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

### DEC 1 2004 

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

TENTH CIRCUIT

KENNETH EUGENE TURRENTINE, Petitioner-Appellant,

v. No. 03-5028
MIKE MULLIN, Warden, Respondent-Appellee.

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

(D.C. No. 99-CV-055-K(M))

Stephen J. Greubel, Tulsa, Oklahoma, for Petitioner -Appellant. Robert L. Whittaker, Assistant Attorney General, Cr iminal Division (W.A. Drew Edmondson, Attorney General of Oklahoma, with him o n the brief), for Respondent-Appellee.

Before LUCERO , McCONNELL, and TYMKOVICH, Circuit Judges.

McCONNELL , Circuit Judge.-2-

Currently on death row in the State of Oklahoma, Pe titioner Kenneth E. Turrentine (“Mr. Turrentine” or “Petitioner”) appea ls the final order of the United States District Court for the Northern District of Oklahoma, which denied him a writ of habeas corpus on his petition filed pursuant to 28 U.S.C. § 2254. Mr. Turrentine was convicted in the Oklahoma courts on four counts of first degree murder. On three of those counts, he was sentenced to death; on the remaining count, he was sentenced to life in prison without t he possibility of parole. He is currently an inmate of the Oklahoma State Penitenti ary under the custody of Warden Mike Mullin. For the reasons set forth belo w, we reverse in part and affirm in part the decision of the district court. Background The facts as found by the state court are, pursuantto 28 U.S.C. § 2254(e)(1), presumed correct. We recite them as ad opted by the Oklahoma Court of Criminal Appeals, although we present additional facts throughout this opinion as they become pertinent to our analysis. See generally Turrentine v. State of Oklahoma , 965 P.2d 955 (Okla. Crim. App. 1998) (“ Turrentine I ”). The facts of this case are both sad and horrific. On June 4, 1994, Mr. Turrentine killed his sister Avon Stevenson, his es tranged girlfriend Anita Richardson, and Ms. Richardson’s two children, thirteen year old Martise Richardson (“Martise”) and twenty-two year old TinaPennington, sometimes-3-

referred to in the briefs and record as Tina Richar dson (“Tina”). See Turrentine I, 965 P.2d at 963. For three months leading up to th e deadly events of that June, Mr. Turrentine and Ms. Richardson had been experien cing such problems in their relationship that Mr. Turrentine had moved out of t he home they once shared. (T. Tr. 531.) Mr. Turrentine moved in with his sister Ms. Stevenson. Id. While separated from Ms. Richardson and living with his sister, Mr. Turrentine began to believe that Ms. Richardson was having an affair with two other men, and that his sister, Ms. Stevenson, knew of these affairs because she was apparently a friend and confidant of Ms. Richar dson’s. (T. Tr. 532); see also
Turrentine I, 965 P.2d at 963. Whether true or not, he also ca me to believe that Ms. Richardson and Ms. Stevenson were cheating him out of money, to support their drug habits. (T. Tr. 532-33); see also Turrentine I, 965 P.2d at 963. On June 3, 1994, the day before the murders, Mr. Tu rrentine telephoned his ex-wife, Catherine Turrentine, and told her that he was at Ms. Richardson’s house and that things were “about to come to a head.” (T . Tr. 562). That same day, he asked his ex-wife to return to him a .22 caliber pi stol, but she refused. (T. Tr. 561); see also Turrentine I, 965 P.2d at 963. He returned to make the same request the next morning, June 4, 1994, and this ti me his ex-wife gave Mr. Turrentine the loaded pistol. (T. Tr. 562-63); see also Turrentine I, 965 P.2d at
963.-4-

Later in the day on June 4, 1994, Mr. Turrentine co nfronted his sister about Ms. Richardson’s supposed affairs, and an argument ensued. (T. Tr. 532); see also Turrentine I, 965 P.2d at 963. Ms. Stevenson apparently laughe d in Mr. Turrentine’s face during this argument and called h im a “punk.” (T. Tr. 532); see also Turrentine I, 965 P.2d at 963. In response, Mr. Turrentine pla ced the .22 caliber pistol to Ms. Stevenson’s head and fired; s he died at the scene. (T. Tr. 532); see also Turrentine I, 965 P.2d at 964. Mr. Turrentine then drove to Ms. Richardson’s house , where the two began to argue. (T. Tr. 532); see also Turrentine I, 965 P.2d at 963. As they argued, they moved from the front to the back bedroom of th e house and, after more argument and struggle, Mr. Turrentine shot Ms. Rich ardson in the head. She died at the scene. (Tr. 532); see also Turrentine I, 965 P.2d at 963. He subsequently shot both Martise and Tina in the head, and they di ed at the scene as well. Id. After this carnage, Mr. Turrentine talked to a 911 operator and declared that he had shot his “ol lady,” his kids, and his s ister. (State’s Ex. No. 17); see also Turrentine I, 965 P.2d at 964. When officers arrived at the sc ene, they immediately took Mr. Turrentine into custody and ad vised him of his rights under Miranda v. Arizona , 384 U.S. 436, 444 (1966). Mr. Turrentine waived his rights and told the officers that he had shot his sister, his estranged girlfriend, and his girlfriend’s two children. (T. Tr. 531-33); see also Turrentine I, 965 P.2d at 964.-5-

A medical examiner later confirmed that Ms. Stevens on, Ms. Richardson, Martise, and Tina had all died from gunshot wounds to the he ad. Mr. Turrentine was tried before a jury in Tulsa Cou nty District Court and was convicted of four counts of first degree murderfor the killings of Ms. Richardson (count one), Martise (count two), Tina ( count three), and Ms. Stevenson (count four). At the penalty phase of th e trial, the jury found that three aggravating circumstances existed beyond a reasonab le doubt as to counts one, two, and three: 1) that the murders were especially heinous, atrocious, or cruel; 2) that Mr. Turrentine knowingly created a great risk of death to more than one person; and 3) that there existed a probability that Mr. Turrentine would constitute a continuing threat to society. As a re sult, the jury returned sentences of death for each of the first three counts. As to count four, the jury found two aggravating circumstances beyond a reasonable doubtand returned a verdict of life without the possibility of parole. The Oklahoma Court of Criminal Appeals (“OCCA”) aff irmed all four of Mr. Turrentine’s convictions and sentences. Turrentine I, 965 P.2d 955. The United States Supreme Court denied Mr. Turrentine’s petition for writ of certiorari on December 14, 1998, Turrentine v. Oklahoma , 525 U.S. 1057 (1998), and the OCCA denied post-conviction relief on July 17, 1998. Turrentine v. State , 965 P.2d 985 (Okla. Crim. App. 1998) (“ Turrentine II ”). Mr. Turrentine-6-

then filed a petition for writ of habeas corpus pur suant to 28 U.S.C. § 2254 in the District Court for the Northern District of Oklahom a on August 23, 1999. App.
Doc 20. The district court ruled on Mr. Turrentine’s petiti on on January 21, 2003. The court granted the petition in part, but only as to the application of an aggravating circumstance to the charge of murder in count two. Because the district court found that striking this aggravator would not alter the punishment of death, it denied habeas relief on both the convicti ons and the sentences. Dist. Ct. Op. at 88. Mr. Turrentine filed a notice of appeal on January 31, 2003. The district court granted a certificate of appealabili ty on eight grounds: 1) an improper jury instruction regarding the doctrine of transferred intent; 2) an improper instruction on second degree murder; 3) animproper instruction regarding a heinous, atrocious, or cruel aggravatin g circumstance; 4) the sufficiency of the evidence to support a finding of the “heinous, atrocious, or cruel” aggravating circumstance; 5) the sufficiency of the evidence to support a finding of the “great risk of death to more than on e person” aggravating circumstance; 6) the trial court’s improper admissi on of victim impact evidence; 7) the trial court’s refusal to allow expert opinio n for purposes of mitigation; and 8) a claim that the mitigating evidence outweighed the aggravating evidence. We granted a certificate of appealability on two addit ional grounds: 9) alleged-7-

ineffective assistance of trial counsel; and 10) al leged ineffective assistance of appellate counsel. We consider each of these issue s in turn.
Discussion
I. Standard of Review If a claim was adjudicated on the merits in state c ourt, we review the state court ruling under the deferential standard of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, a petitioner is entitled to federal habeas relief only if he can establish thatthe state court decision was “contrary to, or involved an unreasonable applicati on of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the fact s in light of the evidence presented in the State court proceeding.” 28 U.S.C . § 2254(d)(1)–(2); see also Hale v. Gibson , 227 F.3d 1298, 1309 (10th Cir. 2000). In conduct ing this inquiry, we presume the factual findings of the state trial and appellate courts are correct, and we place on the petitioner the burden of rebutt ing this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Darks v. Mullin , 327 F.3d 1001, 1007 (10th Cir. 2003). We review de novo the district court’s legal analysis of the state court decision. Valdez v. Ward, 219 F.3d 1222, 1230 (10th Cir. 2000). In applying 28 U.S.C. § 2254(d), we first ask wheth er the principle of-8-

