PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOHN FITZGERALD HANSON, 

 Petitioner - Appellant, 

v. 

WILLIAM A. SHERROD, Warden, U.S. 

Penitentiary, USP Pollock, Louisiana; E. 

SCOTT PRUITT, Attorney General of 

Oklahoma, 

 Respondents - Appellees. 

No. 13-5100 

_________________________________ 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF OKLAHOMA 

(D.C. No. 4:10-CV-00113-CVE-TLW)

_________________________________ 

Sarah M. Jernigan, Assistant Federal Public Defender (T. Kenneth Lee, Assistant Federal 

Public Defender, and Randy A. Bauman, Assistant Federal Public Defender, with her on 

the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma for 

Petitioner-Appellant. 

Robert Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General for the 

State of Oklahoma, with him on the brief) Office of the Attorney General for the State of 

Oklahoma, Oklahoma City, Oklahoma, for Respondents-Appellees. 

_________________________________ 

Before HARTZ, TYMKOVICH, and PHILLIPS, Circuit Judges. 

_________________________________ 

PHILLIPS, Circuit Judge. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 13, 2015

Elisabeth A. Shumaker 

Clerk of Court

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This appeal arises out of the murders of Jerald Thurman and Mary Bowles in 

Tulsa, Oklahoma. At trial, a jury convicted defendant John Hanson for the murder 

of Mary Bowles with malice aforethought and for the felony murder of Thurman. 

At the penalty phase, the jury found three aggravating circumstances related to 

Bowles’s murder. Upon the jury’s verdict, the trial court sentenced Hanson to 

death. See Okla. St. tit. 22, § 1007 (2015). 

On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) 

reversed Hanson’s death sentence and remanded for a new sentencing hearing. 

Hanson v. State (Hanson I), 72 P.3d 40, 55 (Okla. Crim. App. 2003). At the 

resentencing hearing, the jury again sentenced Hanson to death for Bowles’s 

murder. Hanson appealed his sentence to the OCCA, which struck the jury’s 

finding of the great-risk-of-death aggravator but still affirmed his sentence. 

Hanson v. State (Hanson II), 206 P.3d 1020, 1033, 1036 (Okla. Crim. App. 2009). 

After the OCCA denied Hanson’s application for collateral relief, Hanson 

filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district 

court denied the petition, but it granted him a certificate of appealability (“COA”) 

to pursue several arguments before this court. We also granted a COA on all of 

his remaining issues. 

Before us, Hanson argues five general issues. He asserts six instances of 

ineffective assistance of both trial and appellate counsel and two instances of 

prosecutorial misconduct. He also argues that we should invalidate his death 

sentence because the OCCA invalidated the great-risk-of-death aggravator. He 

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also claims there was an error in the jury instruction on mitigating evidence that 

impermissibly limited the jurors’ consideration of mitigation evidence. Finally, 

he raises cumulative error. 

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we conclude that 

none of Hanson’s arguments merit relief. Accordingly, we affirm the district 

court’s denial of the habeas petition. 

I. BACKGROUND AND PROCEDURAL HISTORY 

The following set of facts detail John Hanson’s and Victor Miller’s murderous 

exploits and later crime spree before their eventual arrests. It begins and ends 

with Mary Bowles, an older woman and volunteer at Saint Francis’s hospital, who 

frequently walked around the Promenade Mall for exercise. On August 31, 1999, 

Hanson and Miller carjacked Bowles’s car, with her in it, from outside the Mall 

in Tulsa, Oklahoma. Hanson II, 206 P.3d at 1025. Hanson, as usual, carried his 9 

millimeter semiautomatic pistol, and Miller carried his .38 revolver. Id. Miller 

drove the car, with Hanson and Bowles in the backseat, to an isolated area near a 

dirt pit that Jerald Thurman owned. Id. Thurman was at the pit loading a dump 

truck with dirt for delivery. Id. He was talking to his nephew, James Moseby, on 

his cell phone when he saw Bowles’s car circling in the pit. Id. After Thurman 

and Moseby ended their call, Miller shot Thurman four times with his .38 

revolver, including one shot to the head. Id. Throughout this time, Bowles 

remained in the car. Id. Moseby arrived at the dirt pit about ten minutes after the 

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phone conversation, where he found Thurman lying on the ground, unconscious, 

with multiple gunshot wounds. Thurman died from his wounds two weeks later. 

Id.

Meanwhile, Miller drove the car a short distance away from the pit, heading 

south on what is commonly known as Peanut Road and told Hanson, “You know 

what you have to do.” Hanson v. Sherrod (Hanson III), No. 10-CV-0113-CVETLW, 2013 WL 3307111, at *8 (N.D. Okla. July 1, 2013) (unpublished). On 

Peanut Road, Hanson removed Bowles from the car and shot her multiple times 

with his 9 millimeter semiautomatic pistol. Hanson II, 206 P.3d at 1025. Her 

significantly decomposed body was discovered on September 7, with a bullet in 

the right side of her chest. The state’s forensic pathologist testified that Bowles 

suffered “without a doubt four and, likely, six” gunshot wounds. The police found 

two spent cartridges at the scene of Bowles’s murder, one .38 special and one 9 

millimeter. 

After Hanson killed Bowles, Miller and Hanson drove the car a few miles 

down the road and registered at the Oasis Motel. Hanson II, 206 P.3d at 1025.

Miller called his wife and asked her to bring him a rag. She complied, and he 

used the rag to wipe down the inside of the car. Miller and Hanson then 

abandoned the car at the motel. Id. This was not the end of Hanson’s and Miller’s 

criminal pursuits.1

 1

 On August 23, 1999, just a week before the murders, Hanson and Miller 

robbed the Apache Liquor Store. Miller approached the counter with a bottle of 

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On September 3, Hanson and Miller robbed Dreamland Video Store at 

gunpoint. Hanson III, 2013 WL 3307111, at *1 (citing Hanson II, 206 P.3d at 

1025). They entered the store and looked around for a few minutes. Hanson 

pulled his gun, a 9 millimeter semiautomatic, on one of the store’s patrons. He 

forced the patron to enter a side room and lay face down on the ground. Hanson 

placed his gun against the patron’s back, moved it up to his head, and finally tied 

the patron’s wrists and ankles with duct tape. Next, Hanson removed the patron’s 

wallet from his pants and placed the barrel of the gun against his neck. Hanson 

then left the room, shutting the patron inside. Soon afterward, Hanson and Miller 

fled from the store. 

On September 8, a few days later, Hanson and Miller robbed the Tulsa Federal 

Employees Credit Union at gunpoint. Hanson again carried his 9 millimeter 

pistol, and Miller carried his .38 revolver. The two men entered the bank and got 

in line for the bank teller. Stepping up to the counter, Hanson passed the bank 

teller a note, which read: “Do not panic. Don’t hit any buttons. If you do, you 

will be the first killed. And then the rest will follow in bloodshed. Put all the 

money in a brown envelope—[manila] envelope.” Tr. Trans. II, Vol. VIII at 1618.

He also pointed to his weapon so she would know that he was armed. Hanson 

passed her the envelope, and she filled it with money, including a dollar bill that 

 

rum and placed his revolver on the counter. He told the clerk that he wanted all of 

the money. The clerk handed Miller a bag with the contents from the cash 

register. Hanson then told another worker to go to the back of the store, and she 

complied. After this, Miller and Hanson went behind the store counter, rummaged 

around for a few moments, and then left the store. 

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alerts the FBI and a dye pack. After she handed the envelope back, Hanson and 

Miller fled the bank. 

Finally the next day, law enforcement put an end to Hanson and Miller’s 

armed-felony binge. Miller’s wife, Phyllis, had been the driver for their robbery 

of the credit union. After the robbery, Miller and Phyllis got into an argument, 

and Miller “tore up” the car. Tr. Trans. I, Vol. IX at 1569. Miller and Hanson 

then retreated to the Muskogee Econo Lodge, and Phyllis called a “wrecker” to 

take her back to where she was staying at a Motel 6. Id. at 1570. When she 

arrived, she went to a pay phone and called Crime Stoppers to tell them that she 

knew who had committed the bank robbery. At trial, she testified that she did so 

because she “didn’t want to get in trouble.” Id. at 1571. The next morning, 

fearing for her safety, she called Crime Stoppers again to see if they had arrested 

the men. She explained at trial that, the day before their argument, Miller had 

pulled a gun on her. She also called because she had more information—she had 

seen Bowles’s car at the Oasis Motel. All told, she told the police where they 

could locate Hanson and Miller. 

Soon after receiving Miller’s information, one team of officers went to 

Bowles’s car and lifted Hanson’s fingerprint from the driver’s side seatbelt, and 

Miller’s fingerprint from the front passenger seatbelt. Another team of officers 

arrived at the motel to arrest Hanson and Miller. At 6:00 a.m., the “entry team” of 

police officers went up to the Lodge and “staged up.” Tr. Trans. I, Vol. VIII at 

1335, 1345. After evacuating all motel rooms except for two, a hostage negotiator 

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called to tell the officers that they had “made contact” with Room 135 and 141 

and had demanded that the occupants come out. Id. at 1336. In response, an older 

black male walked out of Room 141. The police took him into custody.2

 About 15 

minutes later, Miller came out of Room 135, and the police took him into 

custody. In contrast, an uncooperative Hanson barricaded himself in Room 135, 

refusing to communicate or come out. 

Throughout the day, an FBI negotiator made four or five approaches to the 

room, trying to make contact. The police officers would approach the door and 

“stage outside” Room 135, and the FBI negotiator would yell into the room trying 

to make contact. Id. at 1338. Hanson did not respond to any of these entreaties or 

the officers’ numerous telephone calls. Eventually, the police shut off the water 

and phone lines to the room. One officer set up surveillance in an adjoining room, 

Room 137. He heard what sounded like the porcelain lid coming off the toilet and 

something being dropped inside its tank. At 1:30 p.m., the police finally entered 

Hanson’s room. One officer broke open the door, while another deployed a 

temporarily debilitating chemical gas agent, CS gas,3

 into the room. After ten or 

15 seconds, the gas forced Hanson out of the room. 

 2

 The record provides no explanation of who this man is or whether he was 

associated with Miller and Hanson. Chad Farmer, one of the officers who testified 

at trial and had been on scene at the arrest of Miller and Hanson, said that he 

never learned the man’s identity. 

3

 CS gas stands for 0-chlorobenzalmalononitrile (a form of tear gas), a white 

solid powder that is typically mixed with a dispersal agent, like methylene 

chloride, which carries the particles through the air. Physical effects include: 

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After taking Hanson into custody, and having already obtained a search 

warrant, both FBI and state police officers searched Hanson and Miller’s room. 

Inside the toilet tank, the officers found two guns—a .38 caliber revolver and a 9 

millimeter semiautomatic pistol. These were the same guns used in the murders of 

Thurman and Bowles. And they were the same guns used in the robbery of the 

video store. In the toilet tank, they also found a bag full of live ammunition for 

the .38 revolver and duct tape. The 9 millimeter pistol was loaded with seven live 

rounds. 

The government jointly charged Hanson and Miller with the first-degree 

murder of Bowles (Count One) and the first-degree murder of Thurman (Count 

Two). Alternatively, it charged the counts as felony murders. At Miller’s request, 

the trial court severed Hanson and Miller’s trials.4

At trial, attorneys Jack Gordon and Eric Stall represented Hanson. Rashad 

Barnes, a former coworker of Hanson’s, provided crucial testimony against 

Hanson in the government’s case. Barnes and Hanson had worked together, along 

with Hanson’s cousin Tremaine Wright, at Blue Bell Creameries, where they 

 

burning eyes, involuntary closing of the eyes, tendency to breathe through the 

mouth, extreme burning in the throat, coughing, consciousness of pain, holding of 

breath, breathing and heart rate slows down, blood pressure rises, and circulation 

on the periphery of the body shuts down. WBGH Educational Foundation, A 

Primer on CS Gas, Readings, http://www.pbs.org/wgbh/pages/frontline/waco/ 

csgas.html (last visited June 23, 2015). 

4

 The record does not reflect whether Hanson requested that the district court 

sever their trials as well or whether he contested the severance. 

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loaded and unloaded pallets of ice cream. Between February and April 1999, the 

three men drove together to and from work. 

According to Barnes, sometime in late August or early September 1999, he 

was sitting alone in his backyard. During this general time, Barnes let Hanson 

live in Barnes’s car, which was parked in Barnes’s backyard. One day near then, 

at about 3:00 p.m., Hanson showed up in Barnes’s backyard acting “real nervous, 

real jittery.” Tr. Trans. I, Vol. VII at 1157, 1159. Barnes had not seen Hanson for 

about a week. Barnes described Hanson as “scared” and “terrified,” and he 

recollected that Hanson “kept saying everything went bad.” Id. at 1160, 1164. 

Barnes testified that Hanson told him that he and Miller had carjacked a car 

from the Promenade Mall with an old lady in it. According to Barnes, Hanson 

said that he and Miller put the old lady in the backseat, Hanson got in the 

backseat with her, and Miller drove them to a back road where they had planned 

to let her out. Hanson told Barnes that he and Miller had carjacked the car “[t]o 

do robberies.” Id. at 1161. 

Continuing with his account, Hanson told Barnes that a man in a dump truck 

saw them, so Miller got out of the car and shot the man. Judging from Hanson’s 

hand motions, Barnes understood that Miller shot the man in the head and chest. 

Hanson also told Barnes that the man’s body was “smoking.” Id. at 1162. As he 

reloaded his gun, Miller had gotten back into the car and told Hanson, “You know 

what you have to do.” Id. Hanson told Barnes that on the ride back to the road the 

old lady asked him, “do you have any kids or anyone who [loves you]?” Id. at 

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1163. Hanson told Barnes that he had told her to shut up and then he punched her. 

Not far from the dirt pit, Miller stopped the car, and Hanson shot the old lady and 

concealed her in the bushes. Near the end of the conversation, Hanson said to 

Barnes, “I hope that none of you all get caught up in this.” Id. at 1167. Then he 

walked away. Barnes did not see him again until trial. 

