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 Federal Public Defender (Patti Palmer Ghezzi, Assistant 

Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for 

Petitioner - Appellant. 

Jennifer J. Dickson, Assistant Attorney General (Mike Hunter, Attorney General of 

Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent - Appellee. 

_________________________________ 

Before LUCERO, HOLMES, and McHUGH, Circuit Judges. 

_________________________________ 

McHUGH, Circuit Judge. 

 

 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Mike Carpenter, 

current Interim Warden of Oklahoma State Penitentiary, is automatically substituted for 

Terry Royal, Warden (who was previously automatically substituted for Kevin 

Duckworth, Interim Warden), as Respondent in this case. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 27, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

Kendrick Simpson is a state prisoner in Oklahoma. After a bifurcated proceeding, 

the jury convicted Mr. Simpson of two counts of first-degree murder and sentenced him 

to death. He now appeals the district court’s denial of his petition for federal habeas relief 

under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we 

affirm. 

I. BACKGROUND 

A. Factual History 

Pursuant to the Anti-Terrorism and Effective Death Penalty Act (AEDPA), we 

presume the factual findings of the Oklahoma Court of Criminal Appeals (OCCA) are 

correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); 

Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007). We therefore state the facts 

surrounding the murders as found by the OCCA on direct appeal: 

On the evening of January 15, 2006, Jonathan Dalton, Latango 

Robertson and [Mr. Simpson] decided to go to Fritzi’s hip hop club 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 assault rifle[,] 

which he brought with him.1

 Before going to Fritzi’s, the men first went to 

a house party where they consumed alcohol and marijuana. When they left 

the party, [Mr. Simpson] put the assault rifle into the trunk of the Monte 

Carlo, which could be accessed through the back seat. 

The three arrived at Fritzi’s between midnight and 1:00 a.m. on

January 16. Once inside, they went to the bar to get a drink. [Mr. Simpson] 

 1

 There was testimony that this weapon was an AK-47 or SKS assault rifle. 
3 

and [Mr.] Dalton also took a drug called “Ecstasy.” After getting their 

drinks, [Mr.] Dalton and [Mr.] Robertson sat down at a table while [Mr. 

Simpson] walked around. When [Mr. Simpson] walked by London 

Johnson, Anthony Jones and Glen Palmer, one of the three apparently said 

something to him about the Chicago Cubs baseball cap that he was 

wearing. [Mr. Simpson] went back to the table and told [Mr.] Dalton and 

[Mr.] Robertson that some guy had given him a hard time about his cap. At 

some point, [Mr. Simpson] 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 returned a short time later and walked up to Palmer. [Mr. 

Simpson] extended his hand and said, “We cool.” [Mr.] Palmer hit [Mr. 

Simpson] in the mouth knocking him to the floor. [Mr. Simpson] told [Mr.] 

Dalton and [Mr.] Robertson that he wanted to leave and the three of them 

left the club. 

Out in the parking lot, [Mr. Simpson], [Mr.] Dalton and [Mr.] 

Robertson went to [Mr.] Dalton’s Monte Carlo. Before leaving, they talked 

with some girls who had come out of the club and were parked next to 

them. The girls told the men to follow them to a 7-[Eleven] located at NW 

23rd Street and Portland. When they arrived at the store, [Mr. Simpson], 

[Mr.] Dalton and [Mr.] Robertson backed into a parking space toward 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 Caprice. They 

recognized [Mr.] Palmer as the person who had hit [Mr. Simpson] at 

Fritzi’s. [Mr.] Dalton told [Mr. Simpson] to “chill out” but [Mr. Simpson] 

was mad and wanted to retaliate against [Mr.] Palmer. When [Mr.] Palmer 

drove out of the parking lot onto 23rd Street and merged onto I-44, [Mr. 

Simpson] told [Mr.] Dalton 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 that 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 the Chevy as it exited the interstate onto 

Pennsylvania Avenue. He pulled the 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 “chopper[,]” which was an AK-47. 
4 

the Chevy as they drove on Pennsylvania Avenue and [Mr. Simpson] 

pointed the gun out his open window and started firing at the Chevy. 

When the Chevy was hit with bullets, [Mr.] Palmer was driving, 

[Mr.] Jones was sitting in the front passenger seat and [Mr.] Johnson was in 

the back seat. [Mr.] Johnson heard about twenty rapid gun shots and got 

down on the floor of the car. He did not see the shooter but noticed a white 

vehicle drive up beside them. The Chevy jumped the curb and hit an 

electric pole and fence before coming to a stop. [Mr.] Palmer and [Mr.] 

Jones had been shot. [Mr.] Jones had been shot in the side of his head and 

torso and was unconscious. [Mr.] Palmer had been shot in the chest. He was 

initially conscious and able to talk but soon lost consciousness when he 

could no longer breathe. [Mr.] Johnson tried to give both [Mr.] Jones and 

[Mr.] Palmer CPR but was unsuccessful. He flagged down a car that was 

driving by and asked the driver to get help. Both [Mr.] Palmer and [Mr.] 

Jones died at the scene from their gunshot wounds. 

After he fired at the Chevy, [Mr. Simpson] said, “I’m a monster. I 

just shot the car up.” He added, “They shouldn’t play with me like that.” 

[Mr.] Dalton kept driving until they reached a residence in Midwest City 

where he was staying. They dropped the gun off and switched cars, and 

then [Mr.] Dalton, [Mr.] Robertson and [Mr. Simpson] went to meet some 

girls they had talked to at Fritzi’s. 

Simpson v. State (Simpson I), 230 P.3d 888, 893–94 (Okla. Crim. 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 with intent to kill London 

Johnson. Id. at 893.3

 The prosecution sought a penalty of death for each murder. 

Prior to trial, Dr. Phillip Massad, a clinical psychologist, evaluated Mr. Simpson’s 

mental condition. Mr. Simpson disclosed to Dr. Massad that, when Mr. Simpson was 

sixteen years old, a friend ambushed 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 months hospitalized and comatose. Even after his release 

from the hospital, Mr. Simpson was readmitted frequently for treatment of complications 

arising from infections. He endured sixteen surgeries over a seven-month period, and 

feared his attackers would return to kill him. Dr. Massad concluded Mr. Simpson suffered 

from Post-Traumatic Stress Disorder (PTSD) as a result of the shooting. 

Mr. Simpson’s counsel notified the court he intended to present evidence of Mr. 

Simpson’s PTSD and to call Dr. Massad as an expert witness on that topic. The defense 

planned to elicit testimony from Dr. Massad that Mr. Simpson suffered from PTSD and 

that this condition affected his ability to form the intent of malice aforethought required 

 3

 The State also charged Mr. Simpson with possession of a firearm after a former 

felony conviction, to which he pleaded guilty. 
6 

for a first-degree murder conviction. The State moved to exclude Dr. Massad from 

testifying at the guilt stage of trial. At a hearing on the matter, defense counsel 

represented that Dr. Massad would testify it was “possible that the PTSD affected [Mr. 

Simpson] to the extent that he was not able to form the specific intent” to kill, and that, 

because of his PTSD, Mr. Simpson would have “magnified in his own mind the threat” 

the victims presented. Trial Mot. Hr’g Tr. at 18 (Sept. 19, 2007). As the State notes, 

however, Dr. Massad’s psychological report “never indicate[d] that [Mr. Simpson’s 

PTSD] prevent[ed] him from forming an intent to kill” or from “know[ing] what he was 

doing was wrong.” Id. at 11–12. The trial court granted the State’s motion, holding that 

Oklahoma law precludes testimony that a defendant could not have formed the specific 

intent to commit a crime, except in the context of an intoxication or insanity defense, 

neither of which had been advanced by Mr. Simpson at that time. 

The jury rendered its decision finding Mr. Simpson guilty of the first-degree 

murders of Mr. Palmer and Mr. Jones.4

 In the ensuing penalty stage, the State alleged 

four aggravating factors it claimed warranted a sentence of death: 

1. [Mr. Simpson], prior to the time of sentencing, was convicted of a felony 

involving the use or threat of violence to [another] person [(“Prior Violent 

Felony Aggravator”)]; 

2. [Mr. Simpson] knowingly created a great risk of death to more than one 

person [(“Risk of Multiple Deaths Aggravator”)]; 

 

 4

 The jury also found Mr. Simpson guilty of discharging a firearm with intent to 

kill Mr. Johnson. 
7 

3. The murder was especially heinous, atrocious, or cruel [(“HAC 

Aggravator”)]; 

4. At the present time there exists a probability that [Mr. Simpson] would 

commit criminal acts of violence that would constitute a continuing threat 

to society [(“Continuing Threat Aggravator”)]. 

Trial R. vol. 1 at 44. Mr. Simpson asserted three factors in mitigation: (1) his age,5

 (2) his 

mental state (PTSD diagnosis), and (3) his family support.

i. Aggravating evidence presented at sentencing

The State moved to incorporate all the evidence presented during 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 Aggravator—the court 

granted the motion. 

In addition, Mr. Simpson stipulated that he had previously received a seven-and-ahalf-year prison sentence for armed robbery, and the victim of that crime, Hung Pham, 

appeared in support of the State’s case in aggravation. Mr. Pham testified that 

Mr. Simpson and two other men forced themselves into Mr. Pham’s home at gunpoint. 

Mr. Pham provided compelling details, stating that Mr. Simpson shoved the gun in 

Mr. Pham’s face, forced him inside, and beat him in the face and back with the gun. After 

taking Mr. Pham’s wallet, Mr. Simpson pulled Mr. Pham into a bathroom closet, forced 

him to kneel on the floor, and demanded all of his money. When Mr. Pham replied that 

he did not have any more money, Mr. Simpson shot Mr. Pham in the head and left with 

 5

 Mr. Simpson was twenty-five at the time of the shooting. 
8 

Mr. Pham’s wallet. Mr. Pham remembers the encounter vividly, “[b]ecause . . . [Mr. 

Simpson] hit my face, everything, he hurt me a lot. I remember forever.” Trial Tr. vol. 7 

at 96–97. 

The State also relied on the testimony of Roy Collins, a jailhouse informant who 

had temporarily shared a cell with Mr. Simpson. Hoping to leverage a deal with the 

district attorney’s office for his own early release, Mr. Collins asked Mr. Simpson about 

the murders. Mr. Collins testified that Mr. Simpson admitted to the altercation at Fritzi’s, 

seeing the victims at the 7-Eleven, following them, and then firing the assault rifle into 

their car. Mr. Collins further stated that Mr. Simpson expressed 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. Collins also testified that 

Mr. Simpson would smile and laugh when talking about the murders and that Mr. 

