PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

PHILLIP HANCOCK, 

 Petitioner - Appellant, 

v. 

ANITA TRAMMELL, Warden, 

Oklahoma State Penitentiary, 

 Respondent - Appellee. 

No. 12-6255 

_________________________________ 

Appeal from the United States District Court 

for the Western District of Oklahoma 

(D.C. No. 5:08-CV-00327-F)

_________________________________ 

Madeline S. Cohen, Office of the Federal Public Defender, Denver, 

Colorado (Lanita Henricksen, Henricksen & Henricksen, Lawyers, Inc., 

Oklahoma City, Oklahoma and David B. Autry, Oklahoma City, Oklahoma, 

with her on the briefs), for Petitioner-Appellant. 

Jennifer L. Crabb, Office of the Attorney General for the State of 

Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee. 

_________________________________ 

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges. 

_________________________________ 

BACHARACH, Circuit Judge. 

_________________________________ 

In April 2001, Mr. Bob Jett hosted two men: Mr. Phillip Hancock and 

Mr. James Lynch. An angry altercation ensued, where Mr. Jett tried to 

FILED 

United States Court of Appeals

Tenth Circuit 

August 18, 2015

Elisabeth A. Shumaker 

Clerk of Court

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force Mr. Hancock into a cage while swinging at him with a metal bar. 

Mr. Hancock was able to obtain Mr. Jett’s gun and use it to shoot Mr. Jett 

and Mr. Lynch. The two men died, and the State of Oklahoma charged Mr. 

Hancock with two counts of first-degree murder. Mr. Hancock admitted 

that he had killed both men, but asserted self-defense. The jury rejected the 

defense and found Mr. Hancock guilty on both counts of first-degree 

murder.1 See Okla. Stat. tit. 21, § 701.7(A) (2001). For these murders, the 

state district court sentenced Mr. Hancock to death. Mr. Hancock 

unsuccessfully sought relief on direct appeal to the Oklahoma Court of 

Criminal Appeals (“OCCA”) and in post-conviction proceedings. 

Mr. Hancock then turned to federal district court, seeking a writ of 

habeas corpus. The court denied relief, and Mr. Hancock has appealed. We 

affirm. 

I. The Issues on Appeal 

Four issues have been certified for appeal. 

The first issue involves an evidentiary ruling. In this ruling, the state 

district court allowed the prosecution to elicit evidence that Mr. Hancock 

had been convicted of manslaughter after successfully claiming self-

 

1

 Mr. Hancock was also charged with (1) being a felon in possession 

of a firearm and (2) pointing a firearm at a person (Ms. Shawn Tarp). On 

the first charge, Mr. Hancock was convicted, but this conviction was 

reversed on appeal. Hancock v. State, 155 P.3d 796, 826 (Okla. Crim. 

App. 2007). In addition to this reversal, Mr. Hancock obtained an 

acquittal on the charge that he had pointed a firearm at another person. 

Thus, these charges are not involved in this habeas appeal. 

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defense for an unrelated killing. Mr. Hancock claims that introduction of 

this evidence resulted in a deprivation of due process. The OCCA rejected 

this claim on the merits, and Mr. Hancock contends that the OCCA 

unreasonably determined the facts by misstating the basis for the state 

district court’s evidentiary ruling. On appeal, we must decide: Did Mr. 

Hancock show reliance on an unreasonable determination of facts? We 

conclude that Mr. Hancock has not met his burden because the OCCA’s 

opinion can reasonably be read as factually accurate. As a result, 

Mr. Hancock has not shown that the OCCA unreasonably determined the 

facts, preventing us from deciding the merits of the due process claim. 

The second issue is whether the state district court misled the jury 

by giving unwarranted instructions on self-defense and allowing the 

prosecutor to make misleading arguments in closing. The court gave 

uniform instructions on self-defense, which addressed identification of the 

aggressor and provided that the right to self-defense could be unavailable 

if the victim initiated the altercation but then withdrew. On appeal, the 

OCCA held that the instructions were supported by the evidence and that 

the prosecutor’s arguments were proper. We ask: Did these holdings 

constitute an unreasonable application of Supreme Court precedent or an 

unreasonable determination of the facts? We conclude that the OCCA 

reasonably applied Supreme Court precedents and determined the facts. As 

a result, we cannot reach the merits of the claim. 

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Third, Mr. Hancock alleges that his trial counsel was 

constitutionally ineffective for failing to request a jury instruction on the 

lesser-included offense of manslaughter while resisting a criminal attempt. 

The OCCA rejected this claim based on a lack of prejudice. We are asked: 

Did the OCCA unreasonably apply Supreme Court precedent in concluding 

that defense counsel’s alleged error was not prejudicial? We conclude the 

OCCA did not act unreasonably, for fair-minded jurists could conclude 

that defense counsel’s theory of manslaughter fit the evidence just as well 

as manslaughter while resisting a criminal attempt. Thus, we cannot reach 

the merits of the ineffectiveness claim. 

Finally, Mr. Hancock alleges cumulative error. We must decide: Can 

Mr. Hancock obtain habeas relief based on cumulative error when the 

district court did not commit two or more constitutional violations? We 

conclude that Mr. Hancock is not entitled to habeas relief based on 

cumulative error. This protection is triggered only when there are two or 

more constitutional violations. There were not two or more constitutional 

violations in this case. 

Mr. Hancock has moved to expand the certificate of appealability for 

four other issues: (1) Was the evidence insufficient for the conviction on 

first-degree murder? (2) Was trial counsel ineffective for failing to 

effectively impeach the state’s witness, Ms. Shawn Tarp, with her 

previous statements (and was appellate counsel ineffective for failing to 

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claim ineffective assistance of trial counsel)? (3) Did the state district 

court deny Mr. Hancock the right to present a defense by excluding 

evidence that would have supported a finding of self-defense? (4) Was the 

evidence insufficient to support the aggravating circumstance of a murder 

that was especially heinous, atrocious, or cruel? Appellant’s Am. Mot. to 

Expand the Cert. of Appealability at 2-3 (filed Dec. 19, 2012). We deny 

the motion to expand the certificate of appealability on these issues. 

II. From a Pack of Cigarettes to Two Dead Men 

Mr. Hancock killed Mr. Jett and Mr. Lynch at Mr. Jett’s Oklahoma 

home in April 2001. 

A. Mr. Hancock 

In 2001, Mr. Hancock lived with his girlfriend, Ms. Kathy Wiggins. 

The couple broke up, and Ms. Wiggins used drugs at Mr. Jett’s house and 

stayed on his couch. 

B. Visit to Mr. Jett’s Home 

Two days after the break-up, Mr. Hancock was allegedly told to 

bring Ms. Wiggins home because she was acting strangely. Mr. Hancock 

complied, going to Mr. Jett’s home to pick up Ms. Wiggins. When Mr. 

Hancock arrived, only two people were there: Mr. Jett and a friend, Mr. 

James Lynch. Both were in Mr. Jett’s “Harley Room,” a small room where 

Mr. Jett kept his Harley-Davidson motorcycle. Mr. Jett was working on 

his motorcycle while Mr. Lynch sat and watched. 

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According to Mr. Hancock, he entered the home through the front 

door, which led into Mr. Jett’s living room. Upon entering, Mr. Hancock 

noticed an unopened pack of cigarettes and asked if he could have a 

cigarette; Mr. Jett responded “yeah.” Id. at 211. Mr. Hancock opened the 

pack, took a cigarette, and joined the two men in the Harley Room while 

waiting for Ms. Wiggins to return. 

C. Threat from Mr. Jett 

After Mr. Hancock entered the Harley Room, Mr. Jett allegedly 

asked Mr. Hancock: “Did you just walk in my house yesterday?” Id. at 

212. Mr. Hancock responded that he had done so to retrieve his cell phone 

from Ms. Wiggins, who had spent the night on Mr. Jett’s couch. 

Mr. Hancock allegedly assured Mr. Jett that he had not meant to cause 

problems and had only entered the home after hearing “someone say ‘come 

in.’” Id. at 212. 

Mr. Jett told Mr. Hancock that he ought to put him in the empty 

animal cage in the Harley Room. Mr. Hancock testified that the comment 

had “caught [him] off guard.” Id.

D. Ms. Shawn Tarp 

Another friend of Mr. Jett’s (Ms. Shawn Tarp) arrived after 

Mr. Hancock. According to Ms. Tarp, she entered and saw Mr. Lynch 

sitting in a living-room chair, Mr. Jett working on his motorcycle in the 

Harley Room, and Mr. Hancock sitting nearby. 

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According to Mr. Hancock, the four individuals gathered around the 

living room coffee table and used methamphetamine. 

E. Alleged Tension Between Mr. Hancock and Mr. Jett 

After the group took drugs, Mr. Jett and Mr. Hancock returned to the 

Harley Room while Mr. Lynch and Ms. Tarp remained in the living room. 

Although in different rooms, the four individuals continued to talk. During 

the talk, two incidents led Ms. Tarp to believe there was agitation between 

Mr. Jett and Mr. Hancock. 

The first incident involved glasses lying on Mr. Jett’s table. Mr. 

Hancock saw the glasses and told Mr. Jett that they were Ms. Wiggins’; 

Mr. Jett insisted they were his. 

The second incident involved a comment by Mr. Hancock, stating: “I 

should just shut the f*** up, I’m here to try to be friends.” Trial Tr., vol. 

VI, at 163. To Ms. Tarp, Mr. Hancock’s comment indicated that the two 

men had experienced a “falling out.” Id.

F. “Get in the Cage” 

The agitation grew as Mr. Jett continued to work on his motorcycle. 

According to Ms. Tarp, Mr. Jett grew frustrated. At one point, Mr. Jett 

“threw his hands up” and announced that he was leaving to run an errand. 

Id. at 162-63. Mr. Jett then went to retrieve his shoes and vest from his 

bedroom. 

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While Mr. Jett gathered his things, Mr. Hancock moved to a seat in 

the living room. Mr. Lynch was then sitting on the living-room floor, 

sorting motorcycle parts. 

Mr. Jett loaded a pistol and holstered it in his pants. According to 

Mr. Hancock, Ms. Tarp asked Mr. Jett if he had everything for his errand 

and Mr. Jett replied that he needed cigarettes. 

Picking up the pack of cigarettes, Mr. Jett noticed it had been 

opened. He glared at Mr. Hancock and asked: “Did you open this pack of 

cigarettes?” Trial Tr., vol. VII, at 216. Mr. Hancock said he had, but only 

because Mr. Jett had given permission. Mr. Jett replied: “I must have five 

or six packs opened around here.” Id. at 217. 

Mr. Jett became angry with Mr. Hancock, taking off his vest, 

throwing it on the floor, and standing over Mr. Hancock with a metal bar 

in his hand while shouting: “That’s it, get – mother f***er, get in the 

cage.” Id.; see Trial Tr., vol. VI, at 177 (“[G]et in the f***ing cage.”). 

G. The Altercation and the Shootings 

What happened next is disputed. Three people testified about the 

altercation and the shootings: Ms. Tarp, Mr. Hancock, and Mr. Jett’s 

neighbor (Mr. Donald Jones). 

1. Ms. Tarp’s Version 

According to Ms. Tarp, Mr. Jett swung the metal bar at 

Mr. Hancock’s head. Ms. Tarp added that she did not know “if [Mr. Jett 

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had] hit [Mr. Hancock] on the side of the head or if he [had] just c[o]me 

close to it.” Id. at 177. 

Mr. Jett stopped his assault on Mr. Hancock and stepped “back 

towards the coffee table,” which was in the direction of the front door. Id.

at 180. Ms. Tarp did not recall whether Mr. Jett had held onto the metal 

bar as he stepped away from Mr. Hancock. 

At that point, Mr. Hancock “jumped up and attacked [Mr. Jett],” 

which caused the coffee table and its contents to “[go] flying.” Id. at 180-

81. Ms. Tarp then went into Mr. Jett’s bedroom, where she saw Mr. Jett 

and Mr. Hancock fighting in the living room. 

After watching the fight for a few seconds, Ms. Tarp retreated to a 

hallway. While standing in the hallway, Ms. Tarp heard three gunshots. 

After the third shot, she saw Mr. Jett running toward the back door 

through the Harley Room and kitchen. As Mr. Jett was running, he said “I 

took one.” Id. at 183. 

Ms. Tarp then heard a fourth gunshot coming from the living room. 

At that point, Ms. Tarp went into the back bedroom and hid below a 

window overlooking the backyard. 

While hiding, Ms. Tarp heard three more gunshots from the direction 

of the living room. After the third shot, she heard what sounded like a 

person falling. She assumed Mr. Lynch had fallen as he tried to intervene. 

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Shortly after Mr. Lynch fell, Ms. Tarp heard Mr. Hancock running 

through the Harley Room and kitchen and out the back door. Ms. Tarp 

assumed that Mr. Hancock was pursuing Mr. Jett, testifying that Mr. 

Hancock had chased Mr. Jett “like a dog.” Id. at 185. 

From her hiding place, Ms. Tarp heard Mr. Jett go out the back door 

and fall. When Mr. Hancock came out the back door, Ms. Tarp heard Mr. 

Jett say “I’m going to die.” Id. at 185. Mr. Hancock responded “[y]es, you 

are” and shot Mr. Jett two more times. Id.

2. Mr. Hancock’s Version 

Mr. Hancock recalled the events differently, testifying that (1) he 

had been hit by the metal bar and (2) Mr. Jett reached for the gun 

holstered in his belt. 

Mr. Hancock believed his life was in danger and tried to take the 

gun from Mr. Jett. When Mr. Hancock reacted, Mr. Lynch rose from the 

floor, “sack[ing]” Mr. Hancock in a chokehold. Id. at 219. Mr. Jett then 

hit Mr. Hancock in the shin with the metal bar. Nonetheless, Mr. Hancock 

was able to wrestle the gun away from Mr. Jett. While under attack from 

both men, Mr. Hancock pointed the gun at Mr. Jett and pulled the trigger 

twice. But Mr. Jett did not flinch and tried to hit the gun out of Mr. 

Hancock’s hands. 

At that moment, Mr. Hancock said to Mr. Jett: “I just killed you, 

bitch.” Id. at 221. Mr. Jett then looked down at his chest, noticed that he 

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had been shot and said “[y]eah, you did.” Id. Mr. Jett dropped the metal 

bar and “took off.” Id.

Mr. Hancock then pushed the gun into what he thought was 

Mr. Lynch’s chest and fired. 

 Scrambling to his feet, Mr. Hancock told Ms. Tarp to leave. She did, 

retreating to the bedroom. 

Mr. Hancock went into the Harley Room to look for Mr. Jett. At that 

point, Mr. Hancock heard something in the back of the house, which he 

believed might be Mr. Jett. Mr. Hancock worried that Mr. Jett had gone to 

one of the bedrooms to get his assault rifle. 