federal law invoked by the petitioner was clearly e stablished by the Supreme Court at the time of the state court judgment. Id. at 1229. If so, we ask whether the state court decision was contrary to or involve d an unreasonable application of that clearly established federal law. Id. A decision is “contrary to” federal law “if the state court applied a rule different from t he governing law set forth in [Supreme Court] cases, or if it decides a case diff erently than [the Supreme Court has] done on a set of materially indistinguishable facts. Bell v. Cone , 535 U.S. 685, 694 (2002). A state court decision involves a n “unreasonable application” of federal law “if the state court correctly identifie s the governing legal principle from [Supreme Court] decisions but unreasonably app lies it to the facts of the particular case.” Id. Finally, even if the state court adjudication was c ontrary to or involved an unreasonable application of clearly established fed eral law, our inquiry is not complete. Unless the error is a “structural defect [] in the constitution of the trial mechanism, which def[ies] analysis by harmless-erro r standards,” Brecht v. Adamson , 507 U.S. 619, 629 (1993), we must apply the harml ess error standard of Brecht and O’Neal v. McAninch , 513 U.S. 432 (1995). See Herrera v. Lemaster , 301 F.3d 1192, 1200 (10th Cir. 2002). Under Brecht , habeas relief is not proper unless the error had a “substantial and injurious e ffect or influence in determining the jury’s verdict.” 507 U.S. at 623. O’Nealaddresses the situation where the-9-

court is in “grave doubt” about the likely effect o f the error on the jury’s verdict—that is, where “the matter is so evenly bal anced that [the court] feels [itself] in virtual equipoise as to the harmlessnes s of the error.” 513 U.S. at 435. In such a case, O’Nealinstructs the Court to treat the error “as if it h ad a substantial and injurious effect or influence in de termining the jury’s verdict.” Id. (quoting Brecht , 507 U.S. at 623). On issues where the state court has not previously heard a habeas claim on the merits, the framework of § 2254 does not apply. Instead, we review the district court’s legal conclusions de novo and its factual findings for clear error. Mitchell v. Gibson , 262 F.3d 1036, 1045 (10th Cir. 2001). If the dis trict court’s factual findings depend entirely on the state courtrecord, we independently review that record. Walker v. Gibson , 228 F.3d 1217, 1225 (10th Cir. 2000), cert. denied, 533 U.S. 933 (2001).
II. Issues for Review
A. First Stage Jury Instruction Issues 1) Due Process Violation Due to Improper Instruction o n Transferred Intent(Counts II – Martise Richardson – and III – Tina Richardson) Mr. Turrentine first argues that his right to due p rocess under the Fourteenth Amendment to the United States Constitut ion was violated because the trial court improperly instructed the jury on t he doctrine of transferred intent-10-

in its instructions on first degree murder. This a lleged error pertains to Mr. Turrentine’s convictions on counts two and three of his indictment for the murders of Martise and Tina. See O.R. Vol. II, at 342-43. The jury instructions issued by the Oklahoma trial court provided that in order to convict Mr. Turrentine of first degree mur der, the jury must find that “the death was caused with malice aforethought.” I nst. No. 19, O.R. Vol. III 464. The court then instructed the jury that it co uld find “malice aforethought” in cases of transferred intent—that is, where the d efendant had “a deliberate intent to take away the life of a human being or any other person .” Inst. 20, O.R. Vol. III 465 (emphasis added). Apparently through carelessness, this instruction omitted three words: the jury instructions should h ave referred to “a deliberate intention to take away the life of a human being, either the deceased or some other person.” OUJI-CR-428 (First Edition). Omiss ion of the words “either the deceased” rendered the instruction incoherent, impl ying that there exist “other person[s]” who are not comprehended within the cate gory of “human beings” but who may nonetheless be victims of first degree murd er. Mr. Turrentine argues that this instruction constitutes double error: fir st, because the trial court altered the instruction so that the jury was given an instr uction with no basis in law; second, because the court never should have instruc ted the jury on transferred intent in the first place, as that doctrine was notapplicable to the facts of his-11-

case. We regard such sloppiness in the preparation of jury instructions, which apparently passed unnoticed by prosecution, defense , and trial court, disgraceful, especially in a capital case, where scrupulous exac titude can make the difference between life and death. But the question now is wh ether the error was harmless. On direct appeal, the OCCA agreed with Mr. Turrenti ne that the doctrine of transferred intent was not applicable to his cas e but found the error harmless.
Turrentine I, 965 P.2d at 967. Specifically, it found that bec ause the weight of the evidence “supported the findings of first degre e malice aforethought murder,” “[a]ny error in instructing the jury on the law of transferred intent was harmless.” Id. Thus, “[Mr. Turrentine] has failed to show any pr ejudice.” Id. In so concluding, the OCCA applied the wrong harmle ss error standard. The proper harmless error standard is that of Chapman v. California , 386 U.S. 18, 24 (1967), under which “the beneficiary of a co nstitutional error [must] prove beyond a reasonable doubt that the error complained of [was harmless].” The OCCA’s harmless error analysis, on the other hand, placed on the petitioner the burden of demonstrating prejudice. Turrentine I, 965 P.2d at 967 (“Appellant has failed to show any prejudice.”). This decision , therefore, was contrary to clearly established federal law. Bell , 535 U.S. at 694 (habeas court “may issue the writ under the ‘contrary to’ clause if the stat e court applies a rule different from the governing law set forth in [Supreme Court] cases”).-12-

That the OCCA decision was contrary to clearly esta blished federal law, however, is not a sufficient basis for granting hab eas relief. We still must conduct our own harmless error analysis under Brecht , asking whether the underlying error in the trial court had a “substant ial and injurious effect or influence in determining the jury’s verdict.” 507 U .S. at 623. In other words, when a state court fails to apply the proper harmle ss error standard under Chapman (whether the error was harmless “beyond a reasonab le doubt”), the reviewing federal court must evaluate the trial cou rt error under the Brecht standard (whether the error had a “substantial and injurious effect or influence in determining the jury’s verdict”). See Hale , 227 F.3d at 1324-25. Furthermore, the Supreme Court has offered specific guidance on the issue of incorrect jury instructions. In Estelle v. McGuire , 502 U.S. 62, 71-72 (1991), the Court noted that “the fact that [a jury] instru ction was allegedly incorrect under state law is not a basis for habeas relief.” Instead, the appropriate question on habeas review is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due pr ocess.” Id. at 72; see also Hale , 227 F.3d at 1324. In making this determination, th e court must view the instruction “in the context of the instructions as a whole and the trial record.” Id. Thus, our inquiry is not only whether the error h ad a “substantial and injurious effect or influence in determining the ju ry’s verdict,” Brecht , 507 U.S.-13-

at 623, but also “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due pr ocess.” McGuire , 502 U.S. at
72. The district court applied the harmless error analy sis of Brechtand denied habeas relief on counts two and three. After revie wing the evidence presented on the issue of intent, the court found, under reasoni ng similar to the OCCA’s, that ample evidence supported the conclusion that Mr. Tu rrentine intended to kill his victims. Therefore, the court concluded, the incor rect instruction “did not substantially influence the outcome of the trial, a nd certainly did not ‘so infect the entire trial’ that the resulting convictions . . . violated [Mr. Turrentine’s] due process rights.” Dist. Ct. Op. 21, citing McGuire , 502 U.S. at 71. We agree. In spite of any confusion that might hav e been caused by the instruction, the instruction does require the eleme nt of a deliberate intent to take away the life of a human being. In addition to Mr. Turrentine’s own confession, which the jury heard on the 911 tape, they also hea rd the testimony of three officers who were with Mr. Turrentine at the scene immediately after the murders, and who testified that Mr. Turrentine conf essed to killing Martise and Tina. (Tr. Tr. Vol. III, 534; Vol. VI, 1016; Vol. IV, 613.) The jury also heard from a medical expert who testified that both of th ese victims died of a close range gunshot wound to the head, thus negating a po ssible factual finding that-14-

Mr. Turrentine was attempting to kill someone else with each of his shots. (Id

. Vol. IV 696-707, 725.) Indeed, the most probable e ffect of the defective instruction was to eliminate an alternate ground fo r conviction—transferred intent—from the jury’s consideration by rendering i t unintelligible. That could only help, not hurt, the defendant—though on the fa cts of this case, as the district court held, it almost certainly had no eff ect at all. Thus, when viewed in the context of all of the instructions and the enti re trial record, we cannot find that Instruction 20 had a “substantial and injuriou s effect or influence in determining the jury’s verdict,” Brecht , 507 U.S. at 623; nor did the instruction result in a violation of Mr. Turrentine’s due proce ss rights. McGuire , 502 U.S. at 72. The district court was therefore correct to deny habeas relief on this issue.