Simpson thought he was a “gangster[]” like “Tupac or Biggie Small.” 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 gangbangers, 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 Bloods gang because “[h]e’s got red ink all over his 

neck.” Id. at 58–59. 

Finally, the prosecution presented victim impact statements from Rosalind Jones, 

the mother of Anthony Jones, and Tiarra Palmer, the sister of Glen Palmer. 
9 

ii. Mitigating evidence presented at sentencing

The defense called six witnesses in mitigation: Dr. Massad, to testify about Mr. 

Simpson’s PTSD diagnosis; Evan Gatewood, 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 majority of the mitigating evidence focused on the ambush 

and shooting of Mr. Simpson and his long road to recovery. The witnesses indicated that 

family members visited Mr. Simpson every day in the hospital and that his mother 

believed “[h]e was on his dying bed.” Id. at 153. 

Dr. Massad testified that Mr. Simpson 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 diagnosis that Mr. Simpson suffered from PTSD and about 

the typical symptoms of the disorder. He explained that people suffering from PTSD 

“might be hypersensitive and overreact” to common situations. Id. at 166. Additionally, 

such a person could be “hypervigilant,” constantly on “alert and watchful for danger,” 

and could experience “exaggerated startle response[s] and other symptoms.” Id. at 167. 

Dr. Massad further opined that drugs or alcohol could exacerbate this hypersensitivity 

and paranoia because they can “increase the likelihood that [a person] would react or 

overreact.” Id. 

Mr. Simpson’s aunt highlighted examples of this paranoia and hypersensitivity in 

her testimony, noting Mr. Simpson was constantly terrified the men who had shot him 

would return and finish the job. He was “paranoid and scared” to the point he refused to 
10 

open the door when people came to visit, and he moved out of his mother’s house 

because it was too close to the site of the shooting. Id. at 205–06. 

Most of the testimony from Mr. Simpson’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 relatively normal upbringing. There was also testimony that 

Mr. Simpson’s grandmother was primarily responsible for raising him, while his 

teenaged, single mother was finishing high school. The witnesses reported that Mr. 

Simpson’s father was not involved in his upbringing and that Mr. Simpson dropped out 

of school in the eighth grade. The overall theme of the testimony was that Mr. Simpson 

had a good family who loved and supported him, but could not provide all the guidance 

required in raising him and his two siblings. Mr. Simpson’s grandmother, 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 aggravating factors by 

special verdict and recommended a sentence of death for each murder. The court adopted 

the jury’s recommendation and sentenced Mr. Simpson to death. 

b. Appellate and post-conviction proceedings 

Mr. Simpson appealed his convictions and sentences, alleging a variety of errors in 

both the guilt and sentencing stages of his trial. On direct appeal, the OCCA affirmed Mr. 

Simpson’s convictions and death sentences as to both Mr. Palmer and Mr. Jones. Simpson 

I, 230 P.3d at 907. Although the OCCA struck the HAC Aggravator for the death of Mr. 
11 

Jones, it concluded no constitutional error had occurred and no relief was warranted 

because the jury had not considered any evidence admitted solely due to the erroneous 

inclusion of that aggravating factor. Id. at 902–03. 

Simultaneous with his direct appeal, Mr. Simpson filed an application for postconviction relief and an application 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 OCCA denied both 

applications. 

 Three years later, Mr. Simpson filed a second state application for post-conviction 

relief, coupled with another application for an evidentiary hearing, in order to exhaust 

claims presented in his federal habeas petition. Again, the OCCA 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 petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254, a motion for discovery, 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. May 25, 2016) (unpublished). The district court denied 

his petition and motions, but granted a Certificate of Appealability (“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 the guilt stage of the trial and (2) an alleged Brady6

violation, whereby prosecutors withheld impeachment evidence as to Mr. Collins. This 

court subsequently granted a COA on five additional issues: (1) whether alleged 

prosecutorial misconduct denied Mr. Simpson a fundamentally fair sentencing 

proceeding; (2) whether a jury instruction and prosecutorial statements unduly limited 

jury consideration of mitigating evidence; (3) whether the HAC aggravating factor 

determination as to Mr. Palmer was unconstitutional and unreasonable; (4) whether trial 

counsel was ineffective for failing to investigate, prepare, and present lay witnesses, 

failing to request a second-degree murder instruction, failing to object to improper 

prosecutorial arguments, failing to object to the HAC instruction, and failing to object to 

the jury instruction limiting consideration of mitigating evidence; and (5) whether there 

was “cumulative error, limited to errors in the grounds on which 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 deferential 

standard” in federal habeas proceedings 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, requesting appellate 

review of the trial court’s ruling limiting mitigation testimony from De’Andrea Lagarde. 

We previously evaluated the merits of this claim and found it did not “deserve 

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Mr. Simpson presents no compelling reason to depart from our previous holding on this 

issue, and we deny his motion. 
13 

that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 

U.S. 170, 181 (2011) (internal quotation marks omitted). When a petitioner includes in 

his habeas application a “claim that was adjudicated on the merits in State court 

proceedings,” a federal court shall not grant relief on that claim unless the state-court 

decision: 

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable 

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

State court proceeding. 

28 U.S.C. § 2254(d)(1)–(2). 

Section 2254(d)(1)’s reference to “clearly established Federal law, as determined 

by the Supreme Court of the United States,” “refers to the holdings, as opposed to the 

dicta, of th[e] Court’s decisions as of the time of the relevant state-court decision.” 

Williams v. Taylor, 529 U.S. 362, 412 (2000). “Federal courts may not extract clearly 

established law from the general legal principles developed in factually distinct contexts, 

and Supreme Court holdings must be construed narrowly and consist 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 contradicts the governing law set 

forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially 
14 

indistinguishable from a decision of th[e] Court and nevertheless 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, applicable Supreme Court decisions, “so long as neither the 

reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 

537 U.S. 3, 8 (2002) (per curiam). 

A state-court decision is an “unreasonable application” of Supreme Court law if 

the decision “correctly identifies 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 general the rule, the more leeway courts 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 may be narrow” and 

“[a]pplications of the rule may be 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 concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly”; “that 

application must also be unreasonable.” Id. at 411. 

Claims not “adjudicated on the merits” in state court are entitled to no deference. 

Fairchild I, 784 F.3d at 711. But, “even in the setting where we lack a state court merits 

determination, ‘[a]ny state-court findings of fact that bear upon the claim are entitled to a 
15 

presumption of correctness rebuttable only by “clear and convincing evidence.”’” Grant 

v. Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quoting 28 U.S.C. § 2254(e)(1)) (alteration 

in original), petition for cert. filed sub nom. Grant v. Carpenter, No. 18-6713 (Nov. 13, 

2018); see also Hooks v. Ward (Hooks I), 184 F.3d 1206, 1223 (10th Cir. 1999) 

(presuming correctness of state court findings on claim not adjudicated on the merits). 

Although the burdens on the petitioner under AEDPA are significant, we “undertake this 

review cognizant that our duty to search for constitutional error 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) (internal quotation marks omitted). 

With these standards in mind, we turn to Mr. Simpson’s claims. 

III. DISCUSSION 

As discussed, Mr. Simpson raises seven grounds for relief. We consider each of 

his arguments in turn. 

A. Right to Present a Complete Defense 

Mr. Simpson first asserts he is entitled to federal habeas relief with respect to his 

convictions because the trial court erroneously excluded expert testimony regarding his 

PTSD diagnosis and dissociative episodes from the guilt stage of trial. Mr. Simpson 

claims Dr. Massad’s testimony was necessary to support the defense 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 to present a complete defense. 
16 

We begin our review of this claim by providing additional factual and procedural 

background. We then address the State’s arguments that the claim is unexhausted and 

unpreserved.8

 Deciding that the PTSD portion of Mr. Simpson’s claim is properly 

preserved and has been exhausted, we then examine the OCCA’s merits decision. We 

conclude that decision is not unreasonable 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 the trial court 

hearing on the exclusion of the evidence and Dr. Massad’s testimony 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. Simpson’s PTSD affected his ability to form the intent to 

kill. Simpson I, 230 P.3d at 895. As a result, the OCCA held that Mr. Simpson’s PTSD 

diagnosis was “neither relevant to the intent element of the crime charged nor was it 

relevant to his defense of voluntary intoxication.” Id. 

On federal habeas review, Mr. Simpson challenges the OCCA’s determination as 

both contrary to and an unreasonable application of clearly established federal law. The 

 8

 The State also claims that Mr. Simpson failed to adequately cite the record in his 

appellate brief as required by Federal Rule of Appellate Procedure 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 Cir. 2005) (recognizing that the court has the discretion to overlook 

inadequate briefing and to consider an issue on the merits). 
17 

State counters that Mr. Simpson is barred from presenting this claim because he has 

failed to exhaust available state court remedies, he has forfeited the argument he makes 

on appeal by not presenting it to the district court, and, alternatively, because the 

OCCA’s decision was neither contrary to federal law nor unreasonable. 

2. Exhaustion and Preservation

 We begin our analysis with the state’s argument that Mr. Simpson failed to 

exhaust his claim that the trial court violated his right to present a complete defense . See

United States v. Miller, 868 F.3d 1182, 1185 (10th Cir. 2017). 

a. Legal standard

AEDPA permits federal courts to entertain only those applications for a writ of 

habeas corpus alleging that a person is in state custody “in violation of the Constitution or 

laws or treaties of the United States.” 28 U.S.C. § 2254(a). A federal court may not grant 

such an application unless, with certain exceptions not relevant here, the applicant has 

exhausted state remedies before filing his petition. Id. § 2254(b)–(c); see Pinholster, 563 

U.S. at 181. In general, to exhaust state remedies, a petitioner “must give the state courts 

an opportunity to act on his claims before he presents those claims 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 accomplished by providing 

“the state courts one full opportunity to resolve any constitutional issues by invoking one 

complete round of the State’s established appellate review process.” Id. (quoting 

O’Sullivan, 526 U.S. at 845). A claim is exhausted only after “it has been ‘fairly 
18 

presented’ to the state court.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) 

(quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “Fair presentation” requires that 

the substance of the federal claim was raised in state court. Id. “The petitioner need not 

cite ‘book and verse on the federal constitution,’ but the petitioner cannot assert entirely 

different arguments from those raised before the state court.” Id. (quoting Picard, 404 

U.S. at 278). Under this standard, Mr. Simpson’s claim is unexhausted if the substance of 

the claim he is arguing here is different from the argument he made to the OCCA. 