The jury convicted Hanson of first-degree murder of Bowles for Count One,

and felony murder of Thurman for Count Two. At sentencing, the jury found 

three aggravating circumstances under Oklahoma law: (1) that Hanson had a prior 

conviction for a violent felony; (2) that he knowingly created a great risk of death 

to more than one person; and (3) that he posed a continuing threat to society. The 

jury fixed his punishment as death for Count One, and as life imprisonment for 

Count Two. On May 23, 2001, the court sentenced him to death. 

The OCCA affirmed Hanson’s murder convictions on appeal, but due to errors 

at the penalty phase it reversed his death sentence for Count One and remanded 

for resentencing. Hanson I, 72 P.3d at 45. Just a few days before his resentencing 

hearing was to begin, Hanson learned of new, possibly exculpatory evidence. A 

fellow inmate of Miller’s attested that Miller had confessed to shooting Bowles. 

Hanson filed an application for post-conviction relief based on the new evidence. 

The state district court granted his request for a new trial based on the newly 

discovered evidence. But the OCCA granted the government’s Petition for Writ 

of Prohibition and reversed the district court’s decision, concluding that the 

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district court did not have jurisdiction over Hanson’s application. It vacated the 

new-trial order as void and remanded the case for resentencing. 

 In January 2006, Hanson’s resentencing hearing was finally held. He again 

was represented by Gordon. By this time, Barnes had been killed in an unrelated 

incident. Hanson III, 2013 WL 3307111, at *8. Thus, the prosecution read 

Barnes’s trial testimony into the record, over Hanson’s objections. It also called 

other witnesses who had testified at the first sentencing hearing. In addition to 

Hanson’s familial witnesses, the defense team called Dr. Jeanne Russell, Ed.D., a 

licensed psychologist. She had performed a social history and risk assessment on 

Hanson, and she testified about her findings. A risk assessment is intended to 

uncover what sort of risk or threat a person may present in a prison setting to 

other inmates and guards. In this case, it was done in response to the 

government’s allegation of the aggravating circumstance that Hanson was 

dangerous or a continuing threat to society. Dr. Russell testified that she 

considered him to be a low risk to society. 

 At the end of the resentencing hearing, the jury recommended a death sentence 

for Hanson after finding three aggravating circumstances: (1) Hanson had an 

earlier felony involving the use or threat of violence; (2) he had knowingly 

created a great risk of death to more than one person; and (3) he had committed 

the murder to avoid or prevent a lawful arrest or prosecution. Based upon the 

jury’s recommendation, the court sentenced Hanson to death for Count One, 

Bowles’s murder. 

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Hanson appealed, and the OCCA invalidated the aggravating circumstance that 

he had knowingly created a great risk of death to more than one person. Hanson 

II, 206 P.3d at 1033–34. After reweighing the remaining aggravating 

circumstances against the mitigating ones, it affirmed Hanson’s death sentence. 

Id. at 1036. The United States Supreme Court denied certiorari. Hanson v. 

Oklahoma, 130 S. Ct. 808 (2009). 

 In 2008, Hanson filed an application for post-conviction relief, which the 

OCCA denied. After this, Hanson filed a successive application, which was also 

denied. Then on December 6, 2010, Hanson filed his federal habeas petition with 

the United States District Court for the Northern District of Oklahoma, raising 

nine grounds for relief. Hanson III, 2013 WL 3307111, at *5. The district court 

considered his petition and denied relief on all grounds. Id. at *40. But it granted 

Hanson a COA to appeal its decision on some of his claims: 

1. Trial counsel provided ineffective assistance by failing to call Ahmod 

Henry5

 as a witness;

2. Trial counsel provided ineffective assistance by failing to raise all 

available objections to Barnes’s testimony;

3. Trial counsel provided ineffective assistance by failing to object to 

prosecutorial misconduct; 

4. Trial counsel provided ineffective assistance by failing to call available 

mitigating witnesses;

 5

 Throughout the record and transcripts, Henry’s first name is spelled both Ahmad and 

Ahmod. For consistency here, we use Ahmod. 

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5. Appellate counsel provided ineffective assistance by failing to argue that 

trial counsel was ineffective for failing to bring forward mitigation 

evidence of Hanson’s mental illness and brain damage; and

6. Appellate counsel provided ineffective assistance by failing to argue that 

trial counsel was ineffective for failing to challenge the government’s 

failure to specify the predicate crime supporting the avoid-arrest 

aggravator.

See id. 

Hanson now appeals, raising the six issues for which the district court granted 

a COA, as well as an additional three issues that the district court denied: 

1. We should invalidate his death sentence because the OCCA invalidated the 

great-risk-of-death aggravator; 

2. The jury instruction on mitigating evidence prevented the jurors from 

considering and giving effect to all of the mitigating evidence they heard; 

and 

3. The cumulative effect of errors at both stages of trial deprived Hanson of 

his constitutional rights under the Eighth and Fourteenth Amendments. 

 

We granted COAs on these three additional issues. Consequently, we have 

jurisdiction to hear all nine claims. 

II. DISCUSSION 

This court’s review of habeas petitions is governed by the Antiterrorism and 

Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, when a state 

court has considered a claim on the merits, this court may grant a habeas petition 

only if the decision “was contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court of the 

United States” or “resulted in a decision that was based on an unreasonable 

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determination of the facts in light of the evidence presented in the State court 

proceeding.” 28 U.S.C. § 2254(d)(1), (2) (2015). The AEDPA standard is “highly 

deferential” and requires that we give “state-court decisions . . . the benefit of the 

doubt.” Littlejohn v. Trammell, 704 F.3d 817, 824 (10th Cir. 2013) (quoting

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). 

To analyze a § 2254 claim, we first determine whether the petitioner’s claim is 

based on clearly established federal law, focusing exclusively on Supreme Court 

decisions. Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012); Bland v. 

Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). If so, then we consider whether the 

state court’s decision was “contrary to” or “an unreasonable application of” that 

law. Bland, 459 F.3d at 1009. 

If clearly established law exists, a state court decision is “contrary to” it only 

if “the state court applies a rule that contradicts the governing law set forth in 

[Supreme Court] cases or if the state court confronts a set of facts that are 

materially indistinguishable from a decision of [the Supreme Court] and 

nonetheless arrives at a [different] result.” Id. (first and second alterations in 

original) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). A state 

court decision unreasonably applies federal law if “the state court identifies the 

correct governing legal principle from [Supreme Court] decisions but 

unreasonably applies that principle to the facts of the prisoner’s case.” Id. 

(alterations in original) (quoting Williams, 529 U.S. at 413). 

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“A state court’s determination that a claim lacks merit precludes federal 

habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of 

the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) 

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “[E]valuating 

whether a rule application was unreasonable requires considering the rule’s 

specificity.” Id. (alterations in original). The more general the rule, the more 

leeway we give to the state courts in reaching decisions on a case-by-case basis. 

Id. When we review a state court’s decision, “we are precluded from issuing the 

writ simply because we conclude in our independent judgment that the state court 

applied the law erroneously or incorrectly. Rather, we must be convinced that the 

application was also objectively unreasonable.” McLuckie v. Abbott, 337 F.3d 

1193, 1197 (10th Cir. 2003) (citing Williams, 529 U.S. at 412). 

AEDPA mandates that state court fact findings are presumptively correct and 

may be rebutted only by “clear and convincing evidence.” 28 U.S.C. 

§ 2254(e)(1); accord Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011). We 

review the federal district court’s conclusions of law de novo and its factual 

determinations for clear error. Hooks, 689 F.3d at 1163 (quoting McCracken v. 

Gibson, 268 F.3d 970, 975 (10th Cir. 2001)). When a state court has not 

considered a claim on the merits, we are “not constrained by the deference 

principles in § 2254(d).” Cargle v. Mullin, 317 F.3d 1196, 1212 (10th Cir. 2003). 

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A. Ineffective Assistance of Counsel Claims 

Hanson argues that his Sixth and Fourteenth Amendment rights were violated 

by ineffective assistance of counsel at trial and on appeal. He contends that his 

trial counsel was ineffective for failing to: (1) call Ahmod Henry as a witness in 

his case-in-chief; (2) raise additional grounds for objecting to the introduction of 

Barnes’s earlier trial testimony; (3) investigate and introduce mitigating evidence 

at sentencing; and (4) object to prosecutorial misconduct. He asserts that his 

appellate counsel was ineffective for failing to challenge his trial counsel’s 

ineffectiveness in neglecting to put forth evidence of mental illness and brain 

damage. Last, he argues that both his trial and appellate counsel were ineffective 

for failing to argue that the aggravating circumstance for avoiding arrest or 

prosecution should have been invalidated based on the government’s failure to 

allege a specific crime Hanson sought to avoid by murdering Bowles. 

i. Standard of review for ineffective assistance of counsel claims 

It is undisputed that federal law clearly establishes the right to effective 

assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 684, 686 

(1984) (recognizing that “the Sixth Amendment right to counsel exists, and is 

needed, in order to protect the fundamental right to a fair trial” and that the “right 

to counsel is the right to effective assistance of counsel” (citation and internal 

quotations omitted)). “The benchmark for judging any claim of ineffectiveness 

must be whether counsel’s conduct so undermined the proper functioning of the 

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adversarial process that the trial cannot be relied on as having produced a just 

result.” Id. at 686. 

To prevail on a claim of ineffective assistance of counsel, Hanson must show 

both that his counsel provided deficient assistance and that the deficiencies 

prejudiced his defense. Id. at 687. First, to show that his counsel was deficient, 

Hanson must demonstrate that the errors were so serious that “counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 

Id.; see also Wilson v. Sirmons, 536 F.3d 1064, 1083 (10th Cir. 2008) (“Counsel’s 

performance must be ‘completely unreasonable’ to be constitutionally ineffective, 

not ‘merely wrong.’” (quoting Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 

1997))). “Judicial scrutiny of counsel’s performance must be highly deferential.” 

Strickland, 466 U.S. at 689; see also Hooks, 689 F.3d at 1186 (“[O]ur review of 

counsel’s performance under the first prong of Strickland is a ‘highly deferential’ 

one.” (alteration in original)). Furthermore, we strongly presume that “an attorney 

acted in an objectively reasonable manner and that an attorney’s challenged 

conduct might have been part of a sound trial strategy.” Bullock v. Carver, 297 

F.3d 1036, 1046 (10th Cir. 2002) (emphasis in original); see also Byrd v. 

Workman, 645 F.3d 1159, 1168 (10th Cir. 2011). We must “judge the 

reasonableness of counsel’s challenged conduct” on the specific facts of the case 

“viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690; accord 

United States v. Challoner, 583 F.3d 745, 749 (10th Cir. 2009). 

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We afford great deference to trial counsel’s strategy but do not allow it to 

obviate the requirement that counsel perform adequately. See, e.g., Williams, 529 

U.S. at 396–98 (holding that trial counsel performed so inadequately as to 

prejudice the defendant). “The pivotal question is whether the state court’s 

application of the Strickland standard was unreasonable. This is different from 

asking whether defense counsel’s performance fell below Strickland’s standard.” 

Harrington, 562 U.S. at 101. Where we are applying both the Strickland standard 

and § 2254(d), our review is “doubly” deferential. Id. at 105 (citations omitted); 

see also Knowles v. Mirzayance, 566 U.S. 111, 123 (2009) (“[B]ecause the 

Strickland standard is a general standard, a state court has even more latitude to 

reasonably determine that a defendant has not satisfied that standard.”). 

Second, to show that the outcome of his trial was prejudiced by counsel’s 

error, the defendant must show that those “errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 

687. To establish prejudice, he must demonstrate “there is a reasonable 

probability that, absent the errors, the factfinder would have had a reasonable 

doubt respecting guilt.” Id. at 695; see also Hooks, 689 F.3d at 1187. A 

reasonable probability “is a probability sufficient to undermine confidence in the 

outcome.” Strickland, 466 U.S. at 694. If confidence in either the conviction or 

the sentence is undermined, prejudice has been established and relief should be 

granted. Id. at 694–95 (rejecting a preponderance of the evidence standard as too 

stringent); accord Byrd, 645 F.3d at 1168. 

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Hanson raises six claims of ineffective assistance of counsel. We address each 

of these arguments in turn. 

ii. Failure to interview and call a witness 

Hanson contends that his trial counsel, Gordon, performed deficiently by 

failing to call Ahmod Henry in the defense’s case-in-chief at the resentencing 

hearing when Gordon knew that Henry had potentially exculpatory information. 

Mere days before the resentencing hearing was to occur in 2005, Gordon had 

learned that back in 2003 Henry had told Detective Michael Nance about a 

conversation between him and Miller while incarcerated together, in which Miller 

allegedly confessed to killing Bowles. In this interview, Detective Nance, after 

establishing that Henry and Miller were in segregation together, asked Henry: 

Q: [O.K.] And did you have any conversations with [Miller]? 

A: Yeah. Yes. 

Q: O.K. What did your conversations consist of? 

A: Shit, we was just talking about things that happened in the 

lifetime, and he started telling me something about some robberies, 

how he was making money out there, saying he did a lot of 

robberies, and he...him and his friend was at a motel, and they got 

busted, and he said he was running around killing people doing the 

robbery. He said he killed a bitch. That’s all he said, “I killed...I 

killed a bitch.” 

Q: O.K. Did he...was he anymore [sic] specific about who he killed 

or...or...how he killed her or...or anything like that? 

A: He (inaudible) shot her. 

Q: You say he shot her? 

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A: He killed a bitch. 

Q: O.K. Did he...did he tell you how he shot her or... 

A: He didn’t say. He just said he killed the bitch. 

Q: O.K. Did he tell you who he was with? You said he was with a 

friend. 

A: Yeah, he was with a friend. He never said his friend[’s] name. 

Whoever the friend was is the one that got caught at the motel with 

him. 

