PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ KENDRICK ANTONIO SIMPSON, Petitioner - Appellant,

v. MIKE CARPENTER, Interim Warden,  Oklahoma State Penitentiary, Respondent - Appellee. No. 16-6191

________________ _________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:11-CV-00096-M)

________________ _________________ Sarah M. Jernigan, Assistant Fe deral Public Defender (Patti Pal mer Ghezzi, Assistant Federal Public Defender, with he r on the briefs), Oklahoma City , Oklahoma, for Petitioner - Appellant. Jennifer J. Dickson, Assistant At torney General (Mike Hunter, A ttorney General of Oklahoma, with her on the brie f), Oklahoma City, Oklahoma, for Respondent - Appellee.

________________ _________________ Before LUCERO , HOLMES , and McHUGH , Circuit Judges.

________________ _________________ McHUGH , Circuit Judge.

 Pursuant to Federal Rule of A ppellate Procedure 43(c)(2), Mike Carpenter, current Interim Warden of Oklahom a State Penitentiary, is autom atically substituted for Terry Royal, Warden (who was pre viously automatically substitut ed for Kevin Duckworth, Interim Warden), a s Respondent in this case. FILED United States Court of Appeals Tenth Circuit 

### December 27, 2018
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Kendrick Simpson is a state pri soner in Oklahoma. After a bifur cated proceeding, the jury convicted Mr. Simpson o f two counts of first-degree mu rder and sentenced him to death. He now appeals the di strict court’s denial of his pet ition for federal habeas relief under 28 U.S.C. § 2254. Exercisi ng jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.
I. BACKGROUND
A. Factual History Pursuant to the Anti-Terrorism a nd Effective Death Penalty Act (AEDPA), we presume the factual findings of the Oklahoma Court of Criminal Appeals (OCCA) are correct, absent clear and convincin g evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan , 550 U.S. 465, 473–74 (2007). W e therefore state the facts surrounding the murders as found by the OCCA on direct appeal: On the evening of January 15, 2 006, Jonathan Dalton, Latango Robertson and [Mr. Sim pson] decided to go to Fritzi’s hip hop c lub in Oklahoma City. Prior to going to the club, the three drove in [ Mr.] Dalton’s white Monte Carlo to [Mr. Simpson ’s] house so that [Mr. Simpson ] could change clothes. While at his house, [Mr. Simpson] got an assaul t rifle[,] which he brought with him. 1 Before going to Fritzi’s , the men first went to a house party where they consume d alcohol and marijuana. When t hey left the party, [Mr. Simpson] put the assault rifle into the trunk o f the Monte Carlo, which could be acce ssed through the back seat. The three arrived at Fritzi’s between midnight and 1:00 a.m. on January 16. Once inside, they we nt to the bar to get a drink. [ Mr. Simpson]

1 There was testimony that this we apon was an AK-47 or SKS assau lt rifle.3 and [Mr.] Dalton also took a drug called “Ecstasy.” After getting their drinks, [Mr.] Dalton and [Mr.] Robe rtson sat down at a table wh ile [Mr. Simpson] walked around. When [Mr. Simpson] wal ked by London Johnson, Anthony Jones and Glen Palmer, one of the three appare ntly said something to him about the Chica go Cubs baseball cap that he wa s wearing. [Mr. Simpson] went back to the table and told [Mr.] Da lton and [Mr.] Robertson that some guy ha d given him a hard time about h is cap. At some point, [Mr. Sim pson] approached [Mr.] Johnson, [Mr.] Jones and [Mr.] Palmer again. During this encounter, [Mr. Simpson] told them that he was going to “chop” them up. 2 After making this threat, [Mr. Simpson] walked away. He return ed a short time later and walked up to Pa lmer. [Mr. Simpson] extended his hand and said, “We cool.” [Mr.] Palmer hi t [Mr. Simpson] in the mouth knocki ng him to the fl oor. [Mr. Simpson] told [Mr.] Dalton and [Mr.] Robertson that h e wanted to leave and the thre e of them left the club. Out in the parking lot, [Mr. Sim pson], [Mr.] Dalton and [Mr.] Robertson went to [Mr.] Dalton’s Monte Carlo. Before leaving, t hey talked with some girls who had come out of the club and were parked ne xt to them. The girls told the men to follow them to a 7-[Eleven] loc ated at NW 23rd Street and Portland. When th ey arrived at the store, [Mr. Simpson], [Mr.] Dalton and [Mr.] Robertson ba cked into a parking space to ward the back door and the girls pulled in next to the pumps. While the men were sitting in the Monte Carlo, they saw [Mr.] Johnson, [Mr.] Jones and [Mr.] Palmer drive into the parking lot in [Mr.] Palmer’s Chevy Capri ce. They recognized [Mr.] Pal mer as the person who had hit [Mr. Simpson] at Fritzi’s. [Mr.] Dalton told [Mr. Simpson] to “chill out” but [M r. Simpson] was mad and wanted to retaliate against [Mr.] Palmer. When [Mr. ] Palmer drove out of the parking lot ont o 23rd Street and merged onto I -44, [Mr. Simpson] told [Mr.] Da lton to follow them. While they were following the Chevy, [Mr. Simpson], who was sitting in the front passenger seat, told [Mr.] Robertson, who was sitting in the back seat, to give him the gun. He told [Mr.] Robertson tha t if he had to get the gun himself, there was going to be trouble. [Mr.] Robertson reached through the back seat into the trunk and retrieved the gun for [Mr. Simpson]. [Mr.] Dalton followed th e Chevy as it exited the inte rstate onto Pennsylvania Avenue. He pulled th e Monte Carlo into the left lane beside

2 [Mr.] Johnson testified at trial that this meant to him that [ Mr. Simpson] was going to shoot at them with a “ch opper[,]” which was an AK-47.4 the Chevy as they drove on Pen nsylvania Avenue and [Mr. Simpson ] pointed the gun out his open wi ndow and started firing at the C hevy. When the Chevy was hit with bul lets, [Mr.] Palmer was driving, [Mr.] Jones was sitting in the front passenger seat and [Mr.] J ohnson was in the back seat. [Mr.] Johnson hear d about twenty ra pid gun shots and got down on the floor of the car. He did not see the shooter but no ticed a white vehicle drive up beside them. The Chevy jumped the curb and hit an electric pole and fence before c oming to a stop. [Mr.] Palmer a nd [Mr.] Jones had been shot. [Mr.] Jones had been shot in the side of h is head and torso and was unconscious. [Mr.] P almer had been shot in the ch est. He was initially conscious and able to ta lk but soon lost consciousnes s when he could no longer breathe. [Mr.] J ohnson tried to give both [Mr.] Jones and [Mr.] Palmer CPR but was unsucce ssful. He flagged down a car th at was driving by and asked the drive r to get help. Both [Mr.] Palmer and [Mr.] Jones died at the scene fro m their gunshot wounds. After he fired at the Chevy, [M r. Simpson] said, “I’m a monster . I just shot the car up.” He added, “They shouldn’t play with me l ike that.” [Mr.] Dalton kept dri ving until they reacheda residence in Midwest City where he was staying. They drop ped the gun off and switched car s, and then [Mr.] Dalton, [Mr.] Robertson and [Mr. Simps on] went to me et some girls they had talked to at Fritzi’s. Simpson v. State ( Simpson I ), 230 P.3d 888, 893–94 (Okla. C rim. App. 2010) (footnotes in original).5 B. Procedural History
1. State Court Proceedings

a . Criminal trial and sentencing The State of Oklahoma charged Mr. Simpson with the first-degree murders of Glen Palmer and Anthony Jones and with discharging a firearm wi th intent to kill London Johnson. Id. at 893. 3 The prosecution sought a pena lty of death for e ach murder. Prior to trial, Dr. Phillip Massad , a clinical psychologist, ev aluated Mr. Simpson’s mental condition. Mr. Simpson di sclosed to Dr. Massad that, whe n Mr. Simpson was sixteen years old, a friend ambu shed and shot him for refusing to kill a government witness scheduled to testify in the friend’s criminal trial. Mr . Simpson suffered five gunshot wounds and spent two mon ths hospitalized and comatose. Even after his release from the hospital, Mr. Simpson was readmitted frequently for tr eatment of complications arising from infections. He endur ed sixteen surgeries over a se ven-month period, and feared his attackers would retu rn to kill him. Dr. Massad concl uded Mr. Simpson suffered from Post-Traumatic Stress Diso rder (PTSD) as a result of the s hooting. Mr. Simpson’s counsel notified th e court he intended to present evidence of Mr. Simpson’s PTSD and to call Dr. M assad as an expert witness on that topic. The defense planned to elicit testimony fro m Dr. Massad that Mr. Simpson su ffered from PTSD and that this condition affected his ability to form the intent of malice aforethought required

3 The State also charged Mr. Sim pson with possession of a firear m after a former felony conviction, to wh ich he pleaded guilty.6 for a first-degree murder convicti on. The State moved to exclud e Dr. Massad from testifying at the guilt stage o f trial. At a hearing on the mat ter, defense counsel represented that Dr. Massad woul d testify it was “possible that the PTSD affected [Mr. Simpson] to the extent that he w as not able to form the specifi c intent” to kill, and that, because of his PTSD, Mr. Simpson would have “magni fied in his o wn mind the threat” the victims presented. Trial M ot. Hr’g Tr. at 18 (Sept. 19, 200 7). As the State notes, however, Dr. Massad’s psychologi cal report “never indicate[d] t hat [Mr. Simpson’s PTSD] prevent[ed] him from form ing an intent to kill” or from “ know[ing] what he was doing was wrong.” Id. at 11–12. The trial court grante d the State’s motion, holding that Oklahoma law precludes testimony th at a defendant could not hav e formed the specific intent to commit a crime, except in the context of an intoxicat ion or insanity defense, neither of which had been advan ced by Mr. Simpson at that time. The jury rendered its decision fi nding Mr. Simpson guilty of th e first-degree murders of Mr. Palmer and Mr. Jones. 4 In the ensuing penalty stage, the State alleged four aggravating factors it clai med warranted a sentence of dea th: 1. [Mr. Simpson], prior to the tim e of sentencing, was convicte d of a felony involving the use or threat o f violence to [another] person [(“ Prior Violent Felony Aggravator”)]; 2. [Mr. Simpson] knowingly created a great risk of death to mor e than one person [(“Risk of Multiple Deaths Aggravator”)];

4 The jury also found Mr. Simpson guilty of discharging a firear m with intent to kill Mr. Johnson.7 3. The murder was especially h einous, atrocious, or cruel [(“HA C Aggravator”)]; 4. At the present time there ex ists a probability that [Mr. Sim pson] would commit criminal acts of violence that wou ld constitute a continuing threat to society [(“Continuing Threat Aggravator”)]. Trial R. vol. 1 at 44. Mr. Simpson asserted three factors in mi tigation: (1) his age, 5 (2) his mental state (PTSD diagnosi s), and (3) his family support. i. Aggravating evidence pr esented at sentencing The State moved to incorporate all the evidence presented durin g the guilt stage and—after determining the evidence would be relevant to the HAC Aggravator, the Continuing Threat Aggravator, and the Risk of Multiple Deaths A ggravator—the court granted the motion. In addition, Mr. Simpson stipulatedthat he had previously rece ived a seven-and-ahalf-year prison sentence for a rmed robbery, and the victim of that crime, Hung Pham, appeared in support of the Sta te’s case in aggravation. Mr. Pha m testified that Mr. Simpson and two other men fo rced themselves into Mr. Pham’s home at gunpoint. Mr. Pham provided compelling de tails, stating that Mr. Simpson shoved the gun in Mr. Pham’s face, forced him inside, and beat him in the face an d back with the gun. After taking Mr. Pham’s wallet, Mr. Sim pson pulled Mr. Pham into a ba throom closet, forced him to kneel on the floor, and de manded all of his money. When Mr. Pham replied that he did not have any more money , Mr. Simpson shot Mr. Pham in th e head and left with

5 Mr. Simpson was twenty-five at the time of the shooting.8 Mr. Pham’s wallet. Mr. Pham reme mbers the encount er vividly, “[ b]ecause . . . [Mr. Simpson] hit my face, e verything, he hurt m e a lot. I remember forever.” Trial Tr. vol. 7
at 96–97. The State also relied on the tes timony of Roy Collins, a jailho use informant who had temporarily shared a cell with Mr. Simpson. Hoping to lever age a deal with the district attorney’s office for h is own early release, Mr. Colli ns asked Mr. Simpson about the murders. Mr. Collins testif ied that Mr. Simpson admitted to the altercation at Fritzi’s, seeing the victims at the 7-Ele ven, following them, and then fi ring the assault rifle into their car. Mr. Collins further sta ted that Mr. Simpson expresse d no remorse for the murders and even tried to hire Mr. Collins to kill Mr. Johnson, the surviving victim, and to assault two pregnant women listed as State witnesses. Mr. Co llins also testified that Mr. Simpson would smile and laugh when talking about the murder s and that Mr. Simpson thought he was a “gangste r[]” like “Tupac or Biggie Sma ll.” Id. at 47. Mr. Collins reported that Mr. Simpson “couldn’t believe the victims ’ families were crying” because, according to Mr. Simpson , the victims “were gangbanger s, that’s the life they lived, that’s the life they chose.” Id. at 54–55. Mr. Collins also indicated that he could tell Mr. Simpson was a member of the B loods gang because “[h]e’s got red ink all over his neck.” Id. at 58–59. Finally, the prosecution presente d victim impact statements fro m Rosalind Jones, the mother of Anthony Jones, a nd Tiarra Palmer, the sister of G len Palmer.9 ii. Mitigating evidence pre sented at sentencing The defense called six witnesse s in mitigation: Dr. Massad, to testify about Mr. Simpson’s PTSD diagnosis; Evan G atewood, to impeach Mr. Collins ; and Mr. Simpson’s mother, grandmother, aunt, and ex- girlfriend, to testify about Mr. Simpson’s upbringing and family support. The vast ma jority of the mitigating evidenc e focused on the ambush and shooting of Mr. Sim pson and his long road to recovery. The witnesses indicated that family members visited Mr. Simps on every day in the hospital an d that his mother believed “[h]e was on his dying bed.” Id. at 153. Dr. Massad testified that Mr. Sim pson reported being “paranoid hostile” and hypervigilant as a result of having been shot. Id. at 190–92. Dr. Massad also testified at length about the basis of his d iagnosis that Mr. Simpson suffer ed from PTSD and about the typical symptoms of the dis order. He explained that people suffering from PTSD “might be hypersensitive and ov erreact” to common situations. Id. at 166. Additionally, such a person could be “hyperv igilant,” constantly on “alert an d watchful for danger,” and could experience “exaggerated startle response[s] and other symptoms.” Id. at 167. Dr. Massad further opined that d rugs or alcohol could exacerbat e this hypersensitivity and paranoia because they can “i ncrease the likelihood that [a person] would react or
overreact.” Id. Mr. Simpson’s aunt highlighted e xamples of this paranoia and hypersensitivity in her testimony, noting Mr. Simpson was const antly terrified the men who had shot him would return and finish the job. H e was “paranoid and scared” t o the point he refused to10 open the door when people came t o visit, and he moved out of hi s mother’s house because it was too close to the site of the shooting. Id. at 205–06. Most of the testimony from Mr. Sim pson’s family focused on the family’s love and support of Mr. Simpson. They gave limited detail about his childhood, characterizing him as a good child with a relativ ely normal upbringing. There was also testimony that Mr. Simpson’s grandmo ther was primarily re sponsible for raising him, while his teenaged, single mother was fini shing high school. The witnesse s reported that Mr. Simpson’s father was not involv ed in his upbringing and that Mr . Simpson dropped out of school in the eighth grade. T he overall theme of the testimo ny was that Mr. Simpson had a good family who loved and supported him, but could not pr ovide all the guidance required in raising him and his two siblings. Mr. Simpson’s gra ndmother, mother, aunt, and ex-girlfriend all testified they would continue to support Mr. Simpson and would visit him in prison, if his life was spared. Following the sentencing trial, the jury found all four aggrava ting factors by special verdict and recommended a sentence of death for each mu rder. The court adopted the jury’s recommendation and se ntenced Mr. Simpson to death. b . Appellate and post-c onviction proceedings Mr. Simpson appealed his convic tions and sentences, alleging a variety of errors in both the guilt and sentencing stag es of his trial. On direct ap peal, the OCCA affirmed Mr. Simpson’s convictions and death sentences a s to both Mr. Palmer and Mr. Jones. Simpson
I

, 230 P.3d at 907. Although the OC CA struck the HAC Aggravator for the death of Mr.11 Jones, it concluded no constitutional erro r had occurred and no relief was warranted because the jury had not consider ed any evidence admitted solel y due to the erroneous inclusion of that aggravating factor. Id. at 902–03. Simultaneous with his direct a ppeal, Mr. Simpson filed an appli cation for postconviction relief and an applica tion for an evidentiary hearing on whether he had received ineffective assistance of trial counsel. Simpson v. State ( Simpson II), No. PCD2007-1262 (Okla. Crim. App. Oct . 13, 2010) (unpublished). The O CCA denied both applications. Three years later, Mr. Simpson filed a second state applicatio n for post-conviction relief, coupled with ano ther application fo r an evidentiary hea ring, in order to exhaust claims presented in his federa l habeas petition. Again, the OCC A denied both applications. See Simpson v. State ( Simpson III ), No. PCD-2012-242 (Okla. Crim. App. Mar. 8, 2013) (unpublished). 2. Federal Court Proceedings Mr. Simpson sought federal post- conviction relief by filing a p etition for a writ of habeas corpus pursuant to 28 U. S.C. § 2254, a motion for discov ery, and a motion for an evidentiary hearing. See Simpson v. Duckworth ( Simpson IV ), No. CIV-11-96-M, 2016 WL 3029966, at *1 (W.D. Okla. M ay 25, 2016) (unpublished). The district court denied his petition and motions, but grant ed a Certificate of Appealab ility (“COA”) on two of the eighteen grounds for relief: (1) the trial court’s alleged improper exclusion of Mr.12 Simpson’s PTSD evidence from th e guilt stage of the trial and ( 2) an alleged Brady 6 violation, whereby prosecutors withheld impeachm ent evidence as to Mr. Collins. This court subsequently granted a COA on five additional issues: (1) whether alleged prosecutorial misconduct deniedMr. Simpson a fundamentally fai r sentencing proceeding; (2) whether a jury in struction and prosecutorial st atements unduly limited jury consideration of mitigating evidence; (3) whether the HAC aggravating factor determination as to Mr. Palmer w as unconstitutional and unreaso nable; (4) whether trial counsel was ineffective for failing to investigate, prepare, an d present lay witnesses, failing to request a second-degre e murder instruction, failing to object to improper prosecutorial arguments, failing to object to the HAC instructi on, and failing to object to the jury instruction limiting cons ideration of mitigating evide nce; and (5) whether there was “cumulative error, limited to errors in the grounds on whic h a certificate of appealability has been granted.” 7 Case Management Order dated December 1, 2016.
II. STANDARD OF REVIEW AEDPA requires that we apply a “difficult to meet and highly de ferential standard” in federal habeas pro ceedings under 28 U.S.C. § 2254; it is one that “demands