Turning to preservation, “[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)). “Consequently, when a litigant fails to 

raise an issue below in a timely fashion and the court below does not address the merits 

of the issue, the litigant has not preserved the issue for appellate review.” Id. To properly 

raise an argument below, a litigant 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 district court proceedings do 

not preserve the issue on appeal . . . because such perfunctory presentation deprives the 

trial court of its opportunity to consider and rule on an issue in any detail.” Id. (citation 

and internal quotation marks omitted). 

b. Analysis

Before this court, Mr. Simpson contends he suffers from dissociative episodes, and 

that his PTSD was the result of being shot by his friend and a lifetime of trauma. The 
19 

State asserts Mr. Simpson’s claim is unexhausted and unpreserved because he is 

presenting an entirely different theory to this court than the theory he presented to the 

OCCA and the district court. The State further asserts Mr. Simpson has improperly 

supplemented his argument on appeal 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 PTSD, not malice aforethought, is what caused him to react 

the way he did.” Aplt. Reply Br. at 3–5. He further contends his 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 presented to the OCCA. 

For purposes of discussion, we divide Mr. Simpson’s argument into two 

categories: (1) PTSD evidence and (2) evidence of dissociative episodes. We conclude 

that Mr. Simpson properly preserved and exhausted his PTSD argument, but that he 

failed to properly preserve his argument concerning dissociative episodes. 

i. PTSD evidence

On direct appeal, Mr. Simpson argued his PTSD was the result of a single event—

his having previously been ambushed and shot by his friend. Mr. Simpson further 

claimed his PTSD was “relevant to the issue of whether he shot with malice aforethought, 

or did so out of a sense of exaggerated fear and terror caused by his PTSD,” which was 

exacerbated by his consumption of drugs and alcohol on the night of the murders. Aplt. 

Br. at 22–23, Simpson I, 230 P.3d 888 (No. D-2007-1055). Thus, Mr. Simpson posited 
20 

that evidence of his PTSD would have negated his ability to form the specific intent 

necessary to commit first-degree murder. Finally, Mr. Simpson argued his PTSD was 

relevant to support his voluntary intoxication defense. 

Although Mr. Simpson’s position in this court is more refined than the argument 

he made to the OCCA, the core of his PTSD claim is the same. His 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 attempt to bolster his 

consistently-advanced position that his PTSD diagnosis was relevant 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 additional evidence to 

support a diagnosis of trauma-related PTSD, but he also correctly notes that Dr. Massad 

was aware of enough evidence before trial to diagnose Mr. Simpson with PTSD and in 

 9

 The OCCA described Mr. Simpson’s claim as follows: 

Prior to trial, the defense filed a notice of intent to offer evidence of mental 

and/or psychological defect, deficiency, diminishment, and/or other such 

and related condition of defendant. Dr. Phillip Massad, a clinical 

psychologist, conducted a psychological evaluation of [Mr. Simpson] and 

issued a report in which he found it more likely than not that [Mr. Simpson] 

suffered from Post Traumatic Stress Disorder (PTSD). The state filed a 

motion to preclude the defense from offering testimony about [Mr. 

Simpson’s] PTSD in the first stage of trial. A hearing was held on this 

motion and the trial court granted the State’s motion. [Mr. Simpson] 

complains in his first proposition that this ruling was in error and violated 

his constitutional right to present a complete defense. 

Simpson v. State (Simpson I), 230 P.3d 888, 894–95 (Okla. Crim. App. 2010). 
21 

fact did so. Thus, Mr. Simpson’s claim that the symptoms of his PTSD—specifically the 

tendency to overreact—prevented him from forming the requisite intent to kill has been 

exhausted. 

The State also asserts that Mr. Simpson has failed to preserve this claim on appeal 

by failing to raise it in the district court. The district court described Mr. Simpson’s 

PTSD argument as follows: 

In Ground 2, [Mr. Simpson] asserts that he is entitled to habeas relief 

because the trial court prevented him from presenting evidence in the guilt 

stage that he suffered from Post Traumatic Stress Disorder (PTSD). [Mr. 

Simpson] argues that this evidence was relevant to the issue of intent and 

his voluntary intoxication defense, and that because he was unable to 

present this evidence, he was denied his constitutional right to present a 

complete defense. 

Simpson IV, 2016 WL 3029966, at *6. Thus, Mr. Simpson advanced his PTSD argument 

before the district court. Accordingly, we reject the State’s failure-to-preserve argument 

and determine Mr. Simpson’s PTSD argument is properly before us. 

ii. Dissociative episodes 

In this court, Mr. Simpson also attempts to introduce a new defense related to, but 

qualitatively different than, the PTSD defense he raised before the district court. In his 

argument to this court, Mr. Simpson contends he “was in the midst of a PTSD and/or 

dissociative episode during the crime [, which] reveals his brain was functioning such 

that either he had a reduced capacity to form the specific intent of first-degree malice 

aforethought murder, or he was unable to form the intent at all.” Aplt. Br. at 24. To be 

sure, Mr. Simpson argued to the district court that his PTSD, combined with his drug and 
22 

alcohol abuse, prevented him from forming the requisite mens rea. See Aplt. Br. at 14, 

Simpson IV, 2016 WL 3029966 (No. CIV-11-96-M) (arguing that PTSD can cause 

someone to “react out of an exaggerated sense of fear and terror uncontrolled by one’s 

will” and “that the level of intoxication necessary to negate the specific intent of firstdegree, malice aforethought murder is affected by PTSD”). But nowhere did he suggest, 

before his argument here, that he suffered from a dissociative episode at the time of the 

murders that rendered him “unable to form the intent at all.” Accordingly, 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 analysis of this claim to Mr. 

Simpson’s PTSD argument. 

3. Merits 

We turn now to the merits of Mr. Simpson’s assertion that the trial court violated 

his constitutional right to present a complete defense when it excluded evidence that his 

PTSD made him hypervigilant and, together with his substance abuse on the night of the 

murders, rendered him incapable of forming the requisite mens rea. 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 claims of error in this regard. First, he contends the trial 

 10 Because we conclude Mr. Simpson failed to preserve this argument by not 

raising it in the district court, we do not address whether the claim was exhausted. See 

Owens v. Trammell, 792 F.3d 1234, 1246 n.8 (10th Cir. 2015) (“We do not reach the 

State’s argument that Owens failed to exhaust his state court remedies because we base 

our decision on Owen’s failure to raise the theory in the district court.”). 
23 

court erred by refusing to allow him to present a defense theory that PTSD negated his 

ability to form the specific intent required for first-degree murder. Second, he argues 

evidence establishing that he suffered from PTSD was required to assist the jury in 

understanding the voluntary intoxication instruction. 

a. OCCA decision

The OCCA rejected both of these arguments on direct appeal, finding Dr. 

Massad’s testimony irrelevant in both situations because he “could 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 this claim on the merits, thereby triggering AEDPA 

deference. According to Mr. Simpson, the OCCA’s decision contradicted and 

unreasonably applied Supreme Court law.11 

b. Reasonableness of the OCCA’s legal determination

The Supreme Court has recognized that although criminal defendants have the 

right to present a complete defense, they must still comply with a state’s well-established 

rules of evidence. See Holmes v. South Carolina, 547 U.S. 319, 326 (2006). Oklahoma 

law therefore informs our analysis. 

i. PTSD as a stand-alone defense

As relevant to Mr. Simpson’s first argument—that PTSD negated specific intent—

the trial court correctly noted that Oklahoma permits diminished capacity evidence only 

 11 Mr. Simpson does not assert the OCCA’s decision was an unreasonable 

determination of the facts. 
24 

in the case of an intoxication or insanity defense. Frederick v. State, 37 P.3d 908, 931 

(Okla. Crim. App. 2001). Mr. Simpson 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-degree murder. But Mr. Simpson 

fails to identify a single federal case, let alone a Supreme Court case, supporting his 

position.12 Where there is no Supreme Court case on point, there is no clearly established 

federal law for the purposes of AEDPA. See Hooks v. Workman (Hooks II), 689 F.3d 

1148, 1176 (10th Cir. 2012). And when a defendant “is unable to find any ‘clearly 

established’ Supreme Court precedent 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 threshold for lack of clearly established 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 excluding Dr. Massad’s 

testimony because it was necessary to assist the jury in evaluating 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 excluding it. Simpson I, 230 P.3d 

 12 The only Supreme Court case addressing this issue actually undermines his 

claim. See Clark v. Arizona, 548 U.S. 735, 770–71 (2006) (upholding Arizona’s 

exclusion of mental illness evidence offered to refute the mens rea element, unless such 

evidence is sufficient to establish an insanity defense). 
25 

at 895. This decision is reasonable under AEDPA unless no fairminded 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 tendency to make the 

existence of any fact that is of consequence to the determination of the action more or 

less probable than it would be without the evidence.” Okla. Stat. tit. 12, § 2401. And, 

“expert opinion testimony should be admitted only if it will ‘assist the trier of fact to 

understand the evidence or to determine a fact in issue.’” Hooks v. State (Hooks III), 862 

P.2d 1273, 1278 (Okla. Crim. App. 1993) (quoting Okla. Stat. tit.12, § 2702). “When a 

defendant raises the defense of voluntary intoxication, an expert may properly offer his or 

her opinion on whether the defendant’s actions were intentional.” Coddington v. State, 

142 P.3d 437, 450 (Okla. Crim. 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 requisite deliberate intent of 

malice aforethought.” See id. But, “[w]here the normal experiences and qualifications of 

laymen jurors permit them to draw proper conclusions from the facts and circumstances, 

expert conclusions or opinions 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 testimony would have assisted 

the jury in determining whether Mr. Simpson’s “intoxication affected his mental state and 

prevented him from forming malice aforethought.” See White v. State, 973 P.2d 306, 311 

(Okla. Crim. App. 1998). We have further explained that although, “psychological or 
26 

psychiatric evidence that negates the essential element of specific intent can be 

admissible[,] [t]he admission of such evidence will depend upon whether [it] . . . would 

negate intent rather than merely present a dangerously confusing theory of defense more 

akin to justification and excuse.” United States v. Brown, 326 F.3d 1143, 1147 (10th Cir. 

2003). 

A review of Dr. Massad’s testimony fails to demonstrate any meaningful 

connection between PTSD and intent generally, or intoxication specifically. Even a 

generous reading of his testimony demonstrates only a bare assertion that Mr. Simpson 

had PTSD and that PTSD could cause one to be hypervigilant and to overreact to stimuli. 