Q: O.K. And is there anymore [sic] information that you know about 

this that ...that I haven’t asked you? 

A: No, sir. 

O.R. Vol. VII at 1258. 

At Hanson’s resentencing hearing, Gordon chose not to call Henry as a 

witness. Instead, he managed in effect to introduce Henry’s testimony through his 

cross-examination of the government’s witness, Detective Nance. Detective 

Nance acknowledged that Henry had told him Miller had confessed to “kill[ing] a 

bitch.” Tr. Trans II, Vol. VII at 1493. But he quickly disparaged Henry’s 

credibility, characterizing him as a “liar” and as someone who had previously 

provided unreliable information to the police during his frequent calls to them. 

Hanson argues that Gordon’s failure to put Henry on the stand and present him in 

a credible manner, or even to interview him before the hearing, was “certainly 

unreasonable and not [a decision] based on strategy.” Appellant’s Br. at 21. 

The OCCA resolved the issue on deficiency grounds, concluding that counsel 

had a sound strategy in introducing Henry’s testimony through Detective Nance. 

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Hanson II, 206 P.3d at 1032. This strategy allowed counsel to present Miller’s 

confession to the jury without the possibility for Henry to be cross-examined. Id.

The OCCA stated that “[a]rguably this was the best of all possibilities for Hanson 

since Henry had credibility problems and was known for being unreliable. 

Defense counsel made a sound strategy decision not to call Henry . . . .” Id. We 

cannot say that the OCCA improperly applied Strickland in determining that 

Gordon operated under sound strategy. The district court agreed with the OCCA. 

Hanson III, 2013 WL 3307111, at *30–31. 

 We begin with the presumption that Gordon had a sound trial strategy when he 

decided not to call Henry as a witness. See Strickland, 466 U.S. at 689. Gordon 

himself reinforced this presumption. Outside the presence of the jury, in support 

of his right to question Detective Nance about the conversation, Gordon 

explained to the presiding judge that he did not want to question Henry directly 

because “I don’t know whether Ahmod Henry [will invoke his Fifth Amendment 

right]—there’s no telling what he’ll do. He’s a long-time crook and known for 

getting funny notions.” Tr. Trans. II, Vol. VII at 1468. Gordon’s comment 

demonstrates his own concern regarding Henry’s credibility and provides a 

reasonable explanation for why he did not call Henry as a witness. We deem this 

to be sound trial strategy under Strickland’s deferential standard. See, e.g., 

Harrington, 562 U.S. at 108–09 (concluding that an attorney’s decision not to 

pursue expert blood testimony was a sound strategy under deferential Strickland 

standard because such testimony could have had negative consequences for the 

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defense); United States v. Orozco, 301 F. App’x 783, 785 (10th Cir. 2008) 

(unpublished) (concluding that an attorney was not deficient for failing to call 

potentially exculpating witness because his credibility could taint the exculpating 

evidence introduced on direct examination). 

 Depending on what Henry told him, it is possible that Gordon might have 

provided better counsel had he thoroughly interviewed Henry before deciding 

against eliciting the testimony directly from him. But this is far from certain, and 

even had it worked out that way, Gordon’s failure to do so hardly meets 

Strickland’s deficiency standard. “A fair assessment of attorney performance 

requires that every effort be made to eliminate the distorting effects of hindsight, 

to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate 

the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689; 

accord Romano v. Gibson, 278 F.3d 1145, 1154 (10th Cir. 2002). When we 

consider Gordon’s perspective at the time of his decision, we believe it made 

sense for him to decide not to call Henry on direct examination for fear of what 

Henry might say. 

Because we hold that Gordon was not deficient by failing to call Henry in his 

case-in-chief, we do not consider prejudice. Thus, we affirm the district court’s 

holding on this issue. 

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iii. Failure to raise all available grounds for impeachment of witness’s 

testimony 

Hanson next asserts that Gordon provided ineffective counsel by failing to 

object to the introduction of Barnes’s trial testimony at the resentencing hearing 

based on Miller’s testimony at his own trial. Because Barnes was deceased by the 

time of the resentencing hearing, the transcript of his trial testimony was read 

into the record. Gordon argued vigorously that the newly discovered evidence—

Henry’s statement—should prevent the admission of Barnes’s testimony, but he 

did not mention Miller’s trial testimony specifically as a separate ground for 

objection. In fact, Gordon had never read the transcript from Miller’s trial.

Because Barnes’s testimony was the only direct evidence identifying Hanson as 

Bowles’s shooter, Hanson argues that his counsel was ineffective for failing to 

raise every possible objection to the testimony. Thus, the question is whether 

Gordon’s failure to read Miller’s trial transcript was such serious error as to 

render his performance completely unreasonable. See Wilson, 536 F.3d at 1083. 

And if so, whether that deficiency prejudiced the outcome of Hanson’s trial. See 

id. 

The OCCA concluded that Gordon had not been deficient because his decision 

not to present evidence from Miller’s trial testimony “appears reasonable and 

strategic.” Hanson II, 206 P.3d at 1032. It found that there were “sound reasons 

to shield Hanson’s jury from evidence of Miller’s trial testimony,” including: (1) 

“that Miller’s testimony inculpated Hanson”; and (2) “that Miller’s testimony 

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exculpating himself and implicating Barnes was refuted by objective facts.” Id. at 

1027. Among the objective facts were these: (1) Hanson and Miller’s fingerprints, 

not Barnes’s, were found in Bowles’s car; and (2) Hanson and Miller robbed the 

liquor store, the video store, and the credit union, and they were arrested in 

Muskogee with the firearms used to kill Thurman and Bowles. Id. at 1027 n.12. 

The district court agreed. Hanson III, 2013 WL 3307111, at *32. 

It is well established that “counsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular 

investigations unnecessary.” Strickland, 466 U.S. at 691. First, we tackle the 

question of whether Gordon’s failure to read Miller’s trial transcript was error. 

Gordon admits that he never read Miller’s trial transcript, which means he was 

unaware of any potential benefits the transcript might provide. But we have 

trouble accepting Hanson’s proposition that this omission constitutes deficient 

performance. The Supreme Court has recognized that “when counsel focuses on 

some issues to the exclusion of others, there is a strong presumption that he did 

so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 

540 U.S. 1, 8 (2003) (per curiam) (citing Strickland, 466 U.S. at 690). Gordon 

already had grounds for objecting to the introduction of Barnes’s testimony: 

Henry’s exculpatory statement to Detective Nance regarding Miller’s confession. 

The “Sixth Amendment guarantees reasonable competence, not perfect advocacy 

judged with the benefit of hindsight.” Id. (citing Bell v. Cone, 535 U.S. 685, 702 

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(2002)). Thus, we do not think this omission satisfies Strickland’s notion of 

deficient performance. 

Yet even if we were to reach prejudice, Hanson’s argument would still fail. He 

emphasizes that Miller’s trial contained evidence that Barnes was friends with 

Miller. For instance, Miller testified that he had been to Barnes’s house several 

times, that the weapons used in the robbery belonged to Barnes and were kept in 

his house, and even that Barnes participated in the homicides. Miller v. State, 98 

P.3d 738, 742 & n.11 (Okla. Crim. App. 2004). But these potentially useful 

scraps of evidence are undermined and countered by other disadvantageous 

components of Miller’s testimony, such as the inconvenient truth that Hanson and 

Miller were later caught committing other crimes with the same firearms used in 

the murders of Thurman and Bowles. 

As such, Hanson is unable to demonstrate that there is a “probability sufficient 

to undermine confidence in the outcome” of his trial. Strickland, 466 U.S. at 694. 

We hold that even if counsel erred by not reading Miller’s trial transcript, such 

error did not prejudice the outcome of Hanson’s case because Barnes’s trial 

testimony would have been admitted regardless. We affirm the district court’s 

ruling on this issue. 

iv. Failure to investigate and present mitigating evidence 

Hanson next argues that his trial counsel was ineffective because he failed to 

investigate and present available mitigating witnesses, thereby failing to create a 

compelling and complete story for the jury. Gordon called one expert witness to 

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rebut the continuing-threat aggravator. He also called four lay witnesses on 

Hanson’s behalf: his ten-year-old son Marquelle, his ex-girlfriend, his exgirlfriend’s brother, and his ex-girlfriend’s niece. 

As part of his application for post-conviction relief, Hanson submitted to the 

OCCA the affidavits of 13 additional mitigating witnesses, who claim that they 

would have testified at his resentencing hearing if asked. A few of the witnesses 

even expressed indignation at not being given the opportunity to testify. Hanson 

contends these witnesses would have painted a fuller picture for the jury. After 

reviewing the new affidavits, the OCCA rejected this claim. Hanson II, 206 P.3d 

at 1032. It concluded that the new character evidence was substantially similar to 

the testimony already provided at the resentencing trial, and so it was not 

“persuaded that presenting additional character evidence of the same type would 

have changed the outcome of the trial.” Id. After conducting its own review, the 

district court agreed, explaining that “[t]his is not a case where trial counsel did 

not investigate or present appropriate mitigating evidence.” Hanson III, 2013 WL 

3307111, at *34. Moreover, it found the additional evidence “somewhat 

duplicative, and of marginal value.” Id. at 36. 

 In the case of mitigating evidence, the Sixth Amendment imposes a duty on 

counsel “to make reasonable investigations or to make a reasonable decision that 

makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Even 

under AEDPA’s deferential standard, “we are . . . conscious of the overwhelming 

importance of the role mitigation evidence plays in the just imposition of the 

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death penalty.” Mayes v. Gibson, 210 F.3d 1284, 1288 (10th Cir. 2000). Because 

of the enormous stakes confronted in a capital case, this court has stated that we 

must ensure that “the sentencing jury makes an individualized decision while 

equipped with the ‘fullest information possible concerning the defendant’s life 

and characteristics,’ and must scrutinize carefully any decision by counsel which 

deprives a capital defendant of all mitigation evidence.” Id. (quoting Lockett v. 

Ohio, 438 U.S. 586, 603 (1978)). Even amidst this backdrop, we do not think that 

Gordon committed error by failing to present the additional mitigating witnesses 

because the content was duplicative. 

 We begin by reviewing the mitigating evidence that Gordon actually presented 

at the resentencing hearing. He called four mitigating witnesses who provided 

testimony to the effect that Hanson was a kind, loving, and hard-working person, 

and a good father: 

 Tenika Simmons, Hanson’s ex-girlfriend’s niece, testified that Hanson 

helped her to get through some dark times in her life and talked her out of 

committing suicide. She described Hanson as a “good father,” Tr. Trans. II, 

Vol. X at 1781, and as a nonviolent person. 

 Eric Knowles, Hanson’s ex-girlfriend’s brother and a coworker of 

Hanson’s for some time, testified that Hanson was a “good worker” who 

“worked his butt off.” Id. at 1787. He said Hanson was neither violent nor 

aggressive. He shed light on how difficult the death of Hanson’s father was 

on him, explaining that his father’s death “really shook his world up.” Id. 

at 1790. He characterized him as “a follower” who required direction and 

structure. Id. at 1791.

 Ledocia Warrior, Hanson’s ex-girlfriend of four years, testified that 

Hanson was a “very caring and loving person . . . [who] never showed any 

signs of anger.” Id. at 1803. She described their son Marquelle as the most 

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important person in Hanson’s life and explained that Hanson and Marquelle 

have “a very loving communication.” Id. at 1808. 

 Marquelle Hanson, Hanson’s son, testified that he has a “pretty good 

relationship” with his father and that he looks forward to his father’s letters 

from prison. Id. at 1810, 1813. 

As the district court noted, trial counsel investigated and presented mitigating 

evidence. But Hanson maintains that this testimony was insufficient to 

“humanize” him. Appellant’s Br. at 34. He submitted 13 affidavits from family 

members and friends who, he argues, would have humanized him in the eyes of 

the jury. These included: 

 Charlotte Ward, Hanson’s mother, who would have testified that Hanson 

was a “good boy” who “just got in with the wrong people and their 

influence.” Application for Evidentiary Hearing on Sixth Amendment 

Claim, Case No. D-2006-126, at 18. She would have explained that he was 

an “excellent father” and a thoughtful and kind son. Id.

 Stephen Hanson, John Hanson’s brother, who would have testified that 

their father’s death was extremely hard on Hanson, causing him to feel 

like his “world had ended.” Id. at 21. He would have testified that Hanson 

was a “good person” and a hard worker. Id.

 Charmyn Clariett, Hanson’s younger sister, who would have testified that 

Hanson was a “loving, caring person” whose son adores him and that his 

“son is his life.” Id. at 24. 

 Marsha Hollingsworth, Hanson’s cousin, who would have testified that she 

helped to raise Hanson. She would have stated that the death of Hanson’s 

father was hard on Hanson and that Hanson “didn’t know how to live 

without him.” Id. at 26.

 Joyce Leake, Marquelle’s grandmother, who would have testified that 

Hanson “took awfully good care of” his son. Id. at 28. He “was a very nice 

young man and so respectful to me.” Id.

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 Spencer Knowles, Marquelle’s uncle, who would have testified that he has 

known Hanson for ten to fifteen years and that Hanson “was a good father 

to his son,” “cared about his family,” and was a generous, “good-souled” 

person, always there to help. Id. at 30.

 Theresa Simmons, Hanson’s ex-sister-in-law, who would have testified 

that Hanson was reliable, “kind[,] and caring.” When Simmons was going 

through a divorce, Hanson was “there for” her daughter. Id. at 32.

 Melissa Simmons, Hanson’s ex-niece, who would have testified that 

Hanson was “always nice” to her, that he was “always cooking and 

cleaning” at their house, and that he looked after his son well. Id. at 34.

 Marilyn Wright, Hanson’s mother’s best friend, who would have testified 

that Hanson was a “loving person, nice[,] and respectful” and that he was 

helpful and kind. Id. at 36.

 Tremaine Wright, Hanson’s good friend and roommate for eight years, 

who would have testified that Hanson missed his dad a lot, that he was a 

“good father[,]” but that Miller was a bad influence on him. Id. at 39–41. 