6 Brady v. Maryland , 373 U.S. 83 (1963).

7 Mr. Simpson filed a motion for modification of his COA, reques ting appellate review of the trial court’s ru ling limiting mitigation testimon y from De’Andrea Lagarde. We previously evaluated the meri ts of this claim and found it d id not “deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mr. Simpson presents no compelli ng reason to depart from our pr evious holding on this issue, and we deny his motion.13 that state-court decisions be give n the benefit of the doubt.” Cullen v. Pinholster , 563 U.S. 170, 181 (2011) (internal qu otation marks omitted). When a petitioner includes in his habeas application a “claim that was adjudicated on the mer its in State court proceedings,” a federal court sh all not grant relief on that cl aim unless the state-court decision: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clear ly established Federal law, a s determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in li ght of the evidence presented i n the State court proceeding. 28 U.S.C. § 2254(d)(1)–(2). Section 2254(d)(1)’s reference to “clearly established Federal law, as determined by the Supreme Court of the Unite d States,” “refers to the hold ings, as opposed to the dicta, of th[e] Court’s decisions as of the time of the relevan t state-court decision.” Williams v. Taylor , 529 U.S. 362, 412 ( 2000). “Federal courts may not extract cle arly established law from the general legal principles developed in factually distinct contexts, and Supreme Court holdings must be construed narrowly and consi st only of something akin to on-point holdings.” Fairchild v. Trammell (

Fairchild I ), 784 F.3d 702, 710 (10th Cir. 2015) (internal quotation marks omitted). Under § 2254(d)(1), a state-court decision is “contrary to” the Supreme Court’s clearly established precedent if it “applies a rule that contra dicts the governing law set forth in [Supreme Court] cases” or if it “confronts a set of fa cts that are materially14 indistinguishable from a decision of th[e] Court and neverthele ss arrives at a result different from [that] precedent.” Williams , 529 U.S. at 405–06. A state court need not cite, or even be aware of, appli cable Supreme Court decisions, “so long as neither the reasoning nor the result of the s tate-court decision contradict s them.” Early v. Packer , 537 U.S. 3, 8 (2002) (per curiam). A state-court decision is an “unr easonable application” of Supr eme Court law if the decision “correctly identifie s the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Williams , 529 U.S. at 407–08. We undertake this “objective[] unreasonable[ness]” inquiry, id. at 409, in view of the specificity of the governing rule: “The more genera l the rule, the more leeway cou rts have in reaching outcomes in case-by-case determinations,” Yarborough v. Alvarado , 541 U.S. 652, 664 (2004). Conversely, “[i]f a legal rule is specific, the range m ay be narrow” and “[a]pplications of the rule may b e plainly correct or incorrect .” Id. And “an unreasonable application of federal law is different from an incorrect application of federal law.”
Williams , 529 U.S. at 410. As a result, “a federal habeas court may not issue the writ simply because that court conclu des in its independent judgmentthat the relevant statecourt decision applied clearly e stablished federal law erroneou sly or incorrectly”; “that application must also be unreasonable.” Id. at 411. Claims not “adjudicated on the merits” in state court are entit led to no deference.
Fairchild I , 784 F.3d at 711. But, “even in the setting where we lack a st ate court merits determination, ‘[a]ny state-cour t findings of fact that bear up on the claim are entitled to a15 presumption of correctness rebu ttable only by “clear and convin cing evidence.”’” Grant v. Royal , 886 F.3d 874, 889 ( 10th Cir. 2018) (quotin g 28 U.S.C. § 2254( e)(1)) (alteration in original), petition for cert. filed sub no m. Grant v. Carpenter , No. 18-6713 (Nov. 13, 2018); see also Hooks v. Ward ( Hooks I ), 184 F.3d 1206, 122 3 (10th Cir. 1999) (presuming correctness of state court findings on claim not adj udicated on the merits). Although the burdens on the petiti oner under AEDPA are signific ant, we “undertake this review cognizant that our dut y to search for constitutional err or with painstaking care is never more exacting than it is in a capital case.” Fairchild v. Workman ( Fairchild II ), 579 F.3d 1134, 1140 (10th Cir. 2009) (i nternal quotation marks omit ted). With these standards in mind, w e turn to Mr. Sim pson’s claims.
III. DISCUSSION As discussed, Mr. Simpson raises seven grounds for relief. We c onsider each of his arguments in turn.
A. Right to Present a Complete Defense Mr. Simpson first asserts he is entitled to federal habeas reli ef with respect to his convictions because the trial cour t erroneously excluded expert testimony regarding his PTSD diagnosis and dissociativ e episodes from the guilt stage o f trial. Mr. Simpson claims Dr. Massad’s testimony was necessary to support the defe nse that his PTSD, standing alone or in conjunction with his intoxication defense, rendered him incapable of forming the specific intent to kill. According to Mr. Simpson, excluding this evidence violated his constitutional right t o present a complete defense

.16 We begin our review of this clai m by providing a dditional factu al and procedural background. We then address the State’s arguments that the clai m is unexhausted and unpreserved. 8 Deciding that the PTSD portion of Mr. Simpson’s claim is prope rly preserved and has been exhausted , we then examine the OCCA’s me rits decision. We conclude that decision is not u nreasonable under § 2254(d)(1), and we therefore deny Mr. Simpson relief on this claim. 1. Additional Factual and Procedural Background In reviewing this claim, the OCCA examined the transcript of th e trial court hearing on the exclusion of the e vidence and Dr. Massad’s testi mony during the sentencing stage of Mr. Simpson’s trial. The OCCA concluded the trial court did not abuse its discretion by excluding this testimony from the guilt stage of trial because Dr. Massad could not say how Mr. Sim pson’s PTSD affected his ability to form the intent to kill. Simpson I , 230 P.3d at 895. As a result, t he OCCA held that Mr. Simpson’ s PTSD diagnosis was “neither relevant t o the intent element of the cr ime charged nor was it relevant to his defense o f voluntary intoxication.” Id. On federal habeas review, Mr. Simpson challenges the OCCA’s det ermination as both contrary to and an unreason able application of clearly est ablished federal law. The

8 The State also claims that M r. Simpson failed to adequately ci te the record in his appellate brief as required by F ederal Rule of Appellate Proced ure 28(a)(8)(A). Although we agree that Mr. Simpson’s record citations are inadequate, we exercise our discretion to resolve this issue on the merits. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Ci r. 2005) (recognizing that the court has the discretion to overlook inadequate briefing and to con sider an issue on the merits).17 State counters that Mr. Simpson is barred from presenting this claim because he has failed to exhaust available stat e court remedies, he has forfei ted the argument he makes on appeal by not presenting it to the district court, and, alte rnatively, because the OCCA’s decision was neither con trary to federal law nor unreaso nable.
2. Exhaustion and Preservation We begin our analysis with the state’s argument that Mr. Simp son failed to exhaust his claim that the tri al court violated his right to pr esent a complete defense . See United States v. Miller , 868 F.3d 1182, 11 85 (10th Cir. 2017).

a. Legal standard AEDPA permits federal courts to entertain only those applicatio ns for a writ of habeas corpus alleging that a pe rson is in state custody “in vi olation of the Constitution or laws or treaties of the United St ates.” 28 U.S.C. § 2254(a). A federal court may not grant such an application unless, with certain exceptions not relevan t here, the applicant has exhausted state remedies b efore filing his petition. Id. § 2254(b)–(c); see Pinholster , 563 U.S. at 181. In general, to exha ust state remedies, a petitione r “must give the state courts an opportunity to act on his clai ms before he presents those cl aims to a federal court in a habeas petition.” Thacker v. Workman , 678 F.3d 820, 839 (10th Cir. 2012) (quoting
O’Sullivan v. Boerckel , 526 U.S. 838, 842 (1999)). This is accomplishe d by providing “the state courts one full opport unity to resolve any constitut ional issues by invoking one complete round of the State’s est ablished appellate review proc ess.” Id. (quoting
O’Sullivan , 526 U.S. at 845). A claim is e xhausted only after “it has bee n ‘fairly18 presented’ to the state court.” Bland v. Sirmons , 459 F.3d 999, 101 1 (10th Cir. 2006) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “Fair p resentation” requires that the substance of the federal clai m was raised in state court. Id. “The petitioner need not cite ‘book and verse on the federal constitution,’ but the peti tioner cannot assert entirely different arguments from those raised before the state court.” Id. (quoting Picard , 404 U.S. at 278). Under this standa rd, Mr. Simpson’s claim is unexh austed if the substance of the claim he is arguing here is different from the argument he made to the OCCA. Turning to preserva tion, “[a] federal appellate court will not consider an issue not passed upon below.” F.D.I.C. v. Noel , 177 F.3d 911, 915 (10th Cir. 1999) (quoting Singleton v. Wulff , 428 U.S. 106, 120 (1976)). “Cons equently, when a litigant fai ls to raise an issue below in a timely fashion and the court below do es not address the merits of the issue, the litigant has not preserved the issue for appe llate review.” Id. To properly raise an argument below, a litigan t must present the argument “ with sufficient clarity and specificity.” Folks v. State Farm Mut. Auto. Ins. Co. , 784 F.3d 730, 741 (10th Cir. 2015). To this point, “vague, arguable references to a point in the di strict court proceedings do not preserve the issue on app eal . . . because such perfunctory presentation deprives the trial court of its opportunity t o consider and rule on an issue in any detail.” Id. (citation and internal quotati on marks omitted). b. Analysis Before this court, Mr. Simpson contends he suffers from dissoci ative episodes, and that his PTSD was the result o f being shot by his friend and a lifetime of trauma. The19 State asserts Mr. Simpson’s clai m is unexhausted and unpreserve d because he is presenting an entirely different theory to this court than the theory he presented to the OCCA and the district court. T he State further asserts Mr. Simp son has improperly supplemented his argument on appe al by relying on facts raised in conjunction with his ineffective assistance of counsel claim. Mr. Simpson disagrees, stating, “his argument throughout has been that his PT SD, not malice aforethought, is what caused him to react the way he did.” Aplt. Reply B r. at 3–5. He further contends hi s claim is supportable even without the additional facts about his violent upbringing, and that the evidence of dissociative episodes is not new because the description of the phenomenon, if not the name itself, was pre sented to the OCCA. For purposes of discussion, we di vide Mr. Simpson’s argument in to two categories: (1) PTSD evidence an d (2) evidence o f dissociative episodes. We conclude that Mr. Simpson properly preserv ed and exhaustedhis PTSD argu ment, but that he failed to properly preserve his a rgument concerning dissociativ e episodes. i. PTSD evidence On direct appeal, Mr. Simpson argue d his PTSD was the result of a single event— his having previ ously been ambushed and shot by his friend. Mr. Simpson further claimed his PTSD was “relevant t o the issue of whether he shot with malice aforethought, or did so out of a sense of exa ggerated fear and terror caused by his PTSD,” which was exacerbated by his consumption o f drugs and alcoh ol on the nigh t of the murders. Aplt. Br. at 22–23, Simpson I , 230 P.3d 888 (No. D-2007-1 055). Thus, Mr. Simpson posited20 that evidence of his PTSD would have negated his ability to form the specific intent necessary to commit first-degr ee murder. Finally, Mr. Simpson a rgued his PTSD was relevant to support his volunt ary intoxication defense. Although Mr. Simpson’s position in this court is more refined t han the argument he made to the OCCA, the core of his PTSD claim is the same. Hi s assertion that the OCCA’s decision was “unreasonable based on [the OCCA and trial court’s] misunderstanding of PTSD” is not a new claim, but rather an att empt to bolster his consistently-advanced position th at his PTSD diagnosis was rele vant as a defense during the guilt stage of trial. Compare Aplee. Br. at 14–29, with Simpson I , 230 P.3d at 894–
95. 9 It is true that Mr. Simpson has presented this court with addi tional evidence to support a diagnosis of trauma-re lated PTSD, but he also correct ly notes that Dr. Massad was aware of enough evidence be fore trial to diagnose Mr. Simps on with PTSD and in

9 The OCCA described Mr. S impson’s claim as follows: Prior to trial, the defense file d a notice of intent to offer e vidence of mental and/or psychological d efect, deficiency, diminishment, and/or o ther such and related condition of defe ndant. Dr. Phillip Massad, a clini cal psychologist, c onducted a psychological e valuation of [Mr. Simp son] and issued a report in which he found it more likely than not that [Mr. Simpson] suffered from Post Traumatic Str ess Disorder (PTSD). The state filed a motion to preclude the defense from offering testimony about [M r. Simpson’s] PTSD in the first st age of trial. A hearing was held on this motion and the trial court gran ted the State’s motion. [Mr. Simpson] complains in his first propositi on that this ruling was in erro r and violated his constitutional right to present a complete defense. Simpson v. State ( Simpson I ), 230 P.3d 888, 894–95 (O kla. Crim. App. 2010).21 fact did so. Thus, Mr. Simpson’s claim that the symptoms of his PTSD—specifically the tendency to overreact—prevented h im from forming the requisite intent to kill has been exhausted. The State also asserts that Mr. S impson has failed to preserve this claim on appeal by failing to raise it in the distr ict court. The district cour t described Mr. Simpson’s PTSD argument as follows: In Ground 2, [Mr. Simpson] assert s that he is entitled to habea s relief because the trial court prevente d him from presenting evidence in the guilt stage that he suffere d from Post Traumatic Stress Disorder (PTS D). [Mr. Simpson] argues that this eviden ce was relevant to the issue of intent and his voluntary intoxication defens e, and that because he was una ble to present this evidence, he was de nied his constitutional right t o present a complete defense. Simpson IV , 2016 WL 3029966, at *6. Thus, M r. Simpson advanced his PTSD a rgument before the district court. Accord ingly, we reject the State’s f ailure-to-preserve argument and determine Mr. Simpson’s PTSD a rgument is properly before us

. ii. Dissociative episodes In this court, Mr. Simpson also a ttempts to introduce a new def ense related to, but qualitatively different than, the P TSD defense he raised before the district court. In his argument to this court, Mr. Simps on contends he “was in the mid st of a PTSD and/or dissociative episode during the crime [, which] reveals his bra in was functioning such that either he had a reduced cap acity to form the specific inte nt of first-degree malice aforethought murder, or he was un able to form the intent at all .” Aplt. Br. at 24. To be sure, Mr. Simpson argued to the dis trict court that his PTSD, c ombined with his drug and22 alcohol abuse, prevented him from forming the requisite mens re a. See Aplt. Br. at 14, Simpson IV , 2016 WL 3029966 (No. C IV-11-96-M) (arguing that PTSD can caus e someone to “react out of an exaggerated sense of fear and terro r uncontrolled by one’s will” and “that the level of intoxication necessary to negate the specific intent of firstdegree, malice aforethought murd er is affected by PTSD”). But n owhere did he suggest, before his argument here, that he suffered from a dissociative episode at the time of the murders that rendered him “unabl e to form the intent at all.” A ccordingly, we agree with the State that Mr. Simpson failed to preserve any claim that he was in a dissociative state at the time of the murders. 10 We therefore confine our ana lysis of this claim to Mr. Simpson’s PTSD argument.
3. Merits We turn now to the merits of Mr. Simpson’s assertion that the t rial court violated his constitutional right to presen t a complete defense when it excluded evidence that his PTSD made him hypervigilant and, t ogether with his substance ab use on the night of the murders, rendered him incapable o f forming the requisite mens r ea. See Crane v. Kentucky , 476 U.S. 683, 690 (1986); Washington v. Texas , 388 U.S. 14, 18–19 (1967). Mr. Simpson raises two distinct c laims of error in this regard. First, he contends the trial

10 Because we conclude Mr. Simpson fa iled to preserve this argume nt by not raising it in the district cour t, we do not address whether the claim was exhausted. See Owens v. Trammell , 792 F.3d 1234, 1246 n.8 (10t h Cir. 2015) (“We do not reach th e State’s argument that Owens failedto exhaust his state court r emedies because we base our decision on Owen’s failure to raise the theory in the distr ict court.”).23 court erred by refusing to allow him to present a defense theor y that PTSD negated his ability to form the specific inte nt required for first-degree murder. Second, he argues evidence establishing that he su ffered from PTSD was required t o assist the jury in understanding the voluntary intoxication instruction.

a. OCCA decision The OCCA rejected both of these arguments on direct appeal, fin ding Dr. Massad’s testimony irrelevant in both situations because he “co uld not testify as to how [Mr. Simpson’s] PTSD could affect his intent at the time of the crime.” Simpson I , 230 P.3d at 895. The OCCA decided th is claim on the merits, thereby triggering AEDPA deference. According to Mr. Simps on, the OCCA’s decision contra dicted and unreasonably applied Supreme Court law. 11
b. Reasonableness of the OCCA’s legal determination The Supreme Court has recognized that although criminal defenda nts have the right to present a complete def ense, they must still comply wit h a state’s well-established rules of evidence. See Holmes v. South Carolina , 547 U.S. 319, 326 (2 006). Oklahoma law therefore informs our analysis. i. PTSD as a stand-alone defense As relevant to Mr. Simpson’s firs t argument—that PTSD negated s pecific intent— the trial court correctly noted t hat Oklahoma permits diminishe d capacity evidence only

11 Mr. Simpson does not assert the O CCA’s decision was an unreaso nable determination of the facts.24 in the case of an intoxica tion or insanity defense. Frederick v. State , 37 P.3d 908, 931 (Okla. Crim. App. 2001). Mr. Simps on claims Oklahoma’s rule is contrary to clearly established federal law because a diagnosis of PTSD is relevant in assessing whether the individual formed the specific intent necessary for first-degre e murder. But Mr. Simpson fails to identify a single federal case, let alone a Supreme Co urt case, supporting his position. 12 Where there is no Supreme Court case on point, there is no cle arly established federal law for the purposes of AEDPA. See Hooks v. Workman ( Hooks II ), 689 F.3d 1148, 1176 (10th Cir. 2012). And wh en a defendant “is unable to find any ‘clearly established’ Supreme Court prece dent in support of [his] claim[ ,] . . . habeas relief is impossible to obtain.” Miller-El v. Cockrell , 537 U.S. 322, 350 (2003). As such, Mr. Simpson’s claim “fails at the th reshold for lack of clearly est ablished federal law.” Hooks
II

, 689 F.3d at 1176. ii. PTSD as support for the intoxication defense Alternatively, Mr. Simpson argues the trial court erred by excl uding Dr. Massad’s testimony because it was necessary to assist the jury in evalua ting Mr. Simpson’s intoxication defense. The OCCA held that, because Dr. Massad’s testimony was irrelevant, the trial court did not abuse its discretion in exc luding it. Simpson I , 230 P.3d