Dr. Massad’s testimony lacked any detail on the impact Mr. Simpson’s PTSD had on his 

ability to form the intent to kill, and Dr. Massad’s testimony on the interactive effects of 

PTSD and intoxicants is similarly lacking. Dr. Massad opined that PTSD could be 

affected by drugs and alcohol because they “could lower one’s defenses and increase the 

likelihood that [the person] would react or overreact.” Trial Tr. vol. 7 at 167. On crossexamination, however, Dr. Massad admitted he was “not sure about how the brain and 

alcohol interact” beyond generally lowering a person’s inhibitions—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 qualifications of laymen 

jurors.” See Hooks III, 862 P.2d at 1279. And without more, this testimony falls within 

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 testimony was 

irrelevant, the OCCA’s decision was reasonable. 

B. Brady Claim 

Mr. Simpson next alleges the prosecutors violated their constitutional 

responsibility under Brady v. Maryland to disclose all evidence favorable to the defense. 

Specifically, he contends the prosecution suppressed impeachment evidence against a 

State sentencing-stage witness, Roy Collins. 

In addressing this claim, we begin with a discussion of what Brady requires. We 

then provide additional background relevant to the OCCA’s decision, concluding that the 

OCCA did not resolve this claim on the merits. Instead, the OCCA 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 can 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, we consider Mr. Simpson’s request for discovery and an 

evidentiary hearing before the district court and we deny relief on that request, as well. 

1. Elements of a Brady Claim 

We have recognized three essential elements of a Brady claim: (1) the prosecutor 

suppressed the evidence; (2) the suppressed evidence was favorable to the accused, either 

because it is exculpatory or because it is impeaching; and (3) prejudice ensued because 

the suppressed evidence 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)”) (quoting 
28 

Strickler v. Greene, 527 U.S. 263, 281–82 (1999)). Evidence is suppressed for Brady

purposes if the prosecution fails to disclose favorable exculpatory or impeachment 

evidence known either by it or the 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 probability that, had the evidence 

been disclosed to the defense, the result of the proceeding would 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 State suppressed three pieces of evidence 

(collectively, the “Collins Evidence”): 

(1) a video-taped interview with Roy Collins from January 5, 2006, which reveals 

Mr. Collins’s Hoover Crips gang affiliation and calls into question the veracity of his 

testimony concerning Mr. Simpson’s jailhouse statements by revealing that Mr. Collins 

made nearly identical jailhouse statements about Jason Whitecrow, a defendant in an 

unrelated criminal trial; 

(2) Mr. Collins’s complete arrest, conviction, and incarceration records that reveal 

an additional four convictions to which Mr. Collins did not testify at trial; and 

 13 Mr. Simpson’s trial counsel asserted, and the State does not contest, that the 

State’s “open file” did not include the Collins evidence. Counsel for the State also does 

not contest the Collins evidence was in the possession of the Oklahoma county district 

attorney’s office at large. 
29 

(3) statements reflecting Mr. Collins’s expectation of prosecutorial assistance in 

exchange for his testimony. 

According to Mr. Simpson, the Collins Evidence was materially favorable Brady

evidence that could have cast doubt on the credibility of Mr. Collins’s testimony, which, 

in turn, was critical to support the Continuing Threat Aggravator. 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 prosecution’s failure to disclose [the Collins Evidence] was 

harmful as a matter of law [and] ‘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 claim was procedurally barred 

because the misconduct happened at trial, the legal basis for the claim was available on 

direct appeal and on the first post-conviction application, and “the factual basis for the 

claim[] was available and could have been ascertained through the exercise of reasonable 

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

the OCCA ruled Mr. Simpson’s Brady claim had been waived. Id. 
30 

3. Procedural Default 

a. Independent and adequate procedural bar

Under the doctrine of procedural default, “[c]laims that are defaulted in state court 

on adequate and independent state procedural grounds will not be 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, that a state court declined to hear because the prisoner 

failed to abide by a state procedural rule.”). “To be adequate, the [state] procedural 

ground must be strictly or regularly followed and applied evenhandedly to all similar 

claims.” Thacker, 678 F.3d at 835 (internal quotation marks omitted). We have 

previously determined that Oklahoma’s procedural default rule in title 22, section 

1089(D) of the Oklahoma Statutes meets this requirement. See, e.g., id. at 835–36. 

In turn, a state procedural rule is independent “if it relies on 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 overcome 

the default. 
31 

b. Legal background on cause and prejudice

“A prisoner may obtain federal review of a defaulted claim by showing 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 impeded [his] efforts 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 factors include “a showing that the factual or legal basis 

for a claim was not reasonably available to counsel, or that some interference by officials 

made compliance impracticable.” Id. (quoting Murray, 477 U.S. at 488). A petitioner 

must also show “‘actual prejudice’ 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 parallel two of the three components of the alleged Brady

violation itself,” Strickler, 527 U.S. at 282, if Mr. Simpson can successfully demonstrate 

cause and prejudice, he will have also succeeded in establishing his Brady claim, 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 review of a procedurally defaulted claim by 

showing that a fundamental miscarriage of justice would occur if 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. Simpson has not raised a fundamental 

miscarriage of justice challenge on appeal. 
32 

[petitioner]. Therefore [petitioner] has also established prejudice 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 [petitioner] lacks cause for failing 

to raise the Massiah claim in the first federal petition, we need not consider whether he 

would be prejudiced by his inability 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 claim barred by state procedural default where petitioner 

could not establish cause, without considering prejudice); Romano v. Gibson, 239 F.3d 

1156, 1171–72 (10th Cir. 2001) (assuming the State suppressed Brady evidence but 

denying relief because the evidence was not material). 

We exercise our discretion to proceed directly to the prejudice/materiality 

question. Ultimately, we deny Mr. Simpson relief on his Brady claim because, even 

assuming he could show cause/suppression, he cannot establish prejudice/materiality. 

c. Prejudice/Materiality merits analysis

“[P]rejudice within the compass of the ‘cause and prejudice’ requirement 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 reasonable probability that, had 

the evidence been disclosed to the defense, the result of the proceeding would have been 

different.” Id. (quoting Kyles, 514 U.S. at 433). “A ‘reasonable probability’ is a 
33 

‘probability sufficient to undermine 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 withheld evidence, its utility to 

the defense as well as its potentially damaging impact on the prosecution’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 evaluate the materiality of withheld evidence in light of the 

entire record in order to determine if ‘the omitted evidence creates 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 Mr. Simpson claims is material had 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 suppressed evidence includes: Mr. Collins’s 

prior gang affiliation with the Hoover Crips—the same gang the victims belonged to and 

the rival of Mr. Simpson’s gang, the Bloods; Mr. Collins’s additional criminal 

convictions; the similarities between the two jailhouse confession stories; and Mr. 

Collins’s alleged expectation of prosecutorial assistance in exchange for his testimony. 

To be sure, this evidence could have been used to impeach Mr. Collins, who testified in 

support of the Continuing Threat Aggravator. In evaluating prejudice/materiality, 

however, the impact of the evidence must be viewed in light of the impeachment 
34 

evidence introduced at trial and the strength of the State’s aggravating evidence. See 

Banks (Reynolds), 54 F.3d at 1518. 

The only wholly new information withheld was Mr. Collins’s prior gang affiliation 

and the alleged similarities between Mr. Collins’s story of his conversation with Mr. 

Simpson and his prior testimony in the Whitecrow trial. All of the other Collins Evidence 

related to topics on which evidence was introduced in some form at trial. For example, 

the State conceded at trial that 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, that 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 Mr. Collins lied on the stand about playing football at the 

University of Oklahoma. It is true the prosecutor attempted to undermine the 

effectiveness of this impeachment 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 defense efforts at trial made the jury aware that Mr. 

Collins’s recollection of events was questionable at best. The introduction of evidence of 

additional criminal convictions, or of more factual inaccuracies therefore, would have 

had diminishing returns. 

That said, when considering the suppressed evidence in light of the impeachment 

evidence introduced at trial, we agree with Mr. Simpson that the suppressed evidence was 

not all cumulative. See Case v. Hatch, 731 F.3d 1015, 1042–43 (10th Cir. 2013). As 
35 

indicated, Mr. Collins’s gang affiliation and prior testimony about 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 suppressed evidence material. To make that assessment, we 

must evaluate Mr. Collins’s testimony in light of the State’s case as a whole. See Banks 

(Reynolds), 54 F.3d at 1518. 

As indicated, the State alleged four aggravating factors: 1) the Prior Violent 

Felony Aggravator, 2) the Risk of Multiple Deaths Aggravator, 3) the HAC Aggravator, 

and 4) the Continuing Threat Aggravator. Although defense counsel conceded the State 

had proven beyond a reasonable doubt the first two aggravating factors, counsel argued 

the State had failed to prove Mr. Palmer’s death was especially heinous, atrocious, or 

cruel or that Mr. Simpson would continue 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 with him on three and four. . . . [T]hey didn’t prove three 

and four.”). 

The State relied on Mr. Collins’s testimony to prove Mr. Simpson 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 Collins 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 beneficial to the prosecution; the 

question is whether the prosecutor’s case was strong enough that, had the evidence 

impeaching Mr. Collins been disclosed, there is no reasonable probability the jury would 
36 

have decided on a sentence less than death. See Douglas, 560 F.3d at 1173. We believe it 

was. 

Mr. Simpson characterizes Mr. Collins as critical to the State’s case in 

aggravation, claiming, “[Mr.] Collins’s testimony that Mr. Simpson tried to hire him to 

kill [the surviving victim] and assault and threaten witnesses and was utterly remorseless, 

was the centerpiece of the prosecution’s case for death.” Aplt. Br. at 53, 77–78. He 

argues the prosecutor “directed [Mr.] 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 other evidence to support the Continuing Threat 

Aggravator, he argues Mr. Collins’s testimony was so important that the jury might not 

have imposed the death penalty without it. To put this argument in context, we must 

consider the other evidence offered in support of a penalty of death. 

To begin, Mr. Simpson concedes there was sufficient evidence to support the 

jury’s finding of the first two aggravators: (1) he was convicted previously of a felony 

involving the use or threat of violence and (2) he knowingly created a great risk of death 

to more than one person. There is also substantial evidence in the record that supported 

the Continuing Threat Aggravator, even without considering Mr. Collins’s testimony. 

First, the facts of the crime itself support this aggravator. See Jones v. State, 128 

P.3d 521, 549–50 (Okla. Crim. App. 2006) (“Evidence of the callous nature of the crime 

and the defendant’s blatant disregard for the importance of human life supports” the 

Continuing Threat Aggravator). Mr. Simpson gunned down three men with an assault 
37 

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 codefendant, when Mr. Robinson initially refused to retrieve the rifle 

from the trunk. The shooting took place in a residential area, yet Mr. Simpson 

indiscriminately shot fifteen to twenty rounds into the victims’ moving car, forcing it to 

veer off the road and hit an electrical pole. And as he fled the scene, Mr. Simpson 

shouted, “I’m a monster. I’m a motherfucking monster. Bitches don’t want to play with 

me.”15 Trial Tr. vol. 4 at 44–46. 

