct appeal. See Okla. Stat. Ann. tit. 22, § 1086; Brecheen v. Reyn olds , 41 F.3d 1343, 1363 (10th Cir. 1994). Such state procedural bar w ill foreclose federal habeas review if it is independent and adequate. See Messer v. Roberts , 74 F.3d 1009, 1015 (10th Cir. 1996). In English , we traced the development of the law in this circ uit regarding state procedural bars for ineffective assistance of counsel claims. See 146 F.3d at 1259-61. “In Brecheen , this court found inadequate the Oklahoma procedur al requirement that all ineffective assistance of tria l counsel claims be raised on direct appeal or forfeited.” Id. at 1259 (citing Brecheen , 41 F.3d at 1363-64). Brecheenrelied on the Supreme Court’s decision in Kimmelma n v. Morrison , 477 U.S. 365 (1986), which recognized that the general rules of procedural bar arising from the failure to raise a claim on direct appeal were not well-suited to- 13 -

ineffective assistance of counsel claims, “[b]ecaus e collateral review will frequently be the only means through which an accus ed can effectuate the right to counsel” due to the fact that “[a] layman will ordi narily be unable to recognize counsel’s errors and to evaluate counsel’s professi onal performance” without the assistance of a trained lawyer, which he is unlikel y to receive until after the trial and appeal are completed. 477 U.S. at 378. In Bre cheenwe observed that: The practical effect of [Oklahoma’s procedural bar] is to force [an accused] either to raise [an ineffective assistance of counsel] claim on direct appeal, with new counsel but without the benefit of additional fact-finding, or have the claim forfeite d under state law. This Hobson’s choice cannot constitute an adequate state ground under the controlling case law because it deprives [an accused] of any meaningful review of his ineffective assistance claim. 41 F.3d at 1364. Thus, we concluded in Brecheen that the Oklahoma procedural bar on ineffective assistance of trial counsel clai ms not raised on direct appeal was inadequate and could not preclude federal habea s review. See Brecheen , 41 F.3d at 1364. Nearly four years after Brecheen , we revisited the issue in English . There, the appellant-warden argued that Brecheen “is built on a faulty premise: a perceived inability of habeas petitioners to develo p factual issues on a direct appeal to the Oklahoma Court of Criminal Appeals.” English , 146 F.3d at 1260. The warden claimed that “evidentiary hearings are a vailable as part of the direct appeal process in Oklahoma,” thus Brecheen ’s rationale could no longer support- 14 -

its result. Id. After a study of the caselaw, English clarified the rule in this circuit: Kimmelman , Osborn , and Brecheendo not establish a rigid constitutional rule prohibiting Oklahoma from requi ring the presentation of ineffective assistance of trial cou nsel claims on direct appeal. Instead, those cases identify the importan ce of the Sixth Amendment right to counsel and mandate that no stat e procedure for resolving claims of ineffective assistance will serve as a procedural bar to federal habeas review of those claims unless the state procedures comply with the imperatives set forth in Kimmelman : (1) allowing petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessmen t of trial counsel’s performance and (2) providing a procedural mechanis m whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness. Id. at 1262-63 (footnotes omitted). Petitioners in Englishasserted that the Oklahoma procedural bar was inadequate because it failed to meet the second req uirement articulated above, i.e., to provide “a procedural mechanism whereby a petitioner can adequately develop the factual basis of his claims of ineffect iveness.” Id. Specifically, the petitioners there claimed that: (1) the rule which apparently grants the Oklahoma C ourt of Criminal Appeals the power to remand a claim of ineffective assistance of counsel to the trial court for additional factual d evelopment, Okla. Stat. Ann. tit. 22, ch. 18, app., Rules of the Court of Criminal Appeals, Rule 3.11 (hereinafter “Rule 3.11"), has b een amended frequently in the last decade; (2) the remand provi sions of Rule 3.11 are far too narrow to adequately allow development of ineffective assistance claims to comply with the second Kimmelm animperative; (3) even if Rule 3.11 were sufficient to comply wit h the second Kimmelmanimperative, the Oklahoma Court of Criminal Appeals4 On direct appeal, the only ground Hooks advanced in support of his claim

of ineffective assistance of trial counsel contende d “that defense counsel was ineffective because Hooks was not allowed to testif y during either the first or second stage of trial.” Hooks I , 862 P.2d at 1283. - 15 - merely pays lip-service to the Rule and never reman ds for factual development of ineffectiveness claims; and (4) the Oklahoma Court of Criminal Appeals generally resolves ineffective assistance claims in such a cursory manner that it is usually impossi ble to tell from the opinion whether additional fact-finding was necessa ry to adequately resolve the claim. Id. at 1263-64. Because it was unclear in English whether petitioners’ ineffectiveness claims could have been resolved on the record alone or whether they needed further factual development, the court did not reac h the issue of the adequacy of the Oklahoma remand procedure under Rule 3.11. Ins tead, we remanded to the federal district court for “a determination of whet her these claims embrace matters in the trial record or whether they require enlargement of that record or additional fact-finding.” Id. at 1264. Applying these principles to Hooks, it is clear that Hooks failed to raise on direct appeal all but one of the claims of ineffect iveness of trial counsel he now

asserts. 4 In his direct appeal in Oklahoma state court, Hoo ks was not represented by the same lawyer who defended him at trial. Thus , the first Kimmelman requirement is met.5 In denying Hooks’ application for postconviction re lief in the first (continued...) - 16 - Before addressing the second Kimmelman requirement, we must address a preliminary argument advanced by Hooks. Hooks clai ms that the Oklahoma Court of Criminal Appeals did not rely on procedural bar in denying his other claims of ineffective assistance of trial counsel raised in h is application for postconviction relief before the Oklahoma state courts, but rather , resolved all those ineffectiveness claims on their merits by invoking the doctrine of res judicata . If a state court decides an issue on the merits, state procedural bars will not preclude federal habeas review. See Ylst v. Nunnemaker , 501 U.S. 797, 801-03 (1991). In affirming the denial of postconviction relief to Hooks on his claims of ineffective trial counsel, the Oklahoma Court of Cr iminal Appeals stated: We note that Hooks’s application for post-convictio n relief alleges thirteen instances of trial counsel ineffectiveness which he did not directly raise and this Court did not explicitly co nsider when analyzing this issue on direct appeal. Yet, the fa ct remains that trial counsel’s ineffectiveness was brought to this Court ’s attention on direct appeal. Accordingly, we consider this issue [ineffectiveness of trial counsel] — and all instances of trial counsel ineffectiveness which could have been raised but were not — res judicatafor purposes of Hooks’s post-conviction appeal. Butcf. U.S. v. Galloway , 56 F.3d 1239, 1241-42 (10th Cir. 1995) (fact that ineffective assistance of counsel claim is raised a nd adjudicated on direct appeal will not procedurally bar an ineffect iveness claim in a collateral proceeding where new instances of ineffe ctiveness are advanced in support of that claim). Hooks II , 902 P.2d at 1122 n.4. 55 (...continued)

instance, the Oklahoma state district court similar ly stated: “Proposition[] II [Hooks’ ineffective assistance of trial counsel cla im] . . . [was] addressed by the appellate court on direct appeal and [is] therefore barred by the doctrine of res judicata . Jones v. State , 704 P.2d 1138 (Okl.Cr.1985), Coleman v. State , 693 P.2d 4 (Okl.Cr.1984).” (Hooks v. State of Oklahoma , No. CRF-88-5642, at 7 (Okla. Co. Ct. 7th Dist. Dec. 9, 1994).) - 17 - Focusing on the court’s use of the term “res judicata ,” Hooks argues that the Oklahoma Court of Criminal Appeals’ decision af firming denial of postconviction relief constitutes a ruling on the m erits as opposed to a procedural bar. We disagree. It is clear that the Oklahoma Court of Criminal App eals views res judicata for ineffective assistance of trial counsel claims as a procedural bar and not a ruling on the merits. See Slaughter v. State of Oklahoma , 969 P.2d 990, 995 (Okla. Crim. App. 1998) (“Petitioner claims he was denied the effective assistance of both trial and appellate counsel . . . . The issue of ineffective assistance of counsel was raised and addressed on d irect appeal. Therefore, further consideration of the issue is barred by res judicata . Despite the procedural bar of res judicata , a claim of ineffective assistance of trial counse l can be brought for the first time on post-conviction, but only if it requires fact-finding outside of the direct appeal record . . . .” (empha sis added and citations omitted)); Turrentine v. State of Oklahoma , 965 P.2d 985, 987-88 (Okla. Crim. App.) (“In Propositions II and IV, [Petitioner] argues he was denied the effective assistance- 18 -

of trial counsel . . . . Despite the procedural ba r of res judicata , a claim of ineffective assistance of trial counsel can be brou ght for the first time on postconviction, but only if it requires fact-finding ou tside of the direct appeal record.” (emphasis added)), cert. denied , 119 S. Ct. 624 (1998). Cf. United States v. Galloway , 56 F.3d 1239, 1242-43 (10th Cir. 1995) (in banc), (holding that “the fact that an ineffectiveness claim is raised and ad judicated on direct appeal will not procedurally bar an ineffectiveness claim in a proceeding under 28 U.S.C. § 2255, where new reasons are advanced in support o f that claim.”) Turning then to the second prong of Kimmelman , it is clear that Hooks’ claims of ineffective assistance of trial counsel r equired further development of the record. Consequently, we are presented with th e question whether Oklahoma’s remand procedure is adequate. Because the record below is largely silent on the a dequacy of Oklahoma’s Rule 3.11, the resolution of this issue on appeal w ill depend on which party has the burden of proof to establish the adequacy or in adequacy of the state procedures. The Fifth Circuit places that burden o n the petitioner. See Stokes v. Anderson , 123 F.3d 858, 860 (5th Cir. 1997) (“The petitione r bears the burden of showing that the state did not strictly or regularl y follow a procedural bar around the time of his direct appeal [in cases similar to his].”), cert. denied , 118 S. Ct. 1091 (1998); see also Robison v. Johnson , 151 F.3d 256, 263 n.4 (5th Cir. 1998),- 19 -

cert. denied , 119 S. Ct. 1578 (1999); Martin v. Maxey , 98 F.3d 844, 847 (5th Cir. 1996); Amos v. Scott , 61 F.3d 333, 340-41 (5th Cir. 1995). By contrast , two federal district courts in California have placed t he burden of proving the adequacy of a state procedural bar on the state. I n declaring a California state procedural bar inadequate to foreclose federal habe as review, the United States District Court for the Eastern District of Californ ia stated in Karis v. Vasquez , 828 F. Supp. 1449 (E.D. Cal. 1993): Without citation to authority, the respondents asse rt that the burden of demonstrating that procedural default rules are not regularly and consistently applied rests with petitioner. I cann ot agree. Procedural default is an affirmative defense which may be waiv ed. Moreover, it is respondents who seek a dismissal, and ordinarily under such circumstances the burden rests with the proponent o f the defense and of the motion. Id. at 1463 n.21 (citations omitted). See also Coleman v. Calderon , No. C-89- 1906-RMW, 1996 WL 83882, at *3 (N.D. Cal. Feb. 20, 1996) (Unpublished Order), aff’d on other grounds by150 F.3d 1105 (9th Cir.), rev’d on other grounds by119 S. Ct. 500 (1998). There is no doubt that “state-court procedural defa ult . . . is an affirmative defense,” and that the state is “obligated to raise procedural default as a defense or lose the right to assert the defense thereafter. ” Gray v. Netherland , 518 U.S.6 Traditionally the burden of proving an affirmative defense falls on the

party asserting the affirmative defense. See Oklahoma Radio Assocs. v. FDIC , 987 F.2d 685, 693 (10th Cir. 1993) (citing Paul v. Monts , 906 F.2d 1468, 1474 (10th Cir. 1990) (“Estoppel is an affirmative defen se upon which the defendant has the burden of proof.”)); Jackson v. Robertson , 763 F.2d 1176, 1183 (10th Cir. 1985) (“[T]he burden of proof . . . is upon the def endant as to all affirmative defenses which he sets up . . . .” (internal quotat ions omitted)).