2) Improper Instruction on Second Degree Murder (Counts II – Martise Richardson – and III – Tina Pennington) More serious is Mr. Turrentine’s argument that the Oklahoma trial court violated his Fourteenth Amendment right to due proc ess when it improperly instructed the jury on second degree murder for cou nts two and three. Mr. Turrentine requested and was granted an instructionon second degree murder. As explained below, the trial court gave an incorre ct instruction—indeed, an instruction that meant the opposite of what it shou ld have said. Defense counsel did not object to the erroneous instruction. (T. T r., Vol. V. at 900-01.) On review, the state appellate court addressed the iss ue on the merits and found the-15-

alleged error harmless, Turrentine I, 965 P.2d at 967-68, as did the district court. Dist. Ct. Op. 25. The jury instruction in question, No. 23, reads: A person may notbe convicted of MURDER IN THE SECOND DEGREE if he/she engages in conduct imminently dang erous to another person that shows a depraved mind in extrem e disregard of human life, although the conduct is not done with t he intention of taking the life of or harming any particular indivi dual. (emphasis added). The italicized word “not” should not have been included. Mr. Turrentine argues that the mistaken inclusion of th e word “not” negated the instruction and thus deprived him of his right to b e considered for a lesser included offense. In effect, he argues, Jury Instr uction No. 23 actually commanded the jury to find him guilty of first degr ee murder or to acquit. The OCCA agreed that the instruction on second degr ee murder was in error, but found it harmless. The OCCA concluded: In this case, the jury was instructed to consider t he second degree murder instructions only if it found a reasonable d oubt as to the defendant’s guilt of first degree murder. It is wel l established that juries are presumed to follow their instructions. As the jury found Appellant guilty of first degree murder in all coun ts, they did not need to consider the charge of second degree murderand the accompanying instructions. Therefore, any error in those second degree murder instructions was harmless as it did n ot have a substantial influence on the outcome of the trial.
Turrentine I, 965 P.2d at 968 (citations omitted). The distric t court reviewed this claim de novo because the OCCA again failed to appl y the Chapman standard;-16-

but, applying Brecht , the district court again denied relief. The dist rict court reasoned, as did the OCCA, that because the jury fo und Mr. Turrentine guilty of first degree murder on all counts, it did not need to reach the issue of second degree murder, and that therefore the error was har mless. Because the OCCA applied a harmless error standard different from that of Chapman , we must consider whether the ailing instruction h ad a “substantial and injurious effect or influence in determining the ju ry’s verdict.” Brecht , 507 U.S. at 623. We are also mindful that our review must c onsider the ailing instruction “in the context of the instructions as a whole and the trial record” when deciding whether the instruction so infected the trial that Mr. Turrentine’s conviction violates due process. McGuire , 502 U.S. at 72. Instruction No. 22, which preceded the erroneous second degree murder instruc tion, reads: “If you have a reasonable doubt of the defendants’ [sic] guilt on the charge of MURDER IN THE FIRST DEGREE, you must then consider the charge of SECOND DEGREE MURDER.” (emphasis added). It may stand to reasonthat the erroneous instruction, No. 23, is harmless because there was no indication that the jury would have had any reason to move beyond Instructio n 22 to No. 23. However, a reading of the ailing instruction in the context of the proceedings as a whole might also suggest that the jury, after reading all of the instructions, would have concluded that it could not find Mr. Turrentine gui lty of second degree murder-17-

even if it found that all of the elements of that o ffense were present in his case. Mr. Turrentine had, after all, introduced evidence to the effect that he murdered Martise and Tina in the heat of the moment, and that his capacity was diminished at the time of the murders due to his consumption o f a combination of antidepressant medication, anti-anxiety medication, and a large measure of alcohol—including at least a half bottle of vodka. Juries are presumed to follow their instructions. Zafiro v. United States , 506 U.S. 534, 540-41 (1993); United
States v. Carter , 973 F.2d 1509, 1513 (10th Cir. 1992). In this ca se, if the jury followed Instruction 23, it would conclude that the defendant could “not” be convicted of second degree murder even if all the l egal prerequisites for such a conviction were present. This is the equivalent of instructing the jury that no second degree murder alternative was available—thatit was first degree murder or nothing. The approach to this issue taken by the district co urt and the OCCA is inconsistent with the logic of the Supreme Court ca ses requiring a lesser offense instruction in cases where the facts so warrant. As the Court has explained: True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoret ical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction—in this context or any other—precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the element s of the offense charged remains in doubt, but the defendant is plai nly guilty of some-18-

offense, the jury is likely to resolve its doubts i n favor of conviction. Keeble v. United States , 412 U.S. 205, 212-13 (1973); see also United States v. Chanthadara , 230 F.3d 1237, 1257 (10th Cir. 2000), citing Beck v. Alabama , 447 U.S. 625, 635 (1980) (“In the federal courts, it ha s long been beyond dispute that the defendant is entitled to an instruction on a le sser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.”) (internal quotatio n omitted). This is especially true when a defendant faces a capital sentence. As the Court stated in Beck : [W]hen the evidence unquestionably establishes thatthe defendant is guilty of a serious, violent offense—but leaves som e doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the “third opt ion” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in whi ch the defendant’s life is at stake. As we have often stated, there i s a significant constitutional difference between the death penalty and lesser punishments: “[D]eath is a different kind of punishment from any other which may be imposed in this country . . . . From the point of view of the defendant, it is differentin both its severity and its finality. From the point of v iew of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital impo rtance to the defendant and to the community that any decisio n to impose the death sentence be, and appear to be, bas ed on reason rather than caprice or emotion.” Gardner v. Florida , 430 U.S. 349, 357-58 . . . (opinion of STEVENS, J.). To insure that the death penalty is indeed imposed on the basis of “reason rather than caprice or emotion,” we have in validated1 Although we rejected a similar Beck claim in Willingham v. Mullin , 296 F.3d 917 (10th Cir. 2002), there, the State of Okla homa argued that, under Oklahoma law, second degree murder was not a lesserincluded offense of first degree murder and therefore Beck was inapplicable. See Hopkins v. Reeves , 524 U.S. 88 (1998) (Beck

is not violated when a state court refuses to inst ruct on an offense that, under state law, is not a lesser incl uded offense of first degree murder.). The State of Oklahoma has made no such a rgument here; any argument (continued...) -19- procedural rules that tended to diminish the reliab ility of the sentencing determination. The same reasoning must apply to rules that diminish the reliability of the guilt determin ation. Thus, if the unavailability of a lesser included offense instruc tion enhances the risk of an unwarranted conviction, [the States are] constitutionally prohibited from withdrawing that option from the ju ry in a capital case. 447 U.S. at 637-38 (footnotes omitted). Beck thus holds that those facing capital punishment are entitled to have the jury instructed on a lesser included offense when the evidence so warrants. The second degree m urder instruction was warranted in this case because, as noted above, Mr. Turrentine presented substantial evidence of his own diminished capacityat the time of the murders. Inclusion of the word “not” in the instruction for second degree murder, however, deprived Mr. Turrentine of the benefit of this instruction, just as surely as if the motion for a lesser offense instruction h ad been denied. Under Beck, this necessarily had a “substantial and injurious e ffect or influence in determining the jury’s verdict,” Brecht , 507 U.S. at 623; and we conclude that it “so infected the entire trial that the resulting co nviction violates due process.”
McGuire , 502 U.S. at 72. 11 (...continued)

it might have had on this basis has therefore been waived. Abercrombie v. City of Catoosa, Okl. , 896 F.2d 1228, 1231 (10th Cir. 1990) (failure to argue issue in appellate brief or at oral argument constitutes wai ver). -20- It should not be necessary for this Court to point out the seriousness of accurate jury instructions, especially in capital c ases. When a man is on trial for his life, dependent on a jury of his peers, it is n ot too much to ask that prosecution, defense counsel, and most importantly, trial court be alert to errors that could impede the jury in doing its duty. The mistake in this case, inclusion of the word “not,” which turned the intended instru ction into its opposite, was undoubtedly inadvertent. Apparently, no one even n oticed it at trial. But we cannot presume, for purposes of harmless error revi ew, that the jury disregarded its instructions. Our system is based on the oppos ite presumption. If, as the Supreme Court held in Beck, a defendant is entitled to a lesser offense instruction, he is entitled to one without the dist orting word “not.” The error here is sufficiently plain and sufficiently egregio us to necessitate habeas relief even though it went unnoticed at trial and was held harmless on state court review. We therefore reverse the district court’s decision on this challenge and grant Mr. Turrentine’s petition for writ of habeas corpus on counts two and three. Our ruling on this issue, however, does not disturb Mr. Turrentine’s capital sentence for count one.-21-

B. Second Stage Trial Issues Regarding Aggravating F actors Mr. Turrentine next challenges allegedly improper j ury instructions at the penalty phase of his trial. He also argues that th e evidence at trial was insufficient to support two of the three aggravatin g circumstances that formed the basis of his capital sentences. Because we hav e already granted a writ of habeas corpus on counts two and three, these charge s of error are relevant only to Mr. Turrentine’s remaining capital sentence for cou nt one (Ms. Richardson). Mr. Turrentine presented these claims to both the OCCA and the district court and was denied relief. Before the imposition of a death sentence in Oklaho ma, the sentencing court must find beyond a reasonable doubt the exist ence of at least one statutorily defined aggravating factor, and then mu st further determine that the applicable aggravating factors outweigh any mitigat ing circumstances. See Okla. Stat. tit. 21, § 701.11. At the penalty phase of M r. Turrentine’s proceedings, the prosecution attempted to prove three aggravating ci rcumstances in an effort to secure a death sentence on each of the four murder verdicts. The alleged aggravating circumstances were these: 1) that the m urders of the victims were especially heinous, atrocious, or cruel; 2) that Mr . Turrentine knowingly created a great risk of death to more than one person; and 3) that there existed a probability that Mr. Turrentine would commit acts o f violence constituting a-22-

continuing threat to society. See T. Tr., Vol. VI 960-61. In response, Mr. Turrentine presented mitigating evidence, seeking t o avoid a sentence of death. Nevertheless, the jury found the existence of all t hree aggravating circumstances beyond a reasonable doubt for the first three murde r counts, recommending a sentence of death for each count. (T. Tr. Vol. VII 1247-50.) On count four, the jury found the existence of two aggravating circums tances and recommended a sentence of life without the possibility of parole. The Oklahoma trial court sentenced Mr. Turrentine according to these recomme ndations. Mr. Turrentine argues that because the trial court omitted relevant language from the instruction on the “heinous, atro cious, or cruel” aggravating circumstance, the instruction was constitutionally deficient. He also argues that the evidence failed to support the jury’s finding o f this aggravating factor and the factor that he knowingly created a great risk o f death to more than one
person. 1) Improper Jury Instruction on the “Especially Heinou s,