The State also offered other evidence of Mr. Simpson’s callous disregard for 

human life as support for finding the Continuing Threat Aggravator. For example, 

immediately following the murders, Mr. Simpson proceeded with his plan to visit some 

women he had met at Fritzi’s. The jury could have reasonably inferred 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 finding that he 

would be a continuing threat. The record reflects that Mr. Simpson threatened Mr. 

Dalton’s family in an attempt to keep Mr. Dalton from speaking to the police, and that 

Mr. Simpson’s codefendants took his threats seriously. 

 15 This recitation of Mr. Simpson’s statement immediately after the shooting is not 

identical to the sanitized version in the OCCA’s findings. But for purposes of our 

analysis we rely on the trial transcript because it reflects the evidence as presented to the 

jury. 
38 

Mr. Simpson’s past criminal convictions can also serve as evidence in support of 

the Continuing Threat Aggravator. See Lockett v. State, 53 P.3d 418, 428 (Okla. Crim. 

App. 2002). The State relied on Mr. Simpson’s previous conviction for armed robbery 

and offered Mr. Pham’s testimony about the facts underlying that offense. Mr. Pham 

related how Mr. Simpson forced his way into Mr. Pham’s home, threatened him with a 

gun, beat him across the face and back, stole his wallet, forced 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 evidence the State introduced against the 

previously discussed evidence Mr. Simpson presented in mitigation,16 we find no 

reasonable probability that the outcome of the sentencing proceeding would have been 

different had the Collins Evidence been produced. We do not discount the obvious 

significance of Mr. Collins’s testimony or the State’s reliance on it. But given the 

defense’s successful, if admittedly 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 reasonable probability that the jury would have returned a 

different verdict if [Mr. Collins’s] testimony had been [further] 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 under 

Brady, and Mr. Simpson cannot demonstrate prejudice.17

In summary, because Mr. Simpson 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 cause and prejudice, Mr. Simpson cannot overcome the state 

procedural bar and we cannot consider this claim on habeas review. Accordingly, we 

deny Mr. Simpson relief on his Brady claim. 

 17 Mr. Simpson also claims the prosecutor violated his duty under Napue v. 

Illinois, 360 U.S. 264, 269–70 (1959), “not [to] solicit[] false evidence” and “to correct 

what he knows to be false and elicit the truth,” by guiding Mr. Collins into misleading 

testimony about his education, criminal history, and motivation for testifying, and by 

knowingly failing to correct false testimony about Mr. Collins’s football career at the 

University of Oklahoma. Like with his Brady claim, Mr. Simpson’s Napue claim is 

procedurally defaulted. Thus, before 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 prosecutor’s failure to correct false statements in Mr. 

Collins’s testimony “not merely . . . created a possibility of prejudice, but that [it] worked 

to his actual and substantial disadvantage, infecting [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 prevailing on the merits of a 

Napue claim is lower than the prejudice standard for overcoming the procedural bar. See 

United States v. Garcia, 793 F.3d 1194, 1207 (10th 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 doubt.”). But, we also observe that where Mr. Simpson 

never identifies or advances an argument, to this court, under the lower prejudice 

standard for Napue claims, we will not consider any argument in favor of substituting the 

Napue prejudice standard for the prejudice standard to overcome the procedural bar. 
40 

4. Evidentiary Hearing and Discovery Motions 

In conjunction with his Brady claim, Mr. Simpson appeals the district court’s 

denial of his motion for an evidentiary hearing and discovery seeking additional 

impeachment evidence as to Roy Collins. The district court denied the motion after 

determining that Mr. Simpson “would not be entitled to relief even 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 discovery 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 Cir. 1999) (motion for discovery 

standard). 

Generally speaking, federal habeas review “is ‘limited to the record that was 

before the state court that adjudicated 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 evidentiary hearings 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 whether § 2254(d) applies to his request for an evidentiary 

hearing. See 28 U.S.C. § 2254(d) (“An application for a writ of habeas corpus . . . 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-AEDPA 
41 

requirements where § 2254(e)(2) does not apply, we need not determine 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 claim in State 

court proceedings, the court shall not hold an evidentiary hearing on the 

claim unless the applicant shows that-- 

(A) the claim relies on-- 

(i) a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was 

previously unavailable; or 

(ii) a factual predicate that could not have been previously 

discovered through the exercise of due diligence; and 

(B) the facts underlying the claim would be sufficient to establish by 

clear and convincing evidence that 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 proceed to analyze whether an evidentiary hearing is 

appropriate or required under 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 “2254(e)(2)(A) or (B),” see 

Bryan v. Mullin, 335 F.3d 1207, 1214 (10th Cir. 2003) (en banc) (emphasis added), see 

also Cannon v. Mullin, 383 F.3d 1152, 1176 (10th Cir. 2004), Pinholster resolves any 

ambiguity in the statute by clearly requiring the petitioner to satisfy both 2254(e)(2)(A) 

and (B). 
42 

693 (10th Cir. 2006) (quotation marks omitted). Under this pre-AEDPA standard, a 

petitioner is entitled to an evidentiary hearing “if (1) the facts were not adequately 

developed in state court, so long as that failure was not attributable to the petitioner, and 

(2) his allegations, if true and not contravened by the existing 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, would entitle him to 

relief”). Similarly, Mr. Simpson is entitled to discovery if he establishes “good cause,” 

Wallace, 191 F.3d at 1245. “Good cause is established ‘where specific allegations before 

the court show reason to believe that the petitioner may, if the 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 sentence less than death even with the additional impeachment 

evidence against Mr. Collins. Accordingly, Mr. Simpson has not satisfied 

§ 2254(e)(2)(B) or the pre-AEDPA standard where § 2254(e)(2) does not apply because 

the petitioner acted diligently in the state court.19 The district court therefore properly 

denied his motion for discovery and an evidentiary hearing. 

 19 Because Mr. Simpson cannot satisfy either standard, we need not decide 

whether the OCCA reached an unreasonable determination when it concluded that “the 

factual basis for the [Brady] claim[] was available and could have been ascertained 
43 

C. Consideration of Mitigating Evidence 

Mr. Simpson next claims the trial court’s instruction and the prosecutor’s improper 

argument unconstitutionally limited the jury’s consideration of his mitigating evidence. 

On direct appeal, the OCCA denied 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 the legal 

background. Next, we examine the OCCA’s decision and conclude it adjudicated this 

issue on the merits. Accordingly, we proceed to the question of whether the OCCA 

unreasonably applied clearly establish law or unreasonably determined 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 “never raised a prosecutorial misconduct claim to 

the OCCA, or to the district court, 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 Court recognized that while 

the instruction on mitigating evidence did not unconstitutionally limit the evidence the 

jury could consider as mitigating, it was subject to misuse by prosecutors in closing 

argument. This is what [Mr. Simpson] argues happened in the present case.” (emphasis 

added) (footnote omitted)); Case Management Order dated December 1, 2016, at 1–2 

(granting COA on “Ground II, Oklahoma’s jury instruction defining mitigating 

circumstances is unduly limiting; moreover, the prosecutors exploited the instruction to 

blunt or eliminate jury consideration of important mitigating evidence, all in violation of 

the Sixth, Eighth, and Fourteenth Amendments.”). 
44 

1. Legal Background 

“The Supreme Court has repeatedly held that the Constitution requires that a jury 

‘cannot be precluded from considering, as a mitigating factor, any aspect of a defendant’s 

character or record . . . that the defendant proffers as a basis for a sentence less than 

death.’” Hanson v. Sherrod, 797 F.3d 810, 850 (10th 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 preclusion 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 force as an instruction from 

the court” and must be considered “in the context in which they are made.” Boyde v. 

California, 494 U.S. 370, 384–85 (1990). When evaluating whether a jury was 

unconstitutionally precluded from considering mitigating evidence, “[t]he proper inquiry 

is ‘whether there is a reasonable likelihood that the jury has applied the challenged 

instruction in a way that prevents the consideration of constitutionally relevant 

evidence.’” Hanson, 797 F.3d at 850 (quoting Boyde, 494 U.S. at 380). 

2. OCCA Decision 

On direct appeal, Mr. Simpson argued that the instruction on mitigating evidence, 

combined with the prosecutor’s improper argument, unconstitutionally prevented the jury 

from considering relevant evidence in mitigation. The OCCA rejected this claim on the 

merits, stating: “A review of the prosecutor’s closing argument concerning the mitigating 
45 

evidence instruction, the mitigating evidence itself and all instructions concerning 

mitigation evidence given in this case supports our conclusion that the jurors’ 

consideration of the evidence offered in mitigation was not unfairly limited in this case.” 

Simpson I, 230 P.3d at 904. Because the OCCA adjudicated Mr. Simpson’s claim on the 

merits, our review is limited by AEDPA, and we must affirm unless the OCCA’s decision 

was contrary to or an unreasonable application of clearly established Supreme Court 

authority or based on an unreasonable determination of the facts 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 language of Oklahoma’s uniform jury instructions 

improperly precluded the jury from considering evidence that did not “extenuate or 

reduce the degree of [his] moral culpability or blame.” Aplt. Br. at 80–81. We rejected 

this exact challenge in Hanson, and we must do so again today. 

In Hanson, this court considered the constitutionality of the same instruction used 

in Mr. Simpson’s case: “Mitigating circumstances are those which, in fairness, sympathy, 

and mercy, may extenuate or reduce the degree of moral culpability or blame. The 

determination of what circumstances are mitigating is for you to resolve under the facts 

and circumstances of this case.” 797 F.3d at 850–51; Trial R. vol. 3 at 604. Relying on 

the Supreme Court’s edict that jury instructions must be looked at in context rather than 

in isolation, Boyde, 494 U.S. at 378, we concluded that the second sentence in the
46 

instruction “broadened any potential 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 defendant’s asserted mitigating factors and informing the jury 

it “may decide that other mitigating circumstances exist, and if so, [it] should consider 

those circumstances as well,” we concluded that there is no reasonable likelihood the jury 

would have felt precluded from considering any mitigating evidence. Id. Mr. Simpson 

has pointed us to nothing that would permit us to depart from this binding precedent. 

b. Prosecutor’s closing argument 

More compelling is Mr. Simpson’s assertion that the prosecutor made improper 

comments designed to mislead the jurors into believing they could not legally consider 

Mr. Simpson’s mitigating evidence unless it reduced his moral culpability or blame. 