7 Cf. Boyd v. Ward , No. 98-6309, 1999 WL 370418, at *18 n.1 (10th Cir

. June 8, 1999) (refusing to apply procedural bar to an ineffective assistance of trial counsel claim because, inter alia, “it is unclear w hether Oklahoma’s special remand rule is adequately and evenhandedly applied, ” thus arguably placing the burden of non-persuasion on the state).- 20 - 152, 165-66 (1996). 6 In addition, the state is undoubtedly in a betterposition to establish the regularity, consistency and efficienc y with which it has applied Rule 3.11 in the past to allow direct appellants to deve lop a factual record challenging the adequacy of trial counsel than are habeas petit ioners, who often appear pro se, to prove the converse. Cf. 2 McCormick on Evidence § 337, at 431 (John W. Strong ed., 4th ed. 1992) (“If proof of the facts i s inaccessible . . . it is usually fairer . . . to place the burden of proof and persu asion on the party claiming its existence.”). Accordingly, we conclude that the st ate bears the burden of proving the adequacy of a state procedural bar in order to preclude federal habeas review. 7 This is not to say, however, that a petitioner has no responsibility to put the adequacy of the state procedural bar at issue befor e the state is required to come forward with its proof. Once the state pleads the affirmative defense of an independent and adequate state procedural bar, the burden to place that defense in- 21 -

issue shifts to the petitioner. This must be done, at a minimum, by specific allegations by the petitioner as to the inadequacy of the state procedure. The scope of the state’s burden of proof thereafter wil l be measured by the specific claims of inadequacy put forth by the petitioner. Here, the state pled the defense of an adequate and independent state procedural bar, as it was required to do. However, Hooks thereafter failed to meet his burden of placing in issue the adequacy of the procedural bar. Nevertheless, we believe Hooks’ failure should be e xcused in this case in light of the peculiar timing of the proceedings below. Hook s filed his habeas petition in federal district court on December 2, 1996 — more t han two years after Brecheen was decided and almost two years before English was decided. The district court denied Hooks’ petition on March 30, 1998 — three mo nths before we issued our opinion in English . In this posture, we cannot say that either Hooks or the district court was in error in relying upon the widely-under stood holding in Brecheen that federal habeas review of ineffective assistance of counsel claims is not barred by Oklahoma’s rule that criminal defendants must raise all claims on direct review or waive them. Understandably, here neither party addressed the ki nd of factual inquiry into the adequacy of Oklahoma’s Rule 3.11 that was suggested by English

. Accordingly, as we did in English , we think it most appropriate here to remand to8 See footnote 4. - 22 -

the district court for a determination of whether O klahoma’s state procedural bar should preclude federal habeas review of Hooks’ cla ims of ineffective assistance of counsel not raised on direct appeal. On remand, if Hooks believes Oklahoma’s procedural bar to be inadequate, he must place that issue before the district court in a clear way. RespondentAppellee then bears the burden of proving the adequ acy of Oklahoma’s bar. If the district court finds Oklahoma’s procedural bar to be adequate, the merits of Hooks’ ineffectiveness claims need not be reached. If the court determines that Oklahoma’s procedural bar is inadequate, the distri ct court then need only reaffirm its previous rulings on the merits of Hook s’ ineffectiveness claims and the merits analysis will then be appealable to this court. Although a determination of the adequacy of the state procedural bar defense is a necessary prologue to our consideratio n of most of Hooks’ claims of ineffective trial counsel, we can reach the merits of one of his ineffective trial counsel claims because Hooks did raise on direct st ate appeal one such claim. 8 In addition, we can consider on the merits Hooks’ clai m of ineffective assistance of appellate counsel because that claim was raised and decided on the merits in Hooks’ state postconviction proceedings.- 23 -

B. Merits 1. Did Hooks’ trial counsel render ineffective ass istance in not allowing Hooks to testify at trial ? On direct appeal, the Oklahoma Court of Criminal Ap peals stated that “Hooks contends that defense counsel was ineffectiv e because Hooks was not allowed to testify during either the first or secon d, stage of trial.” Hooks I , 862 P.2d at 1283. Before the federal district court an d before this court, Hooks has pared his claim to an allegation that his trial cou nsel was ineffective only for “fail[ing] to allow Mr. Hooks to testify in the sec ond stage.” Under AEDPA’s amendments to § 2254(d), we cannot gr ant the writ of habeas corpus unless the state court adjudication “ resulted in a decision that was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d)(1). Applying the general frameworklaid out in Strickland v. Washington , 466 U.S. 668 (1984), we conclude that the Oklahom a Court of Criminal Appeals decision was neither “contrary to [nor] involved an unreasonable application of Federal law, as determi ned by the Supreme Court of the United States.” Thus we affirm the district co urt’s denial of the writ on this claim. In order to prevail on a claim of ineffective assis tance of counsel, petitioner must demonstrate: “(1) that his counsel’s performan ce fell below an objective- 24 -

standard of reasonableness and (2) that the deficie nt performance was prejudicial to his defense.” Hickman v. Spears , 160 F.3d 1269, 1273 (10th Cir. 1998) (citing Strickland , 466 U.S. at 688, 694 ). In Hickman , we explained the application of the Stricklandstandard: To satisfy the first prong of this test, petitionermust overcome the strong presumption that counsel’s conduct falls wit hin the wide range of reasonable professional assistance. We review p etitioner’s ineffective assistance of counsel claim from the pe rspective of his counsel at the time he rendered his legal services, not in hindsight. In addition, in considering counsel’s performance, we focus on not what is prudent or appropriate, but only what is co nstitutionally compelled. To satisfy the second prong, petitionermust show that there is a reasonable probability that, but for cou nsel’s unprofessional errors, the result of the proceeding would have been different. 160 F.3d at 1273 (citations and quotations omitted) . “In the specific context of a challenge to a death sentence, the prejudice compon ent of Stricklandfocuses on whether the sentencer . . . would have concluded th at the balance of aggravating and mitigating circumstances did not warrant death. ” Brecheen v. Reynolds , 41 F.3d 1343, 1365 (10th Cir. 1994) (quotation omitted ). In addressing this claim in Hooks’ direct appeal, t he Oklahoma Court of Criminal Appeals identified the proper standard und er Strickland . See Hooks I , 862 P.2d at 1283. The court quoted a hearing condu cted in the trial court’s chambers at the end of the prosecution’s case durin g the first phase of trial that clearly evidenced Hooks’ understanding of his rightto testify on his own behalf- 25 -

and his personal decision not to testify. Id. The court then provided the following analysis:

Whether a defendant will testify on his own behalf at a criminal trial is a decision properly left to the a ccused. See Rule 1.2(a) of the Rules of Professional Conduct , 5 O.S.Supp.1988, Ch. 1, App. 3-A. Assuming Hooks was influenced by defense counsel’s advice, which may have suggested that he not testif y, such advice is a matter of trial strategy and will not be considered ineffective assistance of counsel. See Camron v. State , 829 P.2d 47, 54 (Okl. Cr. 1992). Hooks has failed to establish defense c ounsel’s performance was deficient. Even if we were to assu me that defense counsel’s performance was deficient, he has failed to demonstrate any possibility that, but for counsel’s errors, the result of the trial would have been different. This assignment of erro r is denied. Id. While the state court opinion is a reasonable appli cation of Strickland on its face, it is further corroborated by the testimony a dduced at the federal evidentiary hearing in April 1997. Testimony from the federal evidentiary hearing illustrates that Hooks’ trial counsel’s performance was not leg ally deficient. Regarding Hooks’ trial lawyer’s decision not to call him as awitness during the penalty phase of the trial, the following exchange took pla ce: “[Q.] Why did you decide not to present . . . Hooks as a witness in the second stage? A. I didn’t think he would make a good witness.

. . .- 26 -

[A.] Was he a good witness on — was he ready to be agood witness on May, whatever day, the 10th, that he wou ld have testified? I didn’t think so. That was my call atthe time. I don’t remember ordering him not to testify or tel ling him that he would not be allowed to testify. I don’t rememb er him insisting on testifying. In light of Strickland ’s command that “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and its ad monition not to indulge in the temptation to “second-guess counsel’s assistance af ter . . . adverse sentence,” 466 U.S. at 689, we cannot say that Hooks’ counsel perf ormed below the prevailing professional norms in advising Hooks not to testify at the sentencing phase of his trial. Further, the April 1997 federal evidentiary hearing corroborates the Oklahoma Court of Criminal Appeals’ conclusion, und er Strickland ’s second prong, that Hooks suffered no prejudice from his tr ial lawyer’s advice not to testify at the second stage of his trial. Hooks ar gues that his testimony from the evidentiary hearing established: (1) his love for h is father and the disturbance he felt from watching his father yell at and beat his mother; (2) the problems he had after losing his father and brother through “traumatic events”; (3) the bias of Shanna Allen, one of the prosecution’s witnesses; a nd (4) “[m]ost importantly,” his love for Shalimein. As to his love for Shalime in, Hooks argues that his testimony at the evidentiary hearing demonstrated: (1) his shock at killing her; (2)- 27 -

that he did not “run away when he realized what he had done”; and (3) that he was “sorry” for killing her. However, Hooks’ jury heard similar sentiments rega rding his love for Shalimein from Hooks himself, through the replay attrial of Hooks’ taped confession to police. Therein, Hooks explained that he started arguing with Shalimein over money, and that at some point she sl apped him, which prompted him to hit and then beat her. Hooks explained his dismay once he realized what he had done: “I fell back on the floor, I fell on t he floor and I took the razor and I said God what have I done. And my baby was just ly ing there. And I was fixin break it off, cut my wrists.” Hooks continued: Cut my wrists, my wrists. Cause I had hate what happened and I was fixing to cut my wrists. But something just wouldn ’t let me do it so go get her mother, go get some help. She wasn’t br eathing I felt her heart. I (unintelligible) Shalimein get up, I was grabbing her, holding her trying to make her get up, get up and s he just kept flopping down and it scared me so bad I just grabbe d the baby and run out of there. All I could think of was get help, get help. . . . I said come on get up now and quit playing joke on me come on get up, you know I didn’t hurt you, come on we fight like this I’m sorry. I was saying that. And I glanced back in there and she still laying th ere, then all of the sudden I didn’t feel no heart beating. I took a mi rror, you know cause I watched it on T.V., they say that if you ta ke a mirror and put it in some, in front of somebody’s uh mouth if, if they don’t, if it don’t get foggy that means that they, something ain ’t right you know. And I hear heart beating and stop and then I put th at mirror in there and I didn’t get no pulse and I mean I just ran int o a state a shock. I didn’t believe it. I grabbed my baby I run over to her mother’s house.9 The jury also heard testimony that Hooks earlier ha d threatened to kill one

of his “bitches” that he maintained for prostitutio n; that he didn’t want any of his “bitches” to have more than one child; that he had threatened Shalimein to kick this second fetus “out her ass” and similar evidenc e. The medical examiner (continued...) - 28 - . . . I just didn’t mean it to be like this that’s all. So help me God.

. . . I wanta live. I regret what I have done. I’m not that kinda person and Shalimein no matter what baby please, get well for me, good Lord up above you know how I am. Get well for Varg us, for me, long as I know you all are all right I feel a lot b etter inside, because only reason I’m making this statement is because no matter what I say I can’t bullshit myself I can’t live knowing I done what I done.
While Hooks’ taped confession might not have accomplished all that Hooks claims he would have by testifying at trial, we bel ieve the jury was exposed to his claims that he loved Shalimein, that he never meantto kill her, that he was anguished when he realized how badly he had beaten her, and that he attempted to get help for her instead of running away. In lightof the fact that the jury heard Hooks’ “most important[]” message at trial, we conc lude that he failed to carry his burden here to demonstrate that in the absence of his trial attorney’s advice not to testify he would have testified and the jury would have “concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland , 466 U.S. at 695. 9 Accordingly, the Oklahoma Court of Criminal9 (...continued)

concluded that Shalimein had received “multiple blu nt force injuries to the head, chest, arms, back, abdomen [and] vagina.” - 29 - Appeals decision rejecting Hooks’ claim of ineffect ive assistance of counsel for advising Hooks not to testify at sentencing was notcontrary to, or an unreasonable application of, clearly established fe deral law, as determined by the Supreme Court.