 According to Mr. Hancock: “[A]ll I could think of is I had to get out 

of that house, I had to get some distance away from [Mr. Jett] because he 

was close to getting [the assault rifle].” Id.

Mr. Hancock went out the back door, finding the backyard “pitch 

black.” Id. After three steps, he ran into Mr. Jett, who began kicking. 

Mr. Hancock shot Mr. Jett in a “knee-jerk reflex.” Id.

3. Mr. Jones’s Version 

Mr. Jett’s next-door neighbor, Mr. Donald Jones, testified that he 

had awoken to the sound of gunfire. He could tell that the shots had come 

from the direction of Mr. Jett’s property. 

When Mr. Jones heard the shots, he took cover on the floor. Seconds 

later, Mr. Jones heard Mr. Jett’s back door open and close. As the door 

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closed, Mr. Jones overheard Mr. Jett pleading for someone named 

“Marvin” not to shoot. Trial Tr., vol. V, at 15. A moment later, Mr. Jones 

heard a loud shot. 

H. Mr. Hancock’s Departure 

After hiding for several minutes, Ms. Tarp emerged from the back 

bedroom and headed toward the living room. According to Ms. Tarp, the 

living room was “a mess” and Mr. Lynch was lying dead “on the coffee 

table” with blood oozing from his chest and face. Trial Tr., vol. VII, at 

188. 

Ms. Tarp grabbed her purse and walked toward the front door. When 

she turned toward the door, she saw Mr. Hancock standing next to the 

door, pointing the gun in her direction. Ms. Tarp closed her eyes, 

believing she was about to be shot. 

But Mr. Hancock did not shoot. In a calm voice, he apologized to 

Ms. Tarp for what she had seen and told her to wait two minutes before 

leaving. She complied. 

III. Review of Habeas Claims 

In considering this habeas appeal, we are bound by the Antiterrorism 

and Effective Death Penalty Act of 1996 (“AEDPA”). The AEDPA 

restricts the circumstances in which federal courts may grant habeas relief 

to a state prisoner. See 28 U.S.C. § 2254 (2012) (listing some of the 

criteria under which federal courts can entertain state prisoners’ 

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applications for writs of habeas corpus). Two of these restrictions are 

codified at 28 U.S.C. § 2254(d). Under § 2254(d), habeas courts cannot 

grant relief “with respect to any claim that was adjudicated on the merits 

in State court” unless the adjudication was 

 contrary to, or involved an unreasonable application of, 

 clearly established Federal law, as determined by the 

 Supreme Court of the United States; or 

 based on an unreasonable determination of the facts in light 

 of the evidence presented in the State court proceeding. 

28 U.S.C. § 2254(d) (2012). 

Section 2254(d) provides “precondition[s] to the grant of habeas 

relief . . . , not an entitlement to it.” Fry v. Pliler, 551 U.S. 112, 119 

(2007). Thus, even when petitioners satisfy the threshold in § 2254(d), 

they must establish a violation of federal law or the federal constitution. 

28 U.S.C. § 2254(a) (2012); Wilson v. Corcoran, 562 U.S. 1, 5-6 (2010) 

(per curiam). 

IV. Evidence of the Prior Manslaughter Conviction and the Plea of 

Self-Defense 

Mr. Hancock urges habeas relief based on deprivation of due process 

when the state district court allowed evidence that he 

 had been convicted of manslaughter in 1982 and 

 had pleaded self-defense in that case. 

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The OCCA rejected this claim. Hancock v. State, 155 P.3d 796, 813-15 

(Okla. Crim. App. 2007). Notwithstanding that decision, Mr. Hancock 

urges a right to habeas relief on grounds that the OCCA 

 did not adjudicate the merits of the due process claim and 

 based its decision on an unreasonable factual determination. 

We reject both arguments. 

A. Adjudication on the Merits 

The AEDPA restricts habeas review when the state appellate court 

has rejected a claim on the merits,2

 and the OCCA unquestionably rejected 

Mr. Hancock’s claim on the merits. In doing so, however, the OCCA did 

not refer to the claim as one involving denial of due process. Based on 

this omission, Mr. Hancock argues that the OCCA’s decision did not 

encompass the due process claim. We reject this argument because Mr. 

Hancock failed to raise it in district court and the OCCA’s plain-error 

review was tantamount to review for due process. 

In federal district court, Mr. Hancock did not question the existence 

of an adjudication on the merits. Because Mr. Hancock did not raise this 

issue in federal district court, we consider the argument “forfeited.” See 

Olmos v. Holder, 780 F.3d 1313, 1326-27 (10th Cir. 2015) (stating that a 

habeas petitioner forfeited a claim by failing to raise it in his habeas 

petition in district court). Ordinarily, we would consider the forfeited 

 

2 See p. 13, above. 

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argument under the plain-error standard. Id. at 1327. But Mr. Hancock has 

not asserted plain error. Thus, we do not engage in plain-error review. See 

id. (declining to consider an argument under the plain-error standard 

because the habeas petitioner had failed to urge plain error). 

The argument is not only forfeited, but also invalid. The OCCA 

concluded that Mr. Hancock had waived the argument by eliciting 

evidence of the manslaughter conviction in direct examination. Hancock v. 

State, 155 P.3d 796, 813-14 (Okla. Crim. App. 2007). In Oklahoma, the 

appellate court conducts plain-error review when the defendant has waived 

an argument in the state district court. E.g., Sonnier v. State, 334 P.3d 

948, 950 (Okla. Crim. App. 2014); Miller v. State, 313 P.3d 934, 971 

(Okla. Crim. App. 2013). Thus, the OCCA considered the issue under the 

plain-error standard, concluding that the evidentiary ruling did not 

constitute plain error. Hancock, 155 P.3d at 814-15.3

 

3

 In our court, we regard waiver differently. See p. 28, below. When a 

waiver takes place, we do not consider the claim at all, even under the 

forgiving plain-error standard. United States v. Cornelius, 696 F.3d 1307, 

1319 (10th Cir. 2012). Thus, in our court, waiver of the issue would have 

precluded any relief. See Ohler v. United States, 529 U.S. 753, 754-55 

(2000) (holding that the defendant could not appeal a ruling that allowed 

impeachment through a prior felony conviction because the defendant had 

preemptively elicited the evidence on direct examination); United States v. 

Wagoner Cnty. Real Estate, 278 F.3d 1091, 1099 (10th Cir. 2002) (holding 

that a party could not argue on appeal that a conviction was erroneously 

allowed for impeachment under Fed. R. Evid. 609 because the party had 

preemptively elicited the evidence). 

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Oklahoma’s formulation of the plain-error standard is virtually 

identical to the constitutional test for due process. Compare Cleary v. 

State, 942 P.2d 736, 753 (Okla. Crim. App. 1997) (“Error which impinges 

on the fundamental fairness of trial is plain error.”), with Bullock v. 

Carver, 297 F.3d 1036, 1055 (10th Cir. 2002) (explaining that an 

evidentiary ruling violates federal due process if it “‘fatally infected the 

trial and denied fundamental fairness’” (quoting Revilla v. Gibson, 283 

F.3d 1203, 1212 (10th Cir. 2002))). Thus, when the OCCA rejected Mr. 

Hancock’s claim under the plain-error standard, the decision effectively 

disallowed the possibility of a due process violation. See Thornburg v. 

Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005) (holding that the OCCA 

had adjudicated the merits of a due process claim because the OCCA’s 

analysis of plain error involved the same test used to determine whether 

there was a denial of due process). In these circumstances, the OCCA’s 

decision constituted an adjudication on the merits of the due process 

claim. See id.

B. Unreasonable Determination of the Facts 

Mr. Hancock argues that the OCCA mistakenly thought that the 

district court had allowed the testimony as impeachment evidence under 

Okla. Stat. tit. 12, § 2609(B). This section governs impeachment of 

witnesses with convictions more than ten years old. If the OCCA had 

misunderstood the basis for the district court’s ruling, as Mr. Hancock 

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argues, the mistake would likely have constituted an unreasonable 

determination of fact and allowed us to consider the merits of the 

underlying constitutional claim. See Byrd v. Workman, 645 F.3d 1159, 

1171-72 (10th Cir. 2011) (stating that the OCCA’s factual determination 

could have been unreasonable under 28 U.S.C. § 2254(d)(2) if the OCCA 

had relied on a misunderstanding of the record and the disposition was 

based on that misunderstanding). But Mr. Hancock has not demonstrated a 

factual misunderstanding in the OCCA’s opinion. 

As the petitioner, Mr. Hancock bears the burden of showing an 

unreasonable determination of fact. See Lott v. Trammell, 705 F.3d 1167, 

1177 (10th Cir.), cert. denied, __ U.S. __ , 134 S. Ct. 176 (2013) (stating 

that the petitioner bore the burden of establishing that the OCCA’s 

decision constituted an unreasonable determination of the facts); Gilbert 

v. Mullin, 302 F.3d 1166, 1181 (10th Cir. 2002) (same). 

To determine whether Mr. Hancock has satisfied his burden, we 

must interpret the OCCA’s explanation for its decision to affirm the 

conviction. In engaging in this interpretation, we examine the context and 

language in the OCCA’s opinion. 

The OCCA was determining whether the district court had erred in 

allowing two types of evidence: (1) Mr. Hancock’s prior assertion of selfdefense, and (2) his manslaughter conviction in 1982. As Mr. Hancock 

argues, the state district court did not rely on § 2609(B) in allowing either 

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type of evidence. Though the district court did not identify the pertinent 

rule, there are two possibilities. The court might have allowed the 

evidence either as evidence of “other acts” (governed by Okla. Stat. tit. 

12, § 2404(B)) or as a form of relevant evidence. Though the state district 

court did not rely on § 2609(B), the OCCA clearly did. But the OCCA did 

not say whether it thought the district court had relied on § 2609(B). 

We can reach the merits of the constitutional claim only if Mr. 

Hancock showed that the OCCA rested its decision on a factually mistaken 

view of the record. See Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 

2011) (stating that the OCCA’s decision would have been “based on” an 

unreasonable factual determination only if the decision had rested upon 

the mistake). This is a “‘daunting’” burden, “‘one that will be satisfied in 

relatively few cases.’” Id. (quoting Taylor v. Maddox, 366 F.3d 992, 1000 

(9th Cir. 2004)). 

There are two ways of reading the OCCA’s opinion. The OCCA was 

either 

1. affirming under the mistaken belief that the district court had 

 allowed the evidence under § 2609(B), or 

 

2. affirming because the result (admission of the manslaughter 

 conviction) was correct even though the reasoning in the 

 district court was wrong. See McClendon v. State, 777 P.2d 

 948, 951 (Okla. Crim. App. 1989) (“While the [state district] 

 court apparently relied upon the coconspirator rule to admit 

 the challenged hearsay, this Court may sustain the admission 

 of hearsay on a different theory, so long as the alternative 

 basis for admission finds support in the record.”). 

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Everything in the OCCA’s opinion is consistent with either interpretation. 

On appeal, the State defended the district court’s ruling while 

acknowledging that the district court had not relied on § 2609. Appellee’s 

Resp. Br. at 27, Hancock v. State, No. D-2004-1097 (Okla. Crim. App. 

Feb. 10, 2006). Nonetheless, the State argued that the OCCA could affirm 

based on its independent determination that the evidence was admissible 

under § 2609(B). Id. at 28. 

In addressing this argument, the OCCA acknowledged Mr. 

Hancock’s characterization of the district court’s rationale. The OCCA 

stated that Mr. Hancock had characterized the district court’s decision as 

“either a ‘hybrid’ interpretation of sections 2609 and 2404(B), or a 

creative innovation on the ‘near miss’ admissibility for hearsay under 12 

O.S. Supp. 2002, § 2804.1.” Hancock v. State, 155 P.3d 796, 814 (Okla. 

Crim. App. 2007). Then, the OCCA said that the State had defended the 

ruling based on Oklahoma common law. Id. The OCCA ultimately 

concluded that the evidence was admissible under § 2609. Id. at 815. In 

doing so, however, the OCCA did not say whether it (1) thought this was 

the district court’s rationale or (2) adopted the State’s argument that 

affirmance would be appropriate even if the district court had not invoked 

§ 2609(B). 

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Mr. Hancock argues that the OCCA thought the district court had 

relied on § 2609. To support this argument, Mr. Hancock points out that 

the OCCA said that the district court had weighed the probative value 

against the prejudicial effect. But this statement is consistent with either 

interpretation of the OCCA’s opinion. Under § 2404(B), § 2609(B), or the 

rule governing admissibility of relevant evidence (Okla. Stat. tit. 12, 

§ 2402), the state district court would have needed to weigh the probative 

value against the danger of unfair prejudice. 

In his thoughtful dissent, Judge Lucero relies on the OCCA’s 

 statement that the district court had ruled the evidence 

inadmissible under other rules, 

 reliance on the plain-error standard of review, 

 failure to address prejudice, and 

 reference to the state district court’s weighing of probative 

and prejudicial effects “for this purpose.” 

Dissent at 7-13. We respectfully believe that these aspects of the OCCA’s 

opinion do not render its fact-finding unambiguous.4

 

4

 The dissent criticizes the majority for misapplying AEDPA 

deference, urging that “AEDPA deference is meant to prevent federal 

judges from reversing state-court merits decisions based on mere 

disagreement.” Dissent at 1. But we are bound by the AEDPA’s text if it is 

unambiguous. See Bedroc Ltd., LLC v. United States, 541 U.S. 176, 183 

(2004) (“[O]ur inquiry begins with the statutory text, and ends there as 

well if the text is unambiguous.”). And the text unambiguously puts the 

burden on a petitioner to show that the state appellate court made a 

mistake of fact. 28 U.S.C. § 2254(e)(1) (2012). Under the facts of this 

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As Judge Lucero points out, the OCCA noted that the state district 

court had ruled the evidence inadmissible under Okla. Stat. tit. 12, 

§ 2404(B). Judge Lucero adds that the OCCA “rejected both Hancock’s 

‘hybrid’ theory and the state’s common law theory, . . . stat[ing] that the 

Evidence Code provided a basis for admissibility.” Dissent at 8. In Judge 

Lucero’s view, § 2609(B) was the only remaining evidentiary provision 

that the state appellate court could have regarded as the basis for the 

district court’s ruling. Id. 

In our view, the dissent conflates two different things: (1) what the 

OCCA regarded as the proper basis for introducing the evidence, and 

(2) what the OCCA thought the district court had relied on. There are 

many possible grounds that a district court could have considered. Some 

are mentioned in the dissent: the State’s “hybrid” theory, common law, 

and § 2404(B). Or, the district court might have considered the evidence 

as admissible simply because it was “relevant” and not barred by any 

other rule or law. See Okla. Stat. tit. 12, § 2402 (2001). 