12 The only Supreme Court case a ddressing this issue actually und ermines his claim. See Clark v. Arizona , 548 U.S. 735, 770–71 (2 006) (upholding Arizona’s exclusion of mental illness evid ence offered to refute the mens rea element, unless such evidence is sufficient to est ablish an insanity defense).25 at 895. This decision is reasonabl e under AEDPA unless no fairm inded jurist could agree the evidence was irrelevant. See Harrington v. Richter , 562 U.S. 86, 102 (2011). Under Oklahoma law, evidence is relevant if it “ha[s] any tende ncy to make the existence of any fact that is o f consequence to the determinati on of the action more or less probable than it would be w ithout the eviden ce.” Okla. Sta t. tit. 12, § 2401. And, “expert opinion testimony should be admitted only if it will ‘a ssist the trier of fact to understand the evidence or to de termine a fact in issue.’” Hooks v. State ( Hooks III ), 862 P.2d 1273, 1278 (Okla. Crim. App . 1993) (quoting Okla. Stat. ti t.12, § 2702). “When a defendant raises the defense o f voluntary intoxication, an expe rt may properly offer his or her opinion on whether the defenda nt’s actions were intentional .” Coddington v. State , 142 P.3d 437, 450 (Okla. Cri m. App. 2006). Thus, under Coddington , Dr. Massad “could have properly testified that, in his opinion and based upon his specialized knowledge, he believed [Mr. Simpson] would have been unable to form the requi site deliberate intent of malice aforethought.” See id. But, “[w]here the normal expe riences and qualifications of laymen jurors permit them to draw proper conclusions from the f acts and circumstances, expert conclusions or opi nions are inadmissible.” Hooks III , 862 P.2d at 1279 (quoting Gabus v. Harvey , 678 P.2d 253, 256 (Okla. 1984 )). The relevancy of Mr. Simpson ’s PTSD diagnosis, therefore, turns on whether Dr. Massad’s testim ony would have assisted the jury in determining whether Mr. Simpson’s “intoxication aff ected his mental state and prevented him from forming malice aforethought.” See White v. State , 973 P.2d 306, 311 (Okla. Crim. App. 19 98). We have further expl ained that althoug h, “psychological or26 psychiatric evidence that negates the essential element of spec ific intent can be admissible[,] [t]he admission o f such evidence will depend upon whether [it] . . . would negate intent rather than merely present a dangerously confusin g theory of defense more akin to justification and excuse.” United States v. Brown , 326 F.3d 1143, 1 147 (10th Cir. 2003). A review of Dr. Massad’s testimony fails to demonstrate any mea ningful connection between PTSD and inte nt generally, or intoxication s pecifically. Even a generous reading of his testimony demonstrates only a bare asse rtion that Mr. Simpson had PTSD and that PTSD could cau se one to be hypervigilant and to overreact to stimuli. Dr. Massad’s testimony lacked any detail on the impact Mr. Simp son’s PTSD had on his ability to form the intent to k ill, and Dr. Massad’s testimony on the interactive effects of PTSD and intoxicants is similarl y lacking. Dr. Massad opined th at PTSD could be affected by drugs and alcohol be cause they “could lower one’s d efenses and increase the likelihood that [the person] wou ld react or overreact.” Trial T r. vol. 7 at 167. On crossexamination, however, Dr. Massad admitted he was “not sure abou t how the brain and alcohol interact” beyond genera lly lowering a person’s inhibiti ons—which occurs regardless of “whether or not they have PTSD.” Id. at 183. This is not the type of specialized knowledge beyond the “normal experiences and qualif ications of laymen jurors.” See Hooks III , 862 P.2d at 1279. And withou t more, this testimony falls with in the “justification and excuse” evidence cautioned against in Brown , 326 F.3d at 1147.27 Because a fairminded jurist could agree that Dr. Massad’s testi mony was irrelevant, the OCCA’s decision was reasonable.
B. Brady Claim Mr. Simpson next alleges the pr osecutors violated their constit utional responsibility under Brady v. Maryland to disclose all evidence favorable to the defense. Specifically, he contends the pro secution suppressed impeachmen t evidence against a State sentencing-stage witness, Roy Collins. In addressing this claim, we be gin with a discussion of what Brady requires. We then provide additional backgrou nd relevant to the OCCA’s decis ion, concluding that the OCCA did not resolve this claim on the merits. Instead, the OCC A held that Mr. Simpson waived his Brady claim by not bringing it on direct appeal or in his first state postconviction application. We next consider whether Mr. Simpson ca n overcome that state procedural bar and conclude he cannot. As a result, we affirm the district court’s denial of relief on this claim. Finally, w e consider Mr. Simpson’s reques t for discovery and an evidentiary hearing before the d istrict court and we deny relie f on that request, as well.
1. Elements of a BradyClaim We have recognized three essential elements of a Brady claim: (1) the prosecutor suppressed the eviden ce; (2) the suppressed evidence was favora ble to the accused, either because it is exculpatory or b ecause it is impeaching; and (3) prejudice ensued because the suppressed evid ence was material. See Scott v. Mullin , 303 F.3d 1222, 1230 (10th Cir. 2002); see also Banks v. Dretke , 540 U.S. 668, 691 (2004) (“ Banks ( Dretke )”) (quoting28 Strickler v. Greene , 527 U.S. 263, 281–82 (1999 )). Evidence is suppressed for Brady purposes if the prosecution fails to disclose favorable exculpa tory or impeachment evidence known either by it or t he police, “irrespective of the good faith or bad faith of the prosecution.” 13 Wearry v. Cain , 136 S. Ct. 1002 , 1006–07 & 1007 n.8 (2016). “Favorable evidence ‘is material if there is a reasonable proba bility that, had the evidence been disclosed to the defense, t he result of the proceeding wou ld have been different.’” Douglas v. Workman , 560 F.3d 1156, 1173 ( 10th Cir. 2009) (quoting Kyles v. Whitley , 514 U.S. 419, 433 (1995)). Here, Mr. Simpson claims the Sta te suppressed three pieces of e vidence (collectively, the “Co llins Evidence”): (1) a video-taped int erview with Roy Collins from January 5, 20 06, which reveals Mr. Collins’s Hoover Crips gang affiliation and calls into ques tion the veracity of his testimony concerning Mr. Simpson’s jailhouse statements by reve aling that Mr. Collins made nearly identical jailhouse st atements about Jason Whitecro w, a defendant in an unrelated criminal trial; (2) Mr. Collins’s complete arres t, conviction, and incarceratio n records that reveal an additional four convictions t o which Mr. Co llins did not tes tify at trial; and

13 Mr. Simpson’s trial counsel a sserted, and the State does not c ontest, that the State’s “open file” did not incl ude the Collins evidence. Couns el for the State also does not contest the Collins evidence was in the possession of the O klahoma county district attorney’s office at large.29 (3) statements reflecting Mr. Col lins’s expectation of prosecut orial assistance in exchange for his testimony. According to Mr. Simpson, the Co llins Evidence was materially f avorable Brady evidence that could have cast doubt on the credibility of Mr. C ollins’s testimony, which, in turn, was critical to support the Continuing Threat Aggravat or. See Giglio v. United
States , 405 U.S. 150, 154 (1972); Douglas , 560 F.3d at 1172–73. If Mr. Simpson can make this showing, “the prosecut ion’s failure to disclose [the Collins Evidence] was harmful as a matter of law [a nd] ‘there is no need for further harmless-error review.’” See Banks v. Reynolds , 54 F.3d 1508, 1522 (10th Cir. 1995) (“ Banks ( Reynolds )”) (citation omitted) (quoting Kyles , 514 U.S. at 435); see also Douglas , 560 F.3d at 1173.
2. OCCA Decision Mr. Simpson did not present his Brady claim to the OCCA until his second application for post-conviction relief. The OCCA held the claimwas procedurally barred because the misconduct happened at trial, the legal basis for t he claim was available on direct appeal and on the first pos t-conviction application, and “the factual basis for the claim[] was available and could have been ascertained through t he exercise of reasonable diligence

. ” Simpson III , slip op. at 4 (citing Okla. Sta t. tit. 22, § 1089(D)). Specif ically, the OCCA ruled Mr. Simpson’s Bradyclaim had been waived. Id.30 3. Procedural Default

a. Independent and adequate procedural bar Under the doctrine of procedural default, “[c]laims that are de faulted in state court on adequate and independent state procedural grounds will not b e considered by a habeas
court . . . .” Fairchild II , 579 F.3d at 1141 (quotation marks omitted); see also Martinez v. Ryan , 566 U.S. 1, 9 (2012 ) (“[A] federal court will not review the merits of claims, including constitutional claims, tha t a state court declined to hear because the prisoner failed to abide by a state proc edural rule.”). “To be adequate, the [state] procedural ground must be strictly or regula rly followed and applied evenh andedly to all similar claims.” Thacker, 678 F.3d at 835 (internal quot ation marks omitted). We have previously determined that Oklah oma’s procedural default rule i n title 22, section 1089(D) of the Oklahoma Statu tes meets this requirement. See, e.g., id. at 835–36. In turn, a state procedural rule is independent “if it relies o n state law, rather than federal law, as the basis for decision.” Banks v. Workman , 692 F.3d 1133, 1145 (10th Cir. 2012) (quotation marks omitted)). Here, the OCCA relied only on its state procedural rule, § 1089(D), to conclude that Mr. Simpson’s Brady claim was waived. Thus, “we must recognize the OCCA’s waiver ruling and treat the claim as procedurally barred for purposes of federal habeas review.” Thacker , 678 F.3d at 836. Consequently, Mr. Simpson’s Brady claim is precluded from federal habeas review unless he can ov ercome the default.31 b. Legal background on cause and prejudice “A prisoner may obtain federal review of a defaulted claim by s howing cause for the default and prejudice from a violation of federal law.” Martinez , 566 U.S. at 10; see also Fairchild II , 579 F.3d at 1141. 14 To establish “cause,” a petitioner must show that “some objective factor external to the defense i mpeded [his] ef forts to comply with the State’s procedural rule.” Scott , 303 F.3d at 1228 (quoting Murray v. Carrier , 477 U.S. 478, 488 (1986)). Such objective fa ctors include “a showing tha t the factual or legal basis for a claim was not reasonably av ailable to counsel, or that so me interference by officials made compliance impracticable.” Id. (quoting Murray , 477 U.S. at 488). A petitioner must also show “‘actual prejudi ce’ resulting from the errors of which he complains.” United States v. Frady , 456 U.S. 152, 168 (1982); see also Thacker , 678 F.3d at 835. Because “cause and prejudice para llel two of the three componen ts of the alleged Brady violation itself,” Strickler , 527 U.S. at 282, if Mr. Simpson can successfully demonstrate cause and prejudice, he will have a lso succeeded in establishin g his Bradyclaim, see Banks ( Dretke ), 540 U.S. at 691; see also Scott , 303 F.3d at 1230 (“[W]e conclude that the . . . statements constitute Brady evidence that the prosecution had a duty to disclose to

14 A petitioner may also obtain re view of a procedurally defaulte d claim by showing that a fundamental miscarriage of justice would occur i f the merits of a claim are not addressed in the federal habeas proceeding. See Fairchild v. Workman ( Fairchild II ), 579 F.3d 1134, 1141 (10th Cir. 2009). Mr. S impson has not raise d a fundamental miscarriage of justice challenge on appeal.32 [petitioner]. Therefore [petitioner] h as also established preju dice to overcome his procedural default.”). We therefore address the Brady and procedural bar factors together. Mr. Simpson must establish both cause and prejudice to overcome the state procedural bar, and we must reject his Brady claim if he fails to show either requirement. See McCleskey v. Zant, 499 U.S. 467, 502 (1991) (“As [p etitioner] lacks cause for fail ing to raise the Massiah claim in the first federal petiti on, we need not consider wheth er he would be prejudiced by his in ability to raise the alleged Massiah violation at this late date.” (citing Murray , 477 U.S. at 494)); see also Coleman v. Thompson , 501 U.S. 722, 757 (1991) (holding petitioner’s c laim barred by state procedur al default where petitioner could not establish cause, without considering prejudice); Romano v. Gibson , 239 F.3d 1156, 1171–72 (10th Cir. 2001) (a ssuming the State suppressed Bradyevidence but denying relief because the evi dence was not material). We exercise our discretion to p roceed directly to the prejudice /materiality question. Ultimately, we de ny Mr. Simpson relief on his Brady claim because, even assuming he could show cause/suppression, he cannot establish p rejudice/materiality.

c. Prejudice/Materiality merits analysis “[P]rejudice within the compass of the ‘cause and prejudice’ re quirement exists when the suppressed evidence is ‘material’ for Brady purposes.” Banks ( Dretke ), 540 U.S. at 691. Suppressed evidence “is material if there is a rea sonable probability that, had the evidence been dis closed to the defense, the result of the p roceeding would have been different.” Id. (quoting Kyles , 514 U.S. at 433). “A ‘reasonable probability’ is a33 ‘probability sufficient to under mine confidence in the outcome. ’” Scott , 303 F.3d at 1230 (quoting United States v. Bagley , 473 U.S. 667, 682 (1985 )). “In evaluating the materiality of withheld evidence, we do not consider each piece of withheld evidence in isolation. Rather we review the cumulative impact of the withhe ld evidence, its utility to the defense as well as its poten tially damaging impact on the p rosecution’s case.” Banks ( Reynolds ), 54 F.3d at 1518; see also Snow v. Sirmons , 474 F.3d 693, 711 (10th Cir. 2007). Put another way, “we evaluat e the materiality of withhel d evidence in light of the entire record in order to determ ine if ‘the omitted evidence cr eates a reasonable doubt that did not otherwise exist.’” Banks ( Reynolds ), 54 F.3d at 1518 (quoting United States v. Agurs , 427 U.S. 97, 112 (1976)). Here, even if all the evidence M r. Simpson claims is material h ad been disclosed, there is no reasonable probability the jury would have decided on a sentence less than death. See Douglas , 560 F.3d at 1173. The suppresse d evidence includes: Mr. Colli ns’s prior gang affiliation with the H oover Crips—the same gang the victims belonged to and the rival of Mr. Simpson’s gang , the Bloods; Mr. Collins’s addi tional criminal convictions; the similarities be tween the two jailhouse confess ion stories; and Mr. Collins’s alleged expectation o f prosecutorial assistance in ex change for his testimony. To be sure, this evidence could have been used to impeach Mr. C ollins, who testified in support of the Continuing Threat Aggravato r. In evaluating prej udice/materiality, however, the impact of the eviden ce must be viewed in light of the impeachment34 evidence introduced at trial and the strength of the State’s ag gravating evidence. See Banks ( Reynolds ), 54 F.3d at 1518. The only wholly new information withheld was Mr. Collins’s prio r gang affiliation and the alleged similarities be tween Mr. Collins’s story of his conversation with Mr. Simpson and his prior testimony inthe Whitecrow trial. All of the other Collins Evidence related to topics on which evidence was introduced in some format trial. For example, the State conceded at trial th at Mr. Collins wanted to exchange his testimony for favorable treatment, but claimed it never agreed to such a deal . The State also admitted, and the jury was informed, tha t Mr. Collins was a liar, a drug dealer, and a criminal, even if the extent of those lies and crimes was not fully disclosed. In particular, the defense established during trial that M r. Collins lied on the stand abo ut playing football at the University of Oklahoma. It is tr ue the prosecutor attempted to undermine the effectiveness of this impeachme nt evidence by suggesting that, in Mr. Collins’s “druginduced mind, he thinks he did [play football at the University of Oklahoma].” Trial Tr. vol. 8 at 19. Nonetheless, the def ense efforts at trial made th e jury aware that Mr. Collins’s recollection of events was questionable at best. The introduction of evidence of additional criminal convictions, o r of more factual inaccuracie s therefore, would have had diminishing returns. That said, when considering the suppressed evidence in light of the impeachment evidence introduced at trial, w e agree with Mr. Simpson that th e suppressed evidence was not all cumulative. See Case v. Hatch , 731 F.3d 1015, 1042– 43 (10th Cir. 2013). As35 indicated, Mr. Collins’s gang a ffiliation and prior testimony a bout Mr. Whitecrow’s alleged jailhouse admissions were not offered in any form at Mr . Simpson’s trial. But that fact alone does not make the supp ressed evidence material. To m ake that assessment, we must evaluate Mr. Collins’s testimony in light of the State’s c ase as a whole. See Banks ( Reynolds ), 54 F.3d at 1518. As indicated, the State alleged fo ur aggravating factors: 1) th e Prior Violent Felony Aggravator, 2) the Risk of Multiple Deaths Aggravator, 3 ) the HAC Aggravator, and 4) the Continuing Threat Agg ravator. Although defense couns el conceded the State had proven beyond a reasonable do ubt the first two aggravating factors, counsel argued the State had failed to prove M r. Palmer’s death was especially heinous, atrocious, or cruel or that Mr. Simpson would c ontinue to be a threat in jail . Trial Tr. vol. 8 at 46–47 (“[The prosecutor] told you that he has proven beyond a reasonable doubt all four of the aggravators. I will take issue w ith him on three and four. . . . [T]hey didn’t prove three and four.”). The State relied on Mr. Collins’ s testimony to prove Mr. Simpso n would be a continuing threat. Id. at 15 (“Now, this is where Roy Collins come[s] in. A continuing threat.”); id. at 22 (“[W]e offered Roy Colli ns for continuing threat.”). And Mr. Collins’s extensive and inflammatory testimony may have been a factor in the jury’s verdict of death. But the question is not whether Mr. Collins was benefici al to the prosecution; the question is whether the prosecu tor’s case was strong enough tha t, had the evidence impeaching Mr. Collins been discl osed, there is no reasonable p robability the jury would36 have decided on a sente nce less than death. See Douglas , 560 F.3d at 1173. We believe it

was. Mr. Simpson characterizes Mr. Co llins as critical to the State’ s case in aggravation, claiming, “[Mr.] Co llins’s testimony that Mr. Simp son tried to hire him to kill [the surviving victim] and assault and threaten witnesses and was utterly remorseless, was the centerpiece of the prose cution’s case for death.” Aplt. Br. at 53, 77–78. He argues the prosecutor “directed [M r.] Collins to his theme that [Mr.] Simpson, a high rolling outsider from New Orleans , was a remorseless gangster.” Id. at 53. While Mr. Simpson acknowledges there was o ther evidence to support the Co ntinuing Threat Aggravator, he argues Mr. Collins’ s testimony was so important that the jury might not have imposed the death penalty w ithout it. To put this argument in context, we must consider the other evidence offe red in support of a penalty of death. To begin, Mr. Simpson c oncedes there was su fficient evidence to support the jury’s finding of the first two aggravators: (1) he was convict ed previously of a felony involving the use or threat of v iolence and (2) he knowingly cr eated a great risk of death to more than one person. There i s also substantial evidence in the record that supported the Continuing Threat Aggravato r, even without considering Mr. Collins’s testimony. First, the facts of the crime i tself support this aggravator. See Jones v. State , 128 P.3d 521, 549–50 (Okla. Crim. A pp. 2006) (“Evidence of the call ous nature of the crime and the defendant’s blatant dis regard for the importance of hum an life supports” the Continuing Threat Aggravator). M r. Simpson gunned down three me n with an assault37 rifle because one of the victims had punched him nearly an hour earlier. He ordered one of his codefendants, Mr. Dalton , to follow the men for several miles and threatened Mr. Robinson, his other codefenda nt, when Mr. Robinson initially re fused to retrieve the rifle from the trunk. The shooting to ok place in a residential area, yet Mr. Simpson indiscriminately shot fifteen to twenty rounds in to the victims ’ moving car, forcing it to veer off the road and hit an elect rical pole. And as he fled th e scene, Mr. Simpson shouted, “I’m a monster. I’m a motherfucking monster. Bitches d on’t want to play with
me.” 15 Trial Tr. vol. 4 at 44–46. The State also offered other evi dence of Mr. Simpson’s callous disregard for human life as support for finding the Continuing Threat Aggrava tor. For example, immediately following the murder s, Mr. Simpson pr oceeded with h is plan to visit some women he had met at Fritzi’s. T he jury could have reasonably in ferred a lack of remorse from this conduct and weighed that attitude in favor of finding Mr. Simpson a continuing threat. Mr. Simpson’s attempts to conceal evidence further support a fi nding that he would be a continuing threat. The record reflects that Mr. Simp son threatened Mr. Dalton’s family in an attempt to keep Mr. Dalton from speaking to the police, and that Mr. Simpson’s codefendants t ook his threats seriously.