2. Did Hooks’ appellate counsel render ineffective assistance by failing to raise or adequately brief certain issues? Hooks claims that the two lawyers who represented h im in his state direct appeal, Robert Boren (“Boren”) and Patrick Lavelle (“Lavelle”), provided ineffective assistance by (1) failing to raise “cri tical issues,” and (2) insufficiently researching and briefing the issues that they did r aise. He first raised this claim in his application for state postconviction relief. There, the Oklahoma Court of Criminal Appeals held that Hooks’ appellate counsel were not constitutionally ineffective under Strickland . Hooks II , 902 P.2d at 1123-24. We conclude that the state court’s decision was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the Supreme
Court.- 30 -

a. Failure to raise a critical issue. The only “critical issue” that Hooks claims Boren a nd Lavelle failed to raise was a claim of prosecutorial misconduct arisi ng from improper statements made by District Attorney Macy during opening and c losing arguments comparing Hooks to Charles Manson, which Hooks claims “inflam [ed] and prejudic[ed]” the jury. “After thoroughly reviewing” this issue, the Oklahoma Court of Criminal Appeals concluded that it did not “warrant relief.” Hooks II , 902 P.2d at 1124. The federal district court “assumed without decidin g that Boren and Lavelle acted unreasonably and that their performance on appeal w as indeed deficient,” but nevertheless concluded that “Hooks is not entitled to relief . . . because he has failed to affirmatively demonstrate prejudice.” Ineffective assistance of appellate counsel claims are governed by the standards of Strickland . See United States v. Cook , 45 F.3d 388, 392 (10th Cir. 1995). When considering a claim of ineffective ass istance of appellate counsel for failure to raise an issue, we look to the merit s of the omitted issue. Id. “If the omitted issue is without merit, counsel’s failure t o raise it does not constitute constitutionally ineffective assistance of counsel. ” Id. at 393 (quotation omitted). In his half-page argument before this court, Hooks makes little effort to develop the merits of his claim of prosecutorial mi sconduct underlying his claim of ineffective assistance of appellate counsel. Ho wever, divining his argument- 31 -

from other portions of his appellate brief, we unde rstand Hooks to claim that the prosecutors acted outrageously by “paint[ing] a pic ture of Mr. Hooks as another ‘Charles Manson,’ asserting that Mr. Hooks had purp osefully cut a cross into Shalimein’s forehead and ‘Helter Skelter’ was his f avorite movie.” Hooks argues that his jury was inflamed, and he was prejudiced, by prosecutorial attempts to link “Hooks to the infamous mass murderer Charles M anson and the circumstances of Shalimein’s death to that of Sharo n Tate.” Specifically, Hooks contends that the following remarks by District Att orney Macy constituted prosecutorial misconduct: Shanna [Dinh, a prosecution witness] will further t ell you that Helter Skelter was Hooks’ favorite movie, that he watched it a lot on VCR. In that movie Charles Manson shaved the head of his vi ctim, Sharon Tate, cut a cross in her forehead and killed her unborn child . (opening statement of Mr. Macy.) [Hooks] took a razor and cut of[f] most of her hairand cut a cross in her forehead and killed her baby, just as Charlie M anson did in Helter Skelter. (opening statement of Mr. Macy.) What about the cross on the forehead and the shavin g of the head, so consistent with what Shanna [Dinh] told yo u about the movie Helter Skelter and Charlie Manson. (closing argument of Mr. Macy.) Hooks correctly points out that District Attorney M acy’s opening remarks contain inaccuracies. First, Dinh never testified that Helter Skelter was Hooks’ favorite movie. At trial, she said only: “I watch ed [Helter Skelter] with him once. I don’t know how many times he’s watched it. ” Second, District Attorney10 In a separate argument of ineffective assistance of trial counsel (which we have remanded to the district court), Hooks asserts that his trial counsel performed unreasonably by failing to object to Dist rict Attorney Macy’s remarks. At the federal evidentiary hearing, when asked abou t why he did not object to the prosecutor’s remarks, Hooks’ trial counsel stated t hat he believed it was good strategy not to object during opening or closing st atements. He said: “I think it (continued...) - 32 - Macy’s accounts of Helter Skelter’s depiction of th e murder of Sharon Tate was inaccurate. District Attorney Macy’s reference to Manson during his closing argument did not make any inaccurate characterizations of wi tness testimony. In closing, District Attorney Macy did not claim that Dinh test ified that Helter Skelter was Hooks’ favorite movie. He merely made reference to a cross on Shalimein’s forehead and the fact that her hair had been shaved , then stated that those elements were consistent with what Dinh had testifi ed to regarding the film. In fact, Dinh stated at trial, “all the women in the m ovie had their heads shaved and had a cross right here on their forehead.” As to t he accuracy of these characterizations of Shalimein’s physical appearanc e, we note only that postmortem photographic evidence admitted at trial prov ides an arguable basis that Shalimein had a small cross cut into her forehead a nd had a significant amount of her hair shaved. Because Hooks’ trial lawyer did not object to Distr ict Attorney Macy’s remarks at trial, 10 under Oklahoma law, these claims would have been r eviewed10 (...continued)

looks bad to the jury. The thinking, the conventio nal wisdom is that if you stand to your feet everytime there is anything remotely o ff color [then] you are going to appear to be a whiner to the jury and you are afrai d of the truth coming out.” - 33 - on appeal only for fundamental error. The Supreme Court has “recognized, it is not enough that the prosecutors’ remarks were undes irable or even universally condemned. The relevant question is whether the pr osecutors’ comments so infected the trial with unfairness as to make the r esulting conviction a denial of due process.” Darden v. Wainwright , 477 U.S. 168, 181 (1986) (citation and internal quotations omitted). Here, in light of the evidence presented at trial w e cannot say that the prosecutor’s unnecessary and inaccurate references to Charles Manson and “Helter Skelter” so prejudiced the jury as to have denied Hooks due process. The references were neither so far off the actual evide nce nor so central to the prosecutor’s case that they were likely to have aff ected the jury’s verdicts. Furthermore, we note that the jury here was specifi cally instructed to decide the case only on the evidence introduced at trial. Because Hooks has failed to establish that his clai m of prosecutorial misconduct is “clearly meritorious,” his appellate lawyers were not constitutionally ineffective for failing to raise i t on direct appeal.- 34 -

b. Inadequate appellate brief. As a general matter, Hooks claims that Boren and Lavelle were untrained and inexperienced in death penalty appellate work. Hooks complains that the brief his state direct appeal lawyers filed was onl y “eighteen pages long and cited only four federal cases.” Hooks specifically ident ifies three issues raised in his direct appeal which he argues were insufficiently b riefed for the Oklahoma Court of Criminal Appeals. First, he claims that his dir ect appeal brief inadequately attacked the three aggravating circumstances which the jury found because the brief failed to challenge the constitutionality of the aggravators. Second, Hooks claims that his appellate lawyers performed deficie ntly by failing to cite Beck v. Alabama , 447 U.S. 625 (1980), in support of his claim thatthe trial court should have instructed the jury on lesser included offense s. Third, Hooks asserts his appellate lawyers were constitutionally ineffective in not citing Strickland in support of his claim that he received ineffective a ssistance of trial counsel when his lawyer advised him not to testify at trial. Ev en assuming that Hooks’ appellate counsel provided representation below the constitutionally required level, Hooks cannot demonstrate prejudice because e lsewhere in this opinion we reject on the merits all three issues that Hooks cl aims his appellate lawyers should have researched and briefed more thoroughly. There fore, his claim of ineffective assistance of appellate counsel fails.- 35 -

III. Whether Hooks was denied his right to due proce ss by the trial court’s refusal to instruct the jury on lesser included offenses. Predicated on Beck v. Alabama , 447 U.S. 625 (1980) and Schad v. Arizona , 501 U.S. 624 (1991), Hooks claims that he was denie d his federal constitutional right to due process of law when the state trial co urt refused to instruct the jury on second degree murder and first degree manslaught er with respect to Shalimein. In his state direct appeal, Hooks made an analogous claim based only on a state law that required the trial court to instruct the j ury on lesser included offenses supported by the evidence, which the Oklahoma Courtof Criminal Appeals denied. See Hooks I , 862 P.2d at 1280. In his state application for postconviction relief, Hooks, for the first time, r aised his federal constitutional claim under Beck . Based on “res judicata ,” the Oklahoma Court of Criminal Appeals refused to consider this claim because the court had previously resolved Hooks’ related state law claims regarding lesser in cluded instructions. See Hooks
II , 902 P.2d at 1122 & n.7. While the Oklahoma Courtof Criminal Appeals appeared to rely on state procedural bar in refusin g to consider Hooks’ Beck claim, the appellee has never asserted procedural b ar as a defense on federal habeas. As such, we will consider Hooks’ Beckclaim on the merits, as did the federal district court, which denied it based on a finding that there was “not sufficient credible evidence, admitted and/or omitt ed, that would support a finding that Hooks acted without deliberate intent on October 6, 1988.”- 36 -

A. Standard of Review At the outset, we must consider the appropriate sta ndard of review. As noted, the Oklahoma courts never considered Hooks’ federal constitutional claim with regard to his requested instructions on lesserincluded offenses. Consequently, that claim was not “adjudicated on th e merits in State court proceedings,” as contemplated by the new § 2254(d). Without a state court adjudication on the merits as to this claim, we can not apply the § 2254(d) standard of “contrary to” or “unreasonable applicat ion of” clearly established Supreme Court law. In the absence of a state courtadjudication on the merits we believe we must apply the standard of review that p redated the recent amendments to § 2254. Prior to AEDPA, we reviewed de novo bot h pure questions of law and mixed questions of law and fact. See Hatch v. State of Oklahoma , 58 F.3d 1447, 1453 (10th Cir. 1995). Because the Oklahoma Court of Criminal Appeals made some factual determinations that may bear on this i ssue, we note that “a determination of a factual issue made by a State co urt, shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1) (post-AEDPA). The appellee argues “that the trial court’s failure to give the requested instructions did not violate Beck ,” because (1) “Beckis inapplicable to Oklahoma’s statutory scheme,” and (2) “the evidence did not support the giving of the lesser included instructions.”- 37 -

The threshold question thus is whether the rule of Beck v. Alabamaapplies to Hooks, in light of the discretion afforded in Ok lahoma to the jury at the sentencing phase of this trial. Because we answer this question in the affirmative, we go on to consider whether the evidence adduced at trial supported either second degree murder or first degree manslaughter a s to Shalimein Blaine. Because we answer this question in the negative, we affirm.

B. Applicability of Beck v. Alabama In Beck , the Supreme Court held that “a sentence of death [may not] constitutionally be imposed after a jury verdict of guilt of a capital offense, when the jury was not permitted to consider a verdict ofguilt of a lesser included noncapital offense, and when the evidence would have s upported such a verdict.” 447 U.S. at 627 (quotation omitted). Beckinvolved a challenge to an Alabama procedure that forbade the state trial judge in a c apital case “from giving the jury the option of convicting the defendant of a lesser included offense,” and that required the jury to “fix the punishment at death” if it found the defendant guilty. Id. at 628 & n.3. The Court noted that “if the unavai lability of a lesser included offense instruction enhances the risk of an unwarra nted conviction, Alabama is constitutionally prohibited from withdrawing that o ption from the jury in a capital case.” Id. at 638. Concluding that the Alabama procedure “in terjects irrelevant- 38 -

considerations into the factfinding process, divert ing the jury’s attention from the central issue of whether the State has satisfied it s burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime,” the Court held that a death sentence could not be imposed under th ese conditions. Id. at 642,
645. Since Beck , the Supreme Court has discussed its holding in a handful of cases raising Beckissues. Two years after Beckwas decided, the Court explained: “Our opinion in Beckstressed that the jury was faced with a situation in which its choices were only to convict the defen dant and sentence him to death or find him not guilty. The jury could not take a third option of finding that although the defendant had committed a grave crime, it was not so grave as to warrant capital punishment.” Hopper v. Evans , 456 U.S. 605, 609 (1982). In Hopper , the Supreme Court reiterated that lesser included instructions were only mandated when supported by the evidence, see id. at 611, and therefore the Court upheld a conviction under the same Alabama law thatwas at issue in Beck because, under the facts of that case, there was no evidence to support a lesser included instruction. See id. at 612-13. In Spaziano v. Florida , 468 U.S. 447 (1984), the Supreme Court held that a defendant was not “entitled to the benefit of both lesser included offense instruction[s under Beck ] and an expired period of limitations on those off enses.”- 39 -