 Jermaine Wright, Hanson’s childhood friend, who would have testified 

that Hanson was a “very respectable guy”; that he was hard working and 

helpful; that he loved his son more than anything; and that he was a “good 

father.” Id. at 43.

 Jamarro Wright, Hanson’s childhood friend, who would have testified that 

Hanson was a family man, who was good with kids and a good father. 

 Daron Joseph, Hanson’s friend, who would have testified that Hanson had 

strong “family values,” was a good father, and was “kind-hearted”; and 

that he was someone who “respects people.” Id. at 48–50.

We acknowledge that we would be concerned had Gordon never investigated 

or spoken with any of Hanson’s close family members. See Wilson, 536 F.3d at 

1087 (concluding that counsel was deficient for failing to interview a single 

family member). The record does not reveal whether Gordon actually 

interviewed, or attempted to interview, these family members. But we need not 

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face this dilemma because we believe that Hanson was not prejudiced by 

Gordon’s failure to present these witnesses at trial. 

Even if Hanson had met the first Strickland prong, he could not show that he 

was prejudiced by the deficient performance. He contends that the additional 

witnesses would have provided “unique viewpoints of who John Hanson is and 

offered necessary narratives of the events that transformed [his] life.” Appellant’s 

Br. at 30. But we are not persuaded. After comparing the mitigating evidence that 

was actually presented with the proffered affidavits, we see that the additional 

mitigating witnesses would have testified to the same themes as the four 

testifying witnesses: Hanson is a follower; he is a kind and nonviolent person; 

and he is a good father. This testimony would have been duplicative and thus of 

only marginal value. See Hooks, 689 F.3d at 1190 (concluding that counsel was 

not deficient in failing to call a witness because jury may have found that her 

testimony was “duplicative”); DeRosa v. Workman, 679 F.3d 1196, 1218–19 

(10th Cir. 2012) (concluding that counsel was not deficient in failing to present 

additional mitigating evidence because it was in large part “duplicative” of 

evidence actually presented at trial and so of only marginal value). Many of our 

cases have refused to find prejudice when the evidence not presented would have 

been cumulative of the evidence the jury already heard. See Grant v. Trammell, 

727 F.3d 1006, 1022 (10th Cir. 2013) (listing cases). 

We conclude that there is not a reasonable probability that the additional 

mitigating evidence would have impacted the jury’s ultimate decision. We cannot 

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say it was unreasonable for the OCCA to hold that it would not have changed the 

outcome of Hanson’s trial. Therefore, we affirm the district court’s denial of 

habeas relief on this claim. 

v. Failure to present evidence of mental illness and brain damage 

Hanson next argues that both his trial and appellate counsel provided 

ineffective assistance by failing at the resentencing hearing and on appeal to 

properly investigate and present evidence concerning Hanson’s mental-health 

issues and possible brain damage. He relies on the report prepared by 

psychologist Dr. Jeanne Russell, Ed.D., for his resentencing hearing, which, he 

says, flagged multiple indicators of his mental-health issues. He asserts that this 

evidence, in conjunction with reports prepared by a psychiatrist and 

neuropsychologist at the habeas stage, would have provided the jury with a fuller 

picture of Hanson’s mental health status and helped to explain his actions. He 

believes these reports provide sufficient evidence of his mental-health issues to 

warrant our reversal of his sentence or, at the very least, to warrant a remand with 

instructions for the district court to hold an evidentiary hearing on the matter. 

Before engaging in an analysis of the issue, we present the various evaluations 

that were conducted both before and after the resentencing hearing. We then 

examine and explain why we are unconvinced by Hanson’s argument and reject 

his request for an evidentiary hearing. 

 Before the 2001 trial, Kathy LaFortune, an in-house psychologist for the 

Oklahoma Indigent Defense System (“OIDS”), conducted a preliminary screening 

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examination of Hanson. This screening consisted of a basic mental health 

examination, a Minnesota Multiphasic Personality Inventory, and an abbreviated 

IQ test. LaFortune opined that, based on her examination, a neuropsychologist 

should not be retained. 

 After the OCCA remanded the case for a new sentencing hearing, Gordon 

referred Hanson to Dr. Russell, for a social history and risk assessment. Dr. 

Russell was hired specifically to rebut the continuing-threat aggravator by 

providing information on Hanson’s background and potential risk for violence 

while incarcerated. Dr. Russell (1) performed a Minnesota Multiphasic 

Personality Inventory, a Weschler Abbreviated Scale of Intelligence test, and a 

Hare Psychopathy Checklist test; (2) interviewed Hanson, his mother, stepfather, 

and ex-girlfriend; and (3) reviewed various legal documents, including his 

presentence report and Oklahoma Department of Correction Records. 

Her report unearthed numerous aspects of Hanson’s background and mental 

health. Hanson’s parents divorced when he was ten years old and his father died 

when he was 17. He dropped out of high school after eleventh grade, completing 

his GED in prison. Dr. Russell observed that Hanson exhibits paranoid thoughts, 

which impair his ability to trust anyone. The Minnesota Multiphasic Personality 

Inventory “indicates some confusion and personality deterioration. . . . [H]e is 

preoccupied with bizarre ideas and abstract thoughts. He tends to project blame 

onto others and appears to withdraw into fantasy in an attempt to deal with his 

distress.” Appendix of Attachments to the Successive Application for PostAppellate Case: 13-5100 Document: 01019475498 Date Filed: 08/13/2015 Page: 32 
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Conviction Relief in OCCA case no. PCD-2011-58, Att. 7, at 7. She also 

observed that his “extreme and bizarre thoughts[] suggest[] the presence of 

delusions and/or hallucinations. He apparently believes that he has special 

mystical powers or a special ‘mission’ in life that others do not understand or 

accept.” Id. In conclusion, her psychological testing results showed that his 

overall intelligence is above average, that he is depressed, and that he feels 

“estranged and alienated from people and is suspicious of the actions of others.” 

Id. at 12. At the resentencing hearing, she testified that he was a “low risk to 

society” in prison. Tr. Trans. II, Vol. X at 1758. 

On direct appeal of his second death sentence, Hanson’s new counsel, Jamie 

Pybas, attempted to retain a neuropsychologist to examine Hanson. But after 

LaFortune advised her not to retain one, Pybas abandoned all pursuits. 

In preparation for his federal habeas petition, Hanson’s new counsel, Robert 

Jackson, procured a psychiatric evaluation and a neuropsychological evaluation. 

Hanson submitted reports from these evaluations with his second post-conviction 

application before the OCCA. The OCCA denied his post-conviction relief, 

finding his ineffective assistance of counsel claim meritless. The OCCA reviewed 

and acknowledged the evidence Hanson had provided in support of his mental 

health claims, stating: 

Hanson provides in support of his current application for relief the 

January 13, 2011 affidavit of Tora Brawley, Ph.D., and Hanson’s 

November 29, 2010 psychiatric evaluation conducted by Dr. Donna 

Schwartz-Watts, M.D. Dr. Brawley conducted a neuropsychological 

evaluation of Hanson in December 2010 that included a clinical 

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interview, behavior observation and the administration of a battery of 

standardized tests. Dr. Brawley states that her evaluation revealed 

the presence of scattered cognitive deficits suggestive of brain 

organicity. She believes these deficits were present at the time of the 

murder because there is no evidence Hanson suffered any trauma 

since that time to account for these deficits. She states that scores on 

testing conducted in 2004 should have led to further evaluation of 

Hanson’s neuropsychological and neurological functioning. Findings 

of brain organicity, according to Dr. Brawley, can be an important 

aspect contributing to criminal behaviors and should have been 

considered in Hanson’s defense during legal proceedings. Dr. 

Schwartz-Watts concludes that Hanson suffers from Dysthymic 

Disorder, Major Depressive Disorder, Post Traumatic Stress 

Disorder, Cognitive Disorder[,] and Paranoid Personality Disorder. 

Her opinions are consistent with those of Dr. Brawley. 

Opinion Denying Second Application for Post-Conviction Relief and Motion for 

Evidentiary Hearing, PCD-2011-58, Appellant’s Br., Att. I at 7, n.5. In support of 

its opinion denying relief, the OCCA stated: 

According to the materials, Hanson was evaluated early on by the 

Head of Psychological Services at OIDS at the request of trial 

counsel, presumably to evaluate the need for psychological experts. 

After the screening procedure, a psychologist was retained to 

perform a risk assessment for Hanson’s original trial. Appellate 

counsel’s request for a neuropsychologist during Hanson’s direct 

appeal of his original trial was denied based upon the screening 

examination conducted before trial. We can only conclude that his 

screening examination did not suggest the need for 

neuropsychological testing for mental illness and cognitive 

dysfunction. For Hanson’s resentencing trial, a second risk 

assessment was performed by another psychologist. There is no 

evidence before us that either of the psychologists who performed 

risk assessments of Hanson expressed any concerns to Hanson’s 

attorneys—as one would think this type of expert would do in a case 

like this—that Hanson needed further evaluation because their 

testing revealed indicators of mental health or cognitive dysfunction. 

We cannot accept as credible Hanson’s assertion that the 

experienced capital litigation experts and attorneys all missed these 

obvious indicators of mental illness and cognitive dysfunction in this 

case at every step. Instead, we think the record shows that the issue 

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of Hanson’s mental health was considered by trial and appellate 

counsel and they decided not to pursue further mental health 

investigation in light of the screening test results. This was a 

reasonable strategy decision under the circumstances. 

Id. at 5–6 (emphasis added). 

Because the OCCA reviewed the new evidence, the district court properly 

analyzed the claim through the lens of AEDPA. Hanson III, 2013 WL 3307111, at 

*37. It affirmed the OCCA’s holding and agreed with its reasoning that “appellate 

counsel did not perform deficiently because pretrial mental and social evaluations 

of [Hanson] did not reveal a need for further evaluation.” Id. at *38. It also 

concluded that Hanson “was not prejudiced by trial counsel’s failure to further 

investigate and present evidence of [Hanson’s] mental health issues.” Id. at *39.

We agree and hold that neither trial nor appellate counsel was deficient in their 

investigation and presentation of Hanson’s mental-health issues. 

 As in his previous ineffective assistance of counsel claims, Hanson here must 

establish both that his attorney’s representation was deficient and that the 

deficient performance prejudiced his defense. See Hooper v. Mullin, 314 F.3d 

1162, 1168–69 (10th Cir. 2002). The Supreme Court has expressly held that 

evidence of mental illness and brain dysfunction are essential components of a 

defendant’s mitigation case. Boyde v. California, 494 U.S. 370, 382 (1990) 

(“[E]vidence about the defendant’s background and character is relevant because 

of the belief . . . that defendants who commit criminal acts that are attributable to 

. . . emotional and mental problems, may be less culpable than defendants who 

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have no excuse.” (internal quotation marks omitted)); see also Sears v. Upton, 

561 U.S. 945, 956 (2010) (per curiam) (concluding that trial counsel’s utter 

failure to uncover evidence of petitioner’s significant mental and psychological 

impairments was deficient and prejudicial). Mental-health evidence in particular 

is some of the most valuable mitigating evidence available. See Anderson v. 

Sirmons, 476 F.3d 1131, 1144 (10th Cir. 2007) (stating that mental health 

evidence can show that what is going on in a defendant is not necessarily the 

“meanness” jurors assume). 

 Hanson argues that counsel did not have a strategic reason for failing to 

investigate the possible mental-health issues flagged in Dr. Russell’s report. 

“Instead of exploring these markers, counsel simply forged ahead with the lone 

approach of rebutting the continuing threat aggravator.” Appellant’s Br. at 44.

While the OCCA and the district court found that the pretrial mental health 

evaluations revealed no reason for further testing, Hanson attributes this to the 

limited evaluations. We are surprised by his argument. His assertion flies in the 

face of his contemporaneous argument that Dr. Russell’s report flagged multiple 

indicators of mental-health issues that trial and appellate counsel should have 

followed up on. He cannot simultaneously contend that the tests were too narrow 

to reveal his mental health issues and that they raised red flags requiring 

counsel’s follow-up. Those arguments are intrinsically contradictory. 

 Moreover, studied through the lens of AEDPA’s deference, we do not see how 

we could disagree with the OCCA’s finding that “we cannot accept as credible 

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37 

Hanson’s assertion that the experienced capital litigation experts and attorneys all 

missed these obvious indicators of mental health illness and cognitive 

dysfunction in this case at every step.” Appellant’s Br., Att. I. at 5–6. Hanson 

received at least two different mental health screenings or evaluations before his 

resentencing hearing. The evaluations alerted neither the psychologist nor the 

attorneys to flags indicating Hanson might have mental-health problems. We 

cannot simply assume that every single member of the defense team missed 

glaring markers of Hanson’s mental illness.6

 

Finally, we refuse Hanson’s request to remand the case to the district court for 

an evidentiary hearing on this issue. A habeas petitioner can obtain an evidentiary 

hearing in federal court by “(1) showing he was diligent in developing the factual 

basis for his claim in state court . . . ; and (2) asserting a factual basis that, if true, 

 6

 Hanson also contends that both the OCCA and the district court failed to 

acknowledge that LaFortune’s role at both the trial and appellate level caused his 

appellate counsel to lose their independence, resulting in his appellate counsel 

providing ineffective assistance. His appellate attorney did not retain a new 

expert for a mental-health evaluation because LaFortune, the “gatekeeper” for 

approval of expert funds at OIDS, rejected funds for Hanson’s 

neuropsychological testing because she had already conducted a screening herself 

before Hanson’s original trial. Appellate counsel decided not to pursue it further. 

Hanson contends that this was error, not a decision based on strategy. 

Hanson cannot succeed on this claim because there is no clearly established 

federal law on point. He submits Kimmelman v. Morrison, 477 U.S. 365 (1986), 

for the proposition that the Supreme Court has recognized the detrimental effect 

when trial and appellate counsel are not independent. But Kimmelman does not 

apply here because Hanson’s trial and appellate counsel were independent. 