Atrocious, or Cruel” Aggravating Circumstance (Count I – Ms. Richardson) Mr. Turrentine argues that the trial court violated his Eighth and Fourteenth Amendment rights when it omitted the wor d “physical” from the last sentence of the jury instruction on the “heinous, atrocious, or cruel” aggravating circumstance. As presented to the jury, Instructio n No. 35 stated the following:-23-

As used in these instructions, the term “heinous” m eans extremely wicked or shockingly evil; “atrocious” means outrag eously wicked and vile; “cruel” means pitiless, or designed to in flict a high degree of pain, utter indifference to, or enjoyment of, th e sufferings of others. The phrase “especially heinous, atrocious, or cruel ” is directed to those crimes where the death of the victim was prec eded by torture of the victim or serious abuse

. (O.R. Vol. III at 430) (emphasis added). Under Okl ahoma law, the word “physical” should have appeared between the words “ serious” and “abuse” in the last sentence of the second paragraph of the instru ction. See Turrentine I, 965 P.2d at 975. Omission of the word “physical” was a n error of state law. Disturbing though it may be that prosecution, defen se counsel, and trial court all overlooked yet another error in the jury instructio ns—for an astonishing total of three such errors—a federal court under § 2254 may not grant relief unless there was an error of federal law, in other words, unless this error amounted to a violation of the federal constitution. Mr. Turrent ine argues that this instruction, as given, failed to sufficiently narrow the discret ion of the sentencer and was therefore unconstitutionally vague. In order to comply with the dictates of the Eighth Amendment, an aggravating factor must “minimiz[e] the risk of who lly arbitrary and capricious action” by “channeling and limiting . . . the sente ncer’s discretion in imposing the death penalty.” Maynard v. Cartwright , 486 U.S. 356, 362 (1988); Romano-24-

v. Gibson , 239 F.3d 1156, 1175 (10th Cir. 2001). “It must p rovide a principled means by which a sentencer can distinguish between those murders warranting a death sentence and those that do not.” Romano , 239 F.3d at 1175 (citing Maynard, 486 U.S. at 363). Both the OCCA and the district court concluded thatthe jury instruction at issue satisfied this constitutional standard, and t hat any error in the omission of the word “physical” was harmless. The OCCA held th e error harmless because it found that “[t]he term ‘serious abuse’ controls the standard of proof, and that term was given to the jury.” See Turrentine I, 965 P.2d at 975. Furthermore, the court noted, the evidence at trial focused more on the torture aspect of the aggravating factor than the physical abuse aspect. Thus, the error was harmless because it “did not lessen the standard of proof an d . . . could have had no impact on the sentencing decision.” Id. The district court denied relief for essentially the same reasons, although it noted that the OCCA d id not directly cite federal law and, out of an abundance of caution, applied th e harmless error standard of Brecht

. Dist. Ct. Op. 31-33. We, too, apply the harmless error standard of Brecht—asking whether the error had a substantial and injurious effect or inf luence in determining the jury’s verdict—because the OCCA again conducted a harmless error analysis different from that set forth by the Supreme Court in Chapman . Our inquiry is simpler,-25-

however, because this Court has already addressed this precise issue. In Miller v. Mullin , 354 F.3d 1288, 1299-1300 (10th Cir. 2004), we hel d that the phrase “serious abuse,” without an additional modifier req uiring that it be “physical,” “still performed its required narrowing function an d imposed restraint upon the sentencer.” Moreover, in this case, given that Ms. Richardson struggled enough to call 911, and that Mr. Turrentine told Ms. Richa rdson that he was going to kill her children before he murdered her, there was ampl e evidence on the basis of which a factfinder could conclude that the “torture ” element was present, even without considering whether there was “serious abus e,” physical or otherwise. We therefore cannot conclude that the ailing instru ction had a “substantial and injurious effect or influence in determining the ju ry’s verdict,” Brecht , 507 U.S. at 623, or that the instruction “so infected the en tire trial that the resulting conviction violates due process.” McGuire , 502 U.S. at 72. Habeas relief on this issue is accordingly denied.

2) Insufficient Evidence on Aggravating Circumstance Regarding “Especially Heinous, Atrocious, or Cruel” Conduct Mr. Turrentine claims that there was insufficient e vidence at trial to support a finding of the “especially heinous, atroc ious, or cruel” aggravating circumstance. At trial, the jury found the aggravator applicable to the first three murder counts—Ms. Richardson and her two children, Martise and Tina. Again, because we have already granted habeas relief as to counts two and three, we-26-

consider this issue only as it applies to the murde r of Ms. Richardson, the basis of count one. When reviewing the sufficiency of the evidence on ahabeas corpus petition, the relevant question is “whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). This standard reflects o ur system’s longstanding principle that it is the jury’s province to weigh t he evidence and to draw reasonable inferences from testimony presented at t rial. Id. Our review under this standard is “‘sharply limited[,]’ and a court ‘faced with a record of historical facts that supports conflicting inferences must pre sume—even if it does not affirmatively appear in the record—that the trier o f fact resolved any such conflicts in favor of the prosecution, and must def er to that resolution.’” Messer v. Roberts , 74 F.3d 1009, 1013 (10th Cir. 1996), quoting Wright v. West , 505 U.S. 277, 296-97 (1992). Because the Oklahoma courts rejected Mr. Turrentine ’s claim on the merits, we again look to AEDPA for the appropriate degree of deference to the state court decision. This Court has not yet settl ed whether a challenge to the sufficiency of the evidence on a habeas petition is a question of fact or a question of law, and therefore whether 28 U.S.C. § 2254(d)(1) or § 2254(d)(2)-27-

applies. See Moore v. Gibson , 195 F.3d 1152, 1176-77 (10th Cir. 1999) (surveying a split in the case law); Torres v. Mullin , 317 F.3d 1145, 1151 (10th Cir. 2003) (noting that the issue remains unsettled ). Section 2254(d)(1) governs questions of law and requires us to determine wheth er the state court decision was “contrary to, or involved an unreasonable appli cation of, clearly established Federal law.” Section 2254(d)(2) applies to questi ons of fact and asks whether the state court decision was “based on an unreasona ble determination of the facts in light of the evidence presented.” Once again, h owever, “we need not decide this question here because [Mr. Turrentine] is not entitled to habeas relief under either standard.” Dockins v. Hines , 374 F.3d 935, 939 (10th Cir. 2004). When applying the Supreme Court’s standard in Jackson , we look to Oklahoma law to determine the substantive elements of the “heinous, atrocious, or cruel” aggravating circumstance. Valdez v. Bravo , 373 F.3d 1093, 1097 (10th Cir. 2004). As noted above, under Oklahoma law thi s aggravating factor “requires proof that the death was preceded by tort ure or serious physical abuse.”
Turrentine I, 965 P.2d at 976. The OCCA has determined that th e “torture” element of this aggravating factor “may take any of several forms”: Torture may include the infliction of either great physical anguish or extreme mental cruelty. . . . [It] must be the resu lt of intentional acts by the defendant . . . [and] must produce mental an guish in addition to that which of necessity accompanies the underlyi ng killing. Analysis must focus on the acts of the defendant to ward the victim and the level of tension created. The length of tim e which the victim-28-

suffers mental anguish is irrelevant. Berget v. State , 824 P.2d 364, 373 (Okla. Crim. App. 1991). The O CCA has also stated that there are no “specific, uniform criteri a, applicable to all murder cases, which would make the application of the ‘heinous, atrocious or cruel’ aggravator a mechanical procedure.” Robinson v. State , 900 P.2d 389, 401 (Okla. Crim. App. 1995). “Rather, the examination of the facts of each and every case is necessary in determining whether the aggravator was proved.” Id. This rule necessarily makes the determination a case by case inquiry. See id. The OCCA found sufficient evidence in Mr. Turrentin e’s case to support the “heinous, atrocious or cruel” aggravator. The court focused on the “torture aspect” of the aggravator, noting that it “may incl ude the infliction of either great physical anguish or extreme mental cruelty.” Turrentine I, 965 P.2d at 976. It then concluded that [Mr. Turrentine’s] own statements provide the basis for a finding of this aggravator as it pertains to Count I (Anita Ri chardson). [His] statements indicate that he shot Anita first, then Martise and lastly Tina. [He] stated an argument with Anita ensued at the front door, they worked their way to the rear bedroom, where th ey struggled and [he] told her she and her children were going to di e. He then shot her once in the head. . . . [W]e find Appellant’s c onduct and threats sufficient to cause in Anita the extreme mental ang uish necessary to support the mental torture aspect of this aggravato r. Turrentine I, 965 P.2d at 976. The district court denied habea s relief for essentially the same reasons.-29-

Our own review of the evidence confirms the conclus ions of the OCCA and the district court. Before the jury were facts of a struggle and a direct statement by Mr. Turrentine that, prior to shooting Ms. Richardson in the head, he told her that he would kill her children. Furth ermore, the evidence at trial demonstrated that Ms. Richardson pleaded with Mr. T urrentine, “Kenneth, no, no . . . ,” right before he shot her. (State’s Exhibi t #17; T. Tr., Vol. V 838.) In light of these facts, and “after viewing the eviden ce in the light most favorable to the prosecution,” we conclude that “[a] rational tr ier of fact could have found the [presence of the aggravating factor] beyond a reaso nable doubt.” Jackson , 443 U.S. at 319. The OCCA’s decision, therefore, was n either contrary to nor an unreasonable application of Jackson ; nor was it based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1)–(2). Habeas relief on this ground is ac cordingly denied.