Id. at 454. Spaziano refused to waive his statute of limitations defense as to the lesser-included offenses, thus the trial court inst ructed only on capital murder.
See id. at 450. After the jury found him guilty and the t rial court sentenced him to death (disregarding the jury’s advisory recommen dation for life imprisonment), Spaziano challenged the trial court’s decision to f orce him into a choice between availing himself of his right to instructions on le sser included offenses and his right to defend against them on the basis of expire d statutes of limitations. The Supreme Court responded as follows:

The Court in Beckrecognized that the jury’s role in the criminal process is essentially unreviewable and no t always rational. The absence of a lesser included offense instructio n increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply t o avoid setting the defendant free. In Beck , the Court found that risk unacceptable and inconsistent with the reliability this Court has de manded in capital proceedings. The goal of the Beckrule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choi ce between capital murder and innocence. Requiring that the jury be i nstructed on lesser included offenses for which the defendant may not b e convicted, however, would simply introduce another type of dis tortion into the factfinding process. Id. at 455-56 (citations omitted). Thus, the Court co ncluded that “the defendant [should] be given the choice” between the benefit o f lesser included offense instructions and asserting statute of limitations d efenses as to those offenses. See id. at 456.- 40 -

In Schad v. Arizona , the Supreme Court stated that “[o]ur fundamental concern in Beckwas that a jury convinced that the defendant had c ommitted some violent crime but not convinced that he was guilty of a capital crime might nonetheless vote for a capital conviction if the on ly alternative was to set the defendant free with no punishment at all.” 501 U.S . at 646 (1991). There, the Court upheld a conviction where the jury had been i nstructed on both first degree murder and the lesser included offense of second de gree murder, but was not instructed on the lesser included offense of simple robbery, which also was arguably warranted under the evidence. The Court r uled that the Beck requirement was satisfied so long as the jury had t he option of at least one lesser included offense which was supported by the evidenc e. See id. at 647-48. Last year, in Hopkins v. Reeves , 118 S. Ct. 1895 (1998), the Court held that Nebraska was not constitutionally required to give an instruction on the noncapital charge of second degree murder when the def endant was charged with the capital count of felony murder because, under Nebra ska law, second degree murder is not a lesser included offense of felony m urder. The reason Nebraska holds that second degree murder is not a lesser inc luded offense of felony murder is because the former requires an intent to cause d eath, whereas the latter does not. The Court explained that since second degree murder requires proof of an element (intent to cause death) that is not require d as an element of the crime of- 41 -

felony murder it is not a lesser included offense ( even though “proof of a culpable mental state with respect to the killing” is a requ ired element for imposition of the death penalty for the capital offense of felony mur der under Tison v. Arizona , 481 U.S. 137 (1987) and Enmund v. Florida , 458 U.S. 782 (1982)). See Hopkins , 118
S. Ct. at 1902. As a result, the Supreme Court upheld a conviction for felony murder (and the subsequent death penalty that was imposed by a separate three-judge panel) even though the jury at the guilt phase was given n o option to find the defendant guilty of a non-capital crime. The Court held thatunder Nebraska law there was no lesser included offense to felony murder and that Beckdid not entitle a defendant to an instruction on a non-capital offens e if it was not genuinely a lesser included offense under state law. See id. at 1900-03 In distinguishing Beck , the Supreme Court said the following: [T]he Court of Appeals again overlooked significantdistinctions between this case and Beck . In Beck , the death penalty was automatically tied to conviction, and Beck’s jury w as told that if it convicted the defendant of the charged offense, it was required to impose the death penalty. See Beck v. Alabama , 447 U.S., at 639, n. 15, 100 S. Ct., at 2390 n. 15. This threatened to make the issue at trial whether the defendant should be executed or n ot, rather than “whether the State ha[d] proved each and every elem ent of the capital crime beyond a reasonable doubt.” See id. , at 643, n. 19, 100 S. Ct., at 2392, n. 19. In addition, the distortion of the trial process carried over directly to sentencing, because an Alabama jury unwilling to acquit had no choice but to impose the death penalty. There was thus a significant possibility that the death penalty wo uld be imposed upon defendants whose conduct did not merit it, simply because their- 42 -

juries might be convinced that they had committed s ome serious crime and should not escape punishment entirely. These factors are not present here. Respondent’s j ury did not have the burden of imposing a sentence. Indeed, wi th respect to respondent’s insanity defense, it was specifically instructed that it had “no right to take into consideration what punis hment or disposition he may or may not receive in the event of his conviction or ... acquittal by reason of insanity.” App. 24. In addition, the three-judge panel that imposed the death penalty di d not have to consider the dilemma faced by Beck’s jury; its alt ernative to death was not setting respondent free, but rather sentenc ing him to life imprisonment. [FN7] FN7. We are not, of course, presented with a case t hat differs from Beckonlyin that the jury is not the sentencer, and we expr ess no opinion here whether that difference alone would render Beck inapplicable. The crucial distinction between Beckand this case, as noted, is the distinction between a State’s prohibi ting instructions on offenses that state law recognizes as lesser includ ed, and a State’s refusing to instruct on offenses that state law doe s not recognize as lesser included. Hopkins , 118 S. Ct. at 1901-02. Picking up on these distinctions noted in Hopkins , this court, in United States v. McVeigh , 153 F.3d 1166 (10th Cir. 1998), cert. denied , 119 S. Ct. 1148 (1999), rejected McVeigh’s Beckclaim, in part because “[t]his case is unlike Beck. . . because the jury here was not compelled to i mpose the death penalty on McVeigh if it convicted him of the charged offenses ; rather, it had the opportunity to reject the death penalty during the sentencing phase.” Id. at 1197 (citing Hopkins , 118 S. Ct. at 1901-02).- 43 -

Although the McVeighcourt did, thereby, point out a difference between the claims there presented and the holding of Beck , this distinction should not be elevated to a holding that Beckdoes not apply in any case where the convicting jury later had the discretion to sentence the defen dant to life, instead of death. Rather, a careful reading of McVeigh reveals that the real holding in that case was that the lesser included instructions sought by McVeigh were not constitutionally required because the offenses thathe wanted submitted to the jury were not lesser included offenses as a matter of fe deral law. The McVeigh court, thereby, disposed of McVeigh’s Beckclaim by relying on Hopkins , which instructed that a defendant facing a capital charge has no constitutional right to an instruction on a non-capital offense if such offens e is not a lesser included offense of the capital charge. The subsequent language in McVeigh pointing out a distinction between McVeigh’s claim for a lesser included instruction a nd the defendant’s claim for a lesser included instruction in Beckwas not necessarily dispositive, nor was it necessary once it was concluded that the other offe nses on which McVeigh wanted the jury instructed were not lesser included offenses. Indeed Tenth Circuit cases prior to McVeigh had consistently applied a Beckanalysis in situations where conviction of a capit al offense did not automatically result in the death penalty. In fact , all of our pre-McVeigh death11 See also Andrews v. Deland , 943 F.2d 1162, 1183-84 & n.31 (10th Cir.

1991) (refusing to consider Beckclaim in state case arising out of Utah because (continued...) - 44 - penalty cases that arose out of Oklahoma involved aprocedure whereby, following conviction of a capital offense, the jury still had to weigh aggravating and mitigating circumstances before selecting the d eath penalty. Nevertheless, in each of those cases we applied a full Beckanalysis and continued to state, even under those procedures, that a capital defendant ha d a constitutional right to a lesser included offense instruction if there was ev idence supporting a lesser included offense. None of these cases suggested th at the subsequent sentencing discretion to give life imprisonment rather than de ath in any way mitigated or abrogated the Beckduty to instruct on lesser included offenses if th e evidence warranted it. See Duvall v. Reynolds , 139 F.3d 768, 785-87 (10th Cir.) (denying Beckclaim on the merits because “evidence did not supp ort an instruction on murder in the second degree or manslaughter in the first degree”), cert. denied , 119 S. Ct. 345 (1998); Hatch v. State of Oklahoma , 58 F.3d 1447, 1454 (10th Cir. 1995) (denying Beckclaim on the merits because “there is not evidence , which, if believed, could reasonably have led to a verdict of guilt of a lesser offense” (internal quotation omitted)); Parks v. Brown , 840 F.2d 1496, 1499-1502 (10th Cir. 1987), rev’d on other grounds , 860 F.2d 1545 (10th Cir. 1988) (en banc), rev’d on other grounds sub nom. Saffle v. Parks , 494 U.S. 484 (1990) (same). 1111 (...continued)

habeas petitioner abused the writ, but stating: “D espite Beck ’s narrow factual setting – a statute prohibiting an instruction on alesser included offense in a capital case – Beckhas been interpreted more broadly to establish a c onstitutional right to a lesser included offense instruction when the death penalty is imposed and the evidence warrants the instruction.” (intern al quotation omitted)). - 45 - Although none of those cases explicitly addressed t he argument that subsequent sentencing discretion might abrogate a Beckduty, the fact that they continued to apply Beck , notwithstanding their acknowledgment of the subse quent sentencing discretion to avoid the death penalty following con viction of a capital offense, suggests that pre-McVeighTenth Circuit precedent had already established th at a defendant does not lose his rights under Beckto a lesser included offense instruction merely because the jury retained senten cing discretion to impose a punishment less than death. If those cases are so construed, then McVeigh ’s alternative rationale for decision to the contrary could not be construed as precedential because one panel cannot disregard pri or Tenth Circuit precedent.
See United States v. Foster , 104 F.3d 1228, 1229 (10th Cir. 1997). Similarly, Tenth Circuit cases after McVeigh have continued to apply a Beckanalysis to the issue of whether a defendant is en titled to a lesser included offense instruction notwithstanding the fact that t he jury in those cases retained discretion at the sentencing stage to give a penalty less than death. See Walker v. Attorney General for the State of Oklahoma , 167 F.3d 1339, 1349-50 (10th Cir.12 There is a similar interpretation of McVeigh in Roberts v. Ward , No. 98-

6066, 1999 WL 162751 (10th Cir. Mar. 25, 1999) (unp ublished disposition). However, that is an unpublished order and judgment so it lacks precedential force and, in any event, that statement, once again, was only an alternative holding. - 46 - 1999) (evidence did not support a lesser included o ffense instruction); Stouffer v. Reynolds , 168 F.3d 1155, 1170-71 (10th Cir 1999) (same). T he closest that any published Tenth Circuit case has come to reading Mc Veighas abrogating Beck ’s requirements when a jury has discretion to give a s entence less than death is Johnson v. Gibson , 169 F.3d 1239 (10th Cir. 1999). However, the iss ue there was only whether defendant’s counsel was inadequate forfailing to raise a Beckclaim on the direct state appeal, thereby establishing ca use and prejudice to excuse state procedural bar such that the issue could be conside red on federal habeas. In analyzing whether counsel’s performance was deficie nt we asked whether the omitted claim was “clearly meritorious” or a “dead- bang winner.” See id. at 1251. Citing McVeighfor the proposition that Beckis satisfied so long as the jury retains sentencing discretion to impose someth ing less than the death penalty, we concluded that the Beckissue was not such a “dead-bang winner,” thus the claim was procedurally barred. See id. That stops short of giving McVeigh the expansive reading sought by the appellee here. Ins tead, it only recognizes that the Beckinterpretation advanced in McVeigh had sufficient viability that it was not deficient for Johnson’s attorney to give Becksuch a narrow reading. 1213 Another fact counseling against an excessive relian ce on the fact that the