Hanson’s problem is with LaFortune and her role at both the trial and appellate 

level. And in any event, two different and independent experts evaluated Hanson 

before his resentencing—Dr. LaFortune and Dr. Russell—and neither suggested a 

need for any further evaluation. In that circumstance, it was not ineffective 

assistance for Hanson’s counsel not to seek an additional evaluation. 

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would entitle him to habeas relief.” Boyle v. McKune, 544 F.3d 1132, 1135 (10th 

Cir. 2008) (citations omitted). If the petitioner has exercised diligence in 

developing the factual basis for his claim, “his request for an evidentiary hearing 

may be assessed under less-rigorous pre-AEDPA standards.” Littlejohn, 704 F.3d 

at 857; see also Williams, 529 U.S. at 437. 

The preliminary inquiry is whether Hanson was “diligent” in developing the 

factual basis for his claim. “Diligence will require in the usual case that the 

prisoner, at a minimum, seek an evidentiary hearing in state court in the manner 

prescribed by state law.” Williams, 529 U.S. at 437. Hanson sought to develop his 

claim in state court. As such, we believe Hanson was diligent in developing the 

factual basis for his claim. 

Moving on to the substantive inquiry, we must consider whether Hanson is 

entitled to an evidentiary hearing on his claim. He is entitled to a hearing so long 

as his factual allegations, “if true, would entitle [him] to federal habeas relief.” 

Boyle, 544 F.3d at 1136 (alteration in original) (quoting Schriro v. Landrigan, 

550 U.S. 465, 474 (2007)). But he has offered no evidence that his counsel was 

deficient in relying on the evaluations of two psychological experts, neither of 

which suggested further testing. Therefore, we deny his request for an evidentiary 

hearing. 

vi. Failure to object to prosecutorial misconduct 

Hanson next argues that there were numerous instances of prosecutorial 

misconduct to which Gordon failed to object, rendering his counsel ineffective. 

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He contends that the prosecution: (1) inappropriately vouched for Barnes’s 

credibility; (2) made improper appeals for civic justice; (3) misled the jury about 

the proof necessary to establish the great-risk-of-death aggravator; (4) engaged in 

name-calling; and (5) improperly invoked sympathy for the victim. The OCCA 

held that counsel’s lack of objections did not prejudice Hanson in any respect 

because the outcome of his trial would not have been different.7 Hanson II, 206 

P.3d at 1032. 

We begin by noting that before Hanson can succeed on his counsel’s failureto-object claims, he must show that the underlying prosecutorial-misconduct 

claims themselves have merit. Neill v. Gibson, 278 F.3d 1044, 1058, 1062 (10th 

Cir. 2001); see also Werts v. Vaughn, 228 F.3d 178, 205 (3d Cir. 2000) 

(concluding that trial counsel’s performance cannot be ineffective for failing to 

object to the prosecutor’s proper remarks). We conclude that none of Hanson’s 

underlying prosecutorial-misconduct claims have merit. As such, we do not 

engage in an analysis of whether his counsel was ineffective for failing to object 

to them. 

 7

 Hanson challenges the legal standard the OCCA applied in making this 

determination. In finding that Hanson was not prejudiced by counsel’s failure to 

object to the alleged prosecutorial misconduct, the OCCA stated, “[Hanson] 

cannot show that the outcome of his resentencing trial would have been different 

had counsel objected.” Hanson II, 206 P.3d at 1032. Hanson argues the law does 

not require him to affirmatively show that the outcome of his trial would be 

different, but only to demonstrate a reasonable probability that the outcome 

would have been different. Strickland, 466 U.S. at 694. Whether Hanson is 

correct is irrelevant because we never reach the Strickland inquiry. Our analysis 

stops short of that question because of our conclusion that the prosecution did not 

engage in any misconduct in the first place. 

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a. Inappropriate vouching 

First, Hanson claims that the prosecution “unfairly bolstered” Barnes’s 

credibility. Appellant’s Br. at 62. During the closing argument at trial, the 

prosecutor argued as follows: 

The instructions tell you to consider the credibility of the witness[] 

. . . . What stakes does Rashad have in this? None. For his testimony 

he’s labeled a snitch. He told you he was scared to testify. He has 

nothing in this except to tell what he knows of what happened and 

what that defendant told him. 

Tr. Trans. I, Vol. X at 1723–24. The prosecutor also argued that “[Barnes] 

became the third victim in all this. . . . He’s out there in north Tulsa with the 

label of snitch around his neck and with them trying to convince you he was 

involved.” Id. at 1747. At the closing argument during Hanson’s resentencing 

hearing, the prosecutor stated, “Rashad Barnes doesn’t have a criminal history. 

[He] hasn’t been impeached. [He] hasn’t been shown to tell a lie. None of that 

stuff. They have previous transcripts. You’ve heard the previous transcript. 

Rashad has consistently told the truth and has never been impeached. [His] story 

is corroborated at every angle.” Tr. Trans. II, Vol. XI at 1902–03. Hanson 

contends that these statements constitute “impermissible vouching,” which was 

used to ensure that the jury found Barnes credible. Appellant’s Br. at 62–63.

Correspondingly, he argues his trial counsel was ineffective for failing to object. 

 The OCCA rejected Hanson’s argument because a prosecutor’s discussion of a 

witness’s credibility is not per se vouching. Hanson I, 72 P.3d at 50 n.28. We 

agree. “[I]t is unprofessional conduct for the prosecutor to express his or her 

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personal belief or opinion as to the truth or falsity of any testimony or evidence 

or the guilt of the defendant.” United States v. Young, 470 U.S. 1, 8 (1985) 

(alteration in original) (quoting ABA Standards for Criminal Justice 3-5.8(b) (2d 

ed. 1980)). Impermissible vouching occurs when “the jury could reasonably 

believe that the prosecutor is indicating a personal belief in the witness’ 

credibility, either through explicit personal assurances of the witness’ veracity or 

by implicitly indicating that information not presented to the jury supports the 

witness’ testimony.” United States v. Harlow, 444 F.3d 1255, 1262 (10th Cir. 

2006) (quoting United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990)). 

That is not the case here. In United States v. Jones, 468 F.3d 704, 707 (10th 

Cir. 2006), we held that “presenting evidence of [the witness’s] obligation or 

motivation to testify truthfully is unobjectionable.” See also Thornburg v. Mullin, 

422 F.3d 1113, 1132 (10th Cir. 2005) (concluding that “it is not improper for a 

prosecutor to direct the jury’s attention to evidence that tends to enhance or 

diminish a witness’s credibility”). The prosecutor here did just that. What he did 

not do, and what would be impermissible, is to give his own opinion on Barnes’s 

credibility or to suggest that he knew something more about Barnes’s credibility 

than could be deduced from the evidence at trial. Instead, the prosecutor directed 

the jury’s attention to concrete evidence supporting Barnes’s credibility. There is 

no rule against that. Thus, the underlying claim of prosecutorial misconduct 

cannot stand, and so trial counsel was not wrong for failing to object. 

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b. Improper appeal for civic justice 

Hanson next argues that trial counsel erred by failing to object to the 

prosecutor’s inappropriate comments giving the jury a choice between sentencing 

Hanson to death and abandoning its civic duty. During resentencing, the 

prosecutor told the jury, “[M]ake this about truth, make this about accountability, 

and make this about justice.” Tr. Trans. II, Vol. XI at 1834. Later, he said: 

[L]adies and gentlemen [you] are going to write the final chapter. I 

want to ask you, is it going to be about justice? Is it going to be 

about accountability? . . . when you knock on that door . . . you’re 

going to be telling this court what justice is about in this case. You 

will be doing that, you twelve. 

Id. at 1865–66. 

We do not view these comments as an improper appeal for civic justice and 

disagree with Hanson’s characterization of the prosecutor’s two statements. 

While “[i]t is improper for a prosecutor to suggest that a jury has a civic duty to 

convict[,]” that is not the situation here. Wilson, 536 F.3d at 1120; see also 

Thornburg, 422 F.3d at 1134. 

Hanson submits Viereck v. United States, 318 U.S. 236 (1943), in support of 

his argument that the prosecutor’s statements essentially forced the jurors to 

impose the death penalty to fulfill their duty. But after reviewing Viereck, we 

think that if anything it undermines Hanson’s argument. In Viereck, the 

prosecutor exceeded permissible bounds by arguing during closing as follows: 

This is war, harsh, cruel, murderous war. There are those who, right 

at this very moment, are plotting your death and my death; plotting 

our death and the death of our families because we have committed 

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no other crime than that we do not agree with their ideas of 

persecution and concentration camps. 

Id. at 247 n.3. The Court concluded that, because of the United States’ 

participation in World War II at the time of trial, the prosecutor’s language 

heightened the jury’s emotions in a highly prejudicial way. Id. at 248. 

We find no such arousals of passions or emotions here. Rather, we agree with 

the government that “the prosecutor merely expressed the solemnity of the jury’s 

responsibility as the final arbiter of justice . . . .” Appellee’s Br. at 43.

Hanson replies by directing us to consider the prosecutor’s statement in the 

context of the government’s overarching request for the death penalty. He 

suggests that when we think about the prosecutor asking the jury to tell the court 

“what justice is about in this case,” Tr. Trans. II, Vol. XI at 1865–66, on the heels 

of his telling the jury that this case is one fit for a death sentence, we will agree 

with him. But we do not. In advocating for a just result, the prosecutor 

emphasized that “[y]ou twelve jurors decide” where the line is drawn. Id. at 1864. 

“References to ‘justice’ are not necessarily improper, at least where the 

‘prosecutor’s comments [are] firmly rooted in the facts of the case’ and are not 

otherwise made in a substantially inflammatory manner.” Littlejohn, 704 F.3d at 

842 (emphasis and alterations in original) (quoting Thornburg, 422 F.3d at 1134). 

The government did not encourage the jury to throw away reason when making 

its decision. It merely highlighted the importance of that decision. 

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Because the underlying claim of prosecutorial misconduct fails, counsel was 

not deficient in failing to object to it. 

c. The great-risk-of-death aggravator 

Hanson next argues that the prosecutor misstated the law on the great-risk-ofdeath aggravating circumstance.8

 He cites the prosecutor’s statement that because 

Thurman and Bowles were killed within minutes of each other there was “[n]o 

question that [Hanson] created a risk of death to more than one person,” Tr. 

Trans. II, Vol. XI at 1854, and to the prosecutor’s argument that “[t]he 

aggravating circumstance[] has been met. . . . We’ve alleged great risk of death to 

more than one person. There [are] two people dead.” Id. at 1908. The OCCA 

found the claim moot in light of its invalidation of this aggravating circumstance 

on the grounds that it was not supported by sufficient evidence. Hanson II, 206 

P.3d at 1032–34. Thus, it found that these comments “did not render Hanson’s 

resentencing trial unfair.” Id. at 1034. 

Because the OCCA invalidated the aggravating circumstance, we agree that 

this claim is moot. When a death sentence is based in part on an invalid 

aggravator, the state trial or appellate court may uphold the sentence by 

reweighing the aggravating and mitigating evidence. Clemons v. Miss., 494 U.S. 

738, 741, 748–49 (1990); see also Turrentine v. Mullin, 390 F.3d 1181, 1203 

(10th Cir. 2004). In this case, the OCCA first determined that the great-risk-of-

 8

 Title 21, section 701.12(2) of the Oklahoma statutes provides that an 

aggravating circumstance includes a finding that the “defendant knowingly 

created a great risk of death to more than one person.” 

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death aggravator had been improperly applied. Hanson II, 206 P.3d at 1033. 

Following this conclusion, it reweighed the remaining aggravating circumstances 

against the mitigating ones and found that they still supported the death penalty. 

Id. at 1034. The court also said that “[t]he evidence offered in support of the 

invalidated aggravating circumstance—that Hanson knowingly created a great 

risk of death to more than one person—was equally relevant to prove that he 

murdered Bowles to avoid arrest.” Id. at 1036; see infra Part II.C for further 

discussion. Hanson does not demonstrate how the OCCA’s decision was contrary 

to, or an unreasonable application of, clearly established federal law, and we do 

not see how the OCCA deviated from the law. Therefore, counsel was not 

deficient for failing to object. 

d. Name-calling 

Hanson also argues that his trial counsel was deficient in failing to object to 

the prosecution repeatedly calling Hanson names, which Hanson contends was 

intended to garner sympathy for the victim. During trial, the prosecution called 

him “a two-time, cold-blooded killer” and a “murderer,” and they compared him 

to a “jackal.” Tr. Trans. I, Vol. X at 1744, 1746, 1749. While the OCCA 

recognized that name-calling is disfavored, it found that the evidence showed that 

Hanson was a carjacker who carried a gun and had committed at least one murder. 

Hanson I, 72 P.3d at 50. Thus, the name-calling was grounded in the record. 

The district court agreed that there was sufficient evidence to support the 

comments in this case. Hanson III, 2013 WL 3307111, at *11. It also concluded 

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that the comments did not deny Hanson his right to due process because there was 

ample support for the jury’s verdict of guilt. Id.; see Malicoat v. Millin, 426 F.3d 

1241, 1256 (10th Cir. 2005) (finding no constitutional error when prosecutor 

called defendant “evil” and a “monster” because of the strength of the 

prosecutor’s case and the fact that the majority of the prosecutor’s argument was 

based on evidence in the record). 

Hanson has a high hurdle to overcome—we cannot say that “[a] state court’s 

determination that a claim lacks merit” is wrong on habeas “so long as 

‘fairminded jurists could disagree’ on the correctness of the state court’s 

decision.” Harrington, 562 U.S. at 101 (quoting Yarborough, 541 U.S. at 664). 