The dissent states that the OCCA rejected all of these sources of 

authority. But that is not our issue; our issue is whether the OCCA 

mistakenly thought the district court had relied on § 2609(B). The OCCA 

did not say that the district court had ruled the evidence inadmissible as 

 

case, the ambiguity of the OCCA decision means that Mr. Hancock has 

failed to meet that burden. 

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relevant evidence, a “hybrid” theory, or the common law. Instead, the 

OCCA simply noted that the district court had ruled the evidence 

inadmissible under § 2404(B). Hancock v. State, 155 P.3d 796, 814 (Okla. 

Crim. App. 2007). There are many other sources of authority that the 

district court might have relied on, and the OCCA did not say what it 

thought the district court’s rationale had been. Rightly or wrongly, the 

OCCA didn’t think it needed to do so. 

The dissent also refers to the fact that the OCCA relied on the 

standard of review for plain error rather than harmlessness. In our view, 

that distinction is not decisive. 

Oklahoma courts apply a four-part test for plain error, considering 

whether (1) an error was committed, (2) whether the error was obvious, 

(3) whether the error affected the defendant’s substantial rights, and 

(4) whether the error seriously affected the fairness, integrity, or 

reputation of the judicial proceedings. Levering v. State, 315 P.3d 392, 

394 (Okla. Crim. App. 2013). 

The dissent acknowledges that the OCCA could have applied this 

test by analyzing the issue in terms of harmlessness. Dissent at 10. But the 

dissent argues that the OCCA instead chose to review what the district 

court had decided. Id. In our view, however, the dissent reads too much 

into the OCCA’s opinion. 

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Under the plain-error standard, the first two prongs require the 

reviewing court to analyze what the district court decided. Otherwise the 

reviewing court could not decide whether the district court had erred or, if 

it did, whether that error would have been obvious. 

But the third prong of plain-error review (an effect on the 

defendant’s substantial rights) does not necessarily involve scrutiny of 

what the district court did. Instead, this prong is substantially similar to 

the standard for harmlessness. See Logsdon v. State, 231 P.3d 1156, 1166 

(Okla. Crim. App. 2010) (equating the tests for harmlessness and an effect 

on the defendant’s substantial rights for purposes of plain-error review);

see also United States v. Kieffer, 681 F.3d 1143, 1158 (10th Cir. 2012) 

(“Rule 52(a) harmless error analysis and the third or ‘substantial rights’ 

prong of Rule 52(b) plain error analysis ‘normally require[] the same kind 

of inquiry.’” (quoting United States v. Olano, 507 U.S. 725, 734 (1993))). 

In effect, the dissent is arguing that the OCCA purported to rely on 

one of the first two prongs (rather than the third) based on its reference to 

what the district court did. Respectfully, we disagree with the dissent’s 

characterization of the OCCA’s reasoning. 

In the paragraph discussing plain error, the OCCA discussed the 

standard for plain error and the government’s primary purpose for 

introducing the manslaughter evidence. The OCCA then wrote: “The 

record as a whole shows the District Court weighed both the probative 

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value of the evidence for this purpose and its prejudicial effect.” Hancock 

v. State, 155 P.3d 796, 815 (Okla. Crim. App. 2007). This sentence could 

mean two different things: 

1. The OCCA was analyzing the district court’s conduct to 

determine whether the district court actually admitted the 

evidence under § 2609(B). 

2. The OCCA was analyzing whether the district court performed 

the balancing inquiry under Okla. Stat. tit. 12, § 2403 to 

determine whether the district court’s admission of the 

evidence affected Mr. Hancock’s substantial rights. 

 The dissent relies on the OCCA’s reference to what the district court 

did, inferring from that reference that the OCCA must have been relying 

on one of the first prongs of plain error.5

 But the OCCA could have 

considered what the district court did and still relied on the third prong of 

the plain-error standard. 

 In Oklahoma, evidence is ordinarily admissible—regardless of the 

underlying basis of admissibility—only if the probative value is not 

substantially outweighed by the danger of unfair prejudice. Okla. Stat. tit. 

 

5

 Judge Lucero contends that we are operating on a “false premise,” 

stating that “[i]f the OCCA had in fact affirmed the trial court on alternate 

grounds, it would have said so, just as we do in our opinions.” Dissent at 

3. We respectfully disagree. The OCCA said it was applying the plainerror test. Hancock v. State, 155 P.3d 796, 814 (Okla. Crim. App. 2007). 

In effect, our inquiry is whether the appeals court was applying the first or 

second prong of the test (no obvious error by the district court) or the 

third (no effect on the defendant’s substantial rights). In our court, we 

typically specify which prong of the plain-error test we are applying. The 

OCCA didn’t. Thus, all we can discern is that the OCCA wrote the opinion 

differently than we might have. 

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12, § 2403 (2001). Thus, whatever rule the district court had relied on, the 

OCCA could conclude that the evidence was admissible only if the 

probative value had not been substantially outweighed by the danger of 

unfair prejudice. 

 In addressing that requirement, the OCCA had two choices: It could 

balance the probative and prejudicial effects in the first instance, or it 

could rely on the district court’s balancing. The OCCA could reasonably 

decide to rely on the district court’s balancing.6

 Thus, the reference to the 

district court’s balancing of probative value and prejudice could relate to 

§ 2403(B) balancing. Thus, the reference to the district court’s balancing 

does not unambiguously show that the OCCA was mistaken about the basis 

of the district court’s ruling.7

 

6

 In addressing the federal counterpart to § 2403, the Supreme Court 

has stated: 

 Rather than assess the relevance of the evidence itself 

and conduct its own balancing of the probative value and 

potential prejudicial effect, the Court of Appeals should have 

allowed the District Court to make these determinations in the 

first instance, explicitly and on the record. With respect to 

evidentiary questions in general and Rule 403 in particular, a 

district court virtually always is in the better position to assess 

the admissibility of the evidence in the context of the particular 

case before it. 

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387 (2008) (citation 

& footnote omitted). 

7

 Judge Lucero also contends that the state appellate court failed to 

consider prejudice, which would have been necessary for admission of the 

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The dissent also relies on the OCCA’s discussion about the purpose 

of the evidence. In this discussion, the OCCA commented about the 

district court’s introduction of the manslaughter evidence “for this 

purpose.” Hancock v. State, 155 P.3d 796, 815 (Okla. Crim. App. 2007). 

Referring to this comment, Judge Lucero links the phrase “this purpose” 

to “the purpose of admitting the evidence under § 2609(B).” Dissent at 10-

11. But the OCCA did not say that “this purpose” was introduction of the 

evidence under § 2609(B). 

Instead, the OCCA identified the district court’s purpose in the 

immediately preceding sentence: “Despite the creative exchange of 

theories for and against the District Court’s ruling, the State’s manifest 

purpose in offering evidence of the prior conviction and Appellant’s prior 

plea of self-defense was to attack the credibility of Appellant’s current 

plea of self-defense.” Hancock v. State, 155 P.3d 796, 815 (Okla. Crim. 

App. 2007) (emphasis added). Thus, the phrase “this purpose” referred to 

the credibility of Mr. Hancock’s “current plea of self-defense”—not the 

credibility of the defendant. Id. 

 

evidence under § 2609(B). Dissent at 11-12. But as discussed above, the 

state appellate court would have had to consider prejudice regardless of 

whether it was applying § 2609(B) in the first instance or reviewing the 

district court’s application of § 2609(B). Thus, if the state appeals court 

failed to consider prejudice (as Judge Lucero contends), we could infer 

that the court misapplied § 2609(B). But that misapplication of § 2609(B) 

could not logically support an inference that the appeals court was 

mistaken about the basis of the district court’s ruling. 

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The cited purpose—the credibility of the plea of self-defense—might 

have led the district court to admit the evidence under a variety of 

theories of admissibility, such as the State’s hybrid theory, common law, 

§ 2402—or § 2609(B). The OCCA’s sentence tells us little about its 

understanding of the basis for the district court’s ruling. 

The OCCA did not tell us what it thought the district court had 

relied on to admit the evidence. We have searched for clues, as the dissent 

has done. But all of these clues are equally consistent with a correct 

understanding of the basis for the district court’s ruling. In these 

circumstances, we conclude that Mr. Hancock has failed to prove that the 

OCCA’s decision was based on an unreasonable determination of the 

facts. 

C. Unreasonable Application of Federal Law 

In oral argument, Mr. Hancock argued that the OCCA’s decision had 

constituted an unreasonable application of federal law. Oral Arg. 22:22-

22:45. If federal law was unreasonably applied, we could entertain the 

merits even if the OCCA had not unreasonably determined the facts. See

p. 13, above (citing 28 U.S.C. § 2254(d) (2012)). But Mr. Hancock did not 

raise this argument in the appeal until oral argument. Appellant’s Reply 

Br. at 18

; see Oral Arg. 22:45-22:54 (admitting that Mr. Hancock did not 

 

8

 In his reply brief, Mr. Hancock argues: 

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directly argue in his briefs that the OCCA’s decision had constituted an 

unreasonable application of federal law). 

In our court, an issue is waived when it is presented for the first 

time in oral argument. See United States v. Rivera-Nevarez, 418 F.3d 

1104, 1112 n.12 (10th Cir. 2005) (“[I]ssues raised for the first time at oral 

argument are waived.”). Thus, Mr. Hancock waived any argument that the 

OCCA unreasonably applied federal law. In light of this waiver, we 

decline to consider Mr. Hancock’s new argument involving an 

unreasonable application of federal law. See p. 15 n.3, above. 

V. Jury Instructions and Closing Argument 

Mr. Hancock also urges deprivation of due process because the state 

district court 

 

This is a “(d)(2)” case. That is, for both of Mr. Hancock’s 

due process claims, this Court may pass through the AEDPA’s 

portal to de novo review under 28 U.S.C. § 2254(d)(2), because 

the Oklahoma Court of Criminal Appeals’s decision was based 

on unreasonable factual determinations. 

. . . . 

 The State also devotes much of its answer brief to 

arguing that the OCCA’s decision was not contrary to or an 

unreasonable application of clearly established federal law, 

within the meaning of 28 U.S.C. § 2254(d)(1). Mr. Hancock has 

not argued otherwise, as he is not required to satisfy both 

section (d)(1) and section (d)(2). Either one is sufficient to 

open the door to relief, and Mr. Hancock has shown that 

section (d)(2) opens the door in this case. 

Appellant’s Reply Br. at 1. 

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 instructed the jury on limitations of self-defense even though 

 these limitations were unsupported by the evidence and 

 allowed the prosecutor to make deceptive closing remarks 

 based on these instructions. 

Mr. Hancock unsuccessfully presented these arguments to the OCCA. 

Hancock v. State, 155 P.3d 796, 819-20 (Okla. Crim. App. 2007). We too 

reject these arguments. 

A. Jury Instructions 

We begin with the challenged jury instructions. 

1. The Decision to Give the Instructions 

At trial, the court instructed the jury on the right to self-defense and 

the “aggressor” exception to that defense. Crim. App. Orig. R., vol. VII, 

at 1219-26. On self-defense, the court instructed the jury that (1) the State 

had the burden to disprove self-defense and (2) a person acts in selfdefense if he “reasonably believe[s] that use of deadly force [is] necessary 

to protect himself from imminent danger of death or great bodily harm.” 

Id. at 1220-21. The court also gave three instructions on the “aggressor” 

exception to self-defense9

: 

 Instruction 22: “Self-defense is permitted a person 

solely because of necessity. Self-defense is not available 

to a person who was the aggressor or provoked another 

with the intent to cause the altercation or voluntarily 

entered into mutual combat, no matter how great the 

 

9

 The state district court provided a fourth instruction on the 

“aggressor” exception (Instruction 24). But Mr. Hancock does not 

challenge that instruction. 

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danger to personal security became during the altercation 

unless the right of self-defense is reestablished.” 

 Instruction 23: “A person who was the original 

aggressor or provoked another with intent to cause the 

altercation or voluntarily entered into mutual combat 

may regain the right to self-defense if that person 

withdrew or attempted to withdraw from the altercation 

and communicated his desire to withdraw to the other 

participant(s) in the altercation. If thereafter, the other 

participant(s) continued the altercation, the other 

participant(s) [would become] the aggressor(s). And the 

person who was the original aggressor or provoked 

another with the intent to cause the altercation or 

voluntarily entered into mutual combat is entitled to the 

defense of self-defense.” 

. . . . 

 Instruction 25: “A person is an aggressor when that 

person by his wrongful acts provokes, brings about, or 

continues an altercation. The use of words alone cannot 

make a person an aggressor.” 

Id. at 1222-23, 1225. 

At trial, Mr. Hancock objected, arguing there was no evidentiary 

basis for three parts of the instructions: 

1. Self-defense is not available to a person who “voluntarily 

 enters into mutual combat” with the victim. 

 2. A person can regain the right to self-defense if he “withdrew 

 or attempted to withdraw from the altercation and 

 communicated his desire to withdraw.” 

3. The “use of words alone” cannot turn someone into an 

 aggressor. 

The district court overruled this objection, reasoning that (1) there 

was evidence that Mr. Hancock had engaged in “mutual combat” with Mr. 

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Jett and that Mr. Jett had “withdrawn” from the altercation and (2) the 

“words alone” portion was warranted because it accurately stated the law 

and “the jury need[ed] to know that” words alone would not trigger the 

defense. Trial Tr., vol. IX, at 59-61. This ruling was upheld on appeal, 

with the OCCA holding that the instructions had been properly given. 

Hancock v. State, 155 P.3d 796, 819-20 (Okla. Crim. App. 2007). 

2. Sufficiency of Evidence for the Instructions 

Mr. Hancock renews his argument that there was no evidentiary 

basis to include the three challenged portions of the instructions. We 

disagree, concluding that there was evidence of mutual combat and Mr. 

Jett’s withdrawal from the altercation. Thus, those portions of the 

instructions were supported. Even if there had been no evidentiary basis to 

include reference to “words alone,” inclusion of this phrase would not 

have deprived Mr. Hancock of a fair trial. 

a. Mutual Combat 

First, there was evidence that Mr. Hancock had engaged in mutual 

combat with Mr. Jett; thus, the OCCA reasonably concluded that the 

“mutual combat” portion of the instructions was supported. Id.

“Mutual combat” is defined as “[a] fight between two or more 

parties into which each party has entered willingly.” Okla. Uniform Jury 

Instructions – Criminal (OUJI-CR) 8-56, Vernon’s Okla. Forms 2d (West 

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2001) (citing Phelps v. State, 78 P.2d 1068 (Okla. Crim. App. 1938) & 

Weatherholt v. State, 131 P. 185 (Okla. Crim. App. 1913)). 