Alabama jury in Becklacked discretion at sentencing is that even underthe scheme at issue in Beck , the judge retained discretion to sentence the defendant to a punishment less than death (life imprisonment). The jury, admittedly, did not (continued...) - 47 - In order to avoid potential confusion on this issue , we now explicitly disapprove the language in McVeigh suggesting that Beckdoes not apply when a jury has sentencing discretion to issue a penalty l ess than death. Our careful review of this issue convinces us that such a readi ng of Beckand its progeny would be in error, and that a proper reading of Bec kentitles a defendant in a capital case to a lesser included instruction when the evidence warrants it, notwithstanding the fact that the jury may retain d iscretion at sentencing to issue a penalty less than death. Several considerations convince us of the continuin g force of Beck , even in jurisdictions that permit sentencing discretion. F irst , much of the language of Beckand its progeny is directed toward the enhanced re liability at the guilt phase of a capital case accomplished by giving lesser inc luded instructions supported by the evidence. While Beckdrew heavily for analogy from the line of cases in which the Court “invalidated procedural rules that tended to diminish the reliability of the sentencing determination,” the BeckCourt added that “[t]he same reasoning must apply to rules that diminish th e reliability of the guilt determination.” 13 Beck , 447 U.S. at 638 (emphasis added). Throughout Bec k , the13 (...continued)

know this fact, but the Supreme Court did when it i ssued its Beckopinion. See Beck , 447 U.S. at 629 (“If the defendant is convicted a nd the death penalty imposed [by the jury], the trial judge must then ho ld a hearing with respect to aggravating and mitigating circumstances; after hea ring the evidence, the judge may refuse to impose the death penalty, sentencing the defendant to life imprisonment without possibility of parole.”); id. at 630 (“The jury subsequently convicted [Beck] and imposed the death penalty; aft er holding a hearing with respect to aggravating and mitigating factors, the trial court refused to overturn that penalty.”); id. at 632 n.7 (Under Alabama’s death penalty scheme, “it is the judge and not the jury who does the actual sentenci ng.”). See also Hopkins , 118 S. Ct. at 1900 n.4 (Under the Alabama procedures re viewed in Beck , “[i]f the jury imposed the death penalty, the trial judge had the authority to reduce the sentence to life imprisonment without the possibility of par ole. The jury, however, was not instructed to this effect; rather, it was told thatit was required to impose the death penalty if it found the defendant guilty.”). The f act that there was sentencing discretion (albeit residing only in the judge and n ot the jury) to avoid death even after a capital conviction in these cases did not d eter the Supreme Court from articulating and then reaffirming the holding that in a capital case a defendant has a constitutional right to jury instructions on a le sser included offense if the evidence warrants it. - 48 - Court focuses on the reliability of the conviction . See, e.g., id. at 637 (“For when the evidence unquestionably establishes that the de fendant is guilty of a serious, violent offense . . . the failure to give the jury the ‘third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction .” (emphasis added)). This emphasis on the reliability of the conviction decision, as opposed to the sentencing consequences, continues in the Supreme Court cases following Beck . In Hopper , the Court noted that “our holding [in Beck ] was that the jury must be permitted to consider a verdict of guilt of a noncapital offense ‘in every14 There is no clear consensus that we can derive from the other circuits.

Some circuit courts of appeals have applied a Beckanalysis even though the (continued...) - 49 - case’ in which ‘the evidence would have supported s uch a verdict.’” 456 U.S. at 610. The Court further clarified that because less er included instructions were required by due process “ onlywhen the evidence warrants such an instruction, [t]he jury’s discretion is . . . channelled so thatit may convicta defendant of any crime fairly supported by the evidence.” Id. at 611 (first emphasis in original, second added); Spaziano , 468 U.S. at 455 (“The absence of a lesser include d offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital m urder, but simply to avoid setting the defendant free.”); Schad , 501 U.S. at 646 (“Our fundamental concern in Beckwas that a jury convinced that the defendant had c ommitted some violent crime but not convinced that he was guilty of a cap ital crime might nonetheless vote for a capital conviction if the only alternative was to set the defendant f ree with no punishment at all.” (emphasis added)). Second , we are persuaded of the continuing viability of B eckeven in jurisdictions that afford juries sentencing discret ion following conviction of a capital offense because the Supreme Court and this court have continued to apply Beckto cases that have arisen in jurisdictions which p ermit sentencing discretion after a finding of guilt of first degree murder. 14 Thus, in Spaziano , the Court14 (...continued)

jurisdictions from which the appeals arose permit j ury discretion to impose a sentence less than death following conviction of a capital offense. See LaGrand v. Stewart , 133 F.3d 1253, 1262-63 (9th Cir.), cert. denied , 119 S. Ct. 422 (1998); Ransom v. Johnson , 126 F.3d 716, 724-26 (5th Cir.), cert. denied , 118 S. Ct. 361 (1997); Kornahrens v. Evatt , 66 F.3d 1350, 1354-55 (4th Cir. 1995). Other cir cuit decisions, at least as an alternative holding, appe ar to have applied a standard similar to that which we are now disapproving — int imating that sentencing discretion vitiates the constitutional requirements recognized in Beck . See Livingston v. Johnson , 107 F.3d 297, 312-13 (5th Cir.), cert. denied , 118 S. Ct. 204 (1997); Blair v. Armontrout , 916 F.2d 1310, 1326 (8th Cir. 1990); see also O’Rourke v. Endell , 153 F.3d 560, 571-74 (8th Cir. 1998) (in assessin g a claim of ineffective assistance of counsel based on trial co unsel’s failure to request lesser included instructions, noting that jury found no mi tigating factors at sentencing phase and opted for death instead of life belied a finding of prejudice under Strickland ), cert. denied , 119 S. Ct. 1048 (1999).

15 In fact, in Spaziano , the jury recommended life imprisonment and the sentencing judge disregarded the recommendation and sentenced the petitioner to death. See 468 U.S. at 451-52. - 50 - addressed petitioner’s Beckclaim on the merits, despite the fact that the Cou rt was well aware that Florida’s sentencing scheme per mitted the jury to recommend life instead of death. 15 In Schad , the Court dealt head-on with the merits of petitioner’s Beckclaim, despite noting that after Schad was convict ed of first degree murder, the judge sentenced him to death fol lowing sentencing hearing.
See Schad , 501 U.S. at 629. And just last year, in Hopkins , the Court addressed the merits of petitioner’s Beckclaim, despite explicitly acknowledging that the sentencing panel had the “alternative” of sentencin g him to “life imprisonment.”
118 S. Ct. at 1902 & n.7.- 51 -

Third , any assumption that discretion at the sentencing stage can make up for the lack of an option to convict of a lesser in cluded offense supported by evidence at the guilt phase is a suspect assumption . For several reasons, the sentencing phase is an imperfect place for a jury t o manifest doubt it may have had concerning an element of the offense of convict ion. First, at the sentencing phase, much evidence that would have been inadmissi ble at the guilt phase is permitted to go before the jury. The effect of thi s sentencing phase evidence could be to cause the jury to forget any doubt it h arbored at the guilt phase. Second, instructions at sentencing typically force the jury to focus on the evidence of aggravating and mitigating factors pres ented at sentencing, thus directing the attention of the jury away from any r esidual doubt about the elements of conviction. Finally, we note that juro rs might experience a psychological difference at the sentencing stage, t ending to cause them to place behind them any doubts they may have harbored at th e conviction stage. In sum, a jury that gets to stage two based on an unreliabl e determination at stage one may not be able to convey accurately its doubt about gu ilt through its sentencing determination.

C. Application of Beck v. Alabama16 Hooks’ first proposed first degree manslaughter jury instruction reads: The Defendant is charged with Murder in the First D egree. You are instructed that in addition to the State’s having sumbitted [sic] evidence concerning the crime of Murder in th e First Degree, evidence has also been introduced concerning the cr ime of Manslaughter in the First Degree. The elements of Manslaughter in the First Degree ar e: 1) Death of a human; 2) When perpetrated without a design to effect deat h; 3) By means of a dangerous weapon If you have a reasonable doubt of the Defendant’s g uilt on the charge of Murder in the First Degree, you must then consider the charge of Manslaughter in the First Degree. (Accused’s Requested Instruction No. 1.) Hooks’ second proposed first degree manslaughter in struction reads: No person may be convicted of Manslaughter in the F irst Degree unless the State has proven beyond a reasona ble doubt each element of the crime. These elements are 1. Death of a Human 2. Death was not excusable or justifiable 3. Inflicted by a dangerous weapon 4. Caused by the defendant (continued...) - 52 - Recognizing the continuing force of Beck , we now address Hooks’ claim that he was entitled to jury instructions on lesserincluded noncapital offenses. With respect to causing Shalimein’s death, at trial Hooks proposed two jury instructions on first degree manslaughter 16 and one jury instruction on second16 (...continued) 5. While defendant was in a heat of passion. (Accused Requested Instruction No. 5.) Moreover, Hooks requested the jury be instructed th at: You may find the Defendant guilty of any offense, t he commission of which is necessarily included in the crime charged. In this case, Manslaughter in the First Degree is a lesser includ ed offense of Murder in the First Degree. (Accused’s Requested Instruction No. 2.)

17 Hooks’ proposed instruction on second degree murderreads as follows: No person may be convicted of Murder in the Second Degree unless the State has proven beyond a reasonable dou bt each element of the crime. These elements are: First , the death of a human; Second, occurring as a Result of an act or event wh ich happened in the commission of a felony; Third, caused by the de fendant while in the commission of a felony; Fourth, the elements of the Manslaughter in the First Degree defendant is alleged to have be en in the commission of are as follows: 1: Willful; 2: Killing; 3: Of an unborn quick child 4: by any injury; 5: Caused by the Defendant 6: Committed upon the person of the mother of the c hild (Accused Requested Instruction No. 6.) - 53 - degree murder 17 . The trial judge refused to accept any of Hooks’ proposed instructions on first degree manslaughter or second degree murder, stating: “I18 Thus, as to Shalimein, the trial court instructed t he jury only on the

elements of first degree murder, as follows: No person may be convicted of MURDER IN THE FIRST D EGREE unless the State has proved beyond a reasonable dou bt each element of the crime. These elements are: FIRST: The death of a human; SECOND: The death was unlawful; THIRD: The death was caused by the defendant. FOURTH: The death was caused with malice aforethough t. (Stage One Jury Instruction No. 5.) - 54 - don’t think the evidence in this case warrants an i nstruction on Manslaughter in the First Degree or Murder in the Second Degree.” 18 In his direct state appeal, relying only on state l aw and not on Beck , Hooks claimed that “the trial court erred in refusing to instruct the jury on the offense of first degree manslaughter and second degree murder. ” Hooks I , 862 P.2d at 1280. Examining the evidence, the Oklahoma Court of Crimi nal Appeals concluded that there was no evidence to support either a first deg ree manslaughter instruction or a second degree murder instruction. See id. In his application for post-conviction relief, where he raised his constitutional lesser i ncluded argument under Beckfor the first time, the Oklahoma Court of Criminal Appe als stated that it had “thoroughly considered and rejected” Hooks’ lesser included claim on direct19 As noted at page 35, because the state did not asse rt procedural bar as a

defense to this claim, we proceed to the merits. - 55 - appeal, and thus it refused to consider it on the g rounds of “res judicata .” See Hooks II , 902 P.2d at 1122 & n. 7. 19 Considering the Beckclaim on federal habeas, the district court below held that “[t]here is not sufficient credible evidence, admitted and/or omitted, that would support a finding that Hooks acted without de liberate intent on October 6, 1988.” While we ultimately affirm the district cou rt’s conclusion that Hooks is not entitled to a writ of habeas corpus, because of the standard under 28 U.S.C. § 2254, we must first examine how the Oklahoma courts treated Hooks’ lesser included claim. While the Oklahoma Court of Criminal Appeals never considered Hooks’ lesser included claim under Beckon the merits, we note the relevance of its decision on direct appeal when considering a claim under state law for the lesser including instructions that neither requested lesse r included offense instruction was supported by the evidence. The Oklahoma Court of Criminal Appeals stated: “In the absence of any competent evidence supportin g either first degree manslaughter or second degree murder, we find no er ror in the trial court’s refusal to so instruct.” Hooks I , 862 P.2d at 1280. We understand the basis of thi s conclusion to be a mixed one of fact and Oklahoma s tate law. “Under 28 U.S.C.20 To the extent that this conclusion implicates Oklah oma state law, we note

that, before this court, Hooks makes no claim that the Oklahoma Court of Criminal Appeals interpreted or applied state law e rroneously. - 56 - § 2254(e)(1), we must afford a presumption of corre ctness to any factual findings underlying the conclusion that the evidence was ins ufficient to justify lesser included offenses instructions.” Boyd v. Ward , No. 98-6309, 1999 WL 370418, at *7 (10th Cir. June 8, 1999). 20 As best we can discern, the Oklahoma Court of Criminal Appeals reached its conclusion according t o the following logic: (1) in order to warrant instructions on the lesser include d offenses that Hooks requested there must be evidence introduced at trial tending to establish an absence of intent to commit murder; (2) under Oklahoma law, “‘[a] des ign to effect death [i.e., premeditation] is inferred from the fact of killing , unless the circumstances raise a reasonable doubt whether such design existed,’” Hoo ks I , 862 P.2d at 1280 (quoting 21 Okla. Stat. tit. 21, § 702), and; (3) H ooks failed to elicit at trial evidence of circumstances sufficient to “raise a re asonable doubt” that Shalimein’s death was premeditated. The first two steps are matters of state law on which we do not comment. The third step is a fa ctual finding entitled to a presumption of correctness, with regard to which we will find otherwise only if Hooks “rebut[s] the presumption of correctness by c lear and convincing evidence.” 28 U.S.C. § 2254(e)(1). We believe that Hooks has met his burden to rebut this general factual finding by the Oklahoma Court of Criminal Appeals.- 57 -