3) Insufficient Evidence on Aggravating Circumstance Regarding “Knowingly Created a Great Risk of Death to More than One Person” Mr. Turrentine next argues that the evidence adduce d at trial was insufficient to support the jury’s finding of the “ great risk of death to more than one person” aggravator. Doc. 22, 137-39. Again, w e consider this claim only as it applies to count one, the murder of Ms. Richards on; and again we ask “whether, after viewing the evidence in the light m ost favorable to the-30-

prosecution, anyrational trier of fact could have found the [prese nce of the aggravating factor] beyond a reasonable doubt.” Jackson , 443 U.S. at 319. Oklahoma law furnishes the substantive elements of the “great risk of death to more than one person” aggravator, see Valdez , 373 F.3d at 1097, and makes clear that “killing more than one person is s ufficient to support this aggravating circumstance.” Hooker v. State , 887 P.2d 1351, 1364 (Okla. Crim. App. 1994). This principle is well settled under O klahoma law. See Torres v.
State , 962 P.2d 3, 25 (Okla. Crim. App. 1998); Hain v. State , 919 P.2d 1130, 1147 (Okla. Crim. App. 1996); Cargle v. State , 909 P.2d 806, 831 (Okla. Crim. App. 1995); Stafford v. State , 853 P.2d 223, 225 (Okla. Crim. App. 1993); Sellers v. State , 809 P.2d 676, 691 (Okla. Crim. App. 1991). Accordingly, the OCCA found that the aggravator was sufficiently supported by the “evidence of [Mr. Turrentine] shoo ting and killing three people in the same home.” Turrentine I, 965 P.2d at 978. The district court denied habeas relief on the same grounds, and we agree. I f the “great risk of death” aggravator is satisfied where the defendant has kil led more than one person, then it is obvious in Mr. Turrentine’s case that “[a] rational trier of fact could have found the [presence of the aggravating factor] beyo nd a reasonable doubt.” Jackson , 443 U.S. at 319. In response, Mr. Turrentine argues that the “great risk of death” aggravator-31-

requires “[s]omething more” than a showing that the defendant intentionally murdered several victims. Appellant’s Br. at 91. In fact, he argues, unless this aggravator requires something more—Mr. Turrentine m akes no attempt to define what “something more” might be—it is unconstitution al as applied to his case because it fails to adequately narrow the discretio n of the sentencer. “Otherwise, every defendant charged with two or more homicides immediately becomes eligible for the death penalty for each offense in violation of the Eighth and Fourteenth Amendments.” Id. We have rejected this argument before. In Cartwright v. Maynard, 802 F.2d 1203, 1221-22 (10th Cir. 1986), we held that t here was “no constitutional infirmity” in Oklahoma’s application of the “great risk of death” aggravator, citing a string of Oklahoma cases that upheld the a ggravator based on the mere fact that the defendant killed more than one victim

. Id. ; see also Brecheen v. Reynolds , 41 F.3d 1343, 1360-61 (10th Cir. 1994); Ross v. Ward, 165 F.3d 793, 800-01 (10th Cir. 1999). In Brecheen , we further explained that the aggravator sufficiently narrows the discretion of the sentence r because it “cannot reasonably be said to apply to every defendant convicted of mu rder”—on the contrary, it “only applies to a defined and limited subclass of murderers, namely, those where the defendant’s conduct not only resulted in murder, but also posed a significant risk of death to other individuals.” Brecheen , 41 F.3d at 1360. We-32-

are bound by these precedents and therefore reject Mr. Turrentine’s assertion of the same constitutional argument here. In sum, we find that the “great risk of death” aggr avator, as applied to Mr. Turrentine, complies with the Constitution. We als o find sufficient evidence to support the aggravator under Jackson . We therefore refuse to grant habeas relief under either 28 U.S.C. § 2254(d)(1) or 28 U.S.C. § 2254(d)(2).
C. Other Evidentiary Issues 1) Improper Admission of Victim Impact Evidence Mr. Turrentine claims that the testimony of Jerry R ichardson, Ms. Richardson’s husband and the father of Martise and Tina, which was offered as victim impact testimony during the second stage of the trial, violated his right to due process under the Fourteenth Amendment. The OC CA denied this claim of error on direct appeal, Turrentine I, 965 P.2d at 980-82, and the district court denied habeas relief on the same claim. Dist. Ct. Op. 51-55. Mr. Richardson read his victim impact statement to the jury toward the end of the State’s case in the second stage proceeding. He began: “I’m Jerry Richardson, Martise’s father, Tina’s father, and An ita’s husband. I, Jerry Richardson, am here today to represent my family, A nita, Tina and Martise, who met with an untimely death on June 4th, 1994. They were shot in the head.” (T. Tr., Vol. VI, 1005.) At this point, Mr. Turrentine ’s counsel objected that the-33-

statement was characterizing the crime, in violatio n of Payne v. Tennessee , 501 U.S. 808 (1991). The trial court overruled the obj ection, and Mr. Richardson continued: “They were shot in the head, a tragic an d wrongful death. Anita Richardson, my wife, was shot in the back of the he ad, while on the phone with 911. Martise Richardson, age 13, was shot in the f orehead while protecting his mother. This was a brutal murder for no reason.” (T. Tr., Vol. VI, 1006.) Defense counsel again objected to the testimony as a violation of Payne , and the court again overruled. Mr. Richardson then describ ed each victim and the effect of their death on him and other family members, con cluding with a request that the jury “let justice be done.” (T. Tr., Vol. VI, 1008.) The following then transpired: MR. RICHARDSON: Please let justice be done – MR. ROWAN: [defense counsel] Your Honor, objection. May I approach the bench? THE COURT: All right. (The following proceedings we re conducted at the bench, out of the hearing of the jury.) MR. PRIDDY: [prosecutor] Judge, this is his stateme nt, just that justice be - - MR. ROWAN: Your Honor, the comment let justice be d one is nothing but a blatant request for the death penalty , nothing but a blatant request for the death penalty, and I objectand move for a mistrial. THE COURT: What’s your response?-34-

MR. PRIDDY: Judge, it’s no request for any form of punishment. It’s just a request that justice be done. THE COURT: All right. I’ll overrule it. (The foll owing proceedings were conducted within the hearing of the jury.) MR. PRIDDY: Please continue Mr. Richardson. MR. RICHARDSON: Thank you. Please let justice be d one in the murders of my family, the murders of our family, An ita, Tina and Martise. I only dream and hope today is [sic] thatthe truth will come out and that justice will prevail, then maybe our f amily can rest in peace. Id. at 1008-09. Mr. Turrentine asserts three basic flaws in Mr. Ric hardson’s victim impact testimony: 1) the statement improperly characterize d the murders, 2) the call to “let justice be done” should have been excluded as “a thinly veiled recommendation of the death sentence,” and 3) the t rial court should have instructed the jury on how it could use the victim impact statement in its sentencing decision. Appellant’s Br. at 99-100. T hese flaws, he argues, rendered the sentencing hearing so fundamentally un fair that the resulting sentence violates due process. This argument is ba sed on Payne , where the Supreme Court overruled portions of its decisions i n Booth andSouth Carolina v. Gathers , 490 U.S. 805 (1989), and held that the Eighth Ame ndment erects no per

se bar to victim impact evidence. 501 U.S. at 827. The Court acknowledged that “[a] State may legitimately conclude,” as Oklahoma has, see Okla. Stat. tit. 21, §2 Mr. Turrentine does not argue that the victim impac t statement violates the