Though Mr. Jett started the altercation, there was also evidence of 

two breaks in the action, where a jury could reasonably find that Mr. 

Hancock had willingly joined the fray. 

The first break in the action took place in the living room. Both 

Ms. Tarp and Mr. Hancock testified that Mr. Jett had paused and moved 

away from where Mr. Hancock was seated. Trial Tr., vol. VI, at 180 

(Tarp); Trial Tr., vol. VII, at 218-19 (Hancock). The extent of this break 

is disputed, with Ms. Tarp and Mr. Hancock giving different accounts.10

But both witnesses testified that Mr. Jett had taken at least a step away 

from Mr. Hancock, who then went for Mr. Jett’s gun. 

The second break took place when Mr. Jett went to the Harley 

Room, and Mr. Hancock followed. 

With evidence of these two breaks in the action, the jury could 

reasonably have reached two different conclusions. The jury might have 

discounted the significance of these two breaks and concluded that Mr. 

Hancock was acting in desperation to defend himself. After all, Mr. 

Hancock had just been attacked and told to get into a cage. 

 

10 Ms. Tarp testified that (1) Mr. Jett had swung the metal bar at Mr. 

Hancock and walked toward the coffee table and (2) Mr. Hancock 

“attacked” Mr. Jett. Trial Tr., vol. VI, at 177-81. In contrast, Mr. Hancock 

testified that he had reached for the gun only after Mr. Jett moved to the 

threshold between the living room and dining room. 

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But jurors could also reasonably arrive at a different conclusion. 

Regardless of how far Mr. Jett moved in the living room, both accounts 

had him moving away from Mr. Hancock. And, Ms. Tarp’s account of the 

events had Mr. Hancock, armed with a gun, chasing Mr. Jett out to the 

backyard. 

Even if the jury had accepted Mr. Hancock’s account, it could still 

conclude that there was a break in the action before the killing of Mr. Jett. 

Mr. Hancock admitted that he had gone to the Harley Room, explaining 

that he wanted to see where Mr. Jett had gone. Jurors could reasonably 

conclude that Mr. Hancock had known he was no longer in danger, for he 

was now the one holding the gun and trying to find Mr. Jett. If Mr. 

Hancock remained afraid after the initial shooting, why would he follow 

Mr. Jett into the Harley Room, which was in the opposite direction from 

the front door? If Mr. Jett was going to the Harley Room, the front door 

would have provided a sure-fire escape route. Instead, Mr. Hancock 

followed Mr. Jett to the Harley Room, moving further away from the front 

door. 

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Because the jury could rationally find that Mr. Hancock had 

Because the jury could rationally find that Mr. Hancock had 

willingly joined the fight, the OCCA reasonably concluded that the 

instruction on mutual combat was supported by the evidence. Thus, the 

OCCA reasonably concluded that inclusion of this instruction had not 

deprived Mr. Hancock of a fair trial. 

b. Withdrawal from the Altercation 

The OCCA also held that the “withdrawal” instruction was supported 

by the evidence. Hancock v. State, 155 P.3d 796, 819-20 (Okla. Crim. 

App. 2007). 

This instruction would be appropriate if there was evidence that 

The diagram was taken from State’s Exhibit 81, which was admitted without objection as a fair 

representation of the layout of Mr. Jett’s house. Trial Tr., vol. V, at 44-45. We have positioned 

Mr. Hancock based on his testimony: He testified that when he arose, he was standing “where 

[Mr. Lynch’s] head was at.” Trial Tr., vol. VII, at 221. The large arrow shows where Mr. 

Hancock went; the small arrow shows the easy path that Mr. Hancock had to leave the home 

when Mr. Jett ran in the opposite direction. 

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 Mr. Jett had withdrawn or intended to withdraw from the 

altercation, and 

 Mr. Jett had communicated that intent to Mr. Hancock. 

See Allen v. State, 871 P.2d 79, 92 (Okla. Crim. App. 1994); see also 

OUJI-CR 8-51, Vernon’s Okla. Forms 2d (West 2001) (explaining that the 

original aggressor may gain the right to self-defense if he withdraws). 

First, there was evidence that Mr. Jett had withdrawn by stepping 

away from Mr. Hancock in the living room. Ms. Tarp identified three facts 

supporting this inference: 

1. Mr. Jett had been preparing to leave his home when Mr. Jett 

 became agitated at Mr. Hancock. 

2. After attacking Mr. Hancock, Mr. Jett “walked back towards 

 the coffee table . . . in the direction of the front door.”11

3. Ms. Tarp did not recall whether Mr. Jett was continuing to 

 hold the metal bar when Mr. Jett walked away from Mr. 

 Hancock. 

 Second, there was evidence supporting withdrawal when Mr. Jett 

went into the Harley Room and later into the backyard. In his reply brief, 

Mr. Hancock argues that the prosecutors never argued withdrawal based 

on the events in the backyard and that Mr. Hancock testified that he had 

thought Mr. Jett had gone to get his rifle. Appellant’s Reply Br. at 19. We 

reject both arguments. 

 

11 Trial Tr., vol. VI, at 180. 

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 At trial, the prosecutors did argue that Mr. Jett had withdrawn by 

running into the backyard. For example, after discussing the events in the 

living room, the prosecutors focused on Mr. Hancock’s pursuit of Mr. Jett 

into the backyard: 

The defendant’s not done though. Because he goes out, 

through the Harley room, and chases Robert Jett outside and 

shoots him one more time. Now, he’s curious about where that 

shot went. 

 How is he defending himself when he is hunting down the 

people that he is killing? How in the world does he get to claim 

self-defense when he chases Robert Jett outside and kills him 

in the backyard? You don’t get self-defense in those – under 

those circumstances, ladies and gentlemen. 

Trial Tr., vol. X, at 49. 

 Mr. Hancock gave a different account, but that did not preclude an 

instruction on withdrawal. Ms. Tarp testified that Mr. Hancock had shot 

Mr. Jett, then chased him outside “like a dog.” Trial Tr., vol. VI, at 185. 

Based on this testimony, the jury could reasonably have concluded that 

Mr. Jett had withdrawn when he entered the Harley Room and left through 

the back door. 

 In these circumstances, the state district court properly instructed 

the jury on withdrawal. Thus, the instruction did not deprive Mr. Hancock 

of a fair trial. 

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c. “Words Alone” 

The OCCA also rejected Mr. Hancock’s challenge to the “words 

alone” instruction. Hancock v. State, 155 P.3d 796, 819-20 (Okla. Crim. 

App. 2007). This decision involved a reasonable application of Supreme 

Court precedent and determination of the facts. 

The “words alone” instruction was provided with the definition of an 

“aggressor”: 

Instruction 25: A person is an aggressor when that person by 

his wrongful acts, provokes, brings about, or continues an 

altercation. The use of words alone cannot make a person an 

aggressor. 

Crim. App. Orig. R., vol. VII, at 1225 (emphasis added). 

The second sentence (“words alone”) may have been superfluous 

because no one suggested that Mr. Jett had used “words alone.” Both sides 

stated that Mr. Jett had swung a metal bar at Mr. Hancock while telling 

him to get in a cage. Compare Trial Tr., vol. VII, at 218 (Mr. Hancock) 

(“[The metal bar] hit me in the arm.”), with Trial Tr., vol. VI, at 177 (Ms. 

Tarp) (“I don’t know if [Mr. Jett] hit [Mr. Hancock] on the side of the 

head or if he just came close to it.”). The jury would undoubtedly know 

that Mr. Jett used more than “words alone.” 

But even if the phrase were superfluous, it would not have rendered 

the trial fundamentally unfair. No one ever questioned Mr. Hancock’s 

right to defend himself when told to get into the cage. The issue was 

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whether the danger had subsided by the time Mr. Hancock pulled the 

trigger. Thus, in rejecting the claim, the OCCA reasonably applied 

Supreme Court precedent and determined the facts. 

3. Summary 

The OCCA reasonably concluded that the self-defense instructions, 

including the three challenged portions, had not deprived Mr. Hancock of 

a fair trial. 

B. Closing Argument 

In urging a deprivation of due process, Mr. Hancock also points to 

the prosecution’s closing remarks. 

1. Withdrawal 

In closing, the prosecutor argued that Mr. Jett had withdrawn from 

the altercation and that Mr. Hancock had become the aggressor in the 

living room. The State outlined this theory in two steps: 

1. Although Mr. Jett provoked the fight, he walked away from 

 Mr. Hancock and toward the front door. 

2. Mr. Hancock became the aggressor when he “[came] up from 

behind and rushe[d] [Mr. Jett] for the gun.” 

Trial Tr., vol. X, at 107. Mr. Hancock contends that these arguments were 

“grossly misleading.” We disagree. 

a. Mr. Jett Turning His Back and Walking to the Front Door

The prosecution argued that Mr. Jett had withdrawn from the fight 

by turning his back to Mr. Hancock and walking to the front door. In his 

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opening brief, Mr. Hancock states that this argument distorts Ms. Tarp’s 

testimony. Appellant’s Opening Br. at 62-64. But in the habeas petition, 

Mr. Hancock did not present this allegation as a separate basis for habeas 

relief.12 As a result, this issue has been forfeited. See Olmos v. Holder, 

780 F.3d 1313, 1326 (10th Cir. 2015) (“Mr. Olmos forfeited [his 

appellate] argument by failing to raise it in his habeas petition.”); see also

p. 14, above. Though we could ordinarily consider the issue under the 

plain-error standard, Mr. Hancock has not argued plain error. See Olmos, 

780 F.3d at 1326 (stating that we would consider a forfeited argument if 

the petitioner had urged plain error); see also pp. 14-15, above. Thus, we 

decline to consider Mr. Hancock’s new argument involving distortion of 

Ms. Tarp’s testimony. See Olmos, 780 F.3d at 1326 (declining to consider 

a forfeited argument because the petitioner had not urged plain error); see 

also p. 15, above. 

 

12 In the direct appeal and habeas petition, Mr. Hancock made this 

statement in a footnote consisting of a single sentence: “To make matters 

worse, this was clearly a misstatement of Ms. Tarp’s testimony since she 

never testified Mr. Jett turned his back on Mr. Hancock and was preparing 

to walk out the front door when Mr. Hancock rushed him from behind. (Tr. 

VI, 180-81, 206, 233.)” Hab. Pet. at 214 n.45, Hancock v. Workman, No. 

5:08-cv-327-F (W.D. Okla. filed Feb. 3, 2009) (unpublished) (Dkt. 27); 

Appellant’s Opening Br. at 50 n.37, Hancock v. State, No. D-2004-1097 

(Okla. Crim. App. Nov. 23, 2005). 

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b. Becoming the Aggressor

The prosecution also argued that Mr. Hancock had become the 

aggressor when he rushed Mr. Jett and obtained his gun. Mr. Hancock 

again states that this argument distorts Ms. Tarp’s testimony. 

But in the habeas petition, Mr. Hancock did not present this 

argument as a separate basis for habeas relief. Instead, he simply 

questioned the existence of evidence for an instruction on whether Mr. 

Hancock had become the aggressor.13 As a result, this argument is 

forfeited. See pp. 14, 39, above. Because Mr. Hancock has not argued 

plain error, we decline to consider the new argument. See id. at pp. 15, 39, 

above. 

Mr. Hancock also questions the State’s argument that he became the 

aggressor by lunging at Mr. Jett in the living room. But this challenge 

cannot form the basis for habeas relief because Mr. Hancock omitted the 

issue in his habeas petition and he has not argued plain error. See id. 

2. Factual Misstatements 

Mr. Hancock also contends the prosecutor misstated three additional 

facts: (1) Mr. Hancock was angry and looking for a fight, (2) Mr. Lynch 

was physically incapacitated, and (3) the fight took place near the door 

 

13 There unquestionably was evidence of Mr. Hancock becoming the 

aggressor when he followed Mr. Jett into the Harley Room. See pp. 32-33, 

above. In fact, Ms. Tarp described the pursuit as akin to someone chasing 

a dog. Trial Tr., vol. VI, at 185. 

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rather than the sofa. But Mr. Hancock forfeited these arguments by failing 

to raise them in his habeas petition and failing to argue plain error. See 

Olmos v. Holder, 780 F.3d 1313, 1326-27 (10th Cir. 2015); see also pp. 

14-15, 39-40, above. 

VI. Ineffective Assistance of Trial Counsel 

In Oklahoma, manslaughter can be committed by killing someone 

while acting in the heat of passion or by resisting a criminal attempt.14 At 

trial, Mr. Hancock’s attorney asked for an instruction on heat-of-passion 

manslaughter, but not manslaughter while resisting a criminal attempt. In 

Mr. Hancock’s view, this omission constituted ineffective assistance of 

trial counsel. We conclude that the OCCA reasonably applied Supreme 

Court precedent in rejecting the claim. Thus, we reject the claim. 

A. Manslaughter by Resisting a Criminal Attempt 

The crime of manslaughter while resisting a criminal attempt occurs 

when a person kills another “unnecessarily either while resisting an 

attempt by the person killed to commit a crime, or after such attempt shall 

have failed.” Okla. Stat. tit. 21, § 711(3) (2001). This crime takes place 

when a defendant was not the initial aggressor and honestly (but 

unreasonably) believed he or she was in physical danger or that killing 

 

14 Manslaughter can also be committed through the commission of a 

misdemeanor. Okla. Stat. tit. 21, § 711(1) (2001). But this form of 

manslaughter is not involved in our appeal. 

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was the only way to prevent injury. Davis v. State, 268 P.3d 86, 116 

(Okla. Crim. App. 2011). 

B. Our Standard for Evaluating this Claim 

This issue involves two overlapping standards of review: (1) the 

standard for reviewing ineffectiveness claims, and (2) the standard for 

reviewing habeas claims under 28 U.S.C. § 2254(d)(1). 

1. Standard for Ineffective Assistance of Counsel 

We review ineffectiveness claims under the two-part test in 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, 

parties claiming ineffective assistance of counsel must show that 

 counsel’s performance was objectively unreasonable and 

 there was a reasonable probability that but for counsel’s 

deficient performance, the result of the proceeding would have 

been different. 

Strickland, 466 U.S. at 687. Reviewing courts may address the two parts 

of the test in any order, and failure to satisfy either part would preclude 

relief. Id.; United States v. Watson, 766 F.3d 1219, 1227 (10th Cir.), cert. 

denied, __ U.S. __, 135 S. Ct. 735 (2014). 

2. Standard for Habeas Claims Under § 2254(d)(1) 

The OCCA applied Strickland and concluded that trial counsel had 

not rendered ineffective representation. Hancock v. State, 155 P.3d 796, 

821-22 (Okla. Crim. App. 2007). Under federal law, we must defer to that 

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decision unless Mr. Hancock shows that such deference is unwarranted. 