15 This recitation of Mr. Simpson’s statement immediately after the shooting is not identical to the sanitized versi on in the OCCA’s findings. But for purposes of our analysis we rely on the trial tr anscript because it reflects th e evidence as presented to the jury.38 Mr. Simpson’s past criminal conv ictions can also serve as evide nce in support of the Continuing Threat Aggravator. See Lockett v. State , 53 P.3d 418, 428 (Okla. Crim. App. 2002). The State relied on M r. Simpson’s previous convicti on for armed robbery and offered Mr. Pham’s testimony about the facts underlying tha t offense. Mr. Pham related how Mr. Simpson forced his way into Mr. Pham’s home, th reatened him with a gun, beat him across the face a nd back, stole his wallet, force d him onto his knees, and then shot him in the head. Mr. Pham provided powerful evidence supporting a finding that Mr. Simpson would be a continuing threat. Weighing all of the aggravating ev idence the State introduced a gainst the previously discussed evidence Mr. Simpson pr esented in mitigati on, 16 we find no reasonable probability that the out come of the sentencing proce eding would have been different had the Collins Evid ence been produced. We do not dis count the obvious significance of Mr. Collins’s test imony or the State’s reliance on it. But given the defense’s successful, if admittedl y limited, impeachment of Mr. Collins and the compelling nature of the State’s other aggravating evidence, Mr . Simpson “has not convinced us that there is a r easonable probability that the ju ry would have returned a different verdict if [Mr. Collins’ s] testimony had been [furthe r] impeached or excluded

16 See Section I.B.1.a.ii, supra , for a detailed discussion of the mitigating evidence Mr. Simpson presented.39 entirely.” See Strickler , 527 U.S. at 296. Therefore, the evidence was not material und er Brady , and Mr. Simpson cannot demonstrate prejudice. 17 In summary, because Mr. S impson cannot establish prejudice, we need not consider whether he could show cause. See McCleskey , 499 U.S. at 502. In the absence of a showing of both cau se and prejudice, Mr. S impson cannot overc ome the state procedural bar and we cannot c onsider this claim on habeas revi ew. Accordingly, we deny Mr. Simpson relief on his Brady claim.

17 Mr. Simpson also claims the pros ecutor violated his duty under Napue v. Illinois , 360 U.S. 264, 269–70 (1959), “not [to] so licit[] false eviden ce” and “to correct what he knows to be false and el icit the truth,” by guiding Mr. Collins into misleading testimony about his education, c riminal history, and motivation for testifying, and by knowingly failing to correct fa lse testimony about Mr. Collins’ s football career at the University of Oklahom a. Like with his Brady claim, Mr. Simpson’s Napue claim is procedurally defaulted. Thus, bef ore we can consider the merits of Mr. Simpson’s Napue claim, he must satisfy the cause and prejudice standard. But Mr . Simpson is unable to demonstrate prejudice because, for the reasons the Brady evidence was not material, he cannot demonstrate that the pro secutor’s failure to correct fal se statements in Mr. Collins’s testimony “not merely . . . created a possibility of prejudice, but that [it] worked to his actual and substantial disadvantage, i nfecting [his] entire trial with error of constitutional dimensions.” See Daniels v. United States , 254 F.3d 1180, 1192 (2001) (quoting United States v. Frady , 456 U.S. 152, 170 (1982 )). In so concluding, we acknowledge the anomaly in that the prejudice standard for prev ailing on the merits of a Napue claim is lower than the prejudi ce standard for overcoming the p rocedural bar. See United States v. Garcia , 793 F.3d 1194, 1207 (1 0th Cir. 2015) (“Under Napue materiality is easier to establish [than under Brady ]; the failure to disclose is material unless it was harmless beyond a reasonable do ubt.”). But, we also observe tha t where Mr. Simpson never identifies or advances an argument, to this court, under the lower prejudice standard for Napue claims, we will not consider a ny argument in favor of substitut ing the Napue prejudice standard for the prejudice standard to overcome the p rocedural bar.40 4. Evidentiary Hearing and Discovery Motions In conjunction with his Brady claim, Mr. Simpson appeal s the district court’s denial of his motion for an evid entiary hearing and discovery s eeking additional impeachment evidence as to Roy Collins. The district court deni ed the motion after determining that Mr. Simpson “w ould not be entitled to relief e ven if Mr. Collins’[s] testimony was completely discounted or excluded.” Simpson IV , 2016 WL 3029966, at *41. We review a district court’ s denial of a motion for discov ery or an evidentiary hearing for abuse of discretion. See Fairchild II , 579 F.3d at 1147 (evidentiary hearing standard); Wallace v. Ward , 191 F.3d 1235, 1245 (10th Ci r. 1999) (motion for discovery standard). Generally speaking, federal habe as review “is ‘limited to the r ecord that was before the state court that adjud icated the claim on the merits .’” Smith v. Aldridge , 904 F.3d 874, 886 (10th Cir. 2018) (quoting Pinholster , 563 U.S. at 181). As a result, “we can only order evidentiaryhearings if the petitioner meets the requirements in both §§ 2254(d) and (e)(2).” Id. Here, where the OCCA did not explicitly reach the merits of Mr. Simpson’s Brady claim, it is questionable whet her § 2254(d) applies to his requ est for an evidentiary hearing . See 28 U.S.C. § 2254( d) (“An application for awrit of habeas corpu s . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . .” (emphasis added)). But because Mr. Simpson cannot satisfy either the § 2254(e)(2) requirements or the pre-AEDPA41 requirements where § 2254(e)(2) does not apply, we need not det ermine the applicability of § 2254(d) to a request for an evidentiary hearing where the state court did not explicitly adjudicate a claim on the merits. Section 2254(e)(2) of Title 28 states: If the applicant has failed to develop the factual basis of a c laim in State court proceedings, the court sha ll not hold an evidentiary hear ing on the claim unless the applicant shows that-- (A) the claim relies on-- (i) a new rule of constitutional la w, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that c ould not have been previously discovered through the exer cise of due diligence; and (B) the facts underlying the cla im would be sufficient to estab lish by clear and convincing evidence t hat but for constitutional error , no reasonable factfinder would have found the applicant guilty of the underlying offense. Under this provision, “AEDPA . . . bars an evidentiary hearing for a nondiligent petitioner unless the petitioner can satisfy both §§ 2254(e)(2)(A) and (B).” Pinholster , 563 U.S. at 209–10 (emphasis added). 18 However, “[i]f the prisoner did not fail to develop the factual basis for his claim in State court, § 2254( e)(2) is not applicable and a federal habeas court should pro ceed to analyze whether an evide ntiary hearing is appropriate or required unde r pre-AEDPA standards.” Barkell v. Crouse , 468 F.3d 684,

18 To the extent our pre- Pinholster decisions state a petitioner meets the standard for an evidentiary hearing under § 2254(e)(2) by satisfying “22 54(e)(2)(A) or (B),” see Bryan v. Mullin , 335 F.3d 1207, 1214 (10th Cir. 2003) (en ba nc) (emphasis adde d), see also Cannon v. Mullin , 383 F.3d 1152, 11 76 (10th Cir. 2004), Pinholster resolves any ambiguity in the statute by cl early requiring the petitioner to satisfy both 2254(e)(2)(A) and (B).42 693 (10th Cir. 2006) (quota tion marks omitted). Under this pre-AEDPA standard, a petitioner is entitled to an evid entiary hearing “if (1) the fa cts were not adequately developed in state court, so l ong as that failure was not attri butable to the petitioner, and (2) his allegations, if true and no t contravened by the existin g factual record, would entitle him to habeas relief.” Id. at 696 (quotation marks omitted); see Medina v. Barnes , 71 F.3d 363, 366 ( 10th Cir. 1995) (pre-AEDPA case stating that petitioner entitled to evidentiary hearing if he made “ allegations which, if proved, w ould entitle him to relief”). Similarly, Mr. Simpson is entitled to discovery if he establishes “good cause,”
Wallace , 191 F.3d at 1245. “Good cause i s established ‘where specific allegations before the court show reason to believe that the petitioner may, if th e facts are fully developed, be able to demonstrate that he is entitled to relief.’” Id. (quoting Bracy v. Gramley, 520 U.S. 899, 908–09 (1997)). For the reasons explained above, Mr. Simpson cannot show that the jury would have given him a sen tence less than death even with the additio nal impeachment evidence against Mr. C ollins. Accordingly, M r. Simpson has not satisfied § 2254(e)(2)(B) or the pre-AEDPA s tandard where § 2254(e)(2) do es not apply because the petitioner acted diligen tly in the state court. 19 The district court therefore properly denied his motion for discovery and an evidentiary hearing.

19 Because Mr. Simpson cannot satis fy either standard, we need no t decide whether the OCCA reached an unre asonable determination when it concluded that “the factual basis for the [ Brady ] claim[] was available and co uld have been ascertained43 C. Consideration of M itigating Evidence Mr. Simpson next claims the trial court’s instruction and the p rosecutor’s improper argument unconstitutionally limite d the jury’s consideration of his mitigating evidence. On direct appeal, the OCCA deni ed relief, rejecting both prongs of Mr. Simpson’s argument. Simpson I , 230 P.3d at 903–04. 20 We begin our review of this claim with a general overview of th e legal background. Next, we ex amine the OCCA’s decision and conclude i t adjudicated this issue on the merits. Accordingly , we proceed to the question of whether the OCCA unreasonably applied clearly estab lish law or unreasonably dete rmined the facts. Under AEDPA’s deferential standard of review, we deny relief on this claim.

through the exercise of reasonable diligence

. ” Simpson III , slip op. at 4 (citing Okla. Stat. tit. 22, § 1089(D)).

20 The State asserts Mr. Simpson “n ever raised a prosecutorial mi sconduct claim to the OCCA, or to the district cour t, regarding the prosecutor’s arguments relating to his mitigation evidence” and that he was not granted a COA on this issue. Aplee. Br. at 79– 80. We disagree. See Simpson I , 230 P.3d at 903–04 (“[T]his C ourt recognized that while the instruction on mitigating ev idence did not unconstitutional ly limit the evidence the jury could consider as mitigati ng, it was subject to misuse by prosecutors in closing argument. This is what [Mr. Simpson] ar gues happened in the present case. ” (emphasis added) (footnote omitted)); Case Ma nagement Order dated Decembe r 1, 2016, at 1–2 (granting COA on “Ground II, Okla homa’s jury instruction defini ng mitigating circumstances is unduly limiting; m oreover, the prosecutors exp loited the instruction to blunt or eliminate jury consider ation of importa nt mitigating e vidence, all in violation of the Sixth, Eighth, and Fo urteenth Amendments.”).44 1. Legal Background “The Supreme Court has repeated ly held that the Constitution re quires that a jury ‘cannot be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record . . . that the defendant proffers as a basi s for a sentence less than death.’” Hanson v. Sherrod , 797 F.3d 810, 850 (1 0th Cir. 2015) (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)); see Lockett v. Ohio , 438 U.S. 586, 604 (1978) (plurality opinion). This is true regardless of whether the pre clusion results from the jury instruction itself or from prosecutorial argument. Abdul-Kabir v. Quarterman , 550 U.S. 233, 261 (2007); see also Mills v. Maryland , 486 U.S. 367, 375 (1988 ). But prosecutorial misrepresentations “are not to be judged as having the same for ce as an instruction from the court” and must be considered“in the context in which theyare made.” Boyde v. California , 494 U.S. 370, 384–85 (1990). When evaluati ng whether a jury w as unconstitutionally precluded from considering mitigating eviden ce, “[t]he proper inquiry is ‘whether there is a reasonabl e likelihood that the jury has applied the challenged instruction in a way that preven ts the consideration of constit utionally relevant evidence.’” Hanson , 797 F.3d at 850 (quoting Boyde , 494 U.S. at 380).
2. OCCA Decision On direct appeal, Mr. Simpson argue d that the instruction on mi tigating evidence, combined with the pro secutor’s improper argument, unconstitutio nally prevented the jury from considering relevant evide nce in mitigation. The OCCA reje cted this claim on the merits, stating: “A review of the prosecutor’s closing argument concerning the mitigating45 evidence instruction, the mitigat ing evidence itself and all in structions concerning mitigation evidence given in thi s case supports our conclusion that the jurors’ consideration of the evidence offered in mitigation was not unf airly limited in this case.” Simpson I , 230 P.3d at 904. Because the OC CA adjudicated Mr. Simpson’s c laim on the merits, our review is limited by AEDPA, and we must affirm unle ss the OCCA’s decision was contrary to or an unreasonabl e application of clearly estab lished Supreme Court authority or based on an unreas onable determination of the fact s in light of the evidence presented at trial. See 28 U.S.C. § 2254(d).
3. Reasonableness of the OCCA Decision

a. Mitigation instruction Mr. Simpson first claims the la nguage of Oklahoma’s uniform jur y instructions improperly precluded the jury fromconsidering evidence that di d not “extenuate or reduce the degree of [ his] moral culpability or blame.” Aplt. B r. at 80–81. We rejected this exact challenge in Hanson , and we must do so again today.
In Hanson , this court considered the con stitutionality of the same instr uction used in Mr. Simpson’s case: “Mitigati ng circumstances are those whic h, in fairness, sympathy, and mercy, may extenuate or reduc e the degree of moral culpabil ity or blame. The determination of what circumst ances are mitigating is for you t o resolve under the facts and circumstances of this ca se.” 797 F.3d at 850–51; Trial R. vol. 3 at 604. Relying on the Supreme Court’s edict that j ury instructions must be lookedat in context rather than in isolation, Boyde , 494 U.S. at 378, we concluded that the second sentence in the46 instruction “broadened any poten tial limitations imposed by the first sentence,” Hanson , 797 F.3d at 851. And where, as is true here, the instruction is coupled with another instruction enumerating the defe ndant’s asserted mitigating fac tors and informing the jury it “may decide that oth er mitigating circumstances exist, and i f so, [it] should consider those circumstances as well,” we concluded that there is no rea sonable likelihood the jury would have felt preclude d from considering a ny mitigating evide nce. Id. Mr. Simpson has pointed us to nothing that w ould permit us to depart from t his binding precedent. b. Prosecutor’s closing argument More compelling is Mr. Simpson’s a ssertion that the prosecutor made improper comments designed to mislead the jurors into believing they cou ld not legally consider Mr. Simpson’s mitigati ng evidence unless it reduced his moral c ulpability or blame. Throughout his closing argumen t, the prosecutor made no less th an nine separate statements which either genera lly defined mitiga ting evidence a s reducing moral culpability or bla me or specifically compared Mr. Simpson’s mit igating factors to that definition (“Moral Cu lpability Comments”). 21 One example of this came near the end of closing argument as the prosecu tor was summarizing Mr. Simpson’ s mitigating evidence:

21 Mr. Simpson relies on the Moral C ulpability Comments to suppor t two of his arguments: (1) the jury’s consid eration of his mitigating evide nce was unconstitutionally limited, and (2) prosecutorial mis conduct rendered his sentenci ng trial fundamentally unfair. There is some overlap in these arguments, but the two a re distinct claims arising under different constitutional sta ndards. In this section, we a ddress only Mr. Simpson’s claim that the pros ecutor’s Moral Culpability Comments improper ly limited the jury’s consideration of his evidence in mitigation. We address Mr. Sim pson’s separate argument47 There is not one bit of mitigati ng evidence that reduces [Mr. Simpson’s] degree of moral culpability. That’s what the law is. Does [the] mitigating circumstance reduce his degr ee of moral culpability or blame? Look at [the instruction]. Not one bit. Not his age, not his fa mily, certainly not them. They’re goodpeople. They don’t want to be here. He brought them into it, too. And his mental condition, there’s nothing wrong with him. There ’s not one bit of evidence that redu ces his degree of moral culpab ility or blame. And [Dr. Massad] didn’t tell you that, even if for some reason the P.h.D. [sic] convinces you, okay , he’s got Post-Traumatic Stres s, how does that reduce his degree of blame? Trial Tr. vol. 8 at 31 (emphasis added). The record is replete with similar Moral Culpability Comments. 22 But we are constrained by AED PA’s deferential standard from providing relief to Mr. Simpson on this basis. Several cases guide our analysis of this issue. In Boyde , the Supreme Court held a prosecutor’s statements, that “t he mitigating evidence did not ‘suggest that petitioner’s crime is less serious or that th e gravity of the crime is any l ess’ and that ‘nothing I have heard lessens the seriousness o f this crime,’” were not imprope r attempts to narrow the jury’s consideration of mitigati ng evidence. 494 U.S. at 385. T he Court concluded the prosecutor was merely arguing tha t “the evidence did not suffic iently mitigate Boyde’s conduct[;] [the prosecu tor] never suggested that the background and character evidence could not be considered.” Id. (internal quotation marks omitted). The Court noted,

that the Moral Culpability Comme nts denied him a fundamentally fair sentencing trial in section III.D.4.a.

22 Numerous additional examples a re provided in footnotes 23-27.48 however, that other comments by the prosecutor “explicitly assu med that [Mr. Boyde’s] character evidence was a proper fa ctor in the weighing process” and the defense attorney “also stressed a broa d reading of [the ins truction] in his argu ment to the jury.” Id. at 385– 86. Similarly, we held in Hanson that the prosecutor’s state ment that the jury should “consider whether any of the mitig ating circumstances ‘really e xtenuate or reduce Hanson’s degree of culpability o r blame,’” did not limit the ju ry because the prosecutor followed with other comments that “encouraged [the jurors] to c onsider any and all mitigating evidence they thought relevant.” Hanson , 797 F.3d at 851. Although these decisions are inf ormative, Mr. Simpson’s case ha s some key distinctions. The prosecutor beg an his discussion of Mr. Simpso n’s mitigating evidence by advancing an impr operly narrow definiti on of mitigating evid ence 23 as “what the law is.” Trial Tr. vol. 8 at 31. He then systematically and repeate dly attacked Mr. Simpson’s

23 “Now, mitigating evidence. . . . M itigating evidence, mitigati ng circumstances are those which in fairness and mercy and sympathy may extenuat e or reduce the degree of moral culpability or blame. Doe s that make sense? Mitigating evidence presented is that which reduces the degree of moral culpability or blame for the murder.” Trial Tr. vol. 8 at 23.49 age, 24 mental state, 25 and family support, 26 both individually and collectively, 27 as failing to meet that definition. While a prosecutor may “comment[] on the weight that should be accorded to the mitigating factor s,” he cannot preclude the jur y from “giving effect to the mitigating evidence” o r “suggest that the jury was not permitte d to consider the factors.”

24 “How in the world does his age reduce his degree of moral culp ability or blame for this murder? It doesn’t.” Trial Tr. vol. 8 at 24.

25 Mr. Simpson challenges three of these statements: [1] “Even if somehow you find tha t, okay, more likely than not he’s got Post-Traumatic Stress, that’s not an excuse. J udge Gray didn’t tell you that’s an excuse. Judge Gray didn’t say that prevents the i mposition of the death penalty. N ot at all. It’s just something he’s trying to hid e behind . . . .” Trial Tr. vol. 8 at 29. [2] “And now it’s, ‘Okay. Well, it’s a mitigating factor that I ’ve got PTSD.’ You get back to the room and you say, ‘How in the world does that reduce his degree of moral culpability or blame fo r this case?’ It doesn’t. It doesn’t.” T rial Tr. vol. 8 at 32. [3] “Let’s talk about the mitig ators. Mitigating circumstances are those which in fairness, sympathy, and mercy may extenuate or reduce the de gree of moral culpability or blame. Ask yourselves, does this Defendant have PTSD? If he does, does it reduce the degree of mor al culpability or blame? I woul d submit to you, no way. Not even close. First of all, I would submit to you he doe sn’t have PTSD. But if he does, there’s no way it reduces the degree of his mor al culpability and blame.” Trial Tr. vol. 8 at 61.

26 “How in the world does hiding b ehind his family support reduce his degree of moral culpability o r blame?” Trial Tr. vol. 8 at 25.