We agree with Hooks that there was sufficient evide nce adduced at his trial to put the issue of intent in doubt. From the outs et of trial Hooks admitted that he caused Shalimein’s death, and sought only to challe nge the state’s assertion that he did so intentionally. This is clear from Hooks’ counsel’s opening statement: There’s only going to be one issue as far as the fi rst stage of this trial. And that’s what was going through Victor’s mind as he was doing these things, because we don’t dispute the fa ct that he beat his wife to death. We don’t dispute that he did it. There’s some things that you need to look at to dec ide whether he did it with malice aforethought, though. There are som e things that you need to look at very hard to decide if he intended to kill her, because, ladies and gentlemen, I submit to you that’s the is sue in this case. I think at the close of the evidence, after you’ve heard all the evidence . . . you will see or you’ll certainly hav e a reasonable doubt that there was no intention on Victor’s part to kil l a woman that he loved. And hopefully — and I’ve never said this before to a jury — but hopefully you’ll find Victor guilty; you’ll find hi m guilty of what he is guilty of. He’s guilty of manslaughter for beat ing his wife to death. At trial, Detective Eric Mullenix testified that Ho oks, during the course of his confession, stated that he and Shalimein had a heated argument which escalated into the beating when Shalimein slapped H ooks. Further, Deputy Scott Cannon testified that Hooks told him “that he went off on her,” indicating that Hooks beat Shalimein in a rage. This evidence of aspontaneous beating, in light21 At trial, Shalimein’s mother, Virginia Plumley, tes tified that when Hooks

came to her door seeking help on the night of the b eating, she did not call for help because she “just thought it was one of the same ol d battles that they [Hooks and Shalimein] always had. They were always arguing an d fighting. And she’s come over a lot of times with bruises on her, and I figu red it was just some more of their fights. I didn’t think it was that serious.” Moreover, Shanna Dinh testified that she had witnessed Hooks beat Shalimein on “sev eral” occasions, including one prior occasion on which Hooks had beaten Shalim ein with a “two-by-four.”

22 Shanna Dinh testified that Hooks had beaten her so severely that he induced a miscarriage. Further, Dinh testified that Hooks beat Carol Hill, another one of his girlfriends.

23 Shanna Dinh testified that when she became pregnantfor a second time, Hooks induced a miscarriage by beating.

24 According to the testimony of Shanna Dinh, on the o ccasion when Hooks (continued...) - 58 - of the testimony that Hooks often beat Shalimein, 21 and his other girlfriends, 22
calls into doubt whether Hooks intended to kill Sha limein on this particular occasion, or instead merely intended to inflict ano ther one of his ruthless beatings that had theretofore never caused the death of one of his girlfriends. We are further convinced that the evidence at trial was sufficient to “raise a reasonable doubt [as to] whether” Hooks had “a desi gn to effect death,” by the evidence in support of the state’s theory that Hook s beat Shalimein in order to induce a miscarriage of the child she was carrying. During the state’s case-inchief, the prosecution elicited testimony that Hook s had previously induced a miscarriage by beating one of his other girlfriends , 23 and that he had previously attempted to force Shalimein to miscarry by beating her. 24 Moreover, the24 (...continued)

beat Shalimein with a two-by-four, after pushing he r down on a couch, Hooks spread her legs open kicked her in her vagina with cowboy boots, saying several times “I don’t want this baby.” Moreover, Amanda B laine, Shalimein’s sister, testified that she had heard Hooks tell Shalimein “ that he wished that that baby would die and wished that baby would get killed ins ide of her because he didn’t want it.” - 59 - testimony of Fred Jordan, the state’s forensic expe rt and then-Chief Medical Examiner for the State of Oklahoma, on direct exami nation, emphasized the extent of the beating to Shalimein’s abdominal area , indicating that Hooks focused on the part of Shalimein’s anatomy carrying his unborn baby. We believe that this evidence could have supported a conclusio n that Hooks intended to induce a miscarriage, but not kill Shalimein, and t herefore it raises a reasonable doubt as to whether Hooks had a design to effect Sh alimein’s death. Finally, Hooks’ attempts to help Shalimein after th e beating (e.g. cleaning Shalimein up in the bathtub, getting her mother forhelp, and driving her to the hospital), his “distraught” condition, and his statements to law enforcement personnel evincing his dismay at what he had done i ndicate that he might not have possessed the intent to kill her. The record is re plete with testimony indicating that Hooks frantically sought help in getting Shali mein to the hospital after he beat her. (Testimony of Virginia Plumley and AmandaBlaine). Moreover, there were many statements admitted at trial indicating t hat Hooks was distraught after realizing the extent of the beating he had inflicte d and its fatal result. (Testimony- 60 -

of Virginia Plumley, emergency medical physician Gr eg Johnston, Oklahoma City Police Officer Robert Ardle, and Oklahoma City Poli ce Detective Randy Scott). While we acknowledge that Hooks’ after-the-fact act ions and emotions might indicate only remorse and regret, and not a lack of intent to kill Shalimein, the latter reading is also a possible interpretation. Thus the preceding evidence did raise a reasonable doubt as to Hooks’ intent to kil l Shalimein and it provides an adequate evidentiary basis for a potential lesser i ncluded instruction. Appellee argues that “[b]oth heat of passion mansla ughter and second degree murder requires that there be no intent to k ill,” and here the evidence was sufficient to establish Hooks’ intent to kill Shali mein. This argument, however, rests on inverted logic, because in order to resolv e a Beckclaim, a court must focus on whether credible evidence admitted at tria l warranted a lesser included offense , not whether the evidence was sufficient to prove the greater one. See Le v. State of Oklahoma , 947 P.2d 535, 546 (Okla. Crim. App. 1997) (reject ing the state’s theory that a first degree heat of passion manslaughter “instruction is improper wherever there is evidence of intent.” Th e court continued: “under that theory a heat-of-passion instruction would never be appropriate where there was evidence of malice murder. The question is whether , in addition to evidence of intent, there was evidence that [defendant] killed [the victim] with adequate25 After initial briefing, oral argument, and suppleme ntal briefing on the

Beckissue, the appellee filed a notice of supplemental authority advising this court of the Oklahoma Court of Criminal Appeals’ de cisions in Welch v. State of Oklahoma , 968 P.2d 1231 (Okla. Crim. App. 1998) and Willing ham v. State of Oklahoma , 947 P.2d 1074 (Okla. Crim. App. 1997), and arguin g that second degree depraved mind murder is not a lesser include d offense of first degree malice murder under Oklahoma law. For two principa l reasons, appellee’s supplemental authority fails to persuade us. First , we do not accept a new argument by way of notice of supplemental authority notices, and arguments not raised in duly filed briefs are deemed waived. Sec ond, and more important, the Oklahoma Court of Appeals decisions referenced in appellee’s supplemental authority memorandum post-date Hooks trial by over eight years, and as we recently stated in Boyd , 1999 WL 370418, at *8, “[a]t the time of his tria l . . . [Oklahoma] courts treated second degree ‘depraved m ind’ murder as a lesser included offense of first degree malice murder.” I d. at 20 (citing Willingham , 947 P.2d at 1081).

26 Murder in the second degree was defined under Oklah oma criminal statutes in effect at the time of Hooks’ trial as f ollows: (continued...) - 61 - provocation, in a heat of passion, without the desi gn to effect death.”), cert. denied , 118 S. Ct. 2329 (1998). While we hold that the Oklahoma Court of Criminal Appeals erroneously concluded that the evidence admitted at trial was i nsufficient to raise a reasonable doubt as to Hooks’ intent to kill, for the reasons below, we hold that under Oklahoma law, Hooks was not entitled to any of the instructions that he tendered.

1. Second degree murder Under Oklahoma law, second degree murder encompasse s both (i) reckless “depraved mind” murder 25 and (2) felony murder. 26 As Hooks’ requested stage26 (...continued)

Homicide is murder in the second degree in the foll owing cases: 1. When perpetrated by an act imminently dangerous t o another person and evincing a depraved mind, regardless of human life, although without any premeditated design to e ffect the death of any particular individual; or 2. When perpetrated by a person engaged in the commi ssion of any felony other than the unlawful acts set out in [the first degree murder section] of this act. Okla. Stat. Ann. tit. 21, §701.8 (West 1983). “The Oklahoma Court of Criminal Appeals adopted a specific definition of depraved m ind in Palmer v. State , 871 P.2d 429, 431 (Okla. Crim. App. 1994): ‘A person ev inces a depraved mind when he engages in imminently dangerous conduct with con temptuous and reckless disregard of, and in total indifference to, the lif e and safety of another.’” Stouffer v. Reynolds , 168 F.3d 1155, 1171 n.18 (10th Cir. 1999). - 62 - one jury instruction number 6 makes clear, Hooks as ked for a second degree murder instruction with regard only to felony murde r. On the other hand, in his federal habeas petition before the district court a nd before this court, Hooks has argued only that a “depraved mind” second degree mu rder instruction was warranted. Thus, although Hooks requested an inst ruction on felony murder (second degree) before the trial court, because he has not predicated his federal habeas Beckclaim on an entitlement to a felony murder instruc tion, he has abandoned that argument and we will not consider it . And, while Hooks argues on federal habeas that he was entitled to an instru ction on “depraved mind”27 We acknowledge that in one previous case this courtapparently reviewed

for “plain error” a Beckclaim regarding jury instructions on lesser includ ed offenses that the petitioner had not requested at t rial. See Stouffer , 168 F.3d at 1070-71. In Stouffer , we stated: “Acknowledging counsel did not requestthe lesser-included offense instructions, Petitioner ur ges the failure amounts to plain error.” Id. at 1170. We then considered petitioner’s Beckclaim despite his failure to request jury instructions on lesser incl uded offenses at trial. However, from the opinion in Stouffer , it appears that the parties did not contest the p roper standard of review and the court merely assumed wit hout explicitly deciding the appropriate review standard. Accordingly, we view the issue of whether a state prisoner can raise a Beckclaim on federal habeas as to a lesser included of fense for which he failed to request an instruction at tr ial as an open question in this circuit. - 63 - murder, because he failed to request an instruction on “depraved mind” second degree murder at trial, we cannot consider it on fe deral habeas review. This court has never explicitly addressed the effec t of failing to request a jury instruction for a lesser included offense on asubsequent Beckclaim in the context of a federal habeas action. 27 Today we hold that a state prisoner seeking federal habeas relief may not prevail on a Beckclaim as to a lesser included instruction that he or she failed to request at tri al. As the Eleventh Circuit has recognized: “Other cir cuits have held that when a defendant fails to request a lesser included offense instruction in a capital case, the district court does not err in failing to instruct on the lesser included offense.” See United States v. Chandler , 996 F.2d 1073, 1099 (11th Cir. 1993) (federal death penalty case in which defendant at t rial made no request for a noncapital lesser included offense instruction) (citin g Kubat v. Thieret , 867 F.2d 351,- 64 -

365-66 (7th Cir. 1989); Look v. Amaral , 725 F.2d 4, 8-9 (1st Cir. 1984)). Given principles of comity, we believe this rule applies with even greater force when we sit in review of a state conviction in a § 2254 act ion. Beckrequires that we reverse a conviction when the jury was prohibited by the sovereign, in this case the state of Oklahoma, from considering a verdict of guilt of a non-capital lesser included offense. Wh ile courts have applied the Beck rule equally to state legislative prohibitions, e.g . Beck , and court rulings refusing proffered jury instructions on lesser included offe nses, when a defendant fails to request an instruction on a non-capital lesser incl uded offense we cannot say that the sovereign has denied the jury the right to cons ider a conviction on a lesser included offense. In such cases, we think it is th e defendant him- or herself that precludes the jury from considering a non-capital o ption, and we recognize that he or she may have valid strategic reasons for doing s o. As the Supreme Court has observed, “[a]lthough the Beckrule rests on the premise that a lesser included offense instruction in a capital case is of benefit to the defendant, there may well be cases in which the defendant will be confident enough that the State has not proved capital murderthat he will want to take his chances with the jury.” Spaziano , 468 U.S. at 456. Likewise the First Circuit has recognized that “[d]efense counsel may well have fe lt that, on the evidence, the jury would be more likely to convict on manslaughte r than to acquit, but if given28 Fed. R. Crim. P. 31(c) reads: (c) Conviction of Less Offense. The defendant may be found guilty of an offense necessarily included in the of fense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an o ffense.