See 28 U.S.C. § 2254(d) (2012). 

Mr. Hancock invokes 28 U.S.C. § 2254(d)(1), arguing that deference 

is unwarranted because the OCCA based its decision on an unreasonable 

application of Strickland. To be “unreasonable,” an application cannot 

merely be wrong; instead, it must be so wrong that all fair-minded jurists 

would agree that the application is incorrect. Frost v. Pryor, 749 F.3d 

1212, 1215 (10th Cir. 2014). 

To prevail on the ineffective assistance claim, Mr. Hancock had to 

show that all fair-minded jurists would agree that (1) trial counsel’s 

performance was objectively deficient, and (2) there was a “reasonable 

likelihood” that the jury would have found guilt on manslaughter while 

resisting a criminal attempt—rather than first-degree murder—if defense 

counsel had asked for the instruction. See id. at 1225-26 (analyzing the 

Strickland test through the AEDPA standard). 

C. Application of the Standard 

Applying the standards under Strickland and the AEDPA, we 

conclude that the OCCA reasonably applied Supreme Court precedent. We 

can assume, for argument’s sake, that trial counsel’s performance was 

deficient. But even then, Mr. Hancock has not shown that all fair-minded 

jurists would agree that the deficiency was prejudicial. 

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The jury not only found guilt on the charge of first-degree murder, 

but also rejected the opportunity to find guilt on the lesser-included 

offense of heat-of-passion manslaughter. Mr. Hancock argues that his 

theory matches the omitted theory (manslaughter while resisting a 

criminal attempt) more closely than the theory presented (heat-of-passion 

manslaughter). But the OCCA could reasonably have disagreed with this 

assessment. 

1. Heat-of-Passion Manslaughter 

Under Oklahoma law, heat-of-passion manslaughter exists when 

 there is “adequate provocation;” 

 the defendant experiences “a passion or an emotion such as 

fear, terror, anger, or resentment;” 

 “the homicide occurred while the passion still existed, and 

before there was reasonable opportunity for the passion to 

cool;” and 

 “there was a causal connection between the provocation, the 

passion[,] and the homicide.” 

Crim. App. Orig. R., vol. VII, at 1208; OUJI – CR 4-97, Vernon’s Okla. 

Forms 2d (West 2001). Reasonable jurists could conclude that the 

evidence aligned with these elements for the murders of both Mr. Jett and 

Mr. Lynch. 

2. Mr. Jett 

A fair-minded jurist could reasonably conclude that Mr. Hancock’s 

account of the Jett killing fit a theory of heat-of-passion manslaughter 

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more closely than a theory of manslaughter while resisting a criminal 

attempt. Mr. Hancock told the police that he had followed Mr. Jett into the 

backyard because his “adrenaline was pumping.” Trial Tr., vol. VIII, at 

77. That explanation would suggest that Mr. Hancock pursued Mr. Jett 

after he had become angry or fearful, without enough time for his 

emotions to subside.

In contrast, the crime of manslaughter while resisting a criminal 

attempt requires that a defendant have an honest yet unreasonable belief 

he is in danger. Davis v. State, 268 P.3d 86, 116 (Okla. Crim. App. 2011). 

For the sake of argument, we can assume that Mr. Hancock’s adrenaline 

explanation could fit that crime. But even then, the OCCA could 

reasonably conclude that Mr. Hancock’s adrenaline explanation had fit the 

heat-of-passion instruction more closely than it would have fit the 

criminal attempt instruction. 

3. Mr. Lynch 

Fair-minded jurists could also conclude that the heat-of-passion 

instruction neatly fit Mr. Hancock’s account of the murder of Mr. Lynch. 

When shooting Mr. Lynch, Mr. Hancock had already been attacked by Mr. 

Jett and told to get into a cage. Fair-minded jurors could reasonably (1) 

attribute Mr. Hancock’s reaction to his rage rather than an honest belief 

that he had to defend himself against Mr. Lynch, and (2) regard Mr. 

Hancock’s version more consistent with a theory of heat-of-passion 

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46 

manslaughter than a theory of manslaughter while resisting a criminal 

attempt. 

4. Summary 

For these reasons, we conclude that Mr. Hancock has not shown that 

the OCCA unreasonably applied Supreme Court precedent when rejecting 

the ineffective-assistance claim. 

VII. Cumulative Error 

 Mr. Hancock also urges cumulative error. We conclude that 

Mr. Hancock is not entitled to habeas relief on this ground. 

 In some circumstances, trial errors might in isolation be 

insignificant, but collectively be serious enough to deprive the defendant 

of fundamental fairness. When that happens, the defendant may obtain 

relief on the basis of cumulative error. Littlejohn v. Trammell, 704 F.3d 

817, 868 (10th Cir. 2013). 

 We can consider two types of errors: 

 errors that violated the federal constitution15 and 

 deficiencies of counsel that would have constituted ineffective 

 assistance but for the absence of prejudice.16

We have not found any constitutional errors, but we have rejected Mr. 

Hancock’s ineffective-assistance claim based on the lack of prejudice. 

 

15 Littlejohn v. Trammell, 704 F.3d 817, 868 (10th Cir. 2013). 

16 Cargle v. Mullin, 317 F.3d 1196, 1207 (10th Cir. 2003). 

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Though we did not decide whether the defense attorneys were deficient, 

we may assume for the sake of argument that they were. With this 

assumption, we would be left with only one error: trial counsel’s failure to 

ask for an instruction on manslaughter by resisting a criminal attempt. We 

held above that Mr. Hancock has not shown a reasonable probability of a 

different result if counsel had asked for the instruction. See pp. 43-46, 

above. There are no other errors to aggregate with this error on the part of 

counsel. As a result, we cannot grant habeas relief on the basis of 

cumulative error.17

VIII. Motion to Expand the Certificate of Appealability 

 Mr. Hancock asks us to add four issues in the certificate of 

appealability: 

1. the sufficiency of the evidence for a conviction on first-degree 

murder, 

2. the exclusion of evidence relating to self-defense, 

3. the ineffectiveness of trial counsel for failing to impeach Ms. 

Tarp’s testimony and the ineffectiveness of appellate counsel 

for failing to assert ineffectiveness of trial counsel, and 

 

17 The respondent argues that we cannot entertain the claim because 

the Supreme Court has not recognized constitutional protection against 

cumulative error. Similar arguments have divided the circuits, and we 

need not weigh in on that circuit split. See Hooks v. Workman, 689 F.3d 

1148, 1194 n.24 (10th Cir. 2012) (discussing the circuit split). Even if the 

Supreme Court has recognized a constitutional protection from cumulative 

error, we would need to reject the claim based on the absence of two or 

more errors to aggregate. Thacker v. Workman, 678 F.3d 820, 849 (10th 

Cir. 2012). 

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4. the sufficiency of the evidence to support the aggravating 

circumstance of heinousness, atrocity, or cruelty. 

We deny Mr. Hancock’s request to issue a certificate of appealability on 

these issues. 

A. Standard for a Certificate of Appealability 

 Expansion of the certificate of appealability is merited upon a 

showing that “reasonable jurists would find the district court’s assessment 

of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 

U.S. 473, 484 (2000). In applying this standard, we defer under the 

AEDPA to the OCCA’s decision on the merits. Okyere v. Rudek, 732 F.3d 

1148, 1149 (10th Cir. 2013). 

B. Sufficiency of the Evidence: First-Degree Murder 

 The jury found Mr. Hancock guilty of first-degree murder, which 

required sufficient evidence to reject Mr. Hancock’s assertion of selfdefense. See Hancock v. State, 155 P.3d 796, 812 (Okla. Crim. App. 

2007). Mr. Hancock challenges the sufficiency of that evidence. 

 1. Unreasonable Application of Federal Law 

 The OCCA concluded that the evidence was sufficient for a 

reasonable jury to find that Mr. Hancock had not acted in self-defense. 

Hancock v. State, 155 P.3d 796, 810-813 (Okla. Crim. App. 2007). The 

federal district court reviewed the OCCA’s conclusion, determining that 

Mr. Hancock had failed to show an unreasonable application of Supreme 

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Court precedent. Hancock v. Workman, No. 5:08-cv-327-F, at 27-28 (W.D. 

Okla. filed Feb. 3, 2009) (unpublished). 

 Mr. Hancock argues that the OCCA misinterpreted federal law when 

it evaluated the evidence because the OCCA treated the jury verdict as 

unassailable. We conclude the district court’s decision to the contrary is 

not reasonably debatable. 

 In evaluating the sufficiency of the evidence, the OCCA relied on 

the test articulated in Jackson v. Virginia, 443 U.S. 307, 319 (1979). 

Compare Hancock, 155 P.3d at 811, with Jackson, 433 U.S. at 319 (using 

similar language). In light of this reliance, we could entertain the merits 

of the claim on appeal only if the OCCA unreasonably applied the Jackson

standard. Diestel v. Hines, 506 F.3d 1249, 1267 (10th Cir. 2007). 

 Under Jackson, the OCCA had to decide “whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson, 443 U.S. at 319. Any rational jurist would 

conclude that the OCCA reasonably applied the Jackson standard. 

 The OCCA stated the standard as it had been established in Jackson. 

Hancock v. State, 155 P.3d 796, 811 (Okla. Crim. App. 2007). Applying 

this standard, the court concluded that a rational jury could have found 

Mr. Hancock guilty of first-degree murder. Id. at 811-12. The district 

court concluded that the OCCA had reasonably applied this standard and 

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that the evidence was sufficient for a finding of guilt. Hancock v. 

Workman, No. 5:08-cv-327-F, at 27-28 (W.D. Okla. filed Feb. 3, 2009) 

(unpublished). In our view, no reasonable jurist could question the 

reasonableness of the district court’s conclusion. 

2. Mischaracterization of the Facts 

 Mr. Hancock also argues that the OCCA mischaracterized the facts 

when concluding that the evidence sufficed for a finding of first-degree 

murder. The district court concluded that this challenge was meritless. Id. 

at 26. For this argument, Mr. Hancock points to his version of events. But 

the jury was free to reject that version. See United States v. Evans, 318 

F.3d 1011, 1018 (10th Cir. 2003). 

 Viewing the evidence in the light most favorable to the government, 

the jury could have rejected Mr. Hancock’s theory of self-defense. Even 

though Mr. Jett was the initial aggressor, Mr. Hancock could not prevail 

on self-defense if he continued the altercation or restarted the fight after 

Mr. Jett had withdrawn. See Allen v. State ̧ 871 P.2d 79, 92 (Okla. Crim. 

App. 1994). And we have already explained why a jury could reasonably 

conclude that Mr. Hancock had willingly joined the fight. See pp. 31-34, 

above (analyzing why a jury could conclude Mr. Hancock had willingly 

joined the fight in the context of the jury instructions on mutual combat). 

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3. Summary 

 The district court concluded that the OCCA had reasonably applied 

Supreme Court precedent and determined the facts. Hancock v. Workman, 

No. 5:08-cv-327-F, at 26-28 (W.D. Okla. filed Feb. 3, 2009) 

(unpublished). No reasonable jurist could find these conclusions debatable 

or wrong. 

C. Exclusion of Evidence on Self-Defense 

 The state district court excluded two categories of evidence: 

1. evidence that the victims were members of dangerous 

motorcycle gangs, and 

2. complete recordings of the two police interrogations of 

Mr. Hancock. 

Mr. Hancock maintains that these rulings deprived him of due process. 

The OCCA and the federal district court rejected this argument. Hancock 

v. State, 155 P.3d 796, 817-18 (Okla. Crim. App. 2007); Hancock v. 

Workman, No. 5:08-cv-327-F, at 39, 41-42 (W.D. Okla. filed Feb. 3, 2009) 

(unpublished). No reasonable jurist would regard that determination as 

debatable or wrong. 

1. The Right to Due Process 

 Due process includes a defendant’s right to present a theory of 

defense. Chambers v. Mississippi, 410 U.S. 284, 302 (1973). In some 

cases, this right requires the court to allow evidence that would otherwise 

be inadmissible. Id. But a defendant is entitled to introduction of this 

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evidence only if it is reliable and exclusion would significantly undermine 

the fundamental elements of the defense. Morris v. Burnett, 319 F.3d 

1254, 1272 (10th Cir. 2003). Otherwise, the traditional rules of evidence 

apply. Id. 

2. Gang Membership 

 Mr. Hancock offered evidence of the victims’ gang membership to 

explain why he (1) feared Mr. Jett and Mr. Lynch and (2) fled after the 

killings. The state district court excluded the specific reference to the 

gang affiliation, but allowed some evidence referring to the victims’ 

affiliations with biker gangs. From that evidence, the jury learned four 

facts relating to the victims: 

1. Mr. Jett distributed methamphetamine. 

2. Mr. Jett carried a pistol and wore a leather motorcycle vest. 

3. Both victims were bikers, and Mr. Hancock feared retaliation 

from bikers after seeing Mr. Lynch’s brother on television, 

vowing to retaliate against Mr. Lynch’s killer. 

4. Mr. Hancock feared the victims’ associates, who were 

members of the Rogues, Hangmen, and Banditos gangs. 

The OCCA concluded that the evidence had sufficiently explained 

Mr. Hancock’s fear and his flight. Hancock v. State, 155 P.3d 796, 817 

(Okla. Crim. App. 2007). The federal district court agreed. Hancock v. 

Workman, No. 5:08-cv-327-F, at 40 (W.D. Okla. filed Feb. 3, 2009) 

(unpublished). 

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 Mr. Hancock argues that the OCCA’s conclusion involved an 

unreasonable interpretation of the record. In Mr. Hancock’s view, the trial 

evidence did not show (1) involvement with violent outlaw motorcycle 

gangs or (2) his knowledge of those affiliations. 

 For the sake of argument, we can assume that Mr. Hancock’s 

proposed evidence related to his fundamental right to present a defense. 

But any reasonable jurist would recognize the existence of other evidence 

presented on this defense. For example, Mr. Hancock testified that (1) he 

was afraid of the victims’ associates and (2) those associates belonged to 

specific biker gangs. Thus, no reasonable jurist could disagree with the 

district court’s conclusion that the OCCA reasonably interpreted the 

record. 

3. Recorded Interviews 

 On two occasions, Mr. Hancock gave recorded interviews to the 

police. During cross-examination, the prosecution used portions of the 

interview transcripts to impeach Mr. Hancock. On redirect, Mr. Hancock’s 

counsel tried to present the complete recordings of the interviews. The 

state district court excluded the complete recordings, but allowed Mr. 

Hancock’s counsel to use the transcripts to point to prior consistent 

statements. 