27 Mr. Simpson identifies tw o such statements: [1] “Now, they presented mitigati ng evidence that they’ve alleg ed in Instruction Number 14. And you’ve got to ask yourselv es how in the world does this evidence reduce his degree of moral culpability or bla me.” Trial Tr. vol. 8 at 24. [2] “Look at his mitigating evid ence and ask yourselves, how in the world does that reduce his blame for this incide nt? It doesn’t. It’s not even c lose.” Trial Tr. vol. 8 at 33.50 Fox v. Ward , 200 F.3d 1286, 1299–1300 (10t h Cir. 2000). The prosecutor’s a rgument here attempts to do just that. Unlike the prosecutors in Hanson and Boyde , the prosecutor here made no comments encouraging the jury to consider all the factors in mitigation and, instead, ended his closing argume nt by again asserting that Mr. Simpson’s mitigating evidence did not reduce his cu lpability or blame. And neither the trial court nor defense counsel corrected the impression created by the comments. The c losest defense counsel came to refuting the prosecutor’s attempts to limit what the ju ry could consider as mitigating evidence was counsel’s statement: “Hypervigilance, f ear, and the responses to those are part of the PTSD disorder, Post-Traumatic Stress Diso rder. And it is something that you can consider.” Trial Tr. vol. 8 at 45. Mr. Simpson’s case is close r to our recent decision in Grant . As in Mr. Simpson’s case, an Oklahoma jury convict ed Mr. Grant of murder and then s entenced him to death.
See Grant , 886 F.3d at 887. During Mr. Gra nt’s sentencing trial, the jur y received the same instruction defining mitiga ting circumstances as “extenuat [ing] or reduc[ing] the degree of moral culpability o r blame” as at issue here. See id. at 930 (internal quotation marks omitted). The defense pre sented evidence of Mr. Grant’s “ mental illness” and “disadvantaged and dysfunctional childhood” as mitigating evide nce, id. at 918, and argued that it provided “an explan ation” for the defendant’s ac tions even though it did not “excuse what happened,” id. at 936–37. In rebuttal, the prosecutor empha sized the limiting language of the mitigating instruction by telling the jury, “ the law tells you what [the d efinition of mitigating51 circumstances] mean s. . . . It says that mitig ating circumstanc es are those which reduce the moral culpability o r blame of the defendant. That those thi ngs, in order to be mitigating, must reduce his moral culpability or blame.” Id. at 937 (emphasis omitted). After the trial court overruled an objection by the defense, th e prosecutor in Grant pressed further, saying “the law says, not [what the prosecutor says], not what the defense attorneys say, but what the [c] ourt tells you and what the law says is that before something can be mitigating[,] it must reduce the moral culpabi lity or blame of the defendant.” Id. (emphasis omitted). The prosecu tor then argued that Mr. Grant’ s mental illness did not reduce his moral culpability or blame and impli ed it therefore could not be mitigating because the jury “ha[ d] to look at whether or not [M r. Grant’s mental illness] reduces his moral culpability or b lame. That is what the law sa ys that you must do.” See id. (emphasis omitted). Mr. Grant appealed to the OCCA , arguing “that the prosecutor fo cused on only one part of the definition of m itigating evidence, and thus unf airly limited the jurors’ consideration of the evidence he had offered as mitigating.” Id. at 931 (internal quotation marks omitted). The OCCA rejected this “dual challenge,” holdin g that “the jurors in this case were properly instructed tha t anything could be consideredmitigating.” Id. (internal quotation marks omitted). In h is § 2254 petition, Mr. Grant aga in argued that the jury was precluded from consider ing proper mitigation evidence by the la nguage of the instruction and the prosecutor’s “exploitation” of it. Id. at 935 (internal quotation marks omitted). Much like this case , the prosecutor in Grant presented the jury w ith a narrow definition52 of mitigating evidence, character ized that definition as “what the law says,” and then argued the specific evidence pres ented by the defense failed to meet that definition. See id. at 937 (internal quotation ma rks omitted). We ultimately concl uded that, even considering the comb ined impact of the pro secutor’s comments an d the instruction, Mr. Grant could not overcome the OCC A’s decision under the deferent ial standard of review required by AEDPA. Id. at 939. We reach a similar conclusion here. Despite the pervasive nature of t he prosecutor’s Moral Culpabil ity Comments in Mr. Simpson’s case, the OCCA conc luded the jury’s considerationof the evidence was “not unfairly limited” by “the p rosecutor’s closing argument co ncerning the mitigating evidence instruction, the mitigat ing evidence itself and all in structions concerning mitigating evidence.” Simpson I , 230 P.3d at 904. Under AEDPA ’s deferential standard of review, we uphold the OCCA’s decision. To be sure, Mr. Simps on’s case evidences significant and troubling prosecut orial comments that, standing alone, might violate federal constitutional law. See Eddings, 455 U.S. at 110 (“[T]he Eighth and Fourteenth Amendments require that the sent encer not be precluded from con sidering, as a mitigating factor , any aspect of a defendant’s cha racter or record and any of th e circumstances of the offense that the defendant proffers as a b asis for a sentence less than death.” (quoting Lockett v. Ohio , 438 U.S. 586, 604 (1978))). But the comments do not stand a lone. The jury received constitu tionally sound jury instructions—including one specifically identifying the ca tegories of evidence offered in mitigation—and Mr. Sim pson offered extensive evidenc e on each of those53 topics. See Section I.B.1.a.ii, supra . Under these circumstances, we cannot say that no fairminded jurist would agree wi th the OCCA’s conclusion that the jury was not precluded from considering the evidence offered by Mr. Simpson in mitigation. See Richter , 562 U.S. at 102. It follows the n, that under AEDPA, the OCCA’ s decision was not unreasonable. 28
D. Prosecutorial Misconduct Mr. Simpson claims that, during the closing arguments in his se ntencing trial, the prosecutor made improper comment s that rendered his trial so fu ndamentally unfair it deprived him of his due process rights. The OCCA denied this cl aim on direct appeal, holding that any improper comme nts did not render Mr. Simpson’s sentencing trial fundamentally unfair when consid ered within the context of the entire trial. Simpson I , 230 P.3d at 899.

28 The prosecution’s misuse of the instruction here occurred desp ite defense counsel’s motion for an order in limine prohibiting precisely t his type of argument. Furthermore, at the time of the p rosecutor’s argument, both thi s court and the OCCA had previously held that such comme nts are improper and risk errone ously informing the jury that it cannot consider legally relevant mitigating evidence. See Le v. Mullin , 311 F.3d 1002, 1017–18 (1 0th Cir. 2002); Harris v. State , 164 P.3d 1103, 11 13–14 (Okla. Crim. App. 2007). We find ourselves ye t again chastising prosecutors for engaging in the kind of inappropriate behavior that undermines our constitutional pr otections and “create[s] grave risk of upsetting an other wise unobjectionable verdict onappeal or on collateral review. It is time to stop.” See Bland v. Sirmons , 459 F.3d 999, 10 28 (10th Cir. 2006). We remind prosecutors they are re presentatives of the governmen t and “servant[s] of the law.” See Berger v. United States , 295 U.S. 78, 88 (19 35). Their obligation is not to “win a case, but [to see] that justice shall be done.” Id. “It is as much [a p rosecutor’s] duty to refrain from improper methods calcu lated to produce a wrongful conviction as it is to use every legitimate means to b ring about a just one,” id. , and there is no place in the law for those who would do otherwise.54 We begin our review of this clai m by first setting forth the OC CA’s decision. We next consider the proper standard of review, rejecting Mr. Simp son’s claim that the OCCA’s decision is so unclear a s to be unentitled to AEDPA defe rence. Having concluded the claim is subject to AEDPA deference , we then prov ide a discussion of the general legal background governi ng claims of prosecutorial misc onduct affecting the fundamental fairness of a proc eeding. Ultimately, we conclude the OCCA’s decision is not unreasonable under AEDPA’s d eferential standard, and we den y relief on this claim.
1. OCCA Decision Mr. Simpson raised his prosecutorial misconduct claim on direct appeal. Reviewing for plain error, the O CCA denied relief, stating: The alleged instances of [prosecu torial] misconduct include all egations that the prosecutor argued facts not i n evidence, engaged in unneces sary ridicule of [Mr. Simpson], contrasted [Mr. S impson’s] situation with tha t of the victims’, appealed to justice a nd sympathy for the victims and their families and improperly shifted the burden of proof. Many of these comme nts, including the single comment met with objection, fell within th e broad parameters of effective advoca cy and do not constitute error. W e review those comments bordering upon im propriety within the context of the entire trial, considering not only the propriety of the prosecutor’s a ctions, but also the strength of the evidence agai nst the defendant and the corr esponding arguments of defense counsel. Giv en the magnitude of the State’ s evidence against [Mr. Simpson,] this Court finds that any inappropriate comments not objected to did not depriv e [Mr. Simpson] of a fair trial o r affect the jury’s finding of guilt or assessme nt of punishment. There was no plain error here.
Id. (citations omitted).55 2. Standard of Review Mr. Simpson claims this court sh ould review his prosecutorial m isconduct claims de novo for two reasons. First, h e argues the OCCA did not adju dicate his federal claim on the merits. Second, Mr. Simpson contends that, even if the O CCA intended to resolve some of his prosecutorial miscond uct claims on the merits, its decision is not entitled to AEDPA deference because it is unclear which claims the OCCA adj udicated on the merits and which it did not. We a ddress each argument in turn.

a. Adjudication on the merits “[W]hen a federal claim has been presented to a state court andthe state court has denied relief, it may be presumed that the state court adjudica ted the claim on the merits in the absence of any indication or state-law procedural princi ples to the contrary.”
Johnson v. Williams , 568 U.S. 289, 298 (2013) (quoting Richter , 562 U.S. at 92). Even when a state court “fails either to mention the federal basis f or the claim or cite any state or federal law in support of its conclusion,” we presume the co urt “reache[d] a decision on the merits.” Fairchild I , 784 F.3d at 712 (internal quotation marks omitted); see Johnson , 568 U.S. at 301 (reiterating th at a rebuttable presumption ap plies even “[w]hen a state court rejects a federal claim without expressly address ing that claim”). This presumption “may be overcome wh en there is reason to think some other explanation for the state court’s decision is more likely,” Richter , 562 U.S. at 99–100, or when the claim was rejected due to “sheer inadvertence,” Johnson , 568 U.S. at 303. T he petitioner bears the burden of showing a claim w as not adjudicated on the merits in state court. Fairchild56 I

, 784 F.3d at 711. Thus, the OCCA’s decision is entitled to def erence unless Mr. Simpson can show some reason to b elieve it is more likely the O CCA adjudicated his claim solely under state law principles. See Richter , 562 U.S. at 99–100. Mr. Simpson attempts to make this showing by pointing to the OC CA’s statement that it “will not grant relief bas ed on prosecutorial misconduc t unless the State’s argument is so flagrant and that it so infected the defendant’s trial that it was rendered fundamentally unfair.” Simpson I , 230 P.3d at 899. He contends this standard creates a different analytical standard tha n the federal rule. According to Mr. Simpson, the use of the word “flagrant” implies an a dditional requirement that is n ot present in federal review. This argument is without m erit. Not only is there no ad ditional definition or analysis conducted by Oklahoma c ourts to satisfy this alleged e xtra element, but we have already ruled that Oklahoma’s st andard is the same as the feder al standard. E.g. , Bland , 459 F.3d at 1024; Patton v. Mullin , 425 F.3d 788, 811 (10th Cir. 2005). For these reasons, we review Mr. S impson’s claim under AEDPA, a nd he is entitled to relief only if the OCCA’s decision was an unreasona ble application of clearly established federal law. 29

29 Mr. Simpson raises two additiona l, alternative bases for de no vo review of this claim. First, Mr. Simpson argues de novo review is required bec ause the OCCA “said nothing about the misconduct’s i mpingement on [his] constitutio nal rights to present mitigation.” See Aplt. Br. at 92. We disagree. As discussed supra , the OCCA considered Mr. Simpson’s claim that the improper statements unconstitution ally limited his presentation of mitigating eviden ce in conjunction with his cha llenge to the language of the instruction. Simpson I , 230 P.3d at 904 (“A review of the prosecutor’s closing argument concerning the mitigating evidence instruction , the mitigating evidence itself and all instructions concerning mitigating evidence given in th is case supports our57 b. Scope of decision on the merits The OCCA noted that it had revi ewed the alleged misconduct and found that “[m]any of these comments . . . f ell within the broad parameter s of effective advocacy and do not constitute error.” Id. But the court then stated it had reviewed “those comments bordering upon improprie ty” for plain error and conclu ded that Mr. Simpson was not deprived of a fair trial. Id. Of significance for our p urposes, the OCCA never specified which statements it cons idered appropriate advocacy a nd which it deemed “bordering upon impropriety.” Id. As a result, Mr. Simpson contends the OCCA’s decision is not entitled to AEDPA deference. We are not convinc ed.
In Douglas , 560 F.3d at 1178–79, we consid ered a similar issue. There, th e state court’s plain error opinion statedonly that it had reviewed th e defendant’s multiple prosecutorial misconduct claims and found no plain error. As in this case, it was impossible in Douglas “to determine whether the court’ s review was or was not merits

conclusion that the jurors’ consid eration of the evidence offer ed in mitigation was not unfairly limited in this case.” (emphasis added)). The improper prosecutorial argument claim we address in this sectio n—although including the Moral C ulpability Comments— is not tied to Mr. Simpson’s clai m that the jury was precluded from considering his mitigation evidence, and the OCCA accordingly analyzed the clai ms separately. We have adopted the same approach here. Second, Mr. Simpson argues the OC CA’s analysis is “‘contrary to ’ clearly established federal law because it did not examine the entire p roceedings, including the strength of the evidence agains t Mr. Simpson as to the critical sentencing phase.” Aplt. Br. at 93 n.51. But a review of the OCCA’s opinion refutes this assertion. Simpson I , 230 P.3d at 899 (“We review those c omments bordering upon improprie ty within the context of the entire trial , considering not only the proprie ty of the prosecutor’s action s, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel .” (emphasis added)).58 based” on a statement-by-statement review. See id. at 1178. We held that in such situations, “our cases require u s to assume that the state’s re view is on the merits and thus afford it § 2254(d) deference.” Id. Accordingly, we review Mr. S impson’s “assertion of improper prosecutorial comments independently under federal law , and . . . afford § 2254(d) deference to the OCCA’ s ultimate conclusion that a ne w [sentencing] trial was not warranted on the basis o f prosecutorial misconduct.” See id. at 1178–79.
3. Legal Background A prosecutor’s misconduct will warrant a new trial only where t he improper statements “so infected the trial with unfairness as to make th e resulting conviction a denial of due process.” Le v. Mullin , 311 F.3d 1002, 1013 ( 10th Cir. 20 02) (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643, 645 (19 74)). An assessment of the fundamental fairness of Mr. Simps on’s sentencing trial “require s [an] examination of the entire proceedings, including the strength of the evidence agai nst the petitioner” at both the guilt and sentencing stages of trial. See id. We also consider “[a]ny cautionary steps— such as instructions to the jury—offered . . . to counteract im proper remarks” and “[c]ounsel’s failure to object to the comments.” Id. “Ultimately, this court considers the jury’s ability to judge the evid ence fairly in light of the pro secutor’s conduct.” Id. Given the nature of prosecutori al misconduct claims, we evaluat e the prejudicial impact of any improper comments i ndividually and collectively. See id. at 1022 (“Our cases on prosecutorial misconduct make it clear that we must co nsider all the complained of conduct in toto because individual, harmless pros ecutorial errors can add up t o make a59 trial fundamentally unfair in th e aggregate.”). “In death-penal ty cases, we review whether the improper comments as a whole so infected the trial with unf airness as to . . . render[] the sentencing fundamentally unf air in light of the heightened degree of reliability demanded in a capital case.” Bland , 459 F.3d at 1029 (internal quotation marks omitted).
4. Merits Mr. Simpson claims the prosecuto r made improper comments during closing argument that fall into four broad categories: (1) Moral Culpab ility Comments; (2) denigration of mitigation eviden ce; (3) improper comparison bet ween the victims and the defendant; and (4) improper calls for the death penalty as a ci vic responsibility. Mr. Simpson did not raise contempora neous objections to these comme nts. As a result, the OCCA reviewed for plain error. Simpson I , 230 P.3d at 899. We begin our review by individually evaluating each cat egory of the prosecutor’s argum ent challenged by Mr. Simpson to determine whether a ny resultant misconduct rendered his trial fundamentally unfair. Then, we evaluate the co llective prejudice of all misco nduct. We do so under the deferential AEDPA standard beca use the OCCA rendered a decisionon the merits of this claim.

a. Moral Culpability Comments Having already identified the Mo ral Culpability C omments challe nged by Mr. Simpson, we turn to the propriet y of such comments and whether any of them, individually or cumulatively, d enied Mr. Simpson a fundamentall y fair sentencing trial.60 Here, we are guided by our decision in Le . In Le , the prosecution made the following statements during closing argume nts regarding the defendant’s m itigating evidence: We have a whole list of things t hat have been s ubmitted as miti gating circumstances. The Court instructs you that mitigating circumstances are those which in fairness and mercy— get this—may be considered as extenuating or reducing the moral culp ability or blame. It doesn’t say anything about whether you’ve been a go od guy in the past or anything like that. Do these circumstances extenua te or reduce the degree of moral culpability o[r] respon sibility for what he did? It’s up to youto decide what are mitigating circumstances. The defense talks about Mr. Le be ing a hard worker, a machinist , invent[or], a good te acher, teaching English to Vietnamese peop le, good to family. Does that in any way officiate (sic) or mitigate or rel ieve or make any less horrible what he did to [the victims]? I submit to you they do not. He’s good to his family. He’s got five things on here about his family. Well, nearly everybody is good t o their family. Does it make it all right to go out and murder? Does it make you less guilty when yo u go out and commit this kind of a crime? 311 F.3d at 1016–17 (internal quot ation marks omitted). Like in Mr. Simpson’s case, the p rosecutor construed the instru ction as limited to evidence that reduces moral cul pability or blame and then speci fically argued Mr. Le’s evidence did not meet that criteria. In Le, we determined the prosecutor’s remarks were irrelevant, improper, and “may hav e implied that the jury had the ability to ignore the legal requirement that it must consider mitigating evidence.” Id. at 1018. But we also noted the jury received the corre ct instructions and defense co unsel mitigated the impact of the prosecution’s misstatement by reminding the jury that it must, by law, consider all mitigating evidence. Id. at 1018–19. We concluded that “in light of the overwhelming evidence of Mr. Le’s guilt and evid ence of the presence of aggr avating factors, because61 both the jury instructions and th e defense counsel’s argument c orrectly stated the law, and because [the prosecutor] n ever explicitly and clearly misst ated the law,” the OCCA’s determination that Mr. Le’s tria l was not rendered fundamentall y unfair was reasonable.
Id. at 1019. Here, we are compelled to reac h the same result. The Moral Cul pability Comments were improper and pervas ive. Nevertheless, the evidenc e of Mr. Simpson’s guilt was overwhelming, the State presented powerful aggravatin g evidence, and we have already concluded the jury was not precluded from considering M r. Simpson’s mitigating evidence. As we now explain, when we view the misconduct in the context of the entire proceeding, we cannot conclude t he OCCA acted unreasonably in h olding that the prejudicial impact of these com ments, individually or cumulativ ely, did not render the sentencing trial fundamentally unfair. b. Denigration of m itigation evidence Mr. Simpson asserts several inst ances where he claims the prose cutor improperly denigrated his mitigating eviden ce. Prosecutors are given a “wi de latitude of argument,” Thornburg v. Mullin , 422 F.3d 1113, 1131 (10th Cir. 2005), and may properly commen t “on the weight that should be accorded to the mitigating factor s,” as well as “information about the defendant, his charact er, and the circumstances of hi s offense made known to the jury throughout th e bifurcated trial,” Fox , 200 F.3d at 1300 (internal quotation marks omitted). See Bland , 459 F.3d at 1026 (“As long as t he jury is properly instructedon the use of mitigating evidence, the p rosecution is free to comment on the weight the jury62 should accord to it.”). But it is improper for a prosecutor to make an argument based purely on personal opinion. See Le , 311 F.3d at 1017–18. Keepi ng these principles in mind, we evaluate whether any o f the statements challenged by M r. Simpson, either individually or collectively, re nder his sentencing trial funda mentally unfair. Mr. Simpson challenges five statements 30 in which he alleges the prosecutor shamed him for relying on his family support 31 and his mental condition 32 as mitigating factors. For example, the pros ecutor called Mr. Simpson’s PTSD diagnosis an “excuse” 33

30 In addition to the comments id entified below, Mr. Simpson clai ms several of the prosecutor’s comments about the d efense giving the jury a “guil t trip” denied him a fair trial. He did not challenge these statements in the OCCA or the district court, and we will not consider them in the first instance. See Parker v. Scott , 394 F.3d 1302, 1307 (10th Cir. 2005).