- 65 - a choice only between a murder conviction and acqui ttal that an acquittal was more likely. Nothing in Beckor elsewhere prevents a defendant from making such a strategic choice.” Look , 725 F.2d at 9. Thus, unlike run-of-the-mill jury instruction claims where defendant neglects to obje ct at trial to a given or refused instruction, which we review for plain error, in th e context of instructions on lesser included offenses, we see particular strateg y reasons why a defendant might not want to present the jury with a compromise oppo rtunity. Moreover, in the related context of whether a feder al criminal defendant is entitled to a lesser included offense under Fed. R. Crim. P. 31(c), 28 this court has often held in noncapital cases involving direct app eals that a trial court does not err in refusing to give a lesser included instructi on — even one supported by the evidence — if the defendant neglects to make a prop er request for one at trial.
See United States v. Young , 862 F.2d 815, 820 (10th Cir. 1988) (“Given the ri ght facts, simple possession may well be a lesser inclu ded offense of possession with intent to manufacture. But here the defendant fail ed to request the instruction

. That alone bars him from claiming error on this poi nt .” (emphasis added));- 66 -

United States v. Duran , 127 F.3d 911, 914-15 (10th Cir. 1997), cert. deni ed , 118 S. Ct. 1389 (1998); Fitzgerald v. United States , 719 F.2d 1069, 1071 (10th Cir. 1983); United States v. Chapman , 615 F.2d 1294, 1299 (10th Cir. 1980); United States v. Coppola , 526 F.2d 764, 773 (10th Cir. 1975); but see United States v. Cooper , 812 F.2d 1283, 1286 (10th Cir. 1987) (upholding c onviction on a lesser included offense that was instructed to the jury su a sponte by the court holding: “The trial judge must give instructions to the jury as required by the evidence and the law where the parties so request or not, and to do so although objections are made.”); United States v. Arreola , 422 F.2d 869, 869 (10th Cir. 1970) (applying plain error to a claim that trial court erred in fa iling to give a lesser included instruction though none was requested). Likewise, a majority of other circuits have considered a “proper request” for a lesser inc luded instruction to be an “essential” requirement under the federal rules. S ee David E. Rigney, Annotation, Propriety of Lesser-Included-Offense Ch arge To Jury In Federal Criminal Case — General Principles, 100 A.L.R. Fed. 481, 492-96, § 5 (1990) (citing cases from the First, Second, Fourth, Seven th, Eighth, Ninth, Tenth, and District of Columbia Circuits). Finally, we believe this rule — precluding on feder al habeas Beckreview with regard to lesser included offenses as to which the defendant requested no instruction in state court — properly accounts for principles of federal-state29 We do not preclude the possibility that Beckwould require reversal where

the failure to request a jury instruction on lesserincluded non-capital offenses resulted from ineffective assistance of counsel. I n this case, Hooks has not alleged that his trial counsel was ineffective for failing to request an instruction on “depraved mind” second degree murder. - 67 - comity and affords state courts and their judgments proper respect. Where a state has in place a system by which a criminal defendanthas a right to an instruction on lesser included offenses supported by the eviden ce, as Oklahoma does, and the defendant chooses not to request an instruction — t hereby failing to alert the court to the propriety of such an instruction — Bec kdoes not require reversal on federal habeas. 29 In sum, while Hooks requested an instruction at tri al on second degree felony murder, he does not advance that argument be fore this court; thus we offer no opinion as to that claim. And, we are precluded from considering Hooks’ contention that he was entitled to an instruction o n second degree depraved mind murder because Hooks did not request such an instru ction at trial.

2. First degree manslaughter Hooks also argues that under Beck , he was entitled to an instruction on first degree manslaughter. Under the Oklahoma criminal c ode in effect at the time of Hooks’ crime and trial, first degree manslaughter w as defined, in pertinent part, as: “Homicide . . . [w]hen perpetrated without a de sign to effect death, and in a30 While we note that Hooks’ proffered instructions on first degree

manslaughter were inartfully drafted and included e lements that were not part of a first degree manslaughter offense under Oklahoma law, the appellee has not challenged the proffered instruction on this ground , and thus we proceed to analyze, under the proper standard, whether the evi dence adduced at trial warranted an instruction on first degree heat-of-pa ssion manslaughter. - 68 - heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; unless it is committed under such circumsta nces as constitute excusable or justifiable homicide.” Okla. Stat. Ann. tit. 21 , § 711(2) (West 1983). Hooks’ requested stage one jury instruction number 5 inclu des all the elements of first degree manslaughter and was duly presented to the t rial court. 30 Hooks argues that an instruction on first degree ma nslaughter was warranted because the evidence adduced at trial cou ld have supported a finding that Hooks did not intend to kill Shalimein. The appellee argues that heat of passion manslaughter “affirmatively require[s] thatthere be no intent to effect death. Thus, the presence of an intent to kill doe s not simply support the States’s theory, it prevents a conviction under [first degre e manslaughter].” Appellee’s statement appears to be an accurate reflection of O klahoma law; as the Oklahoma Court of Criminal Appeals explained in Brown v. State of Oklahoma , 777 P.2d 1355 (Okla. Crim. App. 1989): Most jurisdictions hold that first degree or volunt ary manslaughter involves an intent to kill accompanied by the “exte nuating circumstance . . . that the defendant, when he kill ed the victim, was in a state of passion engendered in him by an adequ ate provocation31 A third requirement is that the defendant caused th e death either in a cruel

and unusual manner or by means of a dangerous weapo n. See Okla. Stat. Ann. tit. 21, § 711(2).

32 As noted in the Background Section, the district co urt granted Hooks a COA on the issue of whether he was denied his rightto a fair trial when the trial court excluded the expert testimony of Dr. Philip J . Murphy, proffered to show that Hooks did not intend to kill Shalimein. Befor e this court, Hooks does not press this as an independent claim. Instead, he ar gues that exclusion of Dr. Murphy’s testimony hindered his efforts to demonstr ate that Hooks did not intend to kill Shalimein. In essence, he argues that the evidence presented at trial, plus the evidence which was excluded (erroneously in his view) was sufficient to warrant an instruction on first degree manslaughter . We do not need to address the state court’s evidentiary ruling under state la w with respect to Dr. Murphy’s testimony, because we agree with Hooks that the evi dence that was adduced at trial was sufficient to conclude that Hooks lacked the intent to kill Shalimein. - 69 - (i.e., a provocation which would cause a reasonable man to lose his normal self-control).” W. LaFave & A. Scott, Jr., Substantive Criminal Law§ 7.10, at 252 (1986) (footnote omitted). However , Oklahoma , like South Dakota, falls within the minority view which requires that the homicide be perpetrated “without a design to effect death” to constitute first degree or voluntary mans laughter . Id. at 254. See 21 O.S. 1981, § 711(2). Id. at 1358 (emphasis added). Thus, under Oklahoma law, in order to mitigate murder to first degree manslaughter, a defendant ha d to perpetrate the homicide (1) without intent to cause the death, and (2) in aheat of passion. 31 The appellee’s argument on appeal focuses on the in tent element. In this case, we agree with Hooks that evidence both introd uced at trial and proffered but excluded at trial 32 could support a finding that the homicide was comm itted “without the design to effect death.” See supra , pp. 59-62. However, because we find that the admitted and proffered evidence at tr ial was insufficient to establish- 70 -

“adequate provocation” under Oklahoma law, we concl ude that the evidence did not warrant an instruction on first degree heat-of- passion manslaughter, and Hooks was consequently not denied his right to due process under Beckand its progeny when the trial court refused to instruct th e jury on first degree manslaughter. Not surprisingly, heat of passion is an element of heat-of-passion first degree manslaughter in Oklahoma. See Okla. Stat. Ann. tit. 21, § 711(2); Brown , 777 P.2d at 1357. The elements of heat of passion are: “[1] proof of adequate provocation, [2] the existence of a strong passion or an emotion such as anger, rage or resentment, [3] the lack of reasonable oppo rtunity for the cooling of the passion and [4] a causal connection between the pro vocation, the passion and the homicide.” Allen v. State of Oklahoma , 821 P.2d 371, 374 (Okla. Crim. App. 1991); Oklahoma Uniform Jury Instruction–Criminal N umber [OUJI-CR No.] 456 (1982). Under the Oklahoma Uniform Jury Instructio ns in effect at the time of Hooks’ trial and appeal:

“Adequate provocation” refers to any improper condu ct of the deceased toward the defendant(s) which naturally orreasonably would have the effect of arousing a sudden heat of passion within a reasonable person in the position of the defendant( s). Generally, actions which are calculated to provoke an emotiona l response and ordinarily cause serious violence are recognized as adequate provocation. Actions that do not ordinarly [sic] p rovoke serious violence do not constitute adequate provocation. I n determining whether the deceased’s conduct was adequate provocation, the conduct is judged as a person of reasonable intelli gence and- 71 -

disposition would respond to it . Mere words alone, or threats, menaces, or gestures alone, however offensive or in sulting, do not constitute adequate provocation. However, words, t hreats, menaces, or gestures, when considered in connection with pro voking conduct of the deceased, may constitute adequate provocatio n. Personal violence or aggression by the deceased of a nature sufficiently violent to cause or threaten to cause pain, bloodsh ed, or bodily harm to the defendant(s) may be adequate provocation. OUJI-CR No. 457 (emphasis added); see also Valdez v. State of Oklahoma , 900 P.2d 363, 377 & nn.57-59 (Okla. Crim. App. 1995) (q uoting and discussing OUJICR No. 457 with approval). From the trial record, the only provocation for the beating Hooks inflicted upon Shalimein was a verbal argument between Hooks and Shalimein which culminated in Shalimein slapping Hooks. Detective Mullenix testified that during the course of his confession Hooks explained that h e and Shalimein argued and exchanged “harsh words,” before Shalimein “slapped him in the face.” At that point, Detective Mullenix continued: “He said that he then struck her with his fist and that she fell on to the floor by the bed. He s aid that he then kicked her in the stomach and then in the face.” The written transcr ipt of Hooks’ taped confession given in the early morning hours following the beat ing paints a similar picture. With this factual setting in mind we turn to whethe r such provocation was “adequate” to cause a heat of passion — i.e., wheth er Shalimein engaged in “improper conduct . . . which naturally or reasonab ly would have the effect of arousing a sudden heat of passion within a reasonab le person in the position of33 Compare Le , 947 P.2d at 546 (victim picking up a bar and thre atening or

striking the defendant was “not adequate provocatio n for heat-of-passion manslaughter”), andConover v. State of Oklahoma , 933 P.2d 904, 917 (Okla. Crim. App. 1997) (“The breaking of the window as th e victim ran by the . . . home [of appellant’s friend] does not provide adequ ate provocation for Appellant’s act of chasing the victim down and rest raining him while multiple stab wounds were inflicted.”), with Williams v. State of Oklahoma , 513 P.2d 335, 338 (Okla. Crim. App. 1973) (wife’s “sudden and une xpected attempt to attack defendant [husband] with a pair of scissors” could be adequate provocation). - 72 - the defendant.” OUJI-CR No. 457. First, we observ e that the verbal argument was inadequate provocation. See id. (“Mere words alone, or threats, menaces, or gestures alone, however offensive or insulting, do not constitute adequate provocation.”). Thus, the only potential “adequate provocation” for Hooks’ rage must arise from Shalimein’s slap or the slap in the context of the argument. However, as to that slap, Hooks told police that “s he slapped me, not intentionally to hurt me or nothing like that .” The full confession makes it clear that the rea l provocation, and the real reason Hooks beat and sto mped Shalimein to death, was his anger that she would not help him out financial ly. In light of the Oklahoma cases we have reviewed, 33 we find that Shalimein’s conduct would not natural ly and reasonably provoke Hooks’ violent response in a“person of reasonable intelligence and disposition,” OUJI-CR No. 457. Th us, the evidence adduced at trial was insufficient to warrant an instruction on first degree heat-of-passion manslaughter under Oklahoma law. Accordingly, Hook s was not deprived of his- 73 -

right to due process under Beckand its progeny, and we affirm the district court’ s denial of the writ of habeas corpus on this claim.