Hanson has not cleared that hurdle. While prosecutors should refrain from namecalling that might inflame the jury’s passions, see United States v. Pena, 930 F.2d 

1486, 1490–91 (10th Cir. 1991), the prosecutor’s statements of “two-time, coldblooded killer” and “murderer” were sufficiently grounded in evidence from the 

record. And even if these names were not grounded in evidence, they were not so 

egregious as to inflame the passions of the jury and thus undermine the 

fundamental fairness of trial. We also believe that Hanson has taken the “jackal” 

comment out of context. The prosecutor’s full statement was, “They were going 

to take and they were going to take and whoever they had to burn was going to 

burn, because this is their world. It’s a world where jackals reign. They travel in 

packs and they drag down the weak, and we pay the price.” Tr. Trans. I, Vol. X at 

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47 

1749. The prosecutor used “jackal” as an analogy—he never called Hanson a 

jackal. 

Because the underlying claim of prosecutorial misconduct is not meritorious, 

trial counsel was not deficient in failing to object. 

e. Victim sympathy 

Finally, Hanson argues that the prosecution improperly invoked sympathy for 

the victims. During closing arguments at resentencing, the prosecutors told the 

jurors to think about the extreme mental cruelty Bowles and Thurman suffered, as 

well as the mental cruelty that Jolanda Beesley suffered.9

 Hanson argues these 

statements were improper because the government never alleged the heinous, 

atrocious, or cruel aggravating circumstance, nor was Hanson being sentenced for 

Thurman’s murder or the Credit Union robbery. As such, he explains, his counsel 

should have objected to the comments. 

The OCCA acknowledged that it is error for a prosecutor to encourage jurors 

to impose the death penalty based solely on victim sympathy. Hanson II, 206 

P.3d at 1028. But it found here that the comments were probative of the 

likelihood of Hanson’s being a continuing threat to society. Id. at 1029. Thus, the 

OCCA found the comments were not error. 

“We do ‘not condone prosecutorial remarks encouraging the jury to allow 

sympathy to influence its decision.’” Wilson, 536 F.3d at 1120 (quoting Moore v. 

 9

 Beesley was a teller working at the Tulsa Federal Employees Credit Union 

when Hanson and Miller robbed it. 

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Gibson, 195 F.3d 1152, 1172 & n.11 (10th Cir. 1999)); see also Young, 470 U.S. 

at 9 n.7 (quoting the ABA Standard for Criminal Justice stating that a lawyer 

should not make arguments calculated to inflame the passions of the jury). But 

these comments were relevant evidence for the jury to consider and did not 

amount to prosecutorial misconduct. See infra Part II.B.i for further discussion. 

Moreover, this court has previously found that statements more inflammatory 

than these did not render a trial fundamentally unfair. See, e.g., United States v. 

Chanthadara, 230 F.3d 1237, 1274 (10th Cir. 2000) (not unduly prejudicial when 

victim’s children ended their testimony in tears and jury viewed letters the 

children had written to their dead mother); Cargle, 317 F.3d at 1223–24 (lengthy 

and emotional statement from victim’s sister and photos of victim while alive 

were not unduly prejudicial). 

Because there was no prosecutorial misconduct, Hanson was not denied his 

right to effective assistance of counsel when counsel did not object to the 

comments. 

vii. Government’s alleged failure to assert with specificity the predicate 

 crime for which Bowles’s murder was committed 

The government alleged, and the jury found, three aggravating circumstances 

against Hanson for the murder of Bowles: (1) that he had a previous conviction of 

a violent felony; (2) that the murder was committed to avoid arrest or 

prosecution; and (3) that he created a great risk of death to more than one person. 

Hanson I, 72 P.3d at 45. Upon review, the OCCA struck the third circumstance. 

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Hanson II, 206 P.3d at 1032–34. Hanson contends that the OCCA also should 

have struck the second one. He claims his trial and appellate counsels’ failure to 

raise this issue denied him effective assistance of counsel. 

The statutory aggravating circumstance that the murder was committed to 

avoid arrest or prosecution has two components: (1) there must be a crime 

separate and distinct from the murder; and (2) the defendant, in committing the 

murder, must have had the specific intent to avoid being arrested or prosecuted 

for the separate and distinct crime. See OUJI-CR 4-75 (2000 Supp.). Here, 

Hanson argues that the government never alleged with specificity which crime 

Hanson had committed to avoid arrest or prosecution. The OCCA found the 

government had established that Hanson murdered Bowles in order to avoid arrest 

or prosecution for Thurman’s murder, making Thurman’s murder the predicate 

crime for the purpose of the aggravating circumstance. The court based this 

conclusion on the government’s closing argument. Thus, the OCCA held that 

counsel did not provide ineffective assistance for failure to raise this issue. The 

district court agreed. Hanson III, 2013 WL 3307111, at *36. 

 Hanson disputes the OCCA’s finding. He contends that at some points during 

the resentencing hearing, the government alleged that the underlying crime was 

the assault on and kidnapping of Bowles. At other times, it was the robbery of 

Bowles’s car. And again at other times, it was the murder of Thurman. The 

problem, according to Hanson, is “[a]t no time were these theories ever narrowed 

to one, distinct crime.” Appellant’s Br. at 68. 

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Hanson’s argument fails because there is no clearly established federal law 

requiring identification or unanimity on the underlying predicate crime to support 

the avoid-arrest-or-prosecution aggravating circumstance. See House v. Hatch, 

527 F.3d 1010, 1021 (10th Cir. 2008) (“Absent controlling Supreme Court 

precedent, . . . the state court could not have unreasonably applied clearly 

established federal law.”); see also Carey v. Musladin, 549 U.S. 70, 77 (2006) 

(“Given the lack of holdings from [the Supreme Court] regarding the [prejudicial 

effect,] . . . it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly 

established Federal law.’” (latter two alterations in original)). 

Hanson submits Ring v. Arizona, 536 U.S. 584, 602 (2002), to support his 

contention that the jury must find each element of the avoid-arrest aggravator 

beyond a reasonable doubt. Ring states that “[i]f a State makes an increase in a 

defendant’s authorized punishment contingent on the finding of a fact, that fact 

. . . must be found by a jury beyond a reasonable doubt.” Id. But the language of 

Ring does not require Hanson’s suggested result. The Supreme Court held in Ring 

that “[c]apital defendants . . . are entitled to a jury determination of any fact on 

which the legislature conditions an increase in their maximum punishment.” Id. at 

589. In Ring, the jury convicted Ring of felony murder, but not premeditated 

murder. Id. at 591. Under Arizona law, Ring could not be sentenced to death for a 

felony-murder conviction without further findings. Id. at 592. The law directed 

the judge to hold a sentencing hearing and to determine the presence or absence 

of such enumerated aggravating circumstances. Id. The judge did so and 

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sentenced Ring to death. Id. at 594–95. The Court reversed the sentence because 

the judge, and not the jury, found the facts that led to Ring’s increased 

punishment of death, a sentence beyond the maximum authorized by a guilty 

verdict. Id. at 605–06, 609. Ring requires that a unanimous jury find the presence

of the avoid-arrest or other aggravating circumstance. But it does not speak to the 

facts underlying that finding. Accordingly, the holding of Ring is narrow. See Lee 

v. Comm’r, Ala. Dep’t of Corrs., 726 F.3d 1172, 1198 (11th Cir. 2013) (stating 

that appellant did not point to a case where the Supreme Court extended Ring’s 

holding “to forbid the aggravating circumstance being implicit in the jury’s 

verdict”). It does not establish, clearly or not, any federal law requiring that the 

government prove each fact underlying each aggravating circumstance. If such a 

requirement exists, we must await a Supreme Court case saying so. 

Our case law also supports the notion that the government does not need to 

specify the underlying predicate crime. See, e.g., Charm v. Mullin, 37 F. App’x 

475, 485 (10th Cir. 2002) (unpublished) (concluding that both “the kidnapping 

and rape supply the necessary predicate crimes” for an avoid-arrest aggravator). 

A court’s focus is on whether the defendant committed the murder with the 

“purpose of avoiding or preventing lawful arrest or prosecution.” Gilbert v. 

Mullin, 302 F.3d 1166, 1181 (10th Cir. 2002).10 Whether Hanson committed one 

or more predicate crimes to avoid arrest seems irrelevant to the analysis. 

 10 We note that Gilbert was decided five months after Ring. 

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Because we hold that there is no clearly established federal law requiring the 

government to allege with specificity one particular predicate crime, we decline 

to further address Hanson’s argument. Even if we agreed with Hanson’s 

suggestion, however, we think the government adequately argued the underlying 

predicate crime to be Thurman’s murder. As such, Hanson’s trial and appellate 

counsel were not deficient in failing to object. 

B. Prosecutorial Misconduct 

Hanson argues that there were numerous instances of prosecutorial misconduct 

that deprived him of a fair and reliable sentence, violating his Sixth, Eighth, and 

Fourteenth Amendment rights. He claims that the prosecution committed 

misconduct by arguing: (1) facts irrelevant to any alleged aggravating 

circumstance; and (2) that a death sentence was the only option to adequately 

punish Hanson for Bowles’s murder. Did the prosecution commit errors that 

rendered Hanson’s trial fundamentally unfair? 

i. Standard of review for prosecutorial misconduct under AEDPA 

Prosecutors are prohibited from violating fundamental principles of fairness, 

which are basic requirements of Due Process. Darden v. Wainwright, 477 U.S. 

168, 181 (1986); Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). A 

prosecutor’s improper remark requires the reversal of a state conviction only 

when it “infected the trial with unfairness as to make the resulting conviction a 

denial of due process.” Donnelly, 416 U.S. at 643. An inquiry into the 

fundamental fairness of the trial requires an examination of the entire 

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proceedings, including the strength of the evidence against the defendant. Harris 

v. Poppell, 411 F.3d 1189, 1197 (10th Cir. 2005). “[I]t is not enough that the 

prosecutors’ remarks were undesirable or even universally condemned.” Darden, 

477 U.S. at 181 (internal quotation marks and citation omitted). “Moreover, the 

appropriate standard of review for such a claim on [habeas] is the narrow one of 

due process, and not the broad exercise of supervisory power.” Id. (internal 

quotation marks and citation omitted). 

Where the state court has adjudicated the claim of prosecutorial misconduct on 

the merits, we apply AEDPA’s deferential standard of review. Le v. Mullin, 311 

F.3d 1002, 1013 (10th Cir. 2002). Additionally, we review the OCCA’s decision 

of the majority of these claims for plain error because trial counsel did not make 

a contemporaneous objection. See Thornburg, 422 F.3d at 1124–25. 

ii. Arguing facts irrelevant to any aggravating circumstance 

Hanson contends that the prosecution argued facts that did not support any of 

the alleged aggravating circumstances and were only introduced to garner 

sympathy for Bowles. Specifically, at resentencing the prosecution argued that 

Bowles suffered great physical anguish and/or extreme mental cruelty at the 

hands of Hanson, and Hanson contends this statement could only have been 

introduced to support the unalleged heinous, atrocious, or cruel aggravator.11 At 

one point, the prosecutor said: 

 11 In Spears v. Mullin, 343 F.3d 1215, 1226 (10th Cir. 2003), this court 

recognized that “[i]n Oklahoma, a murder is especially heinous, atrocious, or 

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Miller gets in the car after having just kill[ed] Jerald Thurman and 

tells Hanson, “You know what you’ve got to do now.” I don’t think 

there was any mistake in that car what was going to happen. Hanson 

knew what he was going to do, and of course, Mary Bowles knew 

what was going to happen. And the way you know Mary Bowles 

knew what was going to happen to her is because she started begging 

for her life. 

Mary Bowles pleaded to John Hanson trying to stay alive. She’s 

asking, “Is there anyone out there who loves you? Do you love 

anyone? You understand why you shouldn’t kill me? . . . 

When she pleads for her life, John Hanson smacks her in the face as 

he’s on top of her in the back seat. 

Tr. Trans. II, Vol. VI at 1180. In closing arguments, the prosecutor made 

comments such as: “[a]s she sits in the car, minutes away from death, focus on 

that”; and “[s]he’s pleading for her life. And what does this defendant do? He 

punches her” and “[s]o the trigger is being pulled once, twice, three times, four 

times, five times, six times.” Tr. Trans. II, Vol. XI at 1840. Defense counsel 

objected to three of the prosecutor’s statements, and the judge sustained all of 

these objections (telling the jury that Bowles was the “most vulnerable,” id. at 

1890; that Hanson laid on top of Bowles for fourteen miles and felt her “frail 

bones,” id. at 1892–93; and that he “smelled her hair,” id. at 1894–95). The trial 

court finally reprimanded the prosecutor, telling him there was no evidence to 

 

cruel if it was ‘preceded by torture or serious physical abuse. Torture includes the 

infliction of either great physical anguish or extreme mental cruelty, while 

physical abuse requires evidence of conscious physical suffering.’” Id. (quoting 

Romano, 239 F.3d at 1176). The government did not charge the heinous, 

atrocious, or cruel aggravating circumstance in Hanson’s case. 

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support these comments and that the prosecutor’s argument was “creating 

sympathy for the victim[.]” Id. at 1895.

 The OCCA first found that the trial court’s sustaining the objections to the 

three comments cured any error. Hanson II, 206 P.3d at 1028. For the remaining 

comments not objected to contemporaneously, the OCCA on plain error review 

found they were not error because they were relevant in assessing Hanson’s 

culpability. Id. It acknowledged that “it is indeed error for a prosecutor to 

encourage the jurors to impose the death penalty solely out of sympathy for the 

victims.” Id. But that was not the case here. Because it was a resentencing 

hearing, this sentencing jury had not made the initial finding of guilt of firstdegree murder of Bowles. See id. Therefore, the prosecutor was emphasizing the 

underlying facts to show that Hanson was culpable and deserving of the death 

penalty. Id. The OCCA was not convinced that the prosecutor’s arguments 

rendered Hanson’s resentencing trial unfair. Id. at 1028–29. The district court 

denied relief on the same basis. Hanson III, 2013 WL 3307111, at *14–15. 