Eighth Amendment as interpreted by the Supreme Court in Booth v. Maryland, 482 U.S. 496 (1987). Booth held—and the Supreme Court’s subsequent decision in Payne left undisturbed, see Hain v. Gibson , 287 F.3d 1224, 1238-39 (10th Cir. 2002)—that “the admission of a victim’s family memb ers’ characterizations and opinions about the crime, the defendant, and the ap propriate sentence violates the Eighth Amendment.” Payne , 501 U.S. at 830 n. 2. Had Mr. Turrentine argued that Mr. Richardson’s testimony violated Booth in addition to Payne , we would need to determine whether the OCCA’s decision was c ontrary to or involved an unreasonable application of Booth and, if so, whether the error was harmless. See Hooper v. Mullin , 314 F.3d 1162, 1174 (10th Cir. 2002). But since Mr. Turrentine has not advanced this argument, we need not address it. Abercrombie , 896 F.2d at 1231. -35- 701.10(c) (1992), “that evidence about the victim a nd about the impact of the murder on the victim’s family is relevant to the ju ry’s decision as to whether or not the death penalty should be imposed.” Id. In most cases, such evidence “serves entirely legitimate purposes.” Id. at 825. But in some cases, victim impact evidence is “so unduly prejudicial that it r enders the trial fundamentally unfair” in violation of the due process clause of t he Fourteenth Amendment. Id. Mr. Turrentine argues that this is “exactly what tr anspired in his case.” Appellant’s Br. at 101. 2 This argument requires us to determine whether Mr. Richardson’s testimony was “so unduly prejudicial that it render [ed] the [sentencing hearing] fundamentally unfair.” Payne , 501 U.S. at 825. Because the OCCA rejected this claim on the merits, however, our review is limited to the question of whether its decision was contrary to or involved an unreasonabl e application of Payne . 28-36-

U.S.C. § 2254(d)(1). We conclude, as did the distr ict court, Dist. Ct. Op. 51-55, that it was not. Particularly instructive on this issue is our decis ion in United States v. Chanthadara , 230 F.3d 1237, 1274 (10th Cir. 2000). There, the jury heard victim impact statements from the victim’s husband and two children, ages seven and ten. Id. at 1274. The husband supplied the jury with numer ous color photos of the victim while she was alive, and the two chil dren ended their testimony in

tears. Id. After the sentencing hearing, in the jury room, t he jury viewed letters the children had written to their dead mother and adaily journal describing one child’s loss. Id. In spite of the inflammatory nature of this evide nce, we concluded that the evidence was not so prejudicial as to render the proceeding fundamentally unfair. Id. In this case, compared to Chanthadara , the jury heard substantially less victim impact evidence, and the evidence it did hear was less emotionally charged. Mr. Richardson’s isolated com ment that the murder of Martise was “brutal,” while likely improper, was no t so inflammatory as to render the sentencing proceeding fundamentally unfa ir. Nor was the enigmatic request to “let justice be done” or the lack of a s pecial instruction on victim impact evidence enough to tip the scales. We there fore conclude that the OCCA’s decision was neither contrary to nor involve d an unreasonable application of Payne and, accordingly, deny habeas relief on this issue

.-37- 2) Improper Refusal to Allow Mitigating Evidence Regar ding State of Mind Mr. Turrentine next argues that the trial court vio lated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by excludin g certain mitigating evidence from the sentencing stage of his trial. S pecifically, Mr. Turrentine sought to introduce the expert testimony of one Dr. Smith, who would have testified to Mr. Turrentine’s diminished capacity at the time of the murders. Although the trial court admitted similar evidence at the guilt stage of the trial, it excluded Mr. Smith’s testimony from the sentencing stage. Mr. Turrentine now claims that the exclusion of this mitigating eviden ce was improper under Eddings v. Oklahoma , 455 U.S. 104, 113-14 (1982), which held that sent encing courts may not “refuse to consider, as a matter of law, . . . relevant mitigating evidence.” (emphasis omitted) As Mr. Turrentine concedes, however, Reply Br. at 1 6-18, this claim is procedurally barred because it was not raised on di rect appeal. We may consider it only if Mr. Turrentine can demonstrate either “c ause for the default and actual prejudice resulting from the alleged violation of f ederal law,” or, alternatively, “that failure to consider the claim[] will result i n a fundamental miscarriage of justice.” Coleman v. Thompson , 501 U.S. 722, 750 (1991). Mr. Turrentine argues that the “cause for the defau lt” was his appellate counsel’s ineffective assistance in failing to appe al the evidentiary issue. See-38-

Ellis v. Hargett , 302 F.3d 1182, 1186 (10th Cir. 2002) (“A showing that a defendant received ineffective assistance of counse l will establish cause excusing a procedural default.”). Ineffective assistance cl aims are governed by the familiar two-part test of Strickland v. Washington , 466 U.S. 668 (1984), under which the petitioner “must establish that (1) couns el’s performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been different.” Hain , 287 F.3d at 1231. Application of Strickland requires us to “look to the merits of the omitted issue.” Id. But before we look to the merits, we note that the OCCA has already addressed Mr. Tur rentine’s claim of ineffective assistance of appellate counsel. Turrentine II, 965 P.2d at 990. AEDPA therefore confines our review to the questionof whether the OCCA’s decision was contrary to or involved an unreasonabl e application of Strickland

. 28 U.S.C. § 2254(d)(1); see Hain , 287 F.3d at 1231. With regard to the first prong of Strickland —whether counsel’s performance was objectively unreasonable—the OCCA p ointed out that “[a]ppellate counsel filed a well written, thorough ly researched brief raising numerous claims at least equally meritorious to tho se which were omitted and are at issue here.” Turrentine II, 965 P.2d at 990. Moreover, Mr. Turrentine failed to show “that appellate counsel’s judgment was unre asonable under the-39-

circumstances or did not fall within the wide range of professional assistance owed to a client by an attorney.” Id. (internal quotation omitted). Thus, having concluded that appellate counsel’s performance sati sfied an objective standard of reasonableness, the OCCA rejected Mr. Turrentine’s ineffectiveness claim. We would also add that under the second prong of Strickland, Mr. Turrentine must demonstrate a reasonable probability that, but for his appellate counsel’s failure to appeal the evidentiary issue, the outcome of the proceedings would have been different. The record demonstrates that during the initial stage of the trial, counsel introduced considerable evidence on Mr. Tur rentine’s diminished capacity at the time of the murders. The jury cons idered the evidence and refused to reduce the offenses from first degree mu rder to a lesser degree of homicide. We fail to see how the introduction of e xpert testimony covering the same ground—“[Mr.] Turrentine’s inability to formul ate specific intent at the time he shot and killed his family members,” as Mr. Turrentine’s brief puts it, Br. at 107—would have had a significant impact on t he jury’s sentence. An appeal of this issue, therefore, would have been un likely to result in a reversal of Mr. Turrentine’s sentence. With this in mind, and in light of Strickland ’s mandate that “[j]udicial scrutiny of counsel’s perf ormance . . . be highly deferential,” 466 U.S. at 689, we cannot say that appellate counsel’s decision to focus on other, presumably more promising, issues w as constitutionally deficient.-40-

The OCCA’s decision, therefore, was neither contrary to nor involved an unreasonable application of Strickland . Because the ineffective assistance claim fails, Mr. Turrentine has also failed to demonstrat e adequate cause for his procedural default. The underlying claim is theref ore procedurally barred, and we deny habeas relief on that ground.

3) Evidence of Mitigation Outweighed Evidence of Aggravation Mr. Turrentine next contends that his death sentenc e violates the Eighth and Fourteenth Amendments for two reasons: first, b ecause the mitigating evidence outweighed the aggravating evidence; and s econd, because the OCCA failed adequately to reweigh the aggravating and mi tigating factors on appeal. As for the first argument, the parties agree that t he relevant question on review is whether, after viewing the evidence in th e light most favorable to the prosecution, any rational trier of fact could have found that the aggravating evidence outweighed the mitigating evidence. Jackson , 443 U.S. at 319. Although the OCCA did not directly cite Jackson , it applied an analogous state standard, asking “whether there was sufficient evid ence from which a rational sentencer could find that the balance of aggravatin g and mitigating circumstances warranted a death sentence.” Turrentine I, 965 P.2d at 979 (citing Spuehler v.
State , 709 P.2d 202, 203-04 (Okla. Crim. App. 1985), whi ch relied on Jackson ). We therefore ask whether the OCCA’s decision was co ntrary to or involved an-41-

unreasonable application of Jackson , or whether it was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1)–(2). Mr. Turrentine has failed to demonstrate that the O CCA’s decision was lacking in either respect. He simply lists the rel evant aggravating and mitigating evidence and asserts, without argument, that “the m itigation evidence in this . . . case so outweighs the evidence of aggravation that the OCCA’s adjudication of this issue resulted in a decision based on an unrea sonable determination of the facts in light of the evidence presented.” Appella nt’s Br. at 114-15. This is not enough for us to conclude that the OCCA’s decision fails the deferential standard of review under AEDPA, especially in light of the s ubstantial evidence before the court that the murders were especially heinous, atrocious, or cruel, that Mr. Turrentine knowingly created a great risk of death to more than one person, and that there existed a probability that Mr. Turrentin e would commit acts of violence constituting a continuing threat to society. The OCCA’s decision was based on a reasonable determination of the facts an d application of Jackson , and we therefore deny habeas relief on this ground. Mr. Turrentine also argues that the OCCA failed to adequately reweigh the aggravating and mitigating factors on appeal. When a state appellate court finds that a death sentence has been based in part on an improper aggravating-42-

circumstance, it may still uphold the death sentenc e if it finds, after reweighing the evidence, that the remaining aggravating circum stances outweigh the mitigating circumstances. Clemons v. Mississippi , 494 U.S. 738, 741 (1990). But the state appellate court must, at a minimum, “ actually reweigh[]” the evidence. Richmond v. Lewis , 506 U.S. 40, 48 (1992). Mr. Turrentine claims that the OCCA failed to actually reweigh the eviden ce for count three after it invalidated the “heinous, atrocious, or cruel” aggr avating circumstance as applied to that count. However, because we have al ready granted habeas relief on count three, we need not address this issue.
D. Ineffective Assistance of Trial Counsel Mr. Turrentine has argued seven grounds for ineffec tive assistance of trial counsel: 1) Trial counsel failed to present expert testimony concerning Mr. Turrentine’s mental health, as he promised to do in opening argument; 2) Trial counsel conceded an aggravating circumstance; 3) Tr ial counsel failed to present evidence of diminished capacity and failed to obtai n instructions on lesser included offenses; 4) Trial counsel failed to respo nd to the State’s motion in limine to exclude evidence of Mr. Turrentine’s ment al state; 5) Trial counsel conceded Mr. Turrentine’s guilt; 6) Trial counsel f ailed to obtain from the county jail medical records pertinent to Mr. Turrentine’s competence to stand trial; 7) Trial counsel failed to investigate and present mit igating evidence on Mr.-43-