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 On appeal, Mr. Hancock argued that the district court’s failure to 

admit the recordings had constituted denial of the right to present a 

defense because 

 the recordings would have revealed “the interrogating officers’ 

extensive comments about the victims’ violent reputations” 

and 

 the recordings “would have rebutted the prosecution’s attack 

on his credibility.” 

Am. Mot. to Expand the Certificate of Appealability at 17. Because 

Mr. Hancock’s counsel had an opportunity to present prior consistent 

statements, the OCCA concluded that exclusion of the complete recordings 

had not resulted in prejudice or an abuse of discretion. Hancock v. State, 

155 P.3d 796, 818 (Okla. Crim. App. 2007). The federal district court 

determined that the OCCA’s conclusion involved a reasonable application 

of Supreme Court precedent. Hancock v. Workman, No. 5:08-cv-327-F, at 

39 (W.D. Okla. filed Feb. 3, 2009) (unpublished). 

 At this stage, it is unclear whether Mr. Hancock is arguing that the 

OCCA’s conclusion involved a misapplication of federal law, a misreading 

of the record, or both. Whatever the argument is, we do not believe jurists 

could regard the district court’s decision as reasonably debatable. 

a. The Victims’ Violent Reputations 

 Any reasonable jurist would reject the challenge with respect to the 

victims’ violent reputations because Mr. Hancock had no constitutional 

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right to present any additional evidence regarding the victims’ gang 

affiliations. See pp. 52-53, above. Thus, we need not consider whether Mr. 

Hancock was constitutionally entitled to introduce this specific piece of 

evidence. 

 b. Rebuttal of Credibility Attacks 

 Mr. Hancock’s challenge based on the recordings’ potential for 

rehabilitation fails for two reasons, one legal and one factual. 

 Legally, for exclusion of the evidence to violate Mr. Hancock’s right 

to due process, the exclusion must have significantly undermined the 

fundamental elements of his defense. See id. at pp. 51-52, above. Mr. 

Hancock’s counsel attempted to admit the recordings to bolster Mr. 

Hancock’s credibility. At trial, counsel argued the recordings were 

admissible because 

 the prosecution had already introduced parts of the interview,

 which entitled the defense to introduce the rest of the 

 interview, and 

 the recordings supplied context for the statements, showing 

 that the police (1) had interrupted Mr. Hancock so that he 

 could not fully explain his narrative, and (2) had not disclosed 

 “the entire scenario of [the] interviews.” 

Trial Tr., vol. VIII, at 85. 

 Exclusion of the recordings did not result in a denial of due process. 

The full recordings provide the context of Mr. Hancock’s statements and 

show that Mr. Hancock was interrupted. But the inability to use the full 

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recordings did not interfere with Mr. Hancock’s fundamental right to 

present a defense. 

 At trial, Mr. Hancock offered the evidence solely to rebut the 

attacks on his credibility. See Trial Tr., vol. VIII, pp. 85-86 (statements 

from defense counsel that the recordings were admissible to provide 

context for Mr. Hancock’s statements in cross-examination).18 Thus, even 

without the desired boost to his credibility, Mr. Hancock was able to 

present his version of events and his defense. See United States v. 

Scheffer, 523 U.S. 303, 317 (1998) (holding that the defendant was able to 

present his defense when the defendant was prevented from using evidence 

that would have bolstered his credibility). 

 In the absence of a constitutional requirement to admit the evidence, 

the state’s evidence rules applied. See Morris v. Burnett, 319 F.3d 1254, 

1275-78 (10th Cir. 2003) (applying state evidence rules in the absence of 

 

18 At trial, defense counsel remarked that the police had not told Mr. 

Hancock “about the entire scenario of his interviews with the police.” 

Trial Tr., vol. VIII, at 85. Defense counsel did not explain how this 

remark would make the full recordings admissible; and in the motion to 

expand the certificate of appealability, Mr. Hancock does not appear to 

rely on his attorney’s remark about nondisclosure of the “entire scenario.” 

But if Mr. Hancock were to rely on his attorney’s remark, the full 

recordings would not have helped. In the recordings, the police told Mr. 

Hancock that they worked with the District Attorney’s office to present 

the facts and identified parts of Mr. Hancock’s account that they regarded 

as inconsistent. And at the start of the second interview, the police told 

Mr. Hancock that charges had been filed. 

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a constitutional requirement). Therefore, no reasonable jurist would credit 

the legal underpinnings of Mr. Hancock’s due-process claim. 

 Factually, the recordings would not have shown Mr. Hancock’s 

inability to give his version of events. In the recorded interviews, 

Mr. Hancock told his version numerous times. The police sometimes 

interrupted Mr. Hancock to ask him a specific question or to direct him to 

another part of the events. But there were far more instances in which 

Mr. Hancock gave his entire account without interruption. As a result, Mr. 

Hancock’s argument fails on factual grounds. 

 In light of the legal and factual shortcomings in Mr. Hancock’s dueprocess claim, no rational jurist could regard the district court’s 

disposition of this claim as reasonably debatable. 

D. Ineffective Assistance of Trial Counsel 

 Before trial, Ms. Tarp said three times that Mr. Jett had hit 

Mr. Hancock with the bar. But at trial, Ms. Tarp modified this part of her 

account, saying that she was unsure whether Mr. Jett had (1) actually hit 

Mr. Hancock with the bar, or (2) just swung it at him. Mr. Hancock argues 

that his trial counsel was ineffective for failing to adequately impeach Ms. 

Tarp. 

 The Strickland standard applies. Under Strickland, Mr. Hancock 

must show that (1) counsel provided legal representation that was 

objectively unreasonable, and (2) the deficiency was prejudicial. 

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Strickland v. Washington, 466 U.S. 690, 687-88 (1984); see p. 42, above. 

The federal district court concluded that Mr. Hancock had failed to make 

this showing. Hancock v. Workman, No. 5:08-cv-327-F, at 102 (W.D. 

Okla. filed Feb. 3, 2009) (unpublished). 

 Any reasonable jurist would conclude that Mr. Hancock was not 

prejudiced by the way that his trial counsel cross-examined Ms. Tarp. That 

cross-examination showed that Ms. Tarp had changed her account: 

Q: Did you – did you see any blood on Mr. Hancock after 

[Mr. Jett] was swinging the [break-over bar] around? 

A: No. 

Q: Did you – did you think it hurt? 

A: Well, I imagine if he would have been hit with it, I would 

have either heard [Mr. Hancock] say something or 

something. 

Q: Okay. 

A: So my feelings – but if I think back on it now, I don’t 

believe that he was hit with it because if he had, I’m sure 

that it would have been a reaction on [Mr. Hancock’s] 

side, and he was just sitting there. 

Q. Okay. Do you remember being asked – At Page 105, Line 

18. “Okay. And then did you see when he hit the guy? 

Did it cause an injury? Was it bleeding or anything like 

that?” And you said: “I didn’t see any blood, but I 

imagine it hurt.” 

A: Well, yeah, if he got hit by it. I don’t know if he got hit 

by it or not. I didn’t see any repercussions that he had 

been hit, but I imagine if somebody, anybody got hit on 

the side of the head with one of those, it would hurt. 

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Q: Well, you didn’t say that you thought he was swinging it. 

You said when he hit him, in your answer that you gave 

under oath at the preliminary hearing in December of 

2002. 

A: Okay. 

Q: Okay? 

A: But I’m not sure if he hit him or he didn’t hit him. It 

looked like he was – he was close enough he could have 

hit him. 

Trial Tr., vol. VI, pp. 231-32 (emphasis added). 

 Mr. Hancock’s counsel could have also impeached Ms. Tarp with her 

two other prior statements. But in light of the existing impeachment, the 

additional statements would probably not have made a difference. 

Therefore, any reasonable jurist would agree with the district court’s 

decision to reject the claim based on a lack of prejudice. 

E. Ineffective Assistance of Appellate Counsel 

 Mr. Hancock also contends that his appellate counsel was ineffective 

for failing to assert ineffectiveness of trial counsel. As discussed above, 

however, no rational jurist could regard trial counsel’s cross-examination 

of Ms. Tarp as prejudicial. See pp. 57-59, above. Because the crossexamination was not prejudicial, no reasonable jurist could fault appellate 

counsel for failing to assert ineffectiveness of trial counsel. 

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60 

F. Sufficiency of the Evidence for Heinousness, Atrocity, or 

 Cruelty 

 Oklahoma law provides for a “heinous, atrocious, or cruel” 

aggravating circumstance for purposes of a death sentence. Wilson v. 

Sirmons, 536 F.3d 1064, 1105 (10th Cir. 2008). The jury found the 

presence of this circumstance for the murders of Mr. Jett and Mr. Lynch. 

Mr. Hancock argues that the evidence was constitutionally insufficient for 

a finding of heinousness, atrocity, or cruelty. 

 For this circumstance, the jury had to find that there was proof of 

“torture or serious physical abuse.” Robinson v. State, 900 P.2d 389, 400 

(Okla. Crim. App. 1995). Serious physical abuse can be shown by facts 

about the killing itself, the killer’s attitude, and the victim’s suffering. Id. 

Extreme mental cruelty will also satisfy the circumstance, and “[t]he 

length of time which the victim suffers mental anguish is irrelevant.” 

Berget v. State, 824 P.2d 364, 373 (Okla. Crim. App. 1991). 

 The OCCA concluded that the evidence was sufficient for a jury to 

find this aggravating circumstance, pointing out that 

 Mr. Jett had been shot in four places, three resulting in 

 painful injuries, 

 Mr. Jett had run from his home to escape, but Mr. Hancock 

 gave chase, 

 Mr. Hancock had fired the final shots while Mr. Jett was on 

 the ground in the backyard, moaning and writhing in pain, 

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61 

 Mr. Lynch had suffered gunshot wounds to his face, hand, and 

 lower chest, 

 Mr. Lynch had seen his friend, Mr. Jett, being shot, 

 Mr. Lynch had been unarmed and had not posed a threat to Mr. 

 Hancock, 

 Mr. Hancock had fired the last round at Mr. Lynch while he 

 was lying wounded on the floor, and 

 Mr. Jett had lingered for several minutes before dying. 

 

Hancock v. State, 155 P.3d 796, 824 (Okla. Crim. App. 2007). The federal 

district court concluded that the OCCA had applied the applicable law and 

reasonably found the aggravating circumstance. Hancock v. Workman, No. 

5:08-cv-327-F, at 77 (W.D. Okla. filed Feb. 3, 2009) (unpublished). The 

district court’s conclusion was not reasonably debatable. 

 A rational jury could find that these facts showed extreme mental 

anguish, if only for a short time. Both victims suffered because of their 

awareness of their impending deaths and their helplessness, and we have 

upheld a finding of the same aggravating circumstance under similar 

circumstances. See Wilson v. Sirmons, 536 F.3d 1064, 1105 (10th Cir. 

2008) (concluding that the OCCA reasonably applied Jackson v. Virginia 

in concluding that the victim’s awareness of his pending murder could 

have led a reasonable factfinder to believe that the essential elements of 

the aggravating circumstance were satisfied beyond a reasonable doubt). 

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62 

 Mr. Hancock points to other Oklahoma cases to show inconsistency 

by the OCCA in its requirements for the aggravating circumstance. But 

our role is not to question the internal consistency of Oklahoma case law. 

See 28 U.S.C. § 2254(d) (2012). Rather, our role is to (1) identify the 

elements of the offense, and (2) determine whether the OCCA reasonably 

determined that a rational factfinder could find these elements beyond a 

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). No 

reasonable jurist could credit Mr. Hancock’s challenge. 

G. Summary 

The federal district court’s disposition of the additional challenges 

is not reasonably debatable. Therefore, we deny the motion to expand the 

certificate of appealability. 

IX. Conclusion 

 In summary, we affirm the district court’s denial of habeas relief 

and deny Mr. Hancock’s motion to expand the certificate of appealability. 

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12-6255, Hancock v. Trammell 

LUCERO, J., dissenting. 

 I concur in all but Section IV(B) of the majority opinion, in which my esteemed 

colleagues hold that Hancock “has failed to prove that the OCCA’s decision was based 

on an unreasonable determination of the facts.” (Majority Op. 27.) In so holding, my 

colleagues fail to credit Hancock’s proof that the OCCA concluded that the trial court 

admitted the evidence under Okla. Stat. tit. 12 § 2609(B), when in fact the trial court 

expressly excluded the evidence under that section. My colleagues acknowledge that 

“[t]he OCCA did not tell us what it thought the district court had relied on to admit the 

evidence,” (Majority Op. 27), but they mistakenly read ambiguity into this silence. They 

fail to recognize that the only logically consistent reading of the OCCA decision is that it 

is improperly predicated on a misreading of the trial court decision. 

 This leaves a situation in which Hancock will be executed because the majority 

finds the OCCA ruling to be so confusing and ambiguous that my colleagues are unable 

to discern what the OCCA’s factual determinations were. But judges of the OCCA are 

not pro se litigants whose “pleadings” must be construed liberally; they are experienced 

appellate jurists. AEDPA deference is meant to prevent federal judges from reversing 

state-court merits decisions based on mere disagreement. This purpose is not implicated 

when the grounds for a state court decision are so inscrutable that they cannot be 

identified with some degree of certitude.1

 

 1

 I do not contest that the text of AEDPA unambiguously puts the burden on 

Hancock to prove that the OCCA made a mistake of fact. (See Majority Op. 20-21 n.4. 

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-2- 

On my review of the record, I conclude that the state trial court admitted evidence 

of Hancock’s 1982 manslaughter conviction and self-defense plea for impermissible 

reasons. On appeal, that evidentiary admission was nevertheless upheld by the OCCA 

based on its clear misapprehension of the trial court’s rationale. Yet, according to today’s 

majority, that misapprehension is unreviewable because the reasoning of the OCCA is 

exceptionally abstruse. This seems to me little less than compounding of error, and 

compels my dissent. 

I 

 I agree with the majority that the OCCA made a decision on the merits when it 

reviewed the evidentiary ruling at issue for plain error. (Majority Op. 15-16 (citing 

Thornburg v. Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005)).) I further agree that 

Hancock waived any argument that the evidentiary ruling constituted an unreasonable 

application of federal law. (See id. at 27-28.) Accordingly, we may address the merits of 

his habeas claim de novo only if the OCCA’s decision was “based on an unreasonable 

determination of the facts in light of the evidence presented.” § 2254(d)(2). I agree that 

Hancock can meet his burden by proving that the OCCA plainly misapprehended or 

misstated the record. (Majority Op. 16-17 (citing Byrd v. Workman, 645 F.3d 1159, 

1171-72 (10th Cir. 2011))); accord Brumfield v. Cain, 135 S. Ct. 2269, 2276-77 (2015). 