 Hanson takes issue with the OCCA’s underlying premise. He argues that it is 

“unreasonable to infer the resentencing jury needed to know about Ms. Bowles’s 

mental anguish in assessing Hanson’s culpability” because culpability had 

already been established at trial. Appellant’s Br. at 79. He asserts that the 

prosecution’s comments about Bowles’s anguish only served to prejudice the 

jury. He relies heavily on the notion that, in capital trials, only one juror needs to 

be convinced that the mitigating evidence outweighs the aggravating 

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circumstances to spare the defendant from death. See Wiggins v. Smith, 539 U.S. 

510, 537 (2003). He contends that the prosecutor’s comments about Bowles’s 

suffering may have persuaded at least one juror to believe the aggravating 

circumstances outweighed the mitigating. 

 We do not find his argument convincing. Even if the prosecutor’s comments 

were improper, which we do not think they are, we would still need to consider 

“whether [they] so infected the trial with unfairness as to make the resulting 

[sentencing decision] a denial of due process.” Neill, 278 F.3d at 1061 (second 

alteration in original) (quoting Darden, 477 U.S. at 181). “[N]ot every improper 

. . . remark . . . will amount to a federal constitutional deprivation.” Tillman v. 

Cook, 215 F.3d 1116, 1129 (10th Cir. 2000), cert. denied, 531 U.S. 1055 (2000). 

When we consider the comments in the context of the entire proceeding, we do 

not think they were overly prejudicial. See Donnelly, 416 U.S. at 643 (evaluating 

the improper remarks in the context of the entire proceeding). We understand the 

government’s concern that because this was a new jury, it had not heard all of the 

evidence of Hanson’s guilt, and so the government felt compelled to emphasize 

certain facts to provide a full picture of the case to the jury. 

 Hanson submits Spears v. Mullin, 343 F.3d 1215 (10th Cir. 2003), in support 

of his argument. In Spears, the court held that the admission of gruesome 

photographs of the dead victims to support the heinous aggravator circumstance 

rendered the sentencing stage fundamentally unfair. Id. at 1227–29 (photographs 

depicted numerous post-mortem stab wounds, large gash wounds, exposed 

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intestines, swollen face and black eye).12 We do not think these photographs are 

comparable to the possibly improper remarks made by the prosecutor regarding 

Bowles’s mental state in the car. 

While we would not condone a prosecutor’s comments unsupported by 

admitted evidence, the curative instructions here would have resolved any such 

improprieties.13 See Harris, 411 F.3d at 1197 (citing Le, 311 F.3d at 1013) 

(finding that any cautionary steps, such as instructions to the jury offered by the 

court to counteract improper remarks, must be considered). As to the remaining 

prosecutorial comments regarding Bowles’s state of mind, we see no reasonable 

probability that Gordon’s objections would have altered the outcome. We must 

remember that the jury had before it evidence of Hanson’s callous treatment of 

Bowles and that the jury could independently consider what was going on in 

Bowles’s mind during the car ride. Thus, we see no reasonable probability that 

 12 Additionally, the photographs were offered in the sentencing phase of the 

capital trial to prove conscious physical suffering. The court held the photographs 

were not probative for that purpose because of the uncontradicted evidence that 

the victim had either died or lost consciousness early in the beating. Spears, 343 

F.3d at 1227–28. 

13 Hanson also contends that the trial court’s sustaining defense counsel’s 

objections was not sufficient to cure the error. But he cannot prevail on this 

argument because clearly established federal law says that a court typically 

presumes that a jury will follow instructions to disregard inadmissible evidence 

“unless there is an ‘overwhelming probability’ that the jury will be unable to 

follow the court’s instructions, and a strong likelihood that the effect of the 

evidence would be ‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756, 

766 n.8 (1987) (internal quotation marks and citations omitted). Hanson has no 

evidence to overcome this presumption. 

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the remarks infected the trial with unfairness so as to make the resulting 

conviction a denial of due process.14 

iii. Arguing death is the only option 

Hanson contends that the prosecution improperly argued to the jury that death 

was the only option for Hanson. He claims that the prosecution presented a slide 

during closing argument that instructed the jurors that if they did not sentence 

Hanson to death, they would in essence be giving him a “freebie” because he 

already had been sentenced to life imprisonment. Appellant’s Br. at 83. The 

government claims that the objectionable slide was never actually shown to the 

jury. 

Hanson points to the case of his codefendant, Victor Miller, where the OCCA 

found Miller’s death sentence unconstitutional in part because the prosecutors 

argued that death was the only sentencing option. The language at issue in 

Miller’s case was as follows: 

But in the idea of consequences and accountability and justice under 

the law for Mary Bowles and Jerald Thurman, if you were to give 

[Miller] any punishment other than death, what would the 

punishment for him be? Does he get a freebie because he is already 

serving life plus 157 years? Yes, it’s time to put a price tag on what 

 14 Lastly, Hanson argues that the OCCA’s decision ignores the special weight 

that jurors give to a prosecutor’s argument. See Berger v. United States, 295 U.S. 

78, 88 (1935). The government contends Hanson cannot make this argument 

because he did not raise it on direct appeal. But even if we were to consider it, it 

would fail. The OCCA acknowledged that some of the prosecution’s comments 

were prejudicial and sustained counsel’s objections to them. As to the remaining 

comments, it concluded that they were relevant to Hanson’s culpability and 

therefore not prejudicial. We agree that the comments were not prejudicial; 

therefore, they could not be given special, prejudicial weight. 

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a human life exists, because that’s accountability and consequences 

under the law in due process in this courtroom. 

Miller v. State, 313 P.3d 934, 996 (Okla. Crim. App. 2013) (emphasis in 

original). 

In the present case, the OCCA found that, based on the record, it could not 

determine to what extent the jury was actually exposed to the slide in question. 

Hanson II, 206 P.3d at 1029. The OCCA explained as follows: 

The record shows that the prosecutor cued a slide, defense counsel 

objected, the judge instructed someone to turn off the projector, held 

a sidebar and sustained Hanson’s objection. What was on the slide is 

not in the record before us. The prosecutor noted during the sidebar 

that the State had not gotten to the objectionable slide. We cannot 

determine on this record that Hanson was prejudiced by improper 

argument. 

Id. The district court agreed. Hanson III, 2013 WL 3307111, at *15–17. 

Hanson also challenges the prosecutor’s later comment that “life with parole is 

not acceptable under the facts of this crime. It shouldn’t be an option. The 

evidence is also clear that life without parole is not enough accountability for this 

defendant.” Tr. Trans. II, Vol. XI at 1863. Defense counsel objected and the court 

overruled it. The OCCA found that the trial court did not abuse its discretion in 

overruling the objection. Hanson II, 206 P.3d at 1029. 

Hanson contests the OCCA’s decision on both the slide and the comment and 

insists that the prosecution’s argument “directly undermined the jury’s ability to 

give meaningful consideration to Mr. Hanson’s mitigation evidence . . . .” 

Appellant’s Br. at 84–85.

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Hanson relies on a series of cases stating that a sentencer must be able to give 

effect to mitigating evidence in imposing the death penalty. See Abdul-Kabir v. 

Quarterman, 550 U.S. 233 (2007); Penry v. Johnson, 532 U.S. 782, 797 (2001); 

Lockett, 438 U.S. at 608; Berger v. United States, 295 U.S. 78, 88 (1935). Upon a 

thorough review of the record, we are unconvinced that the prosecutor’s 

statements effectively precluded the jury from considering mitigating evidence in 

Hanson’s case. 

First, because we do not know the content on the slide at issue, and whether 

the jury even saw it or not, we agree with the OCCA that we cannot hold that 

Hanson was prejudiced by the slide. 

Second, while we disapprove of the prosecutor’s comment that it “is also clear 

that life without parole is not enough accountability for this defendant,” we do 

not find it was error. For starters, the remark is not as strongly worded as the 

“freebie” language in Miller. See 313 P.3d at 996. Moreover, during its closing 

argument the prosecutor reminded the jury that it had a choice to make: “These 

are choices that you have, life without parole, life with parole, and the death 

penalty. . . . Consider what happened. Consider culpability and blame of 

[Hanson]. And you have these three choices.” Tr. Trans. II, Vol. XI at 1859. Such 

comments illustrate that the prosecution was not improperly encouraging the jury 

to conclude that death was the only option. See Glossip v. Trammell, 530 F. 

App’x 708, 732 (10th Cir. 2013) (unpublished) (finding that a prosecutor’s 

statement indicating her view that death was the appropriate punishment did not 

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render trial fundamentally unfair because the comments were not major focus of 

closing, were not overly dramatic, and were followed by a statement that no 

matter the prosecutor’s view it was the jury’s views that mattered). 

Thus, Hanson is unable to demonstrate that the prosecutor made an improper 

remark, and so he is not entitled to relief. 

iv. Totality of prosecutorial misconduct 

Hanson argues that the OCCA did not consider the prosecutorial misconduct 

errors in total, thus failing to complete its analysis. According to Hanson, the 

OCCA failed to consider whether these individual instances of misconduct 

combined to deprive Hanson of a fair capital sentencing trial. The government 

contends that the OCCA did engage in an analysis of all of the possible 

prosecutorial misconduct. As support, it points to the OCCA’s statement 

prefacing each misconduct sub-claim in its opinion: “In reviewing this claim, we 

evaluate the alleged misconduct within the context of the entire trial, considering 

not only the propriety of the prosecutor’s actions, but also the strength of the 

evidence against the defendant and the corresponding arguments of defense 

counsel.” Hanson II, 206 P.3d at 1028. 

Unlike the government, we understand Hanson to argue that the OCCA failed 

to consider the alleged errors cumulatively, not that it failed to consider any of 

them individually. Indeed, the OCCA’s language demonstrates individual 

consideration. Even so, Hanson still must overcome the presumption that the 

OCCA adjudicated this claim on the merits, even if in summary fashion. See

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Harrington, 562 U.S. at 99 (2011) (“When a federal claim has been presented to a 

state court and the state court has denied relief, it may be presumed that the state 

court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.”). Because Hanson has failed to explain 

the OCCA’s decision on some other basis, he has failed to overcome the 

presumption. See id. at 99–100. Thus, we deny Hanson’s claim because the 

OCCA’s denial of the claim did not “result[] in a decision that was contrary to, or 

involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). 

Nor would we have concluded differently had we reviewed de novo. As explained 

above, we disagree with Hanson that prosecutorial misconduct occurred. 

C. Invalidation of the Great-Risk-of-Death Aggravating Circumstance 

Hanson next argues that the jury’s calculation of his sentence was 

unconstitutionally skewed by the weight of the great-risk-of-death aggravating 

circumstance, which the OCCA later invalidated. The Supreme Court has held 

that “[a]n invalidated sentencing factor . . . will render the sentence 

unconstitutional . . . unless one of the other sentencing factors enables the 

sentencer to give aggravating weight to the same facts and circumstances.” Brown 

v. Sanders, 546 U.S. 212, 220 (2006) (emphasis in original). If the presence of an 

invalid aggravating circumstance “allowed the sentencer to consider evidence that 

would not otherwise have been before it,” then unconstitutional error will have 

occurred. Id. at 220–21. There is no constitutional error where the facts 

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underlying an invalid aggravator also support a valid aggravator. “That is because 

. . . the constitutionally impermissible aggravator does not lend any additional 

aggravating weight to the facts and circumstances common to the aggravators.” 

Jennings v. McDonough, 490 F.3d 1230, 1255 (11th Cir. 2007). 

In seeking the death penalty, the government alleged, and the jury found, that 

Hanson, “[d]uring the commission of the murder . . . knowingly created a great 

risk of death to more than one person . . . .” O.R. Vol. IX at 1563. The 

government told the jury that the aggravator was satisfied because two people 

were killed—Thurman and Bowles. On appeal, the OCCA invalidated the greatrisk-of-death aggravator because it found that the murders of Thurman and 

Bowles were too greatly separated by time, distance, and intent.15 Hanson II, 206 

P.3d at 1033. After conducting a Brown analysis, the OCCA concluded that the 

evidence presented to the jury in support of the great-risk-of-death aggravator—

Thurman’s murder—was also properly admitted to support the avoid-lawfularrest-or-prosecution aggravator. Id. at 1034. It held that “[u]nder the Brown test, 

 

15 The OCCA explained: 

Hanson and Miller conspired to kidnap Bowles and steal her car to 

use in other robberies. According to Hanson, they drove her to the 

dirt pit intending to release her. Their plan changed when Thurman 

saw them. Miller killed Thurman to eliminate him as a witness and 

minutes later Hanson killed Bowles for the same reason. There is 

undoubtedly a connection between the two murders: but for the 

kidnapping of Bowles, Thurman would not have witnessed the crime 

and been murdered. Our case law, however, requires more. 

Hanson II, 206 P.3d at 1033. 

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Hanson’s death sentence stands because his jury did not improperly consider 

improper aggravating evidence in deciding punishment.” Id. The district court 

agreed, deciding that the death sentence was not invalid because the same facts 

and circumstances supporting the invalid aggravator also supported the avoidarrest-or-prosecution aggravating circumstance. Hanson III, 2013 WL 3307111, 

at *21–22. 

Hanson argues the OCCA’s finding is contrary to Brown or, at the very least, 

an unreasonable application of the same. He refutes the OCCA’s finding on two 

grounds: (1) he says the prosecutor presented the evidence of Thurman’s murder 

only to support the great-risk-of-death aggravator, giving the jury no notice of an 

alternative application; and (2) he says the OCCA misapplied the Brown test. We 

uphold the OCCA’s conclusion, determining that Hanson’s arguments lack merit. 

The OCCA’s determination to uphold Hanson’s sentence under Brown is a 

merits determination. Accordingly, our review is subject to § 2254(d)’s 

deference. Harrington, 562 U.S. at 99. 