Turrentine’s history of childhood abuse. The OCCA found against Mr. Turrentine on the first two claims, which Mr. Turrentine had raised on direct appeal, and the district court agreed with that disposition. The OCCA found that Mr. Turrentine ha d defaulted on his remaining ineffectiveness claims by failing to dire ctly appeal them; the district court nevertheless reviewed those claims de novo an d found them to be meritless.

1) Ineffective Assistance Standard Claims of ineffective assistance of counsel are m ixed questions of law and fact. Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999) (applying AEDPA). As noted above, these claims are governed by the two-part Strickland test, under which the petitioner “must establish [1 ] that counsel’s performance was constitutionally deficient and [2] that counsel ’s performance prejudiced the defense, depriving the petitioner of a fair trial w ith a reliable result.” Boyd v. Ward, 179 F.3d 904, 913 (10th Cir. 1999), citing Strickland, 466 U.S. at 687. To prove deficient performance, Mr. Turrentine “must o vercome the presumption that counsel’s conduct was not constitutionally def ective.” Wallace , 191 F.3d at 1247. “Judicial scrutiny of counsel’s performance is highly deferential.” Id. Mr. Turrentine must demonstrate that counsel’s perf ormance was not merely wrong, but fell below “an objective standard of rea sonableness.” Strickland, 466
U.S. at 688.-44-

If Mr. Turrentine demonstrates that counsel’s perfo rmance was deficient, he still must show prejudice before a reviewing cou rt may rule in his favor. In order to show prejudice, Mr. Turrentine must demons trate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. When a petitioner challenges conduct during the sentencing stage of the trial, h e must demonstrate “a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitig ating circumstances did not warrant death.” Stafford v. Saffle , 34 F.3d 1557, 1564 (10th Cir. 1994) (quoting Strickland, 466 U.S. at 695). When addressing a claim of ineffective assistance o f counsel, the reviewing court must make every effort to “eliminat e the distorting effects of hindsight, to reconstruct the circumstances of coun sel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689. This is especially true when we exami ne counsel’s decision to investigate—or not to investigate—matters that mate rially affect a defendant’s case. As the Supreme Court has observed: [S]trategic choices made after thorough investigati on of law and facts relevant to plausible options are virtually u nchallengeable; and strategic choices made after less than complete inv estigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigation s or to make a-45-

reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments. Strickland, 466 U.S. at 690-91.

2) Claims Raised on Direct Appeal

a. In contravention of his promise to do so in opening argument, trial counsel failed to present expert testimony concerning Mr. Turrentine’s mental health

. Mr. Turrentine’s counsel declared in his opening ar gument that he would present a mental health expert, which he ultimately failed to do. According to Mr. Turrentine, this failure constituted ineffectiv e assistance of counsel. The OCCA applied Strickland and rejected this argument on the merits. We ther efore ask whether its decision was contrary to, or an unr easonable application of, Strickland ; or whether it was based on an unreasonable determ ination of the facts in light of the evidence presented. 28 U.S.C. § 22 54(d)(1)–(2). The OCCA concluded that Mr. Turrentine had failed t o establish either deficiency or prejudice under Strickland . With respect to deficiency, the OCCA observed: Based upon this record, counsel’s decision not to c all the mental health professionals during first stage appears to have been a strategic decision. After hearing all of the State ’s evidence, counsel seemed to focus the defense on intoxication and notinsanity. Focusing and narrowing the defense based upon the S tate’s evidence is a valid strategy. This Court has declined to se cond guess trial strategy on appeal. That the strategy proved unsuc cessful is not-46-

grounds for branding counsel ineffective. Absent ashowing of incompetence, the appellant is bound by the decisio ns of his counsel and mistakes in tactic and trial strategy do not pr ovide grounds for subsequent attack.

Turrentine I, 965 P.2d at 971 (internal citations omitted). An d with respect to prejudice: [T]he record does not support a claim that counsel’ s decision rendered the trial fundamentally unfair or the verd ict unreliable. Evidence of premeditation and that the Appellant wa s in control of his mental faculties at the time of the murders was substantial. Testimony of Appellant’s depressed state was presented by Appellant himself, by his sister and through a physician’s as sistant at the Veteran’s Administration Hospital who had seen Appe llant the day of the murders and prescribed anti-depressant medicati on. The absence of the mental health professionals did not deny App ellant the ability to present his defense.
Id. We cannot conclude that this analysis fails the def erential standard of review under AEDPA. Mr. Turrentine must show more than that his counsel’s action had “some conceivable effect on the outcome of the proceeding,” because “[v]irtually every act or omission of counsel would meet that test.” Strickland, 466 U.S. at 693. Instead, he must demonstrate thattrial counsel’s “omission” amounted to objectively unreasonable representation or deprived him of a fair trial with a reliable result. This, Mr. Turrentine has not done; habeas relief is accordingly denied.-47- b. Trial counsel conceded an aggravating circumstance.
Mr. Turrentine contends that trial counsel conceded an aggravating circumstance in the second phase of the trial and t hat this concession constitutes ineffective assistance of counsel. Trial counsel m ade the following statement to the jury at the sentencing hearing: “You know, I co ncede, I concede that maybe the aggravating circumstance of great risk of death to more than one person is there. . . . You will be authorized to determine the death sentence in this case.” T. Tr., Vol. VII, 1220 (emphasis added). However, trial counsel continued: “And that’s the operative word there is authorized, not require, not shall.” Id. After this, trial counsel proceeded to argue the mitigati ng factors. Given the qualifying language that counsel emphasized in his follow-up, we cannot say that his first statement amounts to objectively unreasonable repre sentation. It could easily be viewed as a strategic choice in which trial counsel sought to garner respect for his honesty, which would bolster his credibility during his subsequent discussion of the mitigating factors. The OCCA found this to be the case, Turrentine I, 965 P.2d at 980, and we cannot conclude that this findi ng was an unreasonable application of Strickland . We therefore deny habeas relief.

3) The Procedural Bar to Claims Not Raised on Appeal.
The State argued, and the OCCA found, that claims t hree through seven were procedurally barred from review. The districtcourt held that they were not.-48-

Turrentine II, 965 P.2d at 987-88. Generally, where “a state prisoner has defaulted hi s federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the pr isoner” can show either “cause for the default and actual prejudice,” or, alternat ively, “that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman , 501 U.S. at 750. We have recognized an exception to this gener al rule, however, when the underlying claim is ineffective assistance of couns el. See Osborn v. Shillinger , 861 F.2d 612, 622-23 (10th Cir. 1988). This is bec ause ineffective assistance claims often require a petitioner to consult with s eparate counsel on appeal or develop facts that do not appear in the trial recor d. Brecheen , 41 F.3d at 1363-64. Restricting the litigation of ineffective assistanc e claims to trial and direct review, then, “would seriously interfere with an ac cused’s right to effective representation.” Kimmelman v. Morrison , 477 U.S. 365, 378 (1986). We therefore have recognized exceptions to the Oklahom a procedural bar where a petitioner had the same counsel at trial and on app eal, or where the ineffectiveness claim cannot be resolved solely on the basis of the trial record. See English v. Cody , 146 F.3d 1257, 1264 (10th Cir. 1998). In this case, the district court found that trial a nd appellate counsel differed and that therefore the first English exception to the Oklahoma procedural bar was-49-

inapplicable. It also noted, however, that trial a nd appellate counsel worked for the same defense organization, the Oklahoma Indigen t Defense System; and one might question whether close colleagues could provi de the “objective assessment [of] trial counsel’s performance” that a petitionerneeds in order to pursue an ineffective assistance claim on direct appeal. Brecheen , 41 F.3d at 1364; see also Cannon v. Mullin , 383 F.3d 1152 (10th Cir. 2004) (“[W]hether trial and appellate attorneys from the same ‘office’ should be deemed ‘ separate’ counsel will turn on the specific circumstances.”). We need not address this question, however, because we agree with the district court that the c laims are based on affidavits and evidence gathered after trial and cannot be res olved on the trial record alone. The Oklahoma procedural bar is therefore inapplicab le.