31 “They fed him, they clothed him , they provided love. They hugg ed him, they sent him to school. Those are nice people. Shame on him fo r hiding behind his family. They don ’t want to be here. . . . Shame on him for hidi ng behind his family support. Those are good people. . . . How in the world does hiding behind his family support re duce his degree of moral culpability or blam e?” Trial Tr. vol. 8 at 25.

32 “Now [Mr. Simpson’s voluntary in toxication defense] didn’t work. So now we’re coming in yesterday and, okay, you don’t buy that, now we go to door number two, we’ve got Post-Traumatic Stress Disorder. You know, shame on them. Ag ain, that’s ducking responsibility. . . . You know, it’s an insult to all legitimat e people with PTSD.” Trial Tr. vol. 8 at 28.

33 “Even if somehow you find that, okay, more likely than not he’ s got PostTraumatic Stress, that’s not an excuse. Judge Gray didn’t tell you that’s an excuse. . . . It’s just something he’s trying to hide behind. . . .” Trial Tr. vol . 8 at 29.63 and an “insult” 34 to “legitimate people with PTSD.” 35 It is appropriate for the prosecutor to argue based on the record f acts that Mr. Simpson did not act ually suffer from PTSD and was instead using it as an excuse to avoid responsibility. But characterizing Mr. Simpson’s diagnosis as an “insu lt to all legitimate people with PTSD” and “legitimate veterans” strays into inappropria te personal opinion. Similarly , the prosecutor’s comments suggesting the defense should be ashame d for relying o n Mr. Simpson’s family support and mental health i mproperly denigrated Mr. Simp son’s mitigating evidence. See Cuesta-Rodri guez v. Royal , No. CIV-11-1142-M, 2016 WL 5485117, at *10, 13 (W.D. Okla. Sept. 29, 2016) (finding that the prosecuto r “may have inched close to improper argument” by shamin g the defendant for using his fa mily as a mitigating factor). Although several of these stateme nts were improper, none of the m, separately or cumulatively, rises to t he level necessary to have deprived Mr. Simpson of a fundamentally fair sentencing pr oceeding. Similar improper pros ecutorial statements have rarely been held, standing a lone, to render a trial fundam entally unfair. This is especially so in a case, such as this one, where the State has presented significant evidence in aggravation. See generally Le , 311 F.3d at 1021.

34 “Some guy [Dr. Massad] comes in here and tells you, well, more likely than not he’s got Post-Traumatic Stress Disorder. You know what? That is an insult to people that really do.” Trial Tr. vol. 8 at 26.

35 “When I say shame on them, lots of people have Post-Traumatic Stress Disorder, that is an insult to l egitimate veterans.” Trial Tr. vol. 8 at 27.64 c. Improper comparison with the victims Mr. Simpson next objects to the prosecutor’s sta tement: “Of cou rse, [Mr. Simpson’s family would] go to t he penitentiary to see him. Of c ourse they would. You know, they’re good people. These victims can’t. They can go to the cemetery.” Trial Tr. vol. 8 at 25. We agree that “it is prosecutorial misconduct for the prosecution to compare the plight of the victim with the life of the defendant in pris on.” Bland , 459 F.3d at 1028. The statement here was an improper comment designed to stir the jurors’ emotions and elicit sympathy for the victims. See id. at 1027 (holding improper the prosecutor’s statement “[m]aybe the Defe ndant will be in prison . . . [b]ut one thing is for sure, [the victim] won’t be here and his fa mily won’t be able to be with h im”). Nonetheless, considering the extensive aggrav ating evidence presented to the jury, we cannot conclude that this single reference to t he plight of the victims, as com pared to Mr. Simpson, rendered the sentencing trial fundamentally unfair. d. Justice demands a death sentence We have also held that “it is i mproper for a prosecutor to sugg est that a jury has a civic duty to convict.” Bland , 459 F.3d at 1027 (internal quotation marks omitted). Although an appeal to justice a nd civic duty is not always impr oper, see Hanson , 797 F.3d at 839 (finding it proper t o tell the jury it will be doin g justice by deciding which punishment is appropriat e rather than asserting death is appropriate), urg ing the jury to “impose a death sentence on the g rounds of civic duty” is inapp ropriate, Le , 311 F.3d at 1022 (finding it improper to tell th e jury they “could only do justice in this case by65 bringing in a verdict of death” (internal quotation marks omitt ed)). Here, the prosecutor’s comments mirror the language in Le and cross the bounds o f permissible argument: Justice in this case demands you to do the most difficult thing you have to do in fulfilling your civic duty as a juror

. Justice for Glen Palmer, for his family, justice fo r Anthony Jones and his family, demands that you render a verdict of the death penaltyin this case. Justice demands it. And it will be difficult but, ladies and gentlemen, I’m going to ask y ou to let your verdict speak to this Defendant . Let your verdict speak to Glen Palmer’s family. Let your verdict speak to Anthony Jon es’[s] family. Let your verdict speak to the car nage that this Defendant has l eft behind and his commitment to be a criminal and a cold-blooded k iller. And let your verdict speak for the co mmunity that in this kind of a case for this Defendant there is one just verdict and only one and that is to recommend a sentence of death

. Trial Tr. vol. 8 at 63–64 (emphasis added). Despite the impropriety of the p rosecutor’s argument, we are no t convinced this comment, on its own, deprived M r. Simpson of a fundamentally fa ir sentencing proceeding in view of the “over whelming evidence of Mr. [Simpso n’s] guilt, evidence of aggravating factors supporting th e death sentence, [and] the ge neral content of the instructions to the jury.” See Le , 311 F.3d at 1022.

e. Totality of prosecutorial misconduct Although we have identified a s ubstantial number of improper pr osecutorial statements, none of t hem, standing alone, was sufficiently prej udicial to deny Mr. Simpson his due process rights. “ [B]ecause individual, harmless prosecutorial errors can add up to make a trial fundamen tally unfair in the aggregate,” id. , we now consider the cumulative effect of the improper statements.66 Given the extensive and recurri ng misconduct committed by the p rosecutor, it is appropriate to question whether the jury was able to judge the evidence fairly. But the OCCA answered that question affi rmatively and, under AEDPA, we are bound by the OCCA’s “ruling unless it constitute s an unreasonable applicatio n of the cumulative-error doctrine.” See Thornburg , 422 F.3d at 1137. The petitione r’s burden under this standard is steep, and we cannot say that no reasonable jurist would agr ee with the OCCA that the prosecutor’s misconduct did not prevent the jury from fairly co nsidering the evidence during the sentencing phase of t rial. The evidence of Mr. Simps on’s guilt was overwhelming, the State presentedsignificant evidence in suppo rt of the aggravating factors, and the jury was properl y instructed as to its ability to consider mitigating evidence and to impose a senten ce less than death. Therefore, t he OCCA’s determination that the prosecutor’s misconduc t did not deny Mr. Simpson a fun damentally fair sentencing trial is reasonable an d must be upheld under AEDPA.
E. Especially Heinous, Atrocious, or Cruel Aggravator Mr. Simpson next claims there is insufficient evidence to suppo rt the jury’s finding that the murder of Glen Palmer was heinous, atrocious, or cruel and that the HAC Aggravator is uncons titutionally overbroad . In addressing this claim, we begin by discussing the general legal ba ckground governing challenges to capital aggravators. Next, we provide additional factua l and procedural background, including the resolution of Mr. Simpson’s claim in the st ate court proceedings and in th e district court. Although Mr. Simpson raised both a suffici ency-of-the-evidence claim und er the Fourteenth67 Amendment and a vagueness clai m under the Eighth Amendment in t he state court, 36 we determine that he abandoned his Eighth Amendment argument in th e district court. We therefore consider only his Four teenth Amendment sufficiency-of -the-evidence claim in this opinion. In doing so, we first provide a discussion of the relevant law and then conclude the OCCA’s decision holding that the evidence is suffi cient to support the HAC aggravator as to Mr. Palmer is not unreasonable. As a result, w e deny relief on this claim.
1. Legal Background As we recently explained in Wood v. Carpenter , a defendant can challenge the jury’s finding of a capital aggravator in two ways: First, a defendant can bring a s ufficiency of the evidence clai m under Jackson v. Virginia , 443 U.S. 307, 316 (19 79). It violates the Fourteenth Amendment’s guarantee of due process if a jury sente nces a defendant to death based on an aggravator, even though there wa s insufficient evidence for any rational juror to have concluded the aggravator was met. Because state law defines aggravators, this question turns on state law. Second, petitioners can challenge a n aggravating circumstance a s unconstitutionally vague. It viola tes the Eighth and Fourteenth Amendments for death sentences t o be arbitrarily imposed. As a consequence, if an aggravating ci rcumstance is so vague it coul d apply to any and every murder, then senten cing a defendant to death because that aggravator was met violates the Constitution. 907 F.3d 1279, 13 05 (10th Cir. 2018) (c itations omitted).

36 As we discuss below, a vagueness claim also invokes protection s afforded by the Fourteenth Amendment. For ease of reference, however, we re fer to Mr. Simpson’s challenge to the sufficiency of the evidence as his Fourteenth Amendment claim and his vagueness challenge as his Eighth Amendment claim.68 The distinction between these two methods of challenging a cap ital aggravator is important here because although Mr. Simpson initially pursued b oth avenues, he later abandoned his Eighth Amendment cl aim. We now discuss the evolut ion of Mr. Simpson’s claims regarding the HAC Aggravator.
2. Factual and Procedural Background

a. Trial During the sentencing stage of M r. Simpson’s trial, the jury wa s instructed that, to impose the HAC Aggravator, it mu st find the State had proven be yond a reasonable doubt that the murder of Mr. Pal mer “was preceded by either tor ture of the victim or serious physical abuse of the vic tim.” Trial R. vol. 3 at 600. The trial court further instructed that torture is def ined as “the infliction of either great physical anguish or extreme mental cruelty.” Id. The instruction also stated th e jury could not find “serious physical abuse” or “great physic al anguish” unless “the victim experienced conscious physical suffering prior to his death.” Id. In his closing statement, the pro secutor told the jury the Stat e “must prove . . . that the murder in this case of Glen Palmer was either preceded by t orture or serious physical abuse.” Trial Tr. vol. 8 at 10. T he prosecutor then conceded, “ [t]here’s no question it’s not torture,” but he asserted tha t it did constitute “serious p hysical abuse.” Id. The jury found the HAC Aggravator both as to the murder of Mr. Palmer an d, although it was never argued, as to the murder of Mr. Jones.69 b. OCCA and district court decisions On direct appeal, Mr. Simpson clai med there was insufficient ev idence to support the HAC Aggravator under the Fourt eenth Amendment and that to a pply it to the facts of this case would broaden the ag gravator beyond the constitutiona l limits proscribed by the Supreme Court and the Eighth Ame ndment. The OCCA did not addres s Mr. Simpson’s Eighth Amendment claim, but held there was suffici ent evidence to support the HAC Aggravator for Mr. Palmer: With regard to the murder of Gle n Palmer, the evi dence showed t hat Palmer was shot four times. He su ffered a grazing gunshot woundto the right shoulder, two superficial gunshot wounds to the left side of his back, and an ultimately fatal gunshot wound to his chest. Although he was initially conscious after being shot, his breathing became labored and he made gurgling sounds as his ches t filled with blood before he d ied. There was testimony that immediately after he had been shot, Palmer w as able to speak, was aware that he had bee n shot and was fearful that the shooters would return. Reviewing the evidence in the light most favorabl e to the State, we find that the eviden ce supports a finding that Palmer ’s death was preceded by physical suffering and mental cruelty. Simpson I , 230 P.3d at 902–03. The OCCA reac hed a contrary conclusion as t o Mr. Jones because “he likely died with in seconds of being shot.” Id. at 903. It therefore struck the aggravator as to the murder of M r. Jones, but determined that n o relief was necessary because the State had not present ed any evidence solely in supp ort of the HAC Aggravator as to Mr. Jones, and t hus “the jury’s weighing proce ss of mitigating evidence against aggravating circumstances was not skewed.” Id. Mr. Simpson did not take any action to obtain a ruling from th e OCCA on his Eighth Amendment claim. See, e.g. , Rule of the Court of Criminal App eals 3.14(B)(1) (permitting petitio n for rehearing if “[s]ome70 question decisive of the case a nd duly submitted by the attorne y of record has been overlooked by the court”). In the district court, Mr. Simps on renewed his cl aim that there was insufficient evidence to support the HAC Agg ravator as to Mr. Palmer, but he did not argue the HAC Aggravator was unconstitutionally vague, either on its face or as applied to him. The district court held the OCCA’s decision was not unreasonable “i n light of the double deference afforded it” when revi ewing sufficiency of the eviden ce claims under AEDPA. Simpson IV , 2016 WL 3029966, at *25. Mr. Simpson challenges that decision in his appeal to this court.
3. Preservation The State argues we should review only Mr. Simpson’s Fourteenth Amendment sufficiency-of-the-evidence chal lenge because Mr. Simpson did n ot preserve the Eighth Amendment vagueness claim by fa iling to raise it in the distric t court and by inadequately briefing it in his opening brie f to this court. Mr. Simpson ass erts that he has “always argued the Fourteenth Amendment insufficiency-of-the-evidence c laim cannot be assessed in a vacuum, and that [the] OCCA must assess the evide nce under a constitutionally narrow standard .” Aplt. Reply Br. at 33. In su pport, he points to a single footnote in his opening brief to the district court which merel y requested supplemental briefing on the HAC Aggravator b ecause the page constraints on his brief did “not permit a complete analysis of . . . the unreasonable failure of the OC CA to abide by the limiting requirements of the Supreme Court in Maynard v. Cartwright , 486 U.S. 356 (1988)[,] and71 the Tenth Circuit in Thomas v. Gibson , 218 F.3d 1213, 1227 (10t h Cir. 2000).” App’x at 122. But Mr. Simpson provided n o analysis of those decisions. By not raising an Eighth Amendment challenge to the HAC Aggrava tor in the district court and inadequately briefing it here, Mr. Simpson h as failed to preserve that claim. 37 See Stouffer v. Trammell , 738 F.3d 1205, 1222 n.13 (10th Cir. 2013) (“We do not generally consider issues that were not raised before the distr ict court as part of the habeas petition.”); Heard v. Addison , 728 F.3d 1170, 1175 (10t h Cir. 2013) (“We do not reach that issue in this case, however, because . . . we conclu de that [Mr.] Heard never raised such a claim, in his pe tition or otherwise, before the f ederal district court.”). As a result, we consider only whethe r the OCCA’s sufficiency-of-the- evidence decision was unreasonable. Because the OCCA d ecided that issue on the merits , we afford it deference under AEDPA. See 28 U.S.C. § 2254(d).

37 Mr. Simpson argues that his Eight h Amendment clai m is preserve d under this court’s decision in Pavatt v. Royal, 859 F.3d 920 (10th Cir.), opinion amended and superseded on denial of reh’g , 894 F.3d 1115 (10th Cir. 2017), reh’g en banc granted sub nom Pavatt v. Carpenter , 904 F.3d 1195 (10th Cir. 2018). We disagree. The Pavatt decision on which Mr. Simpson relie s has been amended and super seded. The presentlycontrolling version of Pavatt clearly indicates that Mr. Pava tt raised both a Fourteenth Amendment sufficiency-o f the-evidence claim and an Eighth Amendment vagueness challenge to the HAC Aggravator as defined by state law. 894 F. 3d at 1125. Mr. Simpson challenged only the sufficiency of the evidence in his habeas p etition and he has therefore not preserved any Eight h Amendment claim.72 4. Sufficiency of the Evidence