Throughout his closing argument, the prosecutor made no less than nine separate 

statements which either generally defined mitigating evidence as reducing moral 

culpability or blame or specifically compared Mr. Simpson’s mitigating factors to that 

definition (“Moral Culpability Comments”).21 One example of this came near the end of 

closing argument as the prosecutor was summarizing Mr. Simpson’s mitigating evidence: 

 21 Mr. Simpson relies on the Moral Culpability Comments to support two of his 

arguments: (1) the jury’s consideration of his mitigating evidence was unconstitutionally 

limited, and (2) prosecutorial misconduct rendered his sentencing trial fundamentally 

unfair. There is some overlap in these arguments, but the two are distinct claims arising 

under different constitutional standards. In this section, we address only Mr. Simpson’s 

claim that the prosecutor’s Moral Culpability Comments improperly limited the jury’s 

consideration of his evidence in mitigation. We address Mr. Simpson’s separate argument 
47 

There is not one bit of mitigating evidence that reduces [Mr. 

Simpson’s] degree of moral culpability. That’s what the law is. Does [the] 

mitigating circumstance reduce his degree of moral culpability or blame? 

Look at [the instruction]. Not one bit. Not his age, not his family, 

certainly not them. They’re good people. 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 reduces his degree of moral culpability 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 Stress, 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 AEDPA’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 “the mitigating evidence did not ‘suggest that petitioner’s 

crime is less serious or that the gravity of the crime is any less’ and that ‘nothing I have 

heard lessens the seriousness of this crime,’” were not improper attempts to narrow the 

jury’s consideration of mitigating evidence. 494 U.S. at 385. The Court concluded the 

prosecutor was merely arguing that “the evidence did not sufficiently mitigate Boyde’s 

conduct[;] [the prosecutor] never suggested that the background and character evidence 

could not be considered.” Id. (internal quotation marks omitted). The Court noted, 

 

that the Moral Culpability Comments denied him a fundamentally fair sentencing trial in 

section III.D.4.a. 

22 Numerous additional examples are provided in footnotes 23-27. 
48 

however, that other comments by the prosecutor “explicitly assumed that [Mr. Boyde’s] 

character evidence was a proper factor in the weighing process” and the defense attorney 

“also stressed a broad reading of [the instruction] in his argument to the jury.” Id. at 385–

86. Similarly, we held in Hanson that the prosecutor’s statement that the jury should 

“consider whether any of the mitigating circumstances ‘really extenuate or reduce 

Hanson’s degree of culpability or blame,’” did not limit the jury because the prosecutor 

followed with other comments that “encouraged [the jurors] to consider any and all 

mitigating evidence they thought relevant.” Hanson, 797 F.3d at 851. 

Although these decisions are informative, Mr. Simpson’s case has some key 

distinctions. The prosecutor began his discussion of Mr. Simpson’s mitigating evidence 

by advancing an improperly narrow definition of mitigating evidence23 as “what the law 

is.” Trial Tr. vol. 8 at 31. He then systematically and repeatedly attacked Mr. Simpson’s 

 23 “Now, mitigating evidence. . . . Mitigating evidence, mitigating circumstances 

are those which in fairness and mercy and sympathy may extenuate or reduce the degree 

of moral culpability or blame. Does 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 factors,” he cannot preclude the jury from “giving effect to the 

mitigating evidence” or “suggest that the jury was not permitted to consider the factors.” 

 24 “How in the world does his age reduce his degree of moral culpability 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 that, okay, more likely than not he’s got Post-Traumatic 

Stress, that’s not an excuse. Judge Gray didn’t tell you that’s an excuse. Judge Gray 

didn’t say that prevents the imposition of the death penalty. Not at all. It’s just something 

he’s trying to hide 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 for this case?’ It doesn’t. It doesn’t.” Trial Tr. vol. 8 at 32. 

[3] “Let’s talk about the mitigators. Mitigating circumstances are those which 

in fairness, sympathy, and mercy may extenuate or reduce the degree of moral 

culpability or blame. Ask yourselves, does this Defendant have PTSD? If he does, 

does it reduce the degree of moral culpability or blame? I would submit to you, no 

way. Not even close. First of all, I would submit to you he doesn’t have PTSD. 

But if he does, there’s no way it reduces the degree of his moral culpability and 

blame.” Trial Tr. vol. 8 at 61. 

26 “How in the world does hiding behind his family support reduce his degree of 

moral culpability or blame?” Trial Tr. vol. 8 at 25. 

27 Mr. Simpson identifies two such statements: 

[1] “Now, they presented mitigating evidence that they’ve alleged in Instruction Number 

14. And you’ve got to ask yourselves how in the world does this evidence reduce his 

degree of moral culpability or blame.” Trial Tr. vol. 8 at 24. 

[2] “Look at his mitigating evidence and ask yourselves, how in the world does that 

reduce his blame for this incident? It doesn’t. It’s not even close.” Trial Tr. vol. 8 at 33. 
50 

Fox v. Ward, 200 F.3d 1286, 1299–1300 (10th Cir. 2000). The prosecutor’s argument 

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 argument by again asserting that Mr. Simpson’s mitigating 

evidence did not reduce his culpability or blame. And neither the trial court nor defense 

counsel corrected the impression created by the comments. The closest defense counsel 

came to refuting the prosecutor’s attempts to limit what the jury could consider as 

mitigating evidence was counsel’s statement: “Hypervigilance, fear, and the responses to 

those are part of the PTSD disorder, Post-Traumatic Stress Disorder. And it is something 

that you can consider.” Trial Tr. vol. 8 at 45. 

Mr. Simpson’s case is closer to our recent decision in Grant. As in Mr. Simpson’s 

case, an Oklahoma jury convicted Mr. Grant of murder and then sentenced him to death. 

See Grant, 886 F.3d at 887. During Mr. Grant’s sentencing trial, the jury received the 

same instruction defining mitigating circumstances as “extenuat[ing] or reduc[ing] the 

degree of moral culpability or blame” as at issue here. See id. at 930 (internal quotation 

marks omitted). The defense presented evidence of Mr. Grant’s “mental illness” and 

“disadvantaged and dysfunctional childhood” as mitigating evidence, id. at 918, and 

argued that it provided “an explanation” for the defendant’s actions even though it did not 

“excuse what happened,” id. at 936–37. 

In rebuttal, the prosecutor emphasized the limiting language of the mitigating 

instruction by telling the jury, “the law tells you what [the definition of mitigating 
51 

circumstances] means. . . . It says that mitigating circumstances are those which reduce 

the moral culpability or blame of the defendant. That those things, 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, the 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 culpability or blame of the 

defendant.” Id. (emphasis omitted). The prosecutor then argued that Mr. Grant’s mental 

illness did not reduce his moral culpability or blame and implied it therefore could not be 

mitigating because the jury “ha[d] to look at whether or not [Mr. Grant’s mental illness] 

reduces his moral culpability or blame. That is what the law says that you must do.” See 

id. (emphasis omitted). 

Mr. Grant appealed to the OCCA, arguing “that the prosecutor focused on only 

one part of the definition of mitigating evidence, and thus unfairly 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,” holding that “the jurors in this 

case were properly instructed that anything could be considered mitigating.” Id. (internal 

quotation marks omitted). In his § 2254 petition, Mr. Grant again argued that the jury was 

precluded from considering proper mitigation evidence by the language 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 with a narrow definition 
52 

of mitigating evidence, characterized that definition as “what the law says,” and then 

argued the specific evidence presented by the defense failed to meet that definition. See 

id. at 937 (internal quotation marks omitted). We ultimately concluded that, even 

considering the combined impact of the prosecutor’s comments and the instruction, Mr. 

Grant could not overcome the OCCA’s decision under the deferential standard of review 

required by AEDPA. Id. at 939. We reach a similar conclusion here. 

Despite the pervasive nature of the prosecutor’s Moral Culpability Comments in 

Mr. Simpson’s case, the OCCA concluded the jury’s consideration of the evidence was 

“not unfairly limited” by “the prosecutor’s closing argument concerning the mitigating 

evidence instruction, the mitigating evidence itself and all instructions 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. Simpson’s case evidences 

significant and troubling prosecutorial 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 sentencer not be precluded from considering, as a

mitigating factor, any aspect of a defendant’s character or record and any of the 

circumstances of the offense that the defendant proffers as a basis for a sentence less than 

death.” (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978))). 

But the comments do not stand alone. The jury received constitutionally sound 

jury instructions—including one specifically identifying the categories of evidence 

offered in mitigation—and Mr. Simpson offered extensive evidence on each of those 
53 

topics. See Section I.B.1.a.ii, supra. Under these circumstances, we cannot say that no 

fairminded jurist would agree with 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 then, that under AEDPA, the OCCA’s decision was 

not unreasonable.28

D. Prosecutorial Misconduct 

Mr. Simpson claims that, during the closing arguments in his sentencing trial, the 

prosecutor made improper comments that rendered his trial so fundamentally unfair it 

deprived him of his due process rights. The OCCA denied this claim on direct appeal, 

holding that any improper comments did not render Mr. Simpson’s sentencing trial 

fundamentally unfair when considered within the context of the entire trial. Simpson I,

230 P.3d at 899. 

 28 The prosecution’s misuse of the instruction here occurred despite defense 

counsel’s motion for an order in limine prohibiting precisely this type of argument. 

Furthermore, at the time of the prosecutor’s argument, both this court and the OCCA had 

previously held that such comments are improper and risk erroneously informing the jury 

that it cannot consider legally relevant mitigating evidence. See Le v. Mullin, 311 F.3d 

1002, 1017–18 (10th Cir. 2002); Harris v. State, 164 P.3d 1103, 1113–14 (Okla. Crim. 

App. 2007). We find ourselves yet again chastising prosecutors for engaging in the kind 

of inappropriate behavior that undermines our constitutional protections and “create[s] 

grave risk of upsetting an otherwise unobjectionable verdict on appeal or on collateral 

review. It is time to stop.” See Bland v. Sirmons, 459 F.3d 999, 1028 (10th Cir. 2006). 

We remind prosecutors they are representatives of the government and “servant[s] of the 

law.” See Berger v. United States, 295 U.S. 78, 88 (1935). Their obligation is not to “win 

a case, but [to see] that justice shall be done.” Id. “It is as much [a prosecutor’s] duty to 

refrain from improper methods calculated to produce a wrongful conviction as it is to use 

every legitimate means to bring 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 claim by first setting forth the OCCA’s decision. We 

next consider the proper standard of review, rejecting Mr. Simpson’s claim that the 

OCCA’s decision is so unclear as to be unentitled to AEDPA deference. Having 

concluded the claim is subject to AEDPA deference, we then provide a discussion of the 

general legal background governing claims of prosecutorial misconduct affecting the 

fundamental fairness of a proceeding. Ultimately, we conclude the OCCA’s decision is 

not unreasonable under AEDPA’s deferential standard, and we deny relief on this claim. 