First, Hanson misunderstands the proper inquiry under Brown. He contends 

the OCCA erred because the government never argued that evidence of 

Thurman’s murder was being introduced for the avoid-arrest aggravator. But the 

question is not whether the prosecution argued the facts in support of additional 

aggravating circumstances, but whether the jury may give aggravating weight to 

the same facts in support of a valid aggravating circumstance. Brown, 546 U.S. at 

220–21. Moreover, even if the question as articulated by Hanson were correct, we 

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would find no evidence in the record to support Hanson’s assertion that the 

government presented evidence of Thurman’s murder only to support the greatrisk-of-death aggravator. The record actually points to the contrary. In its closing 

argument, the prosecutor said, “Aggravator Three. Murder to avoid arrest and 

prosecution. . . . Once Ms. Bowles knew that Thurman was murdered, she too had 

to be eliminated.” Tr. Trans. II, Vol. XI at 1854. Clearly, the government 

introduced the evidence of Thurman’s murder for multiple aggravating 

circumstances. 

Second, we reject Hanson’s argument that the OCCA misapplied Brown. 

If the presence of an invalid sentencing factor allowed the sentencer 

to consider evidence that would not otherwise have been before it, 

due process would mandate reversal without regard to the rule we 

apply here. . . . such skewing will occur . . . only where the jury 

could not have given aggravating weight to the same facts and 

circumstances under the rubric of some other, valid sentencing 

factor. 

Brown, 456 U.S. at 220–21 (internal citations omitted). That is not the case here. 

The jury could have, and did, properly consider Thurman’s murder as aggravating 

weight for the avoid-lawful-arrest-or-prosecution aggravator. The evidence was 

thus constitutionally admitted. 

In sum, Hanson cannot show that the OCCA’s determination was contrary to, 

or an unreasonable application of, clearly established federal law. Rather, it was a 

completely reasonable application of Brown. Therefore, he is not entitled to 

habeas relief on this claim. 

 

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D. Sentencing Phase Jury Instruction 

Hanson argues that there was error in one of the jury instructions at the 

sentencing phase that denied him his Sixth, Eighth, and Fourteenth Amendment 

rights by forcing the jury to ignore proper mitigating evidence. Instruction No. 22 

read, “Mitigating circumstances are those which, in fairness, sympathy, and 

mercy, may extenuate or reduce the degree of moral culpability or blame.” O.R. 

Vol. IX at 1585 (emphasis added). He contends that the instruction precluded the 

jury from considering otherwise proper mitigating circumstances that did not go 

directly to his moral culpability or blame. He also avers that the prosecution 

“manipulated the instruction to ensure the jurors were pressured into discarding 

the otherwise constitutional evidence.” Appellant’s Br. at 101.

On appeal, the OCCA found the instruction “did not unfairly limit the jurors’ 

consideration of the evidence offered in mitigation in this case.” Hanson II, 206 

P.3d at 1035. The district court agreed, determining there was “not a reasonable 

likelihood that the jury applied Instruction No. 22 in a way that prevented them 

from considering any relevant mitigating evidence.” Hanson III, 2013 WL 

3307111 at *28 (citing Boyde, 494 U.S. at 380). 

The Supreme Court has repeatedly held that the Constitution requires that a 

jury “[cannot] be precluded from considering, as a mitigating factor, any aspect 

of a defendant’s character or record and any of the circumstances of the offense 

that the defendant proffers as a basis for a sentence less than death.” Eddings v. 

Okla., 455 U.S. 104, 110 (1982) (emphasis in original) (quoting Lockett, 438 U.S. 

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at 604); see also Hitchcock v. Dugger, 481 U.S. 393, 394–96, 399 (1987) 

(reversing death sentence because Florida death penalty statute permitted jury and 

trial judge to consider only enumerated mitigating circumstances and nothing 

else). The proper inquiry is “whether there is a reasonable likelihood that the jury 

has applied the challenged instruction in a way that prevents the consideration of 

constitutionally relevant evidence.” Boyde, 494 U.S. at 380; see also Buchanan v. 

Angelone, 522 U.S. 269, 276 (1998) (citing Boyde and noting that a state “may 

shape and structure the jury’s consideration of mitigation so long as it does not 

preclude the jury from giving effect to any relevant mitigating evidence”). 

Hanson maintains that the instruction effectively told the jury to disregard 

some of the proffered mitigating evidence and that the prosecution encouraged 

the jury to ignore such evidence. Specifically, he contends that the instruction 

precluded the jury from considering the testimony of the four mitigating 

witnesses who spoke to Hanson’s character because none of that testimony “gave 

an excuse for the murder or reduced Mr. Hanson’s culpability.” Appellant’s Br. at 

100. Additionally, he argues that the prosecutors “manipulated the instruction to 

ensure the jurors were pressured into discarding the otherwise constitutional 

evidence.” Id. at 101. 

To support his argument, Hanson relies on the OCCA’s concerns with the 

language of this particular jury instruction. In a case decided after Hanson’s, the 

OCCA noted it was troubled by prosecutors “consistent[ly] misus[ing] . . . the 

language in this instruction” to argue that mitigating evidence cannot be 

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considered when it does not go to moral culpability or blame. Harris v. State, 164 

P.3d 1103, 1114 (Okla. Crim. App. 2007). Due to these concerns, the state 

produced a remedial instruction, which provided that mitigating circumstances 

include “circumstances which in fairness, sympathy[,] or mercy may lead you as 

jurors individually or collectively to decide against imposing the death penalty.” 

OUJI-CR 4-78 (Supp. 2008). Hanson never received the benefit of the revised 

instruction; thus, he argues that his jury was unconstitutionally prohibited from 

considering some of the mitigating evidence. 

Hanson’s reliance on Harris is misplaced. After determining that an 

amendment to the instruction would clarify its meaning, the OCCA 

“emphasize[d] that the language of the current instruction itself is not legally 

inaccurate, inadequate, or unconstitutional.” Harris, 164 P.3d at 1114. Notably 

for Hanson’s case, it continued, “Cases in which the current [instruction] has 

been used and applied are not subject to reversal on this basis.” Id. 

We therefore reject Hanson’s suggestion that Mills v. Maryland, 486 U.S. 367 

(1988), is germane. The Mills Court inferred from changes to a jury verdict form 

“at least some concern on the part of that court that juries could misunderstand 

the previous instructions as to unanimity and the consideration of mitigating 

evidence by individual jurors.” 486 U.S. at 382 (emphasis in original). Relying on 

this inference, Hanson asks us to understand the OCCA’s acknowledgements in 

Harris as “tacit admissions of a fundamentally flawed instruction.” Appellant’s 

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Br. at 104. The OCCA’s explanation as to why it amended the instruction leads us 

to reject Hanson’s request. 

In addition, we find the district court’s thoughts on this issue instructive. The 

district court noted that some of the other instructions from Hanson’s trial 

concerning mitigating evidence broadened the scope of evidence the jury could 

consider. Hanson III, 2013 WL 3307111, at *28. This is relevant because “a 

single instruction to a jury may not be judged in artificial isolation, but must be 

viewed in the context of the overall charge. . . .” Boyde, 494 U.S. at 378 (citation 

omitted) (quoting Cupp v. Naughten, 414 U.S. 141, 146–47 (1973)). 

First, Instruction No. 22 also told the jury that “[t]he determination of what 

circumstances are mitigating is for you to resolve under the facts and 

circumstances of this case.” O.R. Vol. IX at 1585. This statement broadened any 

potential limitations imposed by the first sentence of the instruction. Second, 

Instruction No. 23 listed 11 specific mitigating circumstances for the jury to 

consider, some of which had nothing to do with Hanson’s moral culpability. 

These included: “[t]he defendant’s emotional history”; “[t]he defendant’s family 

history”; “[t]he defendant’s history while incarcerated”; “[t]he defendant has an 

eleven year old son”; “[n]o direct evidence other than Rashad Barnes has been 

presented that the defendant ever pulled the trigger on any gun the day that Mrs. 

Bowles was killed”; “[t]he defendant was dominated by Victor Miller”; and “[t]he 

defendant is a follower.” Id. at 1586. The instruction ended with this sentence: 

“In addition, you may decide that other mitigating circumstances exist, and if so, 

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you should consider those circumstances as well.” Id. Viewing the challenged 

instruction in the context of all the instructions, we do not think the jury would 

have felt precluded from considering any mitigating evidence, including the 

testimony of the four testifying witnesses. 

Finally, we do not accept Hanson’s argument that the prosecution further 

limited the jurors’ ability to consider all of the mitigating evidence. While it is 

true that the prosecutor told the jury to consider whether any of the mitigating 

circumstances “really extenuate or reduce [Hanson’s] degree of culpability or 

blame in this case,” Tr. Trans. II, Vol. XI at 1858, the prosecutor made a number 

of other comments to the jury that encouraged them to consider any and all 

mitigating evidence they thought relevant. In its closing argument the prosecutor 

said, “You’ve heard the list and I have included all of them, but I’ve put 

emotional history, family history, prison history . . . his son, that I’m-a-follower 

theme, that Miller dominated me. You heard those types of things. Go back, talk 

about those. Think about those. Make a decision.” Id. And in rebuttal argument, 

the prosecutor said, “Consider all the mitigating circumstances and you’ll 

consider what weight [to give them.]” Id. at 1916. These statements demonstrate 

that the prosecutor encouraged the jury to consider all sorts of mitigating 

evidence, including the family testimony. 

In light of all of the instructions and of the prosecutor’s various comments, we 

find it hard to imagine that the jurors thought they were prohibited from 

considering any of the mitigating evidence they heard at the resentencing hearing. 

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See Boyde, 494 U.S. at 378–86 (concluding that the jury instruction did not 

violate Eighth Amendment in light of both defense evidence presented at trial on 

defendant’s background and character and the prosecutor’s never suggesting that 

background and character could not be considered). We conclude that there is no 

reasonable likelihood that the jurors applied Instruction No. 22 in a way that 

precluded them from considering mitigating evidence. Thus, Hanson is not 

entitled to habeas relief on his jury instruction claim. 

E. Cumulative Error 

Hanson argues that the cumulative effect of the errors in his case influenced 

the “jurors’ feelings, reactions, and emotions in the direction of a death 

sentence.” Appellant’s Br. at 111. According to Hanson, these errors included 

trial counsel’s ineffectiveness, prosecutorial misconduct, a constitutionally infirm 

instruction defining mitigation, and circumstances to which the jurors could not 

give mitigating weight. Thus, the final question in this case is whether these were 

indeed errors, and if so, when considered in the aggregate, they deprived Hanson 

of a fair and reliable sentence. 

When assessing whether a petitioner’s sentence passes constitutional muster, 

we look not only at the prejudicial effect of any individual errors but also at their 

cumulative impact. Cargle, 317 F.3d at 1224. We cumulate error only upon a 

showing of at least two actual errors. See Fero v. Kerby, 39 F.3d 1462, 1475 

(10th Cir. 1994). “A cumulative-error analysis merely aggregates all the errors 

that individually have found to be harmless, and therefore not reversible, and it 

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analyzes whether their cumulative effect on the outcome of the trial is such that 

collectively they can no longer be determined to be harmless.” Workman v. 

Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003). For Hanson to receive habeas 

relief, we must find that the cumulative effect of the errors determined to be 

harmless had a “substantial and injurious effect or influence in determining the 

jury’s verdict.” Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 775); see 

also Malicoat, 426 F.3d at 1263 (applying Brecht rule to cumulative-error 

analysis). This requires the petitioner to establish that the errors resulted in 

“actual prejudice.” Brecht, 507 U.S. at 637. Because the OCCA considered the 

merits of the cumulative error claim, we review its decision through the 

deferential lens of AEDPA.16 

Hanson argues that an analysis of the cumulative errors in his case proves he 

was deprived of his constitutional right to a fair and reliable sentence. This 

analysis is important, he argues, because jurors determining a potential death 

sentence must reach a “reasoned moral response” using their personal 

interpretations of, and reactions to, the evidence presented. Appellant’s Br. at 110 

(emphasis in original) (citing Penry v. Lynaugh, 492 U.S. 302, 319 (1989), 

 16 The government contends that there is no Supreme Court authority that 

recognizes cumulative error as a separate constitutional violation. This is an 

incorrect statement. In Darks v. Mullin, 327 F.3d 1001 (10th Cir. 2003), we 

announced that when a habeas petitioner raises a cumulative error argument under 

due process principles the argument is reviewable because “Supreme Court 

authority clearly establishes the right to a fair trial and due process.” Id. at 1017. 

Hanson argued that the accumulation of the errors denied him his constitutional 

right to a fair trial. As such, we will address the merits of his claim. 

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abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002)). “This 

means that in states like Oklahoma, where death sentences must be unanimous, 

the feelings, reactions, and emotions of each individual juror [are] critically 

important.” Appellant’s Br. at 111. He submits Cargle in support of his 

proposition that a review of the errors in his case “have created such a synergistic 

effect” that the jurors could not reach a “reasoned moral response.” Id. at 110 

(emphasis in original) (citing Cargle, 317 F.3d at 1221). 

The government contends that Hanson’s reliance on Cargle is unavailing. In 

Cargle, counsel had failed to challenge two vulnerable witnesses, the prosecution 

had improperly bolstered and vouched for those two witnesses, and the 

government had a weak case totally dependent on their credibility. 317 F.3d at 

1221. In effect, all of the errors revolved around the issue of the credibility of 

those two witnesses. Id. Hanson’s case presents no such “synergistic” effect. See 

id. 

Here, we have at most only one possible error—trial counsel’s failure to 

investigate and present additional mitigating witnesses. Because the record did 

not reveal whether Hanson’s counsel spoke with the additional witnesses prior to 

trial or not, we cannot determine whether he erred. But even assuming his 

decision constituted error, we cannot engage in a cumulative error analysis absent 

at least two errors. See United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 

1990) (en banc). Because Hanson has failed to prove at least two errors, we have 

no occasion to apply a cumulative error analysis. Therefore, we hold that Hanson 

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has failed to establish that individual harmless errors cumulatively justify habeas 

relief. 

III. CONCLUSION 

For the reasons set forth above, we AFFIRM the district court’s decision 

denying Hanson’s § 2254 petition for a writ of habeas corpus. We also deny 

Hanson’s motion to expand the COA. 

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