a. Additional legal background We review the sufficiency of the evidence “under the ‘rational fact-finder’ standard announced in Jackson v. Virginia, 443 U.S. 307, 319 (1979),” which requires an appellate court to “determine, a fter reviewing the evidence pre sented at trial in the light most favorable to the government , whether any rational trier of fact could have found the aggravating circumstance existe d beyond a reasonable doubt.” Boltz v. Mullin , 415 F.3d 1215, 1232 (10th Cir. 2005). “To a ssess the sufficiency of the evidence, we first determine the elements of the offe nse and then examine whether the evidence suffices to establish each element.” Anderson-Bey v. Zavaras , 641 F.3d 445, 448 (10th Cir. 2011). When reviewing the sufficiency o f the evidence in capital cases , “aggravating factors operate as ‘the functional equiva lent of an element of a greate r offense.’” Ring v.
Arizona , 536 U.S. 584, 6 09 (2002) (quoting Apprendi v. New Jersey , 530 U.S. 466, 494 n.19 (2000)). The substantive elem ents of an aggravating factor necessary to impose the death penalty are a matter o f state substantive law. Hamilton v. Mullin , 436 F.3d 1181, 1194 (10th Cir. 2006). Under Oklahoma law, to establish the HAC Aggravator, the State must prove beyond a reasonable doubt “that the murder of the victim was pr eceded by torture or serious physical abuse, which may include the infliction of either great physical anguish or extreme mental cruelty.” Warner v. State , 144 P.3d 838, 880 (Okla. Crim. App. 2006), overruled on other grounds by Taylor v. State , 419 P.3d 265 (Okla. Crim. App. 2018).73 “Serious physical abuse requires evidence of conscious physical suffering.” Id. While the extent of the mental anguish or physical abuse a victim suffers “is not susceptible to mathematical precision,” Walton v. Arizona , 497 U.S. 639, 655 (1990), overruled on other grounds by Ring , 536 U.S. at 588–89, it must be more than “the brief duration necessarily accompanying virtually all murders,” Medlock v. Ward , 200 F.3d 1314, 1324 (2000) (Lucero, J., concurring). b. Merits As discussed, because the OCCA de cided Mr. Simpson’s sufficienc y-of-theevidence claim on direct appeal , AEDPA constrains our review. R eview of sufficiency of the evidence under AEDPA “adds an additional degree of deferenc e, and the question becomes whether the OCCA’s conclu sion that the evidence was suf ficient constituted an unreasonable application of the Jackson standard.” Hooks II , 689 F.3d at 1166 (internal quotation marks omitted). Mr. Sim pson asserts the OCCA’s decisi on was unreasonable because it “did not assess the level of [Mr. Palmer’s] sufferin g, but rather assumed . . . that because [Mr.] Palmer died mo re slowly than [Mr.] Jones he was in ‘great physical anguish.’” Aplt. Br. at 97. The State counters that the questio n is not the length or extent of Mr. Palmer’s suffering; the que stion is whether there was su fficient evidence to support the jury’s conclusion th at Mr. Palmer experienced consc ious physical suffering as Oklahoma defines it. Reviewing th e evidence in the light most f avorable to the government, the State contends t he OCCA was reasonable in concl uding such evidence exists. We agree.74 Here, the State relied on the te stimony of Dr. Jeffrey Grofton, the coroner who performed Mr. Palmer’s autopsy, a nd London Johns on, the survivi ng victim, to establish that Mr. Palmer experienced consc ious physical suffering. Mr. P almer was shot four times, but was conscious long enough to perceive that he had be en shot and to fear further injury. Mr. Johnson, who was in the car with Mr. Palmer and Mr. Jones when it was suddenly fired upon, testifie d that when he opened the car door, Mr. Palmer told him to “[s]hut that door. They’re g oing to come back.” Trial Tr. vo l. 3 at 42. Mr. Palmer then revealed he had been shot and w as unable to move. Mr. Johnson a lso testified that Mr. Palmer’s breathing “sounded like he was – like he was trying to breathe, but he had blood in his throat.” Trial Tr. vol. 3 at 45. Dr. Grofton testified that Mr. Palmer possibly experienced difficulty breathing because “the left side of [his ] chest was filling up with blood which would essentially c ollapse the left lung making it exceedingly difficult to breathe.” Trial Tr. vol. 5 at 1 62–63. Mr. Palmer died before em ergency assistance arrived. Although Mr. Palmer did not expressly state he was in pain, and neither Dr. Grofton nor Mr. Johnson testified as to how long Mr. Palmer was conscious or whether he appeared to be in pain, the j ury could have reasonably infer red that Mr. Palmer experienced conscious physical s uffering based on the evidence about his wounds. Mr. Palmer was conscious and able t o speak for some period of time before he died. He was aware of his injuries and strugg led to breathe as his lungs fil led with blood. Viewing the evidence in the light most favorab le to the State and applying AEDPA’s deferential75 standard of review, we cannot conc lude the OCCA acted unreasona bly in deciding there was sufficient evidence to sup port the jury’s finding that Mr. Palmer experienced conscious physical suffering as d efined by Oklahoma law. We the refore deny Mr. Simpson relief on this claim.
F. Ineffective Assistance of Counsel Mr. Simpson alleges his trial c ounsel was ineffective during bo th the guilt and sentencing stages of the trial. With respect to the guilt stage , Mr. Simpson contends trial counsel was ineffective for failing to request a second-degree murder instruction. As to the sentencing stage of trial, M r. Simpson argues trial counsel preformed ineffectively by failing to: (1) investigate, prepare, and present lay witnesses , (2) object to improper prosecutorial arguments, (3) obj ect to the mitigating evidence jury instruction, and (4) object to the HAC jury instruction. In reviewing this claim, we begi n with a general discussion of the relevant legal background. We then consider each allegation of ineffective per formance individually. In doing so, we provide any further discussion of law pertinent to the particular allegation of ineffectiveness. We then review t he OCCA’s decision to determin e whether it rejected that claim on the merits. Fina lly, we address whether the OCCA’ s merits decision was reasonable. In each instance, we conclude the OCCA’s merits dec ision was not contrary to or an unreasonable application of Supreme Court law and was not based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). We therefore deny relief on Mr. Simpson’s IAC claim.76 1. Legal Background Claims of ineffective assistance of counsel are evaluated unde r the two-prong approach established by the Supreme Court in Strickland v. Washington , 466 U.S. 668, 687–88 (1984). To establish an i neffective assistance of counse l claim, Mr. Simpson “must show both that his couns el’s performance ‘fell below an o bjective standard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’” See Byrd v. Workman , 645 F.3d 1159, 1167 ( 10th Cir. 2011) (quoting Strickland , 466 U.S. at 687– 88). When evaluating wh ether counsel’s performance was deficien t, “[t]he question is whether [the] representation amounted to incompetence under ‘pr evailing professional norms,’ not whether it deviated fr om best practices or most com mon custom.” Richter , 562 U.S. at 105 (quoting Strickland , 466 U.S. at 690). Judicial re view under this standard is “highly deferential,” Strickland , 466 U.S. at 689, and “we strongly presume that an attorney acted in an objectivel y reasonable manner and that an attorney’s challenged conduct might have been part of a sound trial strategy,” Hanson , 797 F.3d at 826 (internal quotation marks omitted). Furth ermore, “[w]e must ‘judge the re asonableness of counsel’s challenged conduct’ on the specific facts of the case ‘viewed as of the time of counsel’s conduct.’” Id. at 826 (quoting Strickland, 466 U.S. at 690). Even if counsel performed in a constitutionally deficient manne r, Mr. Simpson is not entitled to relief unless he c an prove actual prejudice. See Strickland , 466 U.S. at 687–88. To demonstrate prejudi ce, Mr. Simpson must show “a reas onable probability that, but for counsel’s unprofe ssional errors, the result of th e proceeding would have been77 different.” See id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. Review under both AEDPA and Strickland is “highly deferen tial, and when the two apply in tandem, re view is ‘doubly’ so.” Richter , 562 U.S. at 105 (quoting Knowles v. Mirzayance , 556 U.S. 111, 123 (20 09)). “When § 2254(d ) applies, the quest ion is not whether counsel’s actions were re asonable. The question is whet her there is any reasonable argument that counsel satisfied Strickland ’s deferential standard.” Id. 2. Failure to Investigate, Pre pare, and Present Lay Witnesses

a. Additional legal background Under Strickland , “counsel has a duty to make re asonable investigations or to make a reasonable decision that m akes particular investigations unnecessary.” 466 U.S. at 691. “When a petitioner alleges in effective assistance of couns el stemming from a failure to investigate mitigating eviden ce at a capital-sentencing proc eeding, we evaluate the totality of the evidence—both that adduced at trial, and the ev idence adduced in habeas proceedings.” Williams v. Trammell , 782 F.3d 1184, 1215 ( 10th Cir. 2015) (internal quotation marks omitted). In doi ng so, we “reweigh the evidence in aggravation against the totality of available mitigating evidence,” Hooks II , 689 F.3d at 1202 (internal quotation marks omitted), consider ing “the strength of the Stat e’s case and the number of aggravating factors the jury f ound to exist, as well as the mit igating evidence the defense did offer and any additional mitig ating evidence it could have offered,” Knighton v.
Mullin , 293 F.3d 1165, 1178 (10th Cir. 2 002). And, when conducting ou r reweighing78 analysis, we “must consider not just the mitigation evidence th at [Mr. Simpson] claims was wrongfully omitted, but als o what the prosecution’s respons e to that evidence would have been.” Wilson v. Trammell , 706 F.3d 1286, 1306 (10t h Cir. 2013). Prejudice is established if a defendant can show “a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Bland , 459 F.3d at 1030 (quoting Strickland , 466 U.S. at 695). b. OCCA decision Mr. Simpson argued that trial counsel rendered constitutionally ineffective assistance relative to the inves tigation and presentation of mi tigating evidence at the sentencing stage. On direct appeal, the OCCA stated: Next, [Mr. Simpson] complains that defense counsel was ineffect ive for failing to adequately investigat e and present additional eviden ce of innocence. He first specifically complains that counsel was ine ffective for failing to investigate and presen t additional mitigating eviden ce. While [Mr. Simpson] has shown this Court that add itional mitigation w itnesses could have been called and others that were called could have g iven additional testimony, he has not shown a reasonable probability that but for counsel’s alleged unprofessiona l error in not presenting this e vidence, the result of the proceeding woul d have been different. Simpson I, 230 P.3d at 904–05. Thus, the OCC A assumed deficient performanc e but concluded Mr. Simpson failed to s atisfy the prejudice prong of Strickland . We take a79 similar path in resolving this c laim, assuming deficient perfor mance and giving AEDPA deference to the OCCA’s determ ination on the prejudice prong.

c. Merits Mr. Simpson faults his trial couns el for not presenting a more comprehensive picture of his troubled upbring ing. On direct appeal, evidence surfaced that Mr. Simpson’s mother became addicted t o crack cocaine when he was ayoung child and that drug use and violence were comm on in the home. In the midst of this instability, Mr. Simpson became sexually active at fourteen and had fathered chi ldren with two separate women by the time he was sixteen years old. He also began skipp ing school, using and selling drugs, committing burglar ies, and carrying guns as earl y as age fourteen. The evidence on direct appeal furthe r indicated that Mr. Simpson re ported being sexually assaulted as a teenager. Mr. Simps on faults his trial counsel f or failing to develop the story of his traumatic childhood. To properly analyze Mr. Simpson ’s claim, we first look at the e vidence presented in mitigation during sentencing . Recall that the defense relied heavily on Dr. Massad’s testimony and the testimony of M r. Simpson’s family about the p aranoia Mr. Simpson exhibited after he was shot. From this evidence, the jury was i nformed of the violence surrounding Mr. Simpson during his teenage years; for what evid ence could be more indicative of a violence-fille d upbringing than Mr. Simpson bei ng comatose for two months as a result of sustaining five gunshot wounds in a drive -by shooting. And the shooting of Mr. Simps on occurred in retalia tion for him decidin g not to kill a witness80 slated to testify against one o f his friends—a friend who had b een involved in a violent crime. Thus, one of the thrusts of the evidence Mr. Simpson pro ffers in support of this ineffective assistance of counsel claim was, to some degree, al ready before the jury such that its theoretical mitigating value is minimized. Cf. Grant , 886 F.3d at 924 (upholding OCCA’s conclusion of no prejudic e for sentencing phase ineffect ive assistance, by reasoning, inter alia , that “omitted evidence of or ganic brain da mage . . . would ha ve merely supplemented” other mitiga tion evidence already before the jury); Williams , 782 F.3d at 1216 (finding lack of pre judice where additional eviden ce was cumulative of evidence already before the jury). The mitigating value of the unp resented evidence is further dec reased when considered in light of the pros ecution’s potential response. If the State had a n opportunity to respond to Mr. Simpson’s add itional mitigating evidence, it is not apparent the jury would have viewed the evidence about Mr. Simpson’s upbringing, on the whole, as mitigating. Rather, a reasonable jurist could conc lude the evid ence would have actually increased the odds of a verdict o f death as, by Mr. Simpson’s o wn admission, he, before turning sixteen, had already (1) dropped out of school; (2) imp regnated two different women; (3) sold drugs ; (4) committed burglaries; and (5) routin ely carried a firearm. New and additional evidence from the State on these matters wou ld have reduced any sympathy the jury had for Mr. Simpson because the evidence woul d not only have painted Mr. Simpson as living a lawless life contrary to the no rms and expectations of81 society, but also would have furt hered the State’s argument rel ative to the continuing threat aggravator. Apart from the potential respons e by the state to the additiona l mitigating evidence, we cannot conclude the OCCA reached an unreasonable c onclusion on the prejudice prong of Strickland when all the mitigating eviden ce is considered in light of the aggravating evidence. The s tate presented strong evidence i n support of the death sentence, and the additional m itigation does little, if anythin g, to undermine the aggravating factors found by the jury. A key aspect of Mr. Simp son’s offense and a key aspect of his history and chara cteristics highlight the reasona bleness of the OCCA’s conclusion. First, in committing his offense, Mr. Simpson spray ed fifteen to twenty bullets at the moving car drive n by Mr. Palmer while the vehicl e was passing through a residential area. Thus , not only did Mr. Simpson’s conduct resu lt in the deaths and serious wounding of the three ind ividuals in the vehicle, it al so endangered the lives of other uninvolved persons. Second, and of significant persuasive value, the State presented compelling testimony from Mr. Pham, whom Mr. Simpson had shot i n the back of the head, execution-style, after forcing his way into Mr. Pham’s ho use and stealing Mr. Pham’s wallet. In light of the strong evidence offered by the State, as well a s the State’s likely response to the additional mitig ation evidence Mr. Simpson’s tr ial counsel did not present, we conclude Mr. Simpson has not demonstrated the OCCA unreasonably applied82 Strickland and its progeny when it conclude d Mr. Simpson was not prejudice d by any alleged deficient performance by counsel. We therefore deny rel ief on this claim. 38
3. Failure to Preserve the Record Mr. Simpson next raises ineffectiv e assistance of counsel clai ms based on several instances where trial counsel a llegedly failed to preserve issu es for appeal. We address Mr. Simpson’s claim that counsel was ineffective for failing to request a second-degree murder instruction, before we turn to the alleged failures we h ave already rejected as stand-alone claims for habeas relief.

a. Failure to request a jury instru ction on second-degree murder Mr. Simpson first asserts that trial counsel was constitutiona lly ineffective for failing to request an instruction on second-degree depraved min d murder. For the reasons we now explain, we deny relief on this claim. i. Additional legal background For counsel’s failure to request a lesser-included offense inst ruction to constitute deficient performance, Mr. Simps on must have been entitled to s uch an instruction based

38 Mr. Simpson also appeals the dist rict court’s denial of his mo tion for an evidentiary hearing on this clai m, which we review for an abuse of discretion. Fairchild II

, 579 F.3d at 1147. Mr. Simpson cannot satisfy § 2254(e)(2) or the pre -AEDPA requirements where § 2254(e)(2) does not apply. See supra Section III.B.4. As discussed above, even accepting Mr. Simpson’ s factual allegations, he can not show that counsel’s mitigation strategy fell below an acceptable level of performan ce as required to establish constitutional error for purposes of § 2254(e)(2)(B) or an enti tlement to relief for purposes of the pre-AEDPA stand ard where § 2254(e)(2) does not apply because the petitioner tried to diligently dev elop the factual basis in sta te court. Therefore, the district court properly denied his reque st for an evidentiary hearing.83 on the evidence presented at trial. See Bland , 459 F.3d at 1031 (“Counsel therefore could not have been ineffective in fa iling to request an instruction to which [the defendant] was not entitled based on the evide nce . . . .”). “[T]he availabili ty of a lesser included offense instruction in a state criminal trial is a matter of state law. ” Darks v. Mullin , 327 F.3d 1001, 1008 (10th Cir. 2003). Under O klahoma law, “[a] trial cou rt must instruct the jury on lesser-included offenses when the lesser-included offense or the defendant’s theory of the case is supported by any evidence in the record.” Hooker v. State , 887 P.2d 1351, 1361 (Okla. Crim. App. 1994). In a homicide case, “the trial co urt must instruct the jury on every degree of homicide wher e the evidence would permit the jury rationally to find the accused guilty of the lesser o ffense and acquit him of the greater.” Malone v. State, 876 P.2d 707, 711 (Okla. Crim. A pp. 1994). A jury instruction on second-degree depraved mind murder is warrantedonly when the evidence “reaso nably support[s] the conclusion that the def endant committed an act so imminently da ngerous to another person or persons as to evince a state of mind in disregard for human life, but without the intent of taking the life of any particular individual .” Jackson v. State , 146 P.3d 1149, 1160 (Okla. Crim. App. 2006) (emphasis added). ii. OCCA decision In Mr. Simpson’s case, the OCCA an alyzed two claims related to the Second Degree Depraved Mind Murder instr uction. The OCCA first determi ned Mr. Simpson was not entitled to the ins truction on the merits: [Mr. Simpson] argues that an inst ruction on th[e] lesser offens e [of Second Degree Depraved Mind Murder] was warranted because at most, the84 evidence showed that he simply fi red into the car in which [Mr. ] Palmer, [Mr.] Jones and [Mr.] Johnson wer e riding. He asserts . . . the re was no evidence that he intended to kill his victims. . . . We find ot herwise. In light of the testimony that [Mr. Simpson ] threatened to “chop” up [Mr .] Palmer and his companions, instructed [Mr.] Dalton to follow [Mr.] Pal mer’s car and then shot as many as twenty rounds at the moving vehicle wi th an assault rifle, we find that the e vidence did not reasonably sup port the conclusion that [Mr. Sim pson] did not inte nd to kill the men in the Chevy. An instruction on Second Degree De praved Mind Murder was not warranted by the evidence . . . . Simpson I , 230 P.3d at 897. The OCCA then considered wheth er Mr. Simpson’s counsel was inef fective for failing to request the second-degre e murder instruction. The co urt stated, in relevant part: [Mr. Simpson] first argues that tr ial counsel was ineffective f or failing to object to . . . the submission of imp roper jury instructions an d verdict forms. These alleged failings con cern issues raised and address ed above. . . . We found in Proposition III that an instruction on Second Degree Depraved Mind Murder was not wa rranted by the evidence. . . . M ost of these alleged failings do not re flect a deficient performance b y defense counsel and [Mr. Simpson] has not shown a reasonable probability that, but for counsel’s alleged unprofessi onal errors, the result of the proceeding would have been different.
Id. at 904. Despite this language, M r. Simpson contends “the OCCA did not specifically preclude deficient performance” for a failure to request the se cond-degree murder instruction. Aplt. Br. at 45. Mr. Simpson relies on the OCCA’s s tatement that, “[m]ost of the se alleged failings do not reflect a deficient performance by defense coun sel.” Simpson I , 230 P.3d at 904. Because the OCCA’s use o f “most” indicates that some of counsel’s performance was deficient, Mr. Simpson claim s the failure to request an ins truction on second-degree murder falls within that gro up. We are not convinced.85 The OCCA’s analysis addressed eight alleged failings of counsel , some of which (the admission of hearsay eviden ce and the failure to object to the HAC Aggravator for Mr. Jones) the court specifically found were error. Id. Based on the language quoted above, however, there can be no s erious argument that the OCCA found, or even failed to decide whether, counsel was def icient for failing to request an instruction on seconddegree murder. See United States v. Barrett , 797 F.3d 1207, 12 20 (10th Cir. 2015); Bland
v. State , 4 P.3d 702, 731 (Okla. Crim. App . 2000). The OCCA expressly h eld “the evidence did not reasonably supp ort the conclusion that [Mr. Si mpson] did not intend to kill” the victims. Simpson I , 230 P.3d at 897. Thus, the O CCA reasoned a second-degree murder instruction “was not wa rranted by the evidence” and, as we now explain, it follows that counsel did not rend er ineffective assistance unde r Strickland . We therefore interpret the OCCA’s decision as an adjudication on the merits and afford it AEDPA deference. iii. Merits Mr. Simpson argues the jury shoul d have been instructed on sec ond-degree depraved mind murder because the re was “ample evidence putting the issue of specific intent in question.” 39 Aplt. Br. at 45. Again, we disagree.