 But I cannot agree that the decision of the OCCA is entitled to deference under 

§ 2254(d)(2). The OCCA concluded that the trial court admitted Hancock’s 1982 

 

(discussing 28 U.S.C. § 2254(e)(1)).) But unlike the majority, I conclude that Hancock 

has met his burden. 

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manslaughter conviction and self-defense plea under the Oklahoma rule for impeachment 

by a prior felony conviction, Okla. Stat. tit. 12, § 2609(B). My colleagues and I agree 

that conclusion is incorrect. Although the basis of the trial court’s decision may have 

been unclear, what is clear is that the trial court ruled the evidence inadmissible under 

§ 2609(B). In proceeding on the theory that the OCCA might have affirmed the trial 

court on alternate grounds, the majority proceeds on a false premise. If the OCCA had in 

fact affirmed the trial court on alternate grounds, it would have said so, just as we do in 

our opinions. It did not do so. Q.E.D.—a false premise leads to an invalid conclusion, 

no matter the degree of rationalization. 

A 

 Before trial, the state moved to admit evidence of Hancock’s 1982 manslaughter 

conviction and self-defense plea under § 2404(B). Under § 2404(B), 

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It 

may, however, be admissible for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident. 

Id. The state argued that the evidence was admissible based on the “visible connection” 

between the 1982 manslaughter and the 2001 homicides, because “the defendant makes a 

claim of self-defense when he is caught committing a violent offense.” After hearing 

argument on the motion, the trial court ruled that the evidence was inadmissible, but that 

the issue could be revisited if Hancock testified. 

 The state then shifted tactics and moved to admit the evidence under § 2609(B). 

Section 2609, titled “Impeachment by Evidence of Conviction of Crime,” provides that 

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“[e]vidence of a conviction . . . is not admissible if a period of more than ten (10) years 

has elapsed since the date of . . . the release of the witness from confinement imposed for 

that conviction . . . unless the court determines . . . that the probative value of the 

conviction . . . substantially outweighs its prejudicial effect.” Id. At a subsequent 

hearing, the trial court deferred ruling on the motion until trial. 

 At trial, the issue resurfaced before Hancock testified. The trial court stated: 

I advised you all of [sic] the past I didn’t believe it was appropriate to 

impeach him with, per se, the manslaughter conviction. However, the state 

has indicated that they were interested in impeaching – not impeaching, but 

questioning about the fact that he – that he claimed self-defense before 

when he killed somebody and then is claiming self-defense again, and 

therefore he’s well-versed in that – how that defense works, in essence, is 

my understanding of your wish to do that. 

(Emphasis added.) This statement evidences confusion on the part of the trial court, 

which had earlier ruled that the 1982 manslaughter conviction was not admissible to 

show proof of knowledge under § 2404(B), but had deferred ruling on impeachment. If 

the purpose of admitting the 1982 manslaughter conviction was to prove Hancock’s 

knowledge, then it should have been admitted as part of the state’s case-in-chief, not after 

the state had rested and the defense was preparing to call Hancock as a witness. 

 Nevertheless, the prosecutor agreed that the 1982 manslaughter conviction was 

admissible only to show knowledge. But she said she “base[d]” her argument “on 2609.” 

Co-counsel affirmed that they were discussing “impeachment through evidence of a prior 

conviction,” and cited Dyke v. State, 716 P.2d 693, 699 (Okla. Crim. App. 1986), a case 

involving § 2609. Perplexingly, the state’s theory of admissibility continued to change. 

In addition to the § 2404(B) and § 2609(B) theories, the state also argued that it would 

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-5- 

use the evidence to show “that [Hancock] offered this defense before, it’s worked for 

[him] successfully in the past because the jury has found [him] guilty of manslaughter 

and gave [him] the minimum sentence allowed by law.” This theory fits neither 

§ 2609(B) nor § 2404(B). Rather, this is a clear statement that the evidence was offered 

to show that Hancock acted in one way in the past, and thus had the propensity to act that 

way again in the future—a purpose plainly forbidden by § 2404(B). 

 After Hancock disputed the state’s theories, the trial court issued its ruling. It first 

explained that “I noticed that [Hancock] uses legal phraseology when he talks to the 

police in describing his actions, in describing he was in fear of great bodily injury. He, in 

essence, quotes the statute back.” This statement articulates why Hancock’s 1982 selfdefense plea might be admissible under the knowledge exception to § 2404(B). The trial 

court then explicitly ruled that the evidence “doesn’t come in under the traditional 

impeachment by a prior conviction. It comes in under the fact that he’s claimed that 

defense before and it was successful for him to a great degree and that he is claiming it 

again.” This statement makes abundantly clear that the trial court did not admit the 

evidence under § 2609(B).2 The stated rationale seems to match most closely the 

prosecutor’s earlier argument for admissibility to show propensity, rather than 

knowledge. However, the trial court later instructed the jury that evidence of Hancock’s 

past offenses was admitted “solely on the issue of the defendant’s alleged . . . 

 2

 The trial court also “recognize[d]” that the evidence was prejudicial, but 

concluded that it was “more probative.” As the majority notes, such weighing sheds little 

light on the basis for the trial court’s ruling, because it is required for evidence admitted 

under § 2404(B), § 2609(B), and the § 2402 residual exception for other relevant 

evidence. (See Majority Op. 20.)

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-6- 

knowledge.” During closing argument, the state repeatedly told the jury that the 1982 

manslaughter conviction was admissible only to show Hancock’s knowledge of selfdefense. 

 Given the trial court’s apparent confusion, it is unsurprising that neither party 

argued on appeal that the evidence was admitted under any one section of the Oklahoma 

Evidence Code. Hancock argued that “the evidence was admitted under what amounts 

to a hybrid theory of Sections 2404 and 2609.” Rather than defend the trial court’s ruling 

under either § 2404(B) or § 2609(B), the state acknowledged that “the trial court’s ruling 

on the admissibility of the defendant’s prior manslaughter conviction does not appear to 

have relied on the Evidence Code,” and that “the record does not reflect the specific law 

upon which the trial court rests her decision regarding this matter.” The state attempted 

to defend the trial court’s ruling as properly “relying upon common law principles and 

not a specific provision or combination of provisions from the Evidence Code.” 

 Federal courts cannot grant habeas relief based on a state court’s erroneous 

application of state law. See Estelle v. McGuire, 502 U.S. 62, 67 (1991). We thus need 

not definitively ascertain which section of the Oklahoma Evidence Code, if any, the trial 

court relied upon to admit the evidence of Hancock’s 1982 manslaughter conviction and 

self-defense plea. Instead, we must determine if the OCCA made “an unreasonable 

determination of the facts in light of the evidence presented.” § 2254(d)(2). To do so in 

this instance, we only need to know what theory the trial court did not rely upon to admit 

the evidence. The trial court was clear and firm on this point: “it doesn’t come in under 

the traditional impeachment by a prior conviction” rule. (Emphasis added.) 

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-7- 

B 

 Despite the trial court’s explicit statement that the evidence was inadmissible 

under § 2609(B), the only reasonable interpretation of the state appellate court opinion is 

that the OCCA nevertheless based its opinion on the proposition that the trial court did 

admit the evidence under that section. Although the OCCA opinion is not easy to 

decipher, my colleagues err by concluding it can be plausibly interpreted in two ways. 

 In its March 9, 2007 opinion, the OCCA first explained that it proceeded on plain 

error review. Hancock v. State, 155 P.3d 796, 813-14 (Okla. Crim. App. 2007).3

 It noted 

that the Oklahoma Evidence Code authorizes the admission of prior felony convictions 

under § 2609. Hancock, 155 P.3d at 814. In acknowledging that the parties had 

characterized the basis for the trial court’s ruling in adversarial positions, the OCCA cast 

doubt on Hancock’s “hybrid” theory, and rejected the state’s common law theory, 

“because the Evidence Code itself sets the terms for admissibility of prior convictions in 

 3

 Hancock’s trial counsel were unaware that they waived the issue of the 

admissibility of Hancock’s 1982 manslaughter conviction and self-defense plea. They 

filed written objections to the state’s motions to admit the evidence, argued against 

admissibility in several hearings, objected to the prosecutor’s reference to facts 

underlying the 1982 conviction, and moved for a mistrial based on the admission of the 

evidence. The trial court repeatedly assured defense counsel that if they asked Hancock 

about the 1982 conviction on direct examination, they would not waive their right to 

appeal the decision to admit the evidence. But both Hancock’s trial counsel and the trial 

court were incorrect. As the OCCA explained, under Oklahoma law, defense counsel 

waived the error by broaching the issue on direct examination. See Hancock, 155 P.3d at 

813-14 (quoting Dodd v. State, 1000 P.3d 1017, 1039 (Okla. Crim. App. 2004)). 

 In both his direct appeal to the OCCA and in his habeas petition to the federal 

district court, Hancock alleged that his trial counsel were ineffective for broaching the 

issue on direct examination. Both courts denied his claim. See Hancock, 155 P.3d at 

821. Hancock has not pursued a certificate of appealability on this issue. 

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criminal cases.” Id. It also stated that the trial court had initially rejected the state’s 

motion to admit the evidence to show Hancock’s knowledge under § 2404(B). Hancock, 

155 P.3d at 814. Although the OCCA did not explicitly say that the trial court admitted 

the 1982 manslaughter conviction and self-defense plea under § 2609(B), that conclusion 

is necessarily implied. The OCCA described § 2609 immediately before it rejected both 

Hancock’s “hybrid” theory and the state’s common law theory, and stated that the 

Evidence Code provided a basis for admissibility. It then acknowledged that the trial 

court had ruled the evidence inadmissible under § 2404(B). By process of elimination, 

the only section of the Evidence Code that the OCCA could possibly have concluded was 

the basis for the trial court’s decision is the section that it actually cited at the beginning 

of its analysis—§ 2609(B). The majority contends that “[t]here are many other sources 

of authority that the district court might have relied on.” (Majority Op. 22.) Yet the 

OCCA did not specify any other sources of authority, or hint that the trial court relied 

upon them. These omissions stand in sharp contrast to the voluminous textual and 

contextual evidence suggesting that the OCCA determined that the trial court admitted 

the evidence under § 2609(B). 

 Moreover, in its recitation of the events at trial, the OCCA explained that the state 

moved to admit the prior manslaughter conviction under § 2609(B) to impeach Hancock 

if he testified. Hancock, 155 P.3d at 814. The OCCA stated that the trial court’s 

“subsequent instructions informed the jury Appellant’s prior convictions were offered as 

impeachment evidence, to show that the defendant’s testimony is not believable or 

truthful, and that [the] jury might consider it only to the extent that you determine it 

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-9- 

affects the believability of the defendant, if at all.” Id. (citing Oklahoma Uniform Jury 

Instructions – Criminal 9-23 (2d ed.)) (quotations omitted). In referencing the jury 

instruction, the OCCA did not distinguish between the 1982 manslaughter conviction and 

Hancock’s other convictions. The OCCA did not mention that the trial court also 

instructed the jury that evidence of Hancock’s prior offenses should be considered only to 

prove knowledge. Later, the OCCA reiterated that the conviction was relevant to 

Hancock’s credibility because he testified that he acted in self-defense. Id. at 815. 

Together, these statements further establish that the OCCA determined that the trial court 

admitted the evidence under § 2609(B). 

 Finally, the OCCA held: 

Plain errors are violations of legal rules clear from the appellate record that 

go to the foundation of the case or take from the defendant a right essential 

to his defense. Despite the creative exchange of theories for and against the 

District Court’s ruling, the State’s manifest purpose in offering evidence of 

the prior conviction and Appellant’s prior plea of self-defense was to attack 

the credibility of Appellant’s current plea of self-defense. The record as a 

whole shows the District Court weighed both the probative value of the 

evidence for this purpose and its prejudicial effect. Appellant’s prior 

conviction and his plea of self-defense were directly relevant to his 

credibility as a witness, as they tended to show that Appellant had 

minimized his responsibility when prosecuted in a previous case and might 

do so again. We reject Appellant’s argument that by admitting the 

evidence under the particular facts and circumstances here the District 

Court committed plain error going to the foundation of the case or taking 

from Appellant a right essential to his defense. 

Hancock, 155 P.3d at 815 (quotations and citations omitted). 

 That the OCCA was conducting plain error review is significant. It belies the 

majority’s suggestion that the OCCA conducted an independent analysis to conclude that 

the evidence was admissible under § 2609(B), and affirmed “because the result . . . was 

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correct even though the reasoning in the district court was wrong.” (Majority Op. 18.) 

Rather, the OCCA was evaluating what the trial court did. As the majority explains, the 

OCCA may perform quasi-de novo review through plain error analysis by analyzing 

whether an error is harmless. (See id. at 22-23.) But the OCCA did not purport to do so. 

If the OCCA intended to conduct harmless error analysis, it would have said so.4 Only a 

strained and implausible reading of the OCCA opinion suggests that “the OCCA could 

have considered what the trial court did and still relied on the [harmless error] prong of 

the plain-error standard.” (Id. at 24.) The majority states that the OCCA might have 

determined that the trial court admitted the evidence under § 2403, and merely signaled 

approval of the trial court’s § 2403 balancing. (Id. at 24-25.) If this was true, one would 

expect the OCCA to at least reference § 2403 in the relevant portion of the opinion. No 

such reference exists. Yet the OCCA was clearly aware of § 2403; it discussed that 

provision just a few paragraphs later while addressing a different evidentiary argument. 

Hancock, 155 P.3d at 818. Reliance on § 2403 is a post-hoc justification, but the 

language used by the OCCA unambiguously shows that the court was reviewing what the 

trial court did, not conducting an independent analysis.

 Notably, the OCCA stated that “[t]he record as a whole shows the District Court 

weighed both the probative value of the evidence for this purpose and its prejudicial 

 4

 The majority concludes that the OCCA’s failure to specify which prong of the 

plain error test it relied upon indicates only that “the OCCA wrote the opinion differently 

than we might have.” (Majority Op. 24 n.5.) I respectfully disagree. Because the OCCA 

was not explicit about the factual basis of its opinion, I consider the context of the OCCA 

opinion for indicia of that factual basis. That context unambiguously indicates that the 

OCCA was analyzing what the trial court did, rather than conducting harmless error 

analysis. 

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effect,” (emphasis added), referring to the state’s intended purpose of impeachment. 