1. OCCA Decision 

Mr. Simpson raised his prosecutorial misconduct claim on direct appeal. 

Reviewing for plain error, the OCCA denied relief, stating: 

The alleged instances of [prosecutorial] misconduct include allegations that 

the prosecutor argued facts not in evidence, engaged in unnecessary ridicule 

of [Mr. Simpson], contrasted [Mr. Simpson’s] situation with that of the 

victims’, appealed to justice and sympathy for the victims and their families 

and improperly shifted the burden of proof. Many of these comments, 

including the single comment met with objection, fell within the broad 

parameters of effective advocacy and do not constitute error. We review 

those comments bordering upon impropriety within the context of the entire 

trial, considering not only the propriety of the prosecutor’s actions, but also 

the strength of the evidence against the defendant and the corresponding 

arguments of defense counsel. Given the magnitude of the State’s evidence 

against [Mr. Simpson,] this Court finds that any inappropriate comments 

not objected to did not deprive [Mr. Simpson] of a fair trial or affect the 

jury’s finding of guilt or assessment of punishment. There was no plain 

error here. 

Id. (citations omitted). 
55 

2. Standard of Review 

Mr. Simpson claims this court should review his prosecutorial misconduct claims 

de novo for two reasons. First, he argues the OCCA did not adjudicate his federal claim 

on the merits. Second, Mr. Simpson contends that, even if the OCCA intended to resolve 

some of his prosecutorial misconduct claims on the merits, its decision is not entitled to 

AEDPA deference because it is unclear which claims the OCCA adjudicated on the 

merits and which it did not. We address each argument in turn. 

a. Adjudication on the merits 

“[W]hen a federal claim has been presented to a state court and the state court has 

denied relief, it may be presumed that the state court adjudicated the claim on the merits 

in the absence of any indication or state-law procedural principles 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 for the claim or cite any state 

or federal law in support of its conclusion,” we presume the court “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 that a rebuttable presumption applies even “[w]hen 

a state court rejects a federal claim without expressly addressing that claim”). This 

presumption “may be overcome when 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. The petitioner bears 

the burden of showing a claim was not adjudicated on the merits in state court. Fairchild 
56 

I, 784 F.3d at 711. Thus, the OCCA’s decision is entitled to deference unless Mr. 

Simpson can show some reason to believe it is more likely the OCCA 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 OCCA’s statement 

that it “will not grant relief based on prosecutorial misconduct 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 than the federal rule. According to Mr. Simpson, the use of 

the word “flagrant” implies an additional requirement that is not present in federal 

review. This argument is without merit. Not only is there no additional definition or 

analysis conducted by Oklahoma courts to satisfy this alleged extra element, but we have 

already ruled that Oklahoma’s standard is the same as the federal 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. Simpson’s claim under AEDPA, and he is 

entitled to relief only if the OCCA’s decision was an unreasonable application of clearly 

established federal law.29

 29 Mr. Simpson raises two additional, alternative bases for de novo review of this 

claim. First, Mr. Simpson argues de novo review is required because the OCCA “said 

nothing about the misconduct’s impingement on [his] constitutional 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 unconstitutionally limited his 

presentation of mitigating evidence in conjunction with his challenge 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 this case supports our 
57 

b. Scope of decision on the merits 

The OCCA noted that it had reviewed the alleged misconduct and found that 

“[m]any of these comments . . . fell within the broad parameters of effective advocacy 

and do not constitute error.” Id. But the court then stated it had reviewed “those 

comments bordering upon impropriety” for plain error and concluded that Mr. Simpson 

was not deprived of a fair trial. Id. Of significance for our purposes, the OCCA never 

specified which statements it considered appropriate advocacy and 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 convinced. 

In Douglas, 560 F.3d at 1178–79, we considered a similar issue. There, the state 

court’s plain error opinion stated only that it had reviewed the 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’ consideration of the evidence offered in mitigation was not 

unfairly limited in this case.” (emphasis added)). The improper prosecutorial argument 

claim we address in this section—although including the Moral Culpability Comments—

is not tied to Mr. Simpson’s claim that the jury was precluded from considering his 

mitigation evidence, and the OCCA accordingly analyzed the claims separately. We have 

adopted the same approach here. 

Second, Mr. Simpson argues the OCCA’s analysis is “‘contrary to’ clearly 

established federal law because it did not examine the entire proceedings, including the 

strength of the evidence against 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 comments bordering upon impropriety within the context 

of the entire trial, considering not only the propriety of the prosecutor’s actions, but also 

the strength of the evidence against the defendant and the corresponding arguments of 

defense counsel.” (emphasis added)). 
58 

based” on a statement-by-statement review. See id. at 1178. We held that in such 

situations, “our cases require us to assume that the state’s review is on the merits and thus 

afford it § 2254(d) deference.” Id. Accordingly, we review Mr. Simpson’s “assertion of 

improper prosecutorial comments independently under federal law, and . . . afford 

§ 2254(d) deference to the OCCA’s ultimate conclusion that a new [sentencing] trial was 

not warranted on the basis of prosecutorial misconduct.” See id. at 1178–79. 

3. Legal Background 

A prosecutor’s misconduct will warrant a new trial only where the improper 

statements “so infected the trial with unfairness as to make the resulting conviction a 

denial of due process.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (quoting 

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 645 (1974)). An assessment of the 

fundamental fairness of Mr. Simpson’s sentencing trial “requires [an] examination of the 

entire proceedings, including the strength of the evidence against 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 improper remarks” and 

“[c]ounsel’s failure to object to the comments.” Id. “Ultimately, this court considers the 

jury’s ability to judge the evidence fairly in light of the prosecutor’s conduct.” Id. 

Given the nature of prosecutorial misconduct claims, we evaluate the prejudicial 

impact of any improper comments individually and collectively. See id. at 1022 (“Our 

cases on prosecutorial misconduct make it clear that we must consider all the complained 

of conduct in toto because individual, harmless prosecutorial errors can add up to make a 
59 

trial fundamentally unfair in the aggregate.”). “In death-penalty cases, we review whether 

the improper comments as a whole so infected the trial with unfairness as to . . . render[] 

the sentencing fundamentally unfair 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 prosecutor made improper comments during closing 

argument that fall into four broad categories: (1) Moral Culpability Comments; (2) 

denigration of mitigation evidence; (3) improper comparison between the victims and the 

defendant; and (4) improper calls for the death penalty as a civic responsibility. Mr. 

Simpson did not raise contemporaneous objections to these comments. As a result, the 

OCCA reviewed for plain error. Simpson I, 230 P.3d at 899. We begin our review by 

individually evaluating each category of the prosecutor’s argument challenged by Mr. 

Simpson to determine whether any resultant misconduct rendered his trial fundamentally 

unfair. Then, we evaluate the collective prejudice of all misconduct. We do so under the 

deferential AEDPA standard because the OCCA rendered a decision on the merits of this 

claim. 

a. Moral Culpability Comments 

Having already identified the Moral Culpability Comments challenged by Mr. 

Simpson, we turn to the propriety of such comments and whether any of them, 

individually or cumulatively, denied Mr. Simpson a fundamentally fair sentencing trial. 
60 

Here, we are guided by our decision in Le. In Le, the prosecution made the following 

statements during closing arguments regarding the defendant’s mitigating evidence: 

We have a whole list of things that have been submitted as mitigating 

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 culpability or blame. It doesn’t say 

anything about whether you’ve been a good guy in the past or anything like 

that. Do these circumstances extenuate or reduce the degree of moral

culpability o[r] responsibility for what he did? It’s up to you to decide what 

are mitigating circumstances. 

The defense talks about Mr. Le being a hard worker, a machinist, 

invent[or], a good teacher, teaching English to Vietnamese people, good to 

family. Does that in any way officiate (sic) or mitigate or relieve 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 to their family. Does it make it all right to 

go out and murder? Does it make you less guilty when you go out and 

commit this kind of a crime? 

311 F.3d at 1016–17 (internal quotation marks omitted). 

Like in Mr. Simpson’s case, the prosecutor construed the instruction as limited to 

evidence that reduces moral culpability or blame and then specifically argued Mr. Le’s 

evidence did not meet that criteria. In Le, we determined the prosecutor’s remarks were 

irrelevant, improper, and “may have 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 correct instructions and defense counsel 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 evidence of the presence of aggravating factors, because 
61 

both the jury instructions and the defense counsel’s argument correctly stated the law, 

and because [the prosecutor] never explicitly and clearly misstated the law,” the OCCA’s 

determination that Mr. Le’s trial was not rendered fundamentally unfair was reasonable. 

Id. at 1019. 

 Here, we are compelled to reach the same result. The Moral Culpability 

Comments were improper and pervasive. Nevertheless, the evidence of Mr. Simpson’s 

guilt was overwhelming, the State presented powerful aggravating evidence, and we have 

already concluded the jury was not precluded from considering Mr. Simpson’s mitigating 

evidence. As we now explain, when we view the misconduct in the context of the entire 

proceeding, we cannot conclude the OCCA acted unreasonably in holding that the 

prejudicial impact of these comments, individually or cumulatively, did not render the 

sentencing trial fundamentally unfair. 

b. Denigration of mitigation evidence 

Mr. Simpson asserts several instances where he claims the prosecutor improperly 

denigrated his mitigating evidence. Prosecutors are given a “wide latitude of argument,” 

Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005), and may properly comment 

“on the weight that should be accorded to the mitigating factors,” as well as “information 

about the defendant, his character, and the circumstances of his offense made known to 

the jury throughout the bifurcated trial,” Fox, 200 F.3d at 1300 (internal quotation marks 

omitted). See Bland, 459 F.3d at 1026 (“As long as the jury is properly instructed on the 

use of mitigating evidence, the prosecution is free to comment on the weight the jury 
62 

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. Keeping these principles in 

mind, we evaluate whether any of the statements challenged by Mr. Simpson, either 

individually or collectively, render his sentencing trial fundamentally unfair. 

Mr. Simpson challenges five statements30 in which he alleges the prosecutor 

shamed him for relying on his family support31 and his mental condition32 as mitigating 

factors. For example, the prosecutor called Mr. Simpson’s PTSD diagnosis an “excuse”33

 30 In addition to the comments identified below, Mr. Simpson claims several of the 

prosecutor’s comments about the defense giving the jury a “guilt 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 hugged him, 

they sent him to school. Those are nice people. Shame on him for hiding behind his 

family. They don’t want to be here. . . . Shame on him for hiding behind his family 

support. Those are good people. 