39 To the extent Mr. Simpson assert s a failure to include this in struction violated his constitutional right under Beck v. Alabama , 447 U.S. 625, 635–36 (1980), to have the jury instructed on a lesser-incl uded offense supported by the e vidence, his claim fails. First, Mr. Simpson was not granteda COA on this issue and, as such, we do not have jurisdiction to resolve the claim without first issuing a COA o urselves. See Ryder ex rel. Ryder v. Warrior , 810 F.3d 724, 736 (10th Cir. 2 016). Second, Mr. Simpson faile d to request this instruction at tri al and this court has held that a defendant may not prevail on86 As the OCCA noted, Mr. Simpson “ threatened to ‘chop up’ [Mr.] Palmer and his companions,” Simpson I , 230 P.3d at 897, and testim ony offered at trial equated “chopping up” with shooting themwith an AK-47 rifle. The evide nce also showed that Mr. Simpson ordered Mr. Dalton to follow Mr. Palmer’s car, and that when Mr. Palmer’s vehicle was in range, Mr. Simpson fired as many as twenty round s into it with an assault rifle. And he did so knowing that three people were in the targ eted car. We agree with the OCCA that the evidence presented at trial did not support a sec ond-degree murder instruction because no reasonable jury could have concluded tha t Mr. Simpson lacked the specific intent to kill. Trial counsel was not required to request an instruction that was not reasonably supported by the evidence. See Grissom v. Carpenter , 902 F.3d 1265, 1 291–92 (10th Cir. 2018). Nor is it likely that the trial court woul d have given s uch an instruction, even if trial counsel had requested it. Cf. Delo v. Lashley , 507 U.S. 272, 275 (1 993) (“[W]e have said that to comply with due pro cess state trial courts need to give jury instructions in capital cases only if the evidenc e so warrants.”). Accordingly, we cannot conclude that no

a Beck -claim based on an instruction a defendant failed to request. Grant v. Trammell , 727 F.3d 1006, 1011– 13 (10th Cir. 2013). Fin ally, even assuming Mr. Simpson presented a proper Beck claim, it would fail on the meri ts because his jury was instru cted on both first-degree murder and the le sser-included offense of first-de gree manslaughter by misdemeanor. The Supreme Court has held the requirements of Beck are satisfied so long as the jury is presented with any evidentiary-supportedalternative to the “all-or-nothing choice between capital murder and innocence,” Schad v. Arizona , 501 U.S. 624, 646–47 (1991) (quoting Spaziano v. Florida , 468 U.S. 447, 455 (1984 )). Despite calling the misdemeanor manslaughter charge “unrealistic,” Mr. Simpson conc edes that it “technically applied to the evi dence at hand.” Aplt. Br. at 46.87 fairminded jurist would agree with the OCCA that counsel did no t perform deficiently by failing to request a jury instruc tion on second-degree depraved mind murder under the present facts. Thus, the OCCA’s adjudication of Mr. Simpson’s i neffective assistance of counsel claim was reasonable. b. Failure to object to improper prosecutorial arguments Next, Mr. Simpson contends his co unsel performed deficiently by failing to object to improper prosecutorial arguments. i. OCCA decision The OCCA considered this claim together with the ineffective as sistance of counsel claim discussed above and stated, in relevant part: In Proposition VI, we found tha t none of the alleged improper c omments made by the prosecutor could be fo und to have affected the jury ’s finding of guilt or assessment of punishment. . . . Most of these alleg ed failings do not reflect a deficient performan ce by defense counsel and [Mr. Simpson] has not shown a reasonable proba bility that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different. Simpson I , 230 P.3d at 904. Lik e the underlying prosecutorial misconduct claim, the OCCA rejected this claim because Mr. Simpson could not meet the prejudice prong of
Strickland . This is a decision on the merit s, and we review the OCCA’s pr ejudice determination u nder AEDPA’s and Strickland ’s doubly deferential standard of review. But, because the OCCA did not a ddress the conduct prong, we exe rcise our discretion to consider de novo whether counsel performed deficiently. See Hooks II , 689 F.3d at 1188.88 ii. Merits We held in Section III.D, supra , that nearly all of the pro secutorial arguments Mr. Simpson challenges—the Moral Cu lpability Comment s and comments denigrating the evidence in mitigation, comparing the victims’ deaths to Mr. Si mpson’s incarceration, and calling for the death penalty a s a civic duty—were improper . Trial counsel made a motion in limine to prohibit pros ecutorial argument of this nat ure, but made no further objection to these improper comme nts during the sentencing tria l. Failing to do so “fell below an objective sta ndard of reasonableness,” see Strickland , 466 U.S. at 688, and rendered counsel’s performance de ficient. As we previously conc luded, however, the OCCA reasonably determined the m isconduct did not deprive Mr. S impson of a fundamentally fair sentencing tr ial. Because Mr. Simpson cannot show that he was actually prejudiced by counsel’s deficient performance, the OCC A was reasonable in concluding he was not denied e ffective assistan ce of counsel. See Hanson , 797 F.3d at 837 (“We begin by noting that bef ore [Mr.] Hanson can succeed o n his counsel’s failureto-object claims, he must show th at the underlying prosecutoria l-misconduct claims themselves have merit.”).89 c. Failure to object to the “mitigat ion evidence” jury instruction As his next basis for ineffectiv e assistance of counsel related to the failure to preserve the record, Mr. Simpson argues his counsel performed d eficiently by failing to object to the jury instructi on on mitigation evidence. We again disagree. i. OCCA decision Mr. Simpson raised this claim on direct appeal. The OCCA addres sed Mr. Simpson’s challenge to the mitiga tion instruction in its discus sion of the constitutionality of the instruction and briefly in its ineffective assistance of counsel analysis. With respect to the constitutionality of the i nstruction, the OCCA stated: In his twelfth propo sition, [Mr. Simpson] argues that the defin ition of mitigating circumstances given t o the jury in this case was unc onstitutional as it impermissibly limited the jury’s consideration of mitigat ing evidence. This Court has consistently uph eld constitutional challenges to the instruction at issue. Simpson I , 230 P.3d at 903. Thus, the OCC A rejected Mr. Simpson’s challe nge to the mitigation instruction, and we h ave affirmed that conclusion. The OCCA also rejected Mr. Simps on’s ineffective assistance of counsel claim based on trial counsel’s failure t o object to that instruction: In his thirteenth proposition, [M r. Simpson] argues that he was denied his Sixth Amendment right to the e ffective assistance of counsel fo r several alleged failings of trial couns el. . . . In support of his prop osition, [Mr. Simpson] first argues that tri al counsel was ineffective for fa iling to object to . . . the submission of improper j ury instructions and verdi ct forms. These alleged failings concern i ssues raised and addressed abov e. . . . In Proposition XII, we found that the jurors’ consideration of the evidence offered in mitigation in this cas e was not unfairly limited. Mo st of these alleged failings do not reflect a deficient performance by defe nse counsel and [Mr. Simpson] has not shown a reasonable probability that, but for90 counsel’s alleged unprofessional errors, the result of the proc eeding would have been different.
Id . at 904. From this discussion, it is fair t o conclude the OCCA found no deficient performance with respect to trial counsel’s failure to object t o the mitigation instruction. First, the OCCA held the instr uction was constitutionally sound , noting it had been repeatedly upheld in the face of challenges. Id. at 903. Second, because the mitigation instruction was a correct state ment of law, trial counsel did n ot perform deficiently in failing to object to it. See Castro v. Ward, 138 F.3d 810, 830–31 (10th Cir. 1998) (holding counsel is not ineffec tive for failing to object to mi tigation jury instruction that accurately states the law); see also Northern v. Boatwright, 594 F.3d 555, 560–61 (7th Cir. 2010) (noting that the jury in struction challenged by the defendant was a correct statement of law and stating, “[o ]bviously, an attorney is not constitutionally deficient for failing to lodge a meritless objection”); Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (“[C]ounsel’s failure to object t o a jury instruction (or to re quest an additional instruction) constitutes unreasonab ly deficient performance onl y when the trial court’s instruction contained ‘clear and previously identified errors.’ ” (quoting Bloomer v. United States , 162 F.3d 187, 193 (2d Cir. 1998 )). Because the OCCA adjudicat ed Mr. Simpson’s claim on the merits, we afford it appropriate deferen ce under AEDPA. ii. Merits In Section III.C, supra , we evaluated the merits o f Mr. Simpson’s challenge to the jury instruction on mitigating ev idence and concluded the OCCA acted reasonably in91 denying relief because the instruc tion correctly stated the law . Although we concluded that counsel’s failure to object to the prosecutor’s misuse of the instruction constituted deficient performance, counsel i s not expected to object to leg ally accurate jury instructions. See Castro , 138 F.3d at 830–31. Consequen tly, Mr. Simpson cannot show that his counsel’s performance i n failing to object to the instruction “fell below an objective standard of reasonableness,” see Strickland , 466 U.S. at 688, and the OCCA reasonably determined counsel w as not constitutionally ineffect ive. d. Failure to object to th e HAC jury instruction Finally, Mr. Simpson argues his co unsel was ineffective for fai ling to object to the HAC jury instruction because the instruction “failed to clarify the HAC [A]ggravator was not to be alleged for Anthony J ones.” Aplt. Br. at 48. Recall that, although the State did not assert the HAC Aggravator w ith respect to the murder of Mr. Jones, the jury found it had been proved beyond a reasona ble doubt as to the murder of M r. Palmer and as to the murder of Mr. Jones. Mr. Simpson c laims trial counsel could hav e avoided this confusion by objecting to the instructi on for the murder of Mr. Jones, wh ich erroneously listed the HAC Aggravator as an option th at could be found unanimously by the jury. 40

40 The instruction for Count 2, the count related to the murder o f Mr. Jones, states:92 i. OCCA decision On direct appeal, the OCCA reject ed Mr. Simpson’s ineffective a ssistance of counsel claim based on the HAC instruction. In considering Mr. Simpson’s standalone, non-ineffective-assistance-of-c ounsel challenge to the HAC Aggr avator as to Mr. Jones’s death, the OCCA concluded the ch allenge was “well taken” and struck the aggravator. Simpson I , 230 P.3d at 903. The OCCA, however, denie d relief on the non- ineffectiveassistance-of-counsel claim becaus e the State did not present a ny evidence on the aggravator as to Mr. Jones such that the “the jury’s weighing p rocess of mitigating evidence against aggravating ci rcumstances was not skewed.” Id . In essence, the OCCA concluded that while an error o ccurred, the erro r did not preju dice Mr. Simpson.

We, the jury, empaneled and swo rn in the above entitled cause, do upon our oaths unanimously find the following sta tutory aggravating circumstan ce[] or circumstances as shown by the cir cumstance or circumstances che cked: ____ The defendant, prior to this sentencing proceeding, was co nvicted of a felony involving the use or thr eat of violence to the person; ____ During the commission of the murder, the defendant knowing ly created a great risk of death to more than one person; ____ The murder was especially heinous, atrocious, or cruel; ____ At the present time there exists a probability that the de fendant will commit criminal acts of violence that wou ld constitute a continuing threat to society. Trial R. vol. 3 at 585; see also id. at 530 (identify Count 2 being as to the murder of Mr. Jones). The jury checked all four aggravators.93 When the OCCA reached Mr. Simpson’ s ineffective assistance of c ounsel claim relative to the jury instruction on the HAC Aggravator, it stat ed: [W]e found that the heinous, atr ocious or cruel aggravating cir cumstance was proven beyond a reasonable do ubt as to the murder of Glen P almer. Although this aggravating circum stance was stricken as to the m urder of Anthony Jones, [Mr. Simpson’s] jur y did not consider improper aggravating evidence in deci ding punishment . . . . Most of thes e alleged failings do not reflect a deficient performance by defense coun sel and [Mr. Simpson] has not shown a reas onable probability that, but for c ounsel’s alleged unprofessional errors, the result of the proceeding wou ld have been different.
Id. at 904. Before this court, Mr. Sim pson acknowledges that the OC CA’s holding on his ineffective assistance of counsel argument relevant to the HAC Aggravator as to Mr. Jones’s “did not preclude defic ient performance.” Aplt. Br. at 49. Rather, the OCCA determined Mr. Simpson was not pre judiced by the seemingly defi cient performance with respect to the HAC instruction and denied relief on this claim based on the second prong of Strickland

. Id. ii. Merits Because the OCCA rejected Mr. Sim pson’s ineffective assistance of counsel claim on the merits, we afford its deci sion deference under § 2254(d) . We conclude the OCCA did not act unreasonably in reje cting Mr. Simpson’s claim. We h ave already determined that the instruction was a corr ect statement of Oklahoma law, a nd the OCCA struck the aggravator as to Mr. Jones. Because there was no evidence intro duced solely to support the HAC Aggravator, we cannot c onclude that the OCCA’s decision that Mr. Simpson94 was not prejudiced was unreasona ble. Accordingly, we deny Mr. S impson relief on this claim.
G. Cumulative Error Mr. Simpson’s final claim is tha t even if the individual errors in his trial do not warrant relief, their cumulative im pact denied him a fundamenta lly fair trial and sentencing proceeding. We address this claim in three sections. First, we discuss the relevant legal background. Next , we review the OCCA’s decision, taking note of the errors it included in its analy sis. Finally, having found no er rors the OCCA did not include in its analysis, we revi ew the reasonableness of its de cision under AEDPA’s deferential standard of review. Ultimately, we conclude the OCC A’s decision was reasonable, and we deny Mr. S impson relief on this claim.
1. Legal Background “Cumulative error analysis is an extension of harmless error an d conducts the same inquiry as for individual error, focusing on the underlyin g fairness of the trial.”
Darks , 327 F.3d at 1018 (internal quot ation marks and citations omit ted). This analysis “aggregates all errors found to be harmless and analyzes whethe r their cumulative effect on the outcome of the trial is su ch that collectively they can no longer be determined to be harmless.” United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002) (internal quotation marks omitted). Only actual constitutional errors are considered when reviewing a case for cumulative error. See Jackson v. Warrior , 805 F.3d 940, 955 (10th Cir. 2015) (“[C]umulative-error in the federal habeas context a pplies only where there are95 two or more actual constitutional errors.” (quotation marks omi tted)); United States v.
Rivera , 900 F.2d 1462, 1471 (10th Cir. 1990) (en b anc) (“[A] cumulative-error an alysis should evaluate only the effect o f matters determined to be err or, not the cumulative effect of non-errors.” ). To determine the harmlessness of the c umulative error, “courts look to see whether the defenda nt’s substantial rights were aff ected.” Rivera , 900 F.2d at 1470; see also Darks , 327 F.3d at 1018. A defendant’s substantial rights are affect ed when “the cumulative effect of the errors . . . had a ‘substant ial and injurious effect or influence in determining the jury’s [sentence].’” See Hanson , 797 F.3d at 852 (quoting
Brecht v. Abrahamson , 507 U.S. 619, 637 (1993)).
2. OCCA Decision On direct appeal, the OCCA deni ed Mr. Simpson relief on his cumulative error claim, concluding that, “[a]ny e rrors were harmless beyond a re asonable doubt, individually and cumulatively.” Simpson I , 230 P.3d at 906. This is a decision on the merits, and we are bound by the O CCA’s cumulative error determi nation unless it is contrary to or an unreasonable ap plication of the cumulative er ror doctrine. See Hanson , 797 F.3d at 852 (“Because the OC CA considered the merits of the cumulative error claim, we review its decision th rough the deferential lens of A EDPA.”); Thornburg , 422 F.3d at 1137 (“We must defer to [the OCCA’s cumulative error] r uling unless it constitutes an unreasonable appli cation of the cumulative-error doctrine.”).96 3. Merits Upon reviewing Mr. Simpson’s clai ms, we, like the OCCA, have id entified four sentencing-stage errors that do not individua lly entitle Mr. Si mpson to habeas relief: (1) prosecutorial misconduct; (2) counsel’s deficient performance i n failing to investigate and present further mitigating evidence regarding Mr. Simpson’s upbringing; 41 (3) counsel’s deficient performance in failing to object to the pro secutorial misconduct; and (4) counsel’s deficient perform ance in failing to object the HA C Aggravator jury instruction. 42

41 Where we presume deficient pe rformance for purposes of the fir st prong of an ineffective assistance of counsel claim but reject the claim on the prejudice prong, we include the assumed error in ou r cumulative error analysis. See Grant v. Royal , 886 F.3d 874, 954–55 (10th Cir. 2018), petition for cert. filed sub nom. Grant v. Carpenter , No. 18-6713 (Nov. 13, 2018).

42 Mr. Simpson argues we s hould also include the harmless errors identified by the OCCA in our cumulative error ana lysis, specifically the invalid ation of the HAC Aggravator as to the murder of M r. Jones and the admission of h earsay evidence by Mr. Collins. But the Order granting COA authorizes Mr. Simpson to r aise “cumulative error, limited to errors in the grou nds on which a Certificate of Appealability has been granted .” Case Management Order at 2, d ated December 1, 2016 (emphasis added). Neither the district court nor t his court issued a Certificate of Appealability on Mr. Simpson’s claims related to inva lidation of the HAC aggravator as to Mr. Jones or the hearsay testimony of Mr. Collins . And Mr. Simpson has not moved to modify the COA to include these claims. Notwithst anding that omission, we have re cognized that cumulative error review requires the aggreg ation of all c onstitutional err ors found to be harmless and any “substantive errors . . . indivi dually determined not to wa rrant habeas relief because of a lack of sufficient prejud ice under substantive constitutio nal standards.” Cargle v. Mullin, 317 F.3d 1196, 1220 (10th Cir. 2 003). As a result, the limitat ion in the Order granting COA may be inappropriat ely narrow. We need not resolve this question, however, because neither of the e rrors identified by the OCCA a re constitutional errors. First, with respect to the jury ’s finding of the HAC Aggravator as to the murder of Mr. Jones, the OCCA c oncluded there was no constitutional error because the jury “did not consider improper aggravating evidence in deciding punishme nt.” Simpson I , 23097 We now determine their cumulative impact. See Cargle v. Mullin , 317 F.3d 1196, 1207 (10th Cir. 2003) (holding pro secutorial misconduct and def icient performance by counsel “should be included in the cumulative-error calculus if they have been individually denied for insuffi cient prejudice”). All the ident ified errors occurred at the sentencing stage of the trial; th erefore, we review whether the errors “rendered the sentencing fundamentally unfair i n light of the heightened degr ee of reliability demanded in a capital case.” Thornburg , 422 F.3d at 1137 (internal quotation marks omitted). The OCCA held the cumulative ef fect of these errors was “harmle ss beyond a reasonable doubt.” See Simpson I , 230 P.3d at 906. Under AEDPA ’s deferential standard of review, we cannot conclude tha t no reasonable jurist would a gree with that assessment. Despite the identified errors, the jury was presented with copi ous amounts of aggravating evidence, overwhelmi ng evidence of guilt, and proper instructio ns from the trial court. Recall that Mr. Simpson pursued t he victims in response to an a ltercation that occurred over an hour earlier and did so armed with an assault rifle. Wh en Mr. Simpson’s vehicle

P.3d at 903. Under these circu mstances, the invalidation of the HAC Aggravator does not inform our cumulative error analysis. See Hanson v. Sherrod , 797 F.3d 810, 848–49, 853 (10th Cir. 2015) (excluding the i nvalidation of an aggravating sentencing factor from its cumulative error analysis where all the evidence admitted under the invalidated aggravator was properly admissibl e under other valid aggravator s). Second, the OCCA agreed with Mr. S impson that five letters writ ten by Mr. Collins and introduced at trial “were hearsay for which no exce ption applied.” Simpson I , 230 P.3d at 898. But importantly for our purposes, the OCCA rej ected Mr. Simpson’s argument that admission of the le tters violated hi s Sixth Amend ment right to confrontation because “[Mr.] Collin s testified at trial and was subject to cross examination.” Id. at 899; see id. at 906.98 drew abreast of the victim’s ca r, he fired up to twenty rounds into that car, killing two of the passengers and severely wou nding the other. Before leaving the scene, Mr. Simpson announced, “I’m a monster. I’m a m otherfucking monster. Bitches don’t want to play with me.” Trial Tr. vol. 4 at 44 –46. He then pro ceeded with his plans to rendezvous with some women he had met earlier at a club. The evidence also reve aled that Mr. Simpson had previously been convicted of an armed home invasion, during which he shot the victim in the head. Under these circumstances, the O CCA’s cumulative error analysis is not unreasonable, and Mr. Simpson is not entitled to habeas relief as to his death sentences. 43
IV. CONCLUSION We AFFIRM the district court’s denial of federal habeas relief under 28 U.S.C. § 2254 as to Mr. Simpson’s convic tions in the guilt stage of hi s trial and as to his death sentences. We DENY Mr. Simpson’s motion for modification of his COA.

43 Mr. Simpson also raises a cumula tive error claim as to his con victions. Having found no error related to the g uilt stage of Mr. Simpson’s tria l, there is nothing to cumulate, and we deny this claim. See Hanson , 797 F.3d at 853 (“[W]e cannot engage in a cumulative error analysis abse nt at least two errors.”).