Although the trial court did weigh the probative value and prejudicial effect of admitting 

Hancock’s 1982 manslaughter conviction and self-defense plea, it did so after definitively 

ruling the evidence inadmissible under § 2609(B). The OCCA thus made an 

unreasonable determination of the facts by claiming that the trial court weighed the 

probative value of Hancock’s 1982 manslaughter conviction “for this purpose”—the 

purpose of admitting the evidence under § 2609(B)—because the trial court did no such 

thing.5

 Moreover, if the OCCA was conducting independent analysis to affirm the trial 

court because it reached the correct result for the wrong reason, as the majority suggests, 

then it would be necessary for the OCCA to address the prejudice stemming from the 

admission of the evidence.6

 Section 2609(B) only allows admission of convictions that 

are more than ten years old “if the probative value of the conviction . . . substantially 

 5

 The majority distinguishes between impeaching the credibility of Hancock and 

impeaching the credibility of his self-defense plea. (Majority Op. 26.) This is a 

distinction without a difference. Perhaps there is a situation in which the credibility of a 

plea could be attacked without also attacking the credibility of the person making the 

plea. But in this context, it was manifestly Hancock’s credibility that was at issue. The 

trial court admitted the evidence only because Hancock himself testified. Discussion of 

the evidence before the trial court centered on Hancock’s credibility. Nothing in the 

OCCA opinion indicates that Hancock’s credibility is in any way distinct from the 

credibility of his self-defense plea. 

6

 If the OCCA was conducting independent review to determine that the evidence 

was admissible under § 2609(B), I would also expect it to at least reference its own test 

for conducting that analysis. See Croney v. State, 748 P.2d 34, 37-38 (Okla. Crim. App. 

1987) (instructing courts to consider “the nature of the conviction itself,” whether it has 

“some bearing on the accused’s propensity to tell the truth,” and “the similarity between 

the previous conviction and the present charge”). Yet the OCCA neither considered the 

applicable factors nor cited Croney or its progeny. 

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outweighs its prejudicial effect.” (Emphasis added.) But the OCCA explained only why 

Hancock’s 1982 manslaughter conviction was probative. It was entirely silent as to 

prejudice. It is true that both reviewing the decision of the trial court and conducting 

independent analysis would require the OCCA to address prejudice. (See Majority Op. 

25-26 n.7.) But the omission of the weightier part of the § 2609(B) test is more difficult 

to explain in the context of independent review than in a deferential review of whether 

the trial court erred. Thus, the omission lends further support to the plain meaning of the 

OCCA opinion: that the court was reviewing what the trial court did, not conducting 

independent analysis. 

 The only sentence in the OCCA opinion that plausibly could be construed as 

independent analysis states that Hancock’s “prior conviction and his plea of self-defense 

were directly relevant to his credibility as a witness, as they tended to show that 

Appellant had minimized his responsibility when prosecuted in a previous case and might 

do so again.” Hancock, 155 P.3d at 815 (quotations omitted). This smacks of forbidden 

propensity evidence: because Hancock was prosecuted for homicide and claimed selfdefense in 1982, he is more likely to kill and plead self-defense in the future. Yet the 

OCCA itself acknowledged that propensity evidence is inadmissible under § 2609. See 

Hancock, 155 P.3d at 815 (“Standing alone, the 1982 manslaughter conviction had no 

legal relevance to whether Appellant acted in self-defense in 2001.”). 

 Ultimately, I cannot accept the majority’s conclusion that the OCCA’s opinion 

may plausibly be read as “affirming because the result (admission of the manslaughter 

conviction) was correct even though the reasoning in the district court was wrong.” 

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(Majority Op. 18.) I readily acknowledge that “§ 2254(d)(2) requires that we accord the 

state . . . court[s] substantial deference.” Brumfield, 135 S. Ct. at 2277. But this 

“‘deference does not imply abandonment or abdication of judicial review,’ and ‘does not 

by definition preclude relief.’” Id. (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 

(2003)). The abstruse and conclusory reasoning employed by the OCCA allows readers 

to project a range of more or less plausible interpretations onto the court’s words. But if 

a state court can effectively suspend the Great Writ by writing opinions that are so 

confusing that they cannot be definitively read, the promise of due process of law would 

be hollow indeed. Rather than adopt a liberally construed (and, in my view, manifestly 

inaccurate) interpretation of what the OCCA may have meant, I propose instead we take 

the opinion at face value. Under that facial reading, the OCCA based its decision on an 

unreasonable determination of the facts in light of the evidence presented in the record. 

§ 2254(d)(2). 

II 

Because the OCCA’s decision was based upon an unreasonable determination of 

the facts, I would review the merits of the issue de novo. Magnan v. Trammell, 719 F.3d 

1159, 1175 (10th Cir. 2013). On de novo review, I would conclude that the admission of 

Hancock’s 1982 manslaughter conviction and self-defense plea rendered his trial 

fundamentally unfair, thereby violating his Fourteenth Amendment due process rights. 

See Medina v. California, 505 U.S. 437, 443-44 (1992). We do not apply or consider 

Oklahoma evidence rules in this analysis, but rather must determine whether admission 

of the evidence, “considered in light of the entire record . . . resulted in a fundamentally 

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-14- 

unfair trial.” Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002). We “will not 

disturb a state court’s admission of evidence of prior crimes, wrongs, or acts unless the 

probative value of such evidence is so greatly outweighed by the prejudice flowing from 

its admission that the admission denies the defendant due process of law.” Duvall v. 

Reynolds, 139 F.3d 768, 787 (10th Cir. 1998). 

 There is arguably some marginal probative value to Hancock’s prior self-defense 

plea insofar as it shows that he knew about the existence of the defense of self-defense 

when he killed Jett and Lynch. Such knowledge could have influenced the weight the 

jury gave his testimony. Before consulting with an attorney, Hancock apparently told 

police that he killed Jett and Lynch to prevent great bodily injury, showing his familiarity 

with the legal definition of self-defense. As the trial court remarked, “I noticed that he 

uses legal phraseology when he talks to the police in describing his actions, in describing 

he was in fear of great bodily injury. He, in essence, quotes the statute back.” 

 But the probative value of Hancock’s 1982 self-defense plea is extremely limited, 

because he could have learned about the legal definition of self-defense in many other 

ways. Self-defense is a concept so deeply rooted in our jurisprudence and social fabric 

that it has been a background assumption in not only the law, but also in popular culture, 

literature, and everyday conversations for centuries. See, e.g., William Shakespeare, 

Hamlet act 5, sc. 1 (“How can that be, unless she drowned herself in her own defense?”). 

Anybody who watches Law & Order or reads Agatha Christie knows that self-defense is 

a defense to a murder charge. One would be hard-pressed to find many people who do 

not know this basic legal fact. To elicit this information from Hancock, the state needed 

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only to have asked him if he knew about self-defense. There was no need to establish the 

basis of his knowledge, let alone that he had pled self-defense in the past. 

 Although there may have been vanishingly small probative value to Hancock’s 

1982 self-defense plea, I fail to see any probative value in Hancock’s 1982 manslaughter 

conviction. The state claims that our decision in United States v. Tan, 254 F.3d 1204 

(10th Cir. 2001), makes all prior convictions for similar crimes probative. But Tan does 

nothing of the sort. In Tan, we held that a defendant’s seven prior driving-whileintoxicated convictions were properly admitted to prove malice in a second-degree 

murder trial. Id. at 1210-11. We reasoned that the prior convictions tended to show that 

the defendant knew driving while intoxicated could harm other people, and that he 

therefore had the mens rea necessary to commit murder when he drove intoxicated. Id. 

Far from creating a blanket rule that prior convictions for similar crimes are always 

relevant, Tan held that a specific type of prior conviction could be used to prove mens rea 

for a different charge. Tan does not make Hancock’s 1982 manslaughter conviction 

relevant. 

 The state also claims support from Welch v. Sirmons, 451 F.3d 675 (10th Cir. 

2006). In that case, the trial court admitted evidence that the defendant had previously 

committed a rape and murder in order to establish a common scheme or plan. Id. at 683. 

The previous rape and murder were similar to the rape and murder for which the 

defendant was on trial. Id. The OCCA affirmed, concluding that the evidence was more 

probative than prejudicial. Id. at 687. We denied Welch habeas relief because it was 

highly relevant that both murders and rapes bore similarly distinctive characteristics. Id. 

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at 688. The same is not true of Hancock’s prior conviction. There is little similarity 

between the homicides Hancock committed in 1982 and 2001. In 1982, Hancock brought 

a rifle to a park and used it to kill an unarmed man who had publicly humiliated him, 

after telling many people that he planned to kill the victim and asking around for a gun 

for several weeks. That is a manifestly different situation than the unarmed Hancock 

using Jett’s gun to kill Jett and Lynch, against whom he bore no previous grudge. As we 

explained in Welch, this is a situation where the “minimal relevancy” of the prior 

conviction “suggests the possibility the evidence is being offered to show a defendant is 

acting in conformity with his true character.” Id. at 685. 

 Weighing against this miniscule probative value is the immense prejudice flowing 

from Hancock’s 1982 self-defense plea and manslaughter conviction. The entire case 

centered on the issue of whether the jury credited Hancock’s testimony that he acted in 

self-defense or the state’s theory that Jett withdrew, based on Shawn Tarp’s testimony.7

 

And the prosecution told the jury that they should not credit Hancock’s word on the issue 

because he had pled self-defense before. Jurors could easily have inferred that the 1982 

jury did not credit his self-defense plea because he was convicted of manslaughter, 

further damaging his credibility. Or they could have inferred that Hancock was a bad 

person whose self-defense plea was not credible because of a question the state asked 

 7

 As such, I reject the state’s argument that any error in admitting evidence of the 

1982 self-defense plea and manslaughter conviction was harmless. See Webber v. Scott, 

390 F.3d 1169, 1177 (10th Cir. 2004) (concluding that due process violations reviewed 

de novo in a habeas case can be considered harmless error). All parties recognized from 

the outset that, because the case turned on whether the jury credited Hancock’s or Tarp’s 

testimony, there was a very real possibility that a jury might convict Hancock based on 

his past crimes, rather than what happened in 2001. 

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Hancock on cross-examination: “You were violently attacked? A man leaned into your 

window and you shot him five times, that’s a violent attack?” Improperly tipping the 

balance against the defendant on the core issue in a trial is the very definition of 

prejudice. 

 It is true that the jury was repeatedly admonished that it was only to consider 

Hancock’s self-defense plea as evidence of his knowledge. But “[n]o less an authority 

than the Supreme Court . . . has said, ‘[t]he naive assumption that prejudicial effects can 

be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated 

fiction.’” United States v. Medina-Copete, 757 F.3d 1092, 1108 n.5 (10th Cir. 2014) 

(quoting Burgett v. Texas, 389 U.S. 109, 115 n.7 (1967)). The presumption that juries 

follow their instructions is rebuttable, and is “rooted less in the absolute certitude that the 

presumption is true than in the belief that it represents a reasonable practical 

accommodation . . . .” Richardson v. Marsh, 481 U.S. 200, 211 (1987). 

 In this case, any presumption that the limiting instructions cured the defect is 

rebutted by the sheer frequency with which the state discussed the instruction. During 

closing arguments, the state discussed Hancock’s 1982 self-defense plea, manslaughter 

conviction, and knowledge of self-defense no fewer than six times. The state urged the 

jury to “[r]ecall back, 1982, he’s convicted of manslaughter, and he proudly told you he 

served two years of that four-year sentence . . . [but] don’t consider that manslaughter. 

We don’t want to you [sic] consider that manslaughter and say, you know what, he did it 

before, he’s done it again.” When reminding the jury to follow its instructions, the state 

again stated that “evidence has been introduced of the former conviction of the defendant, 

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that 1982 manslaughter.” The state discredited Hancock’s statement to the police by 

reminding the jury to “keep in mind, when he’s talking to the police, he knows what he 

has to set up for self-defense, because he’s done it before, in 1982.” During its rebuttal 

argument, the state reminded the jury that “it is not our intent for you to decide that the 

defendant committed Murder in the First Degree by malice aforethought because he was 

convicted previous [sic] in 1982 for manslaughter.” The prosecution waved Hancock’s 

1982 manslaughter conviction and self-defense plea in the jury’s face so many times that, 

even with the caveat that it was only to be considered as evidence of knowledge, the 

prejudicial impact is clear. There is a limit to the frequency with which a jury can be told 

“don’t think of an elephant” before we can but assume that the jury was being asked, with 

a wink and a nod, to think of an elephant. 

 Moreover, not all of the state’s references to the challenged evidence were limited 

to the theory that it proved his knowledge of self-defense. The state spun its knowledge 

theory into a propensity argument when it told the jury: “In 1982, when he’s convicted 

of that manslaughter, he puts up the same defense. He knows what to do this time 

around.” It told the jury that Hancock was less credible than Tarp because of the 

manslaughter: “[R]emember, in order to not believe Smokey, you have to believe the 

defendant . . . . Who is the eight-time – seven-time convicted felon? Who knows what a 

defense of self-defense entails?” The prosecutor specifically highlighted Hancock’s 

manslaughter conviction to show that he was a convicted felon, and therefore not 

credible. The state also used the conviction to prove an element of the felon-inAppellate Case: 12-6255 Document: 01019477408 Date Filed: 08/18/2015 Page: 80 
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possession of a firearm charge, even though Hancock had committed other felonies that 

were admissible to prove the same element. 

 Perhaps seeking to prevent the jury from accepting the state’s invitation to convict 

Hancock based on the events of 1982, Hancock’s counsel opened his closing argument by 

telling the jury, “what really I’m afraid of the most in this case . . . [i]s Phillip Hancock’s 

lifestyle, his prior convictions.” It was as obvious to defense counsel at the time of 

Hancock’s trial as it is today that there was a significant risk the jury would convict 

Hancock and discredit his self-defense plea because of what happened in 1982. 

 The details of the 1982 incident were the first thing the state presented to the jury 

during the sentencing phase of Hancock’s trial. The state called multiple witnesses, who 

testified at length about the 1982 incident, and showed the jury pictures of the victim 

covered in blood. Although such evidence was permissible during the sentencing phase 

to prove the continuing threat aggravator, it crystallizes just how prejudicial evidence 

about the 1982 manslaughter conviction was when introduced and discussed extensively 

during the guilt phase of Hancock’s trial. 

 I would therefore conclude that this is the rare case in which the probative value of 

the evidence is “greatly outweighed” by its prejudice, such that Hancock’s right to due 

process of law has been violated. Duvall, 139 F.3d at 787. Despite the prosecution’s 

repeated admonitions—and in part because they were so frequent—there can be no doubt 

but that prejudice occurred and that the jury convicted Hancock on a theory grounded on 

his past conviction and his asserted propensity to kill and then claim self-defense. The 

entire trial came down to whether the jury believed Hancock or Tarp about whether Jett 

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retreated. And the prosecution used both Hancock’s prior self-defense plea and his 1982 

manslaughter conviction to tell the jury that Hancock was not to be believed. Thus, the 

prejudice stemming from the admission of Hancock’s prior crime and plea went to the 

heart of the trial. 

III

 I would REVERSE. 

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