4) Claims Not Raised on Direct Appeal

a. Trial counsel failed to present evidence of diminis hed capacity and failed to obtain instructions on firstdegree manslaughter.
As discussed in Section II.D.2.a. above, Mr. Turrentine argues that trial counsel rendered constitutionally deficient assista nce by failing to present adequate evidence of Mr. Turrentine’s diminished capacity. We have already rejected this argument, and we deny habeas relief f or the reasons stated above. Mr. Turrentine also argues that his trial counsel w as deficient for failing to request an instruction on first degree manslaughter . A first degree manslaughter-50-

instruction is warranted only when the defendant pr esents evidence supporting a conclusion that “the homicide was perpetrated witho ut a design to effect death by means of a dangerous weapon.” Turrentine I, 965 P.2d at 969-70. The OCCA found that no evidence supported such an instructio n, id. , and we cannot say that this finding is an unreasonable determination of fa cts in light of the evidence. 28 U.S.C. § 2254(d)(2); see Boyd, 179 F.3d at 917. Thus, because the evidence did not support a first degree manslaughter instruction , trial counsel was not deficient for failing to request one. Boyd, 179 F.3d at 917. Habeas relief is denied.

b. Trial counsel failed to respond to the State’s moti on in limine to exclude evidence of Mr. Turrentine’s ment al state.

Mr. Turrentine asserts that his trial counsel was i neffective for failing to respond to the State’s motion in limine, which soug ht to exclude from the sentencing hearing expert testimony about Mr. Turre ntine’s mental state. We have already rejected the argument that Mr. Turrent ine was prejudiced by his appellate counsel’s failure to appeal the exclusion of this evidence. See supra Section II.C.2. For the same reasons, we reject th e argument that he was prejudiced by his counsel’s failure to respond to t he motion in limine. Accordingly, habeas relief on this claim is denied.

c. Trial counsel conceded defendant’s guilt. Mr. Turrentine next argues that several statements by trial counsel-51-

amounted to a concession that Mr. Turrentine was gu ilty of the crimes for which he was charged. For example, during voir dire, tri al counsel referred to “these intentional homicides,” and in his closing argumenthe told the jury: “You are going to have a second stage of this trial because only Counts 2 and Counts 3 talk about second degree murder, so there will be a firs t degree murder conviction in this case.” Appellant’s Br. at 164. He also state d: “Had [the State] filed two Informations, one for first degree murder as to the two people and one for second degree murder as to the other, it would have been aplea of guilty all the way around.” Id. According to Mr. Turrentine, “[s]uch remarks cons tituted absolute surrender” and, therefore, ineffective assistance o f counsel. Id. at 165. As noted above, Strickland requires a showing of both deficient representation and prejudice. In a narrow class of cases, however, including when “counsel entirely fails to subject the prosecu tion’s case to meaningful adversarial testing,” United States v. Cronic , 466 U.S. 648, 659 (1984), prejudice is presumed. In order to presume prejudice under Cronic , “the attorney’s failure to test the prosecutor’s case must be complete.” Bell , 535 U.S. at 686. This Court has repeatedly found the Cronic presumption inapplicable where “counsel actively participated in all phases of the trial pr oceedings.” Snyder v. Addison , 89 Fed.Appx. 675, 680 (10th Cir. 2004); see also Cooks v. Ward, 165 F.3d 1283, 1296 (10th Cir. 1998) ( Cronic inapplicable where “[counsel] was present in the3 The Supreme Court has recently heard argument in a case that may affect the

analysis on this point, Florida v. Nixon , No. 03-931. We decide this case under precedents at this time. -52- courtroom[,] . . . conducted limited cross-examinat ion, made evidentiary objections, and gave a closing argument”); Hooper v. Mullin , 314 F.3d 1162, 1175 (10th Cir. 2002) ( Cronic inapplicable where “[d]efense counsel crossexamined the State’s guilt-stage witnesses, made ob jections to the State’s evidence, presented some evidence in Petitioner’s d efense, and made opening and closing arguments”). In fact, we have found a comp lete absence of meaningful adversarial testing only where the evidence “overwh elmingly established that [the] attorney abandoned the required duty of loyal ty to his client,” and where counsel “acted with reckless disregard for his clie nt’s best interests and, at times, apparently with the intention to weaken his client’ s case.” Osborn , 861 F.2d at
629. 3

This is not such a case. The statements of which M r. Turrentine complains fell within the context of a lengthy and persuasive closing argument, in which counsel contended that first degree murder was inap propriate for counts two and three. Faced with overwhelming evidence of his cli ent’s guilt, including multiple confessions by Mr. Turrentine himself—first on a 91 1 recording, then to several police officers at separate times, and finally at t rial—counsel essentially conceded guilt on two counts in order to more persuasively a rgue the remaining counts and-53-

retain credibility for the sentencing phase of tria l. We have upheld such strategic decisions before. See, e.g. , Trice v. Ward, 196 F.3d 1151, 1162 (10th Cir. 1999) (finding, in light of overwhelming evidence of guil t, that “it was an entirely reasonable strategy for [defendant’s] trial counsel to concede [that defendant raped the victim] and focus his efforts on persuadi ng the jury that [the defendant] did not have the intent to commit first-degree murd er, and/or persuading the jury to spare [his] life”); Charm v. Mullin , 37 Fed. Appx. 475, 480 (10th Cir. 2002) (holding that trial counsel’s concession of guilt d id not trigger a presumption of prejudice where “counsel was faced with overwhelmin g evidence establishing [defendant’s] guilt,” and where counsel’s “apparentstrategy was to maintain credibility with the jury during the first stage so that he could strongly pursue a sentence less than death during the penalty phase”) . We therefore cannot conclude that Mr. Turrentine’s counsel “entirely fa il[ed] to subject the prosecution’s case to meaningful adversarial testin g.” Cronic , 466 U.S. at 659. A presumption of prejudice is accordingly inappropriate. Mr. Turrentine has also failed to demonstrate preju dice under Strickland

. The required showing is a reasonable probability th at, absent trial counsel’s comments, the outcome of the trial would have been different. Strickland, 466 U.S. at 694. But as we explained above, and as the district court found, “the trial transcript and original record . . . reveal overwhe lming evidence of [Mr.-54-

Turrentine’s] guilt on all four counts of first deg ree murder.” Dist. Ct. Op. at 80. Trial counsel’s remarks, therefore, “did not alter the likely outcome of the first stage of the trial.” Id. Because Mr. Turrentine has failed to show prejudi ce, we deny habeas relief on this ground.

d. Trial counsel failed to obtain from the county jail medical records pertinent to Mr. Turrentine’s competence to stand trial.

Mr. Turrentine claims that his trial counsel was co nstitutionally deficient for not gathering from the Tulsa County Jail medica l records disclosing the amount of medication he took during his incarcerati on and subsequent trial. According to Mr. Turrentine, the medical records, w hich indicated that he was taking a high dosage of the antidepressant Elavil, would have cast doubt on his competency to stand trial. However, as Mr. Turrent ine concedes in his brief, “[his] response to the medication was never documented.” Br. at 174. In fact, as the district court found, the record amply demonstr ates that he was competent to stand trial. He understood the charges against him , and the evidence shows that he was able to communicate with counsel and testify competently on his own behalf. Dist. Ct. Op. at 82; see Hatch v. Oklahoma , 58 F.3d 1447, 1456-58 (10th Cir. 1995) (evidence of a petitioner’s lucid and in telligible testimony at trial refutes claim of trial counsel’s failure to argue c ompetency). Mr. Turrentine has thus failed to demonstrate prejudice, and habeas re lief is accordingly denied.-55- e. Trial counsel failed to investigate and present mitigating evidence on Mr. Turrentine’s history of childhood abuse.
Finally, Mr. Turrentine argues that his trial couns el was constitutionally deficient for failing to investigate and present ev idence of Mr. Turrentine’s history of childhood abuse. According to Mr. Turre ntine, the outcome of the sentencing hearing would have been different if cou nsel had presented this evidence, because “the jury would have learned of t he physical and psychological abuse [Mr.] Turrentine suffered as a child, and com e closer to understanding [Mr.] Turrentine himself.” Appellant’s Br. at 179. Counsel called nine witnesses during the second pha se of the trial, and each one testified to mitigating circumstances on Mr. Tu rrentine’s behalf. As is always the case, trial counsel could have done more. But the question under Strickland is not whether counsel could have done more, but wheth er counsel’s decision not to do more was “[objectively unreasonable] in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. We agree with the district court that counsel’s con duct was not so unreasonable that it “render[ed] [Mr. Turrentine’s] trial fundam entally unfair.” Dist. Ct. Op. at 83. To conclude otherwise would be to indulge the very “distorting effects of hindsight” that Strickland is designed to eliminate. 466 U.S. at 689. Couns el’s-56-

conduct was reasonable under the circumstances, and habeas relief on this ground is therefore denied.

Conclusion For the reasons set forth above, we GRANT Mr. Turre ntine’s Petition for Writ of Habeas Corpus on counts two and three, and VACATE his conviction and sentence on counts two and three accordingly. Howe ver, we DENY his Petition for Writ of Habeas Corpus on count one, and AFFIRM his conviction and capital

sentence on count one.