IV. Whether sentencing stage instructions regarding aggravating circumstances were unconstitutional. Under Oklahoma law, in order to impose a sentence o f death, a jury must unanimously find (1) at least one of the statutory aggravating circumstances beyond a reasonable doubt, and (2) that the/those a ggravating circumstance(s) is/are not outweighed by mitigating circumstances. See Okla. Stat. Ann. tit. 21 § 701.11. After the sentencing hearing, Hooks’ jury found three aggravating circumstances beyond a reasonable doubt: 1. The defendant was previously convicted of a felony involving the use or threat of violence to the person. 2. The murder of Shalimein Blaine was especially hei nous, atrocious or cruel. 3. The existence of a probability that the defendantwould commit criminal acts of violence that would constitute a c ontinuing threat to society. On direct appeal, Hooks challenged only the suffici ency of the evidence supporting the three aggravating circumstances. Th e Oklahoma Court of Criminal Appeals found that sufficient evidence supported ea ch aggravating circumstance, and thus denied Hooks’ assignment of error. See Hooks I , 862 P.2d at 1282-83. In his application for postconviction relief, Hooks challenged the constitutionality34 Once again, appellee fails to assert procedural barand, accordingly, we

proceed to the merits of this claim. - 74 - of each of the aggravators. The Oklahoma Court of Criminal Appeals considered the issue barred by the doctrine of “res judicata ” because it had previously rejected Hooks’ sufficiency claims related to the a ggravators. See Hooks II , 902 P.2d at 1122 & n.8. 34 On federal habeas, Hooks renews his challenge to th e constitutionality of three of the aggravating factors. The district cou rt rejected Hooks’ claims regarding the constitutionality of the aggravating factors. Because Hooks’ claims that the aggravators are unconstitutional were not “adjudicated on the merits in State court proceedings,” the new standard articulated in § 2254(d) does not govern our review. Instead we apply our pre-AEDPA standard, and review these questions of law de novo. See Castro v. State of Oklahoma , 71 F.3d 1502, 1510 (10th Cir. 1995). A. Continuing Threat Aggravating Circumstance Hooks claims that Oklahoma’s continuing threat aggr avating circumstance violates the Eighth Amendment because it fails to n arrow the class of convicted murderers that are sentenced to death and because i t is unconstitutionally vague.
See Tuilaepa v. California , 512 U.S. 967, 972 (1994).- 75 -

This court reaffirmed its position that “the contin uing threat aggravator as applied in the Oklahoma sentencing scheme does not violate the Eighth Amendment.” Ross v. Ward , 165 F.3d 793, 800 (10th Cir. 1999) (citing Castro v. Ward , 138 F.3d 810, 816 (10th Cir.), cert. denied , 119 S. Ct. 442 (1998); Nguyen v. Reynolds , 131 F.3d 1340, 1352-54 (10th Cir. 1997), cert. de nied , 119 S. Ct. 128 (1998)). Hooks acknowledges that “this Court r ejected a similar argument raised in Nguyen ”; however, he states that he “respectfully disagre es with the panel’s decision in that case and requests this Cou rt revisit the issue.” Hooks advances a number of grounds that he claims the Nguyencourt overlooked in its Eighth Amendment analysis. However, he fails to ac knowledge our decision in
Castro , which disposed of almost identical claims in reaf firming Nguyen . See
Castro , 138 F.3d at 816. As the Ross court noted as to this issue, “we are bound by these decisions.” Ross , 165 F.3d at 800 (citing Foster , 104 F.3d at 1229 (“a three-judge panel cannot disregard or overrule circ uit precedent”)). Given this circuit’s precedent, the district court properly fo und that Hooks’ constitutional rights were not violated by Oklahoma’s use of the c ontinuing threat aggravating circumstance, and we affirm.35 Appellee argues that because Hooks failed to raise his challenge to the

continuing threat aggravator in state court, he has failed to exhaust this claim. Because we find Hooks’ claim to be without merit, w e deny it on the merits, notwithstanding Hooks’ failure to exhaust state rem edies. See 28 U.S.C. § 2254(b)(2). - 76 - B. Double Counting — “Prior Violent Felony” Aggrav ating Circumstance Hooks claims that his right to due process was viol ated because the jury relied upon the same evidence to find two separate aggravating circumstances. 35 The district court properly recognized that “‘[d]ou ble counting’ of one fact to support two aggravating circumstances unconstitutio nally skews the weighing process.” As the Tenth Circuit has explained: “[D] ouble counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentenc e will be imposed arbitrarily and thus, unconstitutionally.” United States v. McCull ah , 76 F.3d 1087, 1111 (10th Cir. 1996). Here, Hooks does not challenge the fact that at the time of sentencing he had a prior conviction for robbery with a firearm, nor does he dispute that his prior conviction qualifies as a prior violent felony under Okla. Stat. Ann. tit. 21 § 701.12(1). Instead, his argument is that evidenc e of his prior violent felony conviction was used to support both the “prior viol ent felony” aggravating factor and the “continuing threat” aggravating factor in v iolation of McCullah

. However, Hooks points to no evidence to support his assertion that “[i]n this case- 77 -

there can be no doubt the jury used Mr. Hooks’s rob bery conviction to find both the ‘continuing threat’ and ‘previous conviction fo r a felony involving violence’ aggravating circumstance.” In rejecting Hooks’ double-counting claim, the dist rict court found that “while Hooks’ prior conviction alone supported the ‘previous conviction of a felony’ aggravator, there was other evidence, aside and apart from the robbery conviction, to support the ‘continuing threat to so ciety’ aggravator.” The district court alluded to evidence presented to the jury dem onstrating Hooks’ sexual predatory nature and his propensity for violence, i ndependent of his prior violent felony conviction. Here, unlike in McCullah , the two aggravating factors that Hooks claims were double counted, did not “by defin ition” overlap. As the district court found, “[e]ach of these two aggravat ors was supported by independent evidence”; therefore, we affirm.

C. Heinous, Atrocious, or Cruel Aggravating Circum stance Hooks claims that the “heinous, atrocious, or cruel ” aggravating circumstance, as it was described to, and applied b y, the jury, was unconstitutional because it did not narrow the clas s of convicted murderers eligible for sentences of death. Hooks’ jury recei ved the following guidance on the meaning of “heinous, atrocious, or cruel”:36 Hooks acknowledges Duvall , “respectfully disagrees with the panel’s

decision in that case,” and “requests [that] this C ourt revisit the issue.” As noted (continued...) - 78 - As used in these instructions, the term “heinous” m eans extremely wicked or shockingly evil; “atrocious” me ans outrageously wicked and vile; “cruel” means pitiless, or designe d to inflict a high degree of pain, utter indifference to, or enjoymentof, the sufferings of others. The phrase “especially heinous, atrocious, or cruel ” is directed to those crimes where the death of the victim was prec eded by torture of the victim or serious physical abuse. (Instructions of the Court, Stage Two, No. 5.) While Hooks claims that this instruction failed pro perly to narrow the class of death eligible first-degree murderers, this court recently rejected an almost identical claim with regards to an almost identical instruction in Duvall v. Reynolds , 139 F.3d 768, 792-94 (10th Cir. 1998). As this court observed in Duvall , “the Oklahoma Court of Criminal Appeals adopted a limiting construction of the ‘especially heinous, atrocious, or cruel’ aggravator, mandating that the murder involve ‘tort ure of the victim or serious physical abuse.’” Id. at 793 (quoting Stouffer v. State of Oklahoma , 742 P.2d 562, 563 (Okla. Crim. App. 1987)). In Hatch v. State of Oklahoma , 58 F.3d 1447, 1468-69 (10th Cir. 1995), we held that such a limit ing construction of the “especially heinous, atrocious, or cruel” aggravato r was constitutionally permissible. See also Duvall , 139 F.3d at 793. 3636 (...continued)

previously, one panel cannot overrule a previous pa nel. In addition, he argues that the Oklahoma’s limiting construction of the “e specially heinous, atrocious, or cruel” aggravating factor might serve to limit deat h eligible first degree murder convictions, but if the jury is never instructed on this limiting construction, the aggravating factor as described to and applied by t he jury violates the Eighth Amendment because it is unconstitutionally vague. However, Hooks ignores the fact that here the jury was expressly given the lim iting definition so there could not be any claim of vagueness in this case.

37 At trial, Detective Mullenix testified as follows: [Hooks] said that he then struck her with his fist and that she fell on the floor by the bed. He said that he then kicked her in the stomach and then in the face. He said that they we re — that she laid (continued...) - 79 - On Hooks’ direct appeal, the Oklahoma Court of Crim inal Appeals applied the limiting construction to the “especially heinou s, atrocious, or cruel” aggravating factor. See Hooks I , 862 P.2d at 1282. The court stated that “the heinous, atrocious or cruel aggravating circumstanc e requires a showing that torture or serious physical abuse preceded the vict im’s murder.” Id. This additional limiting factor has been interpreted to require that the murder victim be conscious during at least some portion of the attac k. See Stouffer , 742 P.2d at
563-64. While the court acknowledged that the pathologist w ho testified for the defense during the sentencing hearing “was unable t o render an opinion concerning whether Ms. Blaine was conscious during the attack,” it concluded that the testimony of Detective Eric Mullenix 37 and Shalimein’s neighbor, David37 (...continued)

there on the floor by the bed, and that she began t o bleed, with blood coming out of her mouth and nose. He said that she then told him that she was hurt an d that he picked her up off the floor and took her into the b athroom and put her in the bathtub. He then removed her clothing a nd began trying to clean her up and put all of her clothing into the t rash can in the kitchen. He said that she then became unconscious and that h e continued to tell her to wake up . . . . Hooks’ own statement to police (introduced at trial ), confirms Detective Mullenix’s testimony. See Hooks , No. CIV-96-732-M, at 37 (quoting Hooks’ statement from the trial transcript).

38 Mr. Faske lived across the hall from Ms. Blaine at the time Hooks beat her to death. He testified that on the evening of the incident he heard thumping every five or ten minutes from 5 P.M. until 7 P.M. - 80 - Faske, 38 provided sufficient evidence upon which “a rationa l trier of fact could reasonably conclude that Ms. Blaine was conscious d uring at least some portion of the attack and that she suffered the requisite t orture or serious physical abuse.” Hooks I , 862 P.2d at 1282. Hooks has failed to show a constitutional violation in the application of the “especially heinous, atrocious, or cruel” aggravati ng factor in his case. Accordingly, we affirm the district court’s finding that “the ‘serious physical abuse’ standard has been met in this case.”- 81 - CONCLUSION We REMAND for the district court to evaluate the ad equacy of the state’s claim of procedural bar as to all but one of Hooks’ claims of ineffective assistance of trial counsel. As to all other issue s upon which a certificate of appealability has been granted, we AFFIRM.- 1 -

No. 98-6196, Hooks v. Ward Anderson, Circuit Judge, with whom Judge Tacha join s, concurring: I join the opinion authored by Judge Ebel except fo r Section III C. As to that section, I disagree with Judge Ebel’s conclusi on that Hooks rebutted by clear and convincing evidence the factual finding by the Oklahoma Court of Criminal Appeals that Hooks failed to elicit evidence suffic ient to call into question Hooks’ intent to kill Shalimein. Furthermore, whil e I have no quarrel with the reasoning in Sections III C (1) and (2), I would fi nd it unnecessary to reach those alternative holdings.