. . . How in the world does hiding behind his family support reduce his degree 

of moral culpability or blame?” Trial Tr. vol. 8 at 25. 

 

32 “Now [Mr. Simpson’s voluntary intoxication 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. Again, that’s ducking 

responsibility. . . . You know, it’s an insult to all legitimate 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 facts that Mr. Simpson did not actually suffer from PTSD 

and was instead using it as an excuse to avoid responsibility. But characterizing Mr. 

Simpson’s diagnosis as an “insult to all legitimate people with PTSD” and “legitimate 

veterans” strays into inappropriate personal opinion. Similarly, the prosecutor’s 

comments suggesting the defense should be ashamed for relying on Mr. Simpson’s 

family support and mental health improperly denigrated Mr. Simpson’s mitigating 

evidence. See Cuesta-Rodriguez v. Royal, No. CIV-11-1142-M, 2016 WL 5485117, at 

*10, 13 (W.D. Okla. Sept. 29, 2016) (finding that the prosecutor “may have inched close 

to improper argument” by shaming the defendant for using his family as a mitigating 

factor). 

Although several of these statements were improper, none of them, separately or 

cumulatively, rises to the level necessary to have deprived Mr. Simpson of a 

fundamentally fair sentencing proceeding. Similar improper prosecutorial statements 

have rarely been held, standing alone, to render a trial fundamentally 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 legitimate veterans.” Trial Tr. vol. 8 at 27. 
64 

c. Improper comparison with the victims 

Mr. Simpson next objects to the prosecutor’s statement: “Of course, [Mr. 

Simpson’s family would] go to the penitentiary to see him. Of course 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 prison.” 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 Defendant will be in prison . . . [b]ut one thing is for sure, [the 

victim] won’t be here and his family won’t be able to be with him”). Nonetheless, 

considering the extensive aggravating evidence presented to the jury, we cannot conclude 

that this single reference to the plight of the victims, as compared to Mr. Simpson, 

rendered the sentencing trial fundamentally unfair. 

d. Justice demands a death sentence 

We have also held that “it is improper for a prosecutor to suggest that a jury has a 

civic duty to convict.” Bland, 459 F.3d at 1027 (internal quotation marks omitted). 

Although an appeal to justice and civic duty is not always improper, see Hanson, 797 

F.3d at 839 (finding it proper to tell the jury it will be doing justice by deciding which

punishment is appropriate rather than asserting death is appropriate), urging the jury to 

“impose a death sentence on the grounds of civic duty” is inappropriate, Le, 311 F.3d at 

1022 (finding it improper to tell the jury they “could only do justice in this case by 
65 

bringing in a verdict of death” (internal quotation marks omitted)). Here, the prosecutor’s 

comments mirror the language in Le and cross the bounds of 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 for Anthony Jones and his family, demands that you 

render a verdict of the death penalty in this case. Justice demands it. And it 

will be difficult but, ladies and gentlemen, I’m going to ask you to let your 

verdict speak to this Defendant. Let your verdict speak to Glen Palmer’s 

family. Let your verdict speak to Anthony Jones’[s] family. 

Let your verdict speak to the carnage that this Defendant has left 

behind and his commitment to be a criminal and a cold-blooded killer. And 

let your verdict speak for the community 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 prosecutor’s argument, we are not convinced this 

comment, on its own, deprived Mr. Simpson of a fundamentally fair sentencing 

proceeding in view of the “overwhelming evidence of Mr. [Simpson’s] guilt, evidence of 

aggravating factors supporting the death sentence, [and] the general content of the 

instructions to the jury.” See Le, 311 F.3d at 1022. 

e. Totality of prosecutorial misconduct 

Although we have identified a substantial number of improper prosecutorial 

statements, none of them, standing alone, was sufficiently prejudicial to deny Mr. 

Simpson his due process rights. “[B]ecause individual, harmless prosecutorial errors can 

add up to make a trial fundamentally unfair in the aggregate,” id., we now consider the 

cumulative effect of the improper statements. 
66 

Given the extensive and recurring misconduct committed by the prosecutor, it is 

appropriate to question whether the jury was able to judge the evidence fairly. But the 

OCCA answered that question affirmatively and, under AEDPA, we are bound by the 

OCCA’s “ruling unless it constitutes an unreasonable application of the cumulative-error 

doctrine.” See Thornburg, 422 F.3d at 1137. The petitioner’s burden under this standard

is steep, and we cannot say that no reasonable jurist would agree with the OCCA that the 

prosecutor’s misconduct did not prevent the jury from fairly considering the evidence 

during the sentencing phase of trial. The evidence of Mr. Simpson’s guilt was 

overwhelming, the State presented significant evidence in support of the aggravating 

factors, and the jury was properly instructed as to its ability to consider mitigating 

evidence and to impose a sentence less than death. Therefore, the OCCA’s determination 

that the prosecutor’s misconduct did not deny Mr. Simpson a fundamentally fair 

sentencing trial is reasonable and must be upheld under AEDPA. 

E. Especially Heinous, Atrocious, or Cruel Aggravator 

Mr. Simpson next claims there is insufficient evidence to support the jury’s 

finding that the murder of Glen Palmer was heinous, atrocious, or cruel and that the HAC 

Aggravator is unconstitutionally overbroad. In addressing this claim, we begin by 

discussing the general legal background governing challenges to capital aggravators. 

Next, we provide additional factual and procedural background, including the resolution 

of Mr. Simpson’s claim in the state court proceedings and in the district court. Although 

Mr. Simpson raised both a sufficiency-of-the-evidence claim under the Fourteenth 
67 

Amendment and a vagueness claim under the Eighth Amendment in the state court,36 we 

determine that he abandoned his Eighth Amendment argument in the district court. We 

therefore consider only his Fourteenth 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 sufficient to support the HAC 

aggravator as to Mr. Palmer is not unreasonable. As a result, we 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 sufficiency of the evidence claim 

under Jackson v. Virginia, 443 U.S. 307, 316 (1979). It violates the 

Fourteenth Amendment’s guarantee of due process if a jury sentences a 

defendant to death based on an aggravator, even though there was 

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 an aggravating circumstance as 

unconstitutionally vague. It violates the Eighth and Fourteenth

Amendments for death sentences to be arbitrarily imposed. As a 

consequence, if an aggravating circumstance is so vague it could apply to 

any and every murder, then sentencing a defendant to death because that 

aggravator was met violates the Constitution. 

907 F.3d 1279, 1305 (10th Cir. 2018) (citations omitted). 

 36 As we discuss below, a vagueness claim also invokes protections afforded by 

the Fourteenth Amendment. For ease of reference, however, we refer 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 capital aggravator is 

important here because although Mr. Simpson initially pursued both avenues, he later 

abandoned his Eighth Amendment claim. We now discuss the evolution of Mr. 

Simpson’s claims regarding the HAC Aggravator. 

2. Factual and Procedural Background 

a. Trial 

During the sentencing stage of Mr. Simpson’s trial, the jury was instructed that, to 

impose the HAC Aggravator, it must find the State had proven beyond a reasonable 

doubt that the murder of Mr. Palmer “was preceded by either torture of the victim or 

serious physical abuse of the victim.” Trial R. vol. 3 at 600. The trial court further 

instructed that torture is defined as “the infliction of either great physical anguish or 

extreme mental cruelty.” Id. The instruction also stated the jury could not find “serious 

physical abuse” or “great physical anguish” unless “the victim experienced conscious 

physical suffering prior to his death.” Id. 

In his closing statement, the prosecutor told the jury the State “must prove . . . that 

the murder in this case of Glen Palmer was either preceded by torture or serious physical 

abuse.” Trial Tr. vol. 8 at 10. The prosecutor then conceded, “[t]here’s no question it’s 

not torture,” but he asserted that it did constitute “serious physical abuse.” Id. The jury 

found the HAC Aggravator both as to the murder of Mr. Palmer and, although it was 

never argued, as to the murder of Mr. Jones. 
69 

b. OCCA and district court decisions 

On direct appeal, Mr. Simpson claimed there was insufficient evidence to support 

the HAC Aggravator under the Fourteenth Amendment and that to apply it to the facts of 

this case would broaden the aggravator beyond the constitutional limits proscribed by the 

Supreme Court and the Eighth Amendment. The OCCA did not address Mr. Simpson’s 

Eighth Amendment claim, but held there was sufficient evidence to support the HAC 

Aggravator for Mr. Palmer: 

With regard to the murder of Glen Palmer, the evidence showed that 

Palmer was shot four times. He suffered a grazing gunshot wound to 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 chest filled with blood before he died. There 

was testimony that immediately after he had been shot, Palmer was able to 

speak, was aware that he had been shot and was fearful that the shooters 

would return. Reviewing the evidence in the light most favorable to the 

State, we find that the evidence 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 reached a contrary conclusion as to Mr. Jones 

because “he likely died within seconds of being shot.” Id. at 903. It therefore struck the 

aggravator as to the murder of Mr. Jones, but determined that no relief was necessary 

because the State had not presented any evidence solely in support of the HAC 

Aggravator as to Mr. Jones, and thus “the jury’s weighing process of mitigating evidence 

against aggravating circumstances was not skewed.” Id. Mr. Simpson did not take any 

action to obtain a ruling from the OCCA on his Eighth Amendment claim. See, e.g., Rule 

of the Court of Criminal Appeals 3.14(B)(1) (permitting petition for rehearing if “[s]ome 
70 

question decisive of the case and duly submitted by the attorney of record has been 

overlooked by the court”). 

In the district court, Mr. Simpson renewed his claim that there was insufficient 

evidence to support the HAC Aggravator 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 “in light of the double 

deference afforded it” when reviewing sufficiency of the evidence 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 challenge because Mr. Simpson did not preserve the Eighth 

Amendment vagueness claim by failing to raise it in the district court and by inadequately 

briefing it in his opening brief to this court. Mr. Simpson asserts that he has “always 

argued the Fourteenth Amendment insufficiency-of-the-evidence claim cannot be 

assessed in a vacuum, and that [the] OCCA must assess the evidence under a 

constitutionally narrow standard.” Aplt. Reply Br. at 33. In support, he points to a single 

footnote in his opening brief to the district court which merely requested supplemental 

briefing on the HAC Aggravator because the page constraints on his brief did “not permit 

a complete analysis of . . . the unreasonable failure of the OCCA to abide by the limiting 

requirements of the Supreme Court in Maynard v. Cartwright, 486 U.S. 356 (1988)[,] and 
71 

the Tenth Circuit in Thomas v. Gibson, 218 F.3d 1213, 1227 (10th Cir. 2000).” App’x at 

122. But Mr. Simpson provided no analysis of those decisions. 

By not raising an Eighth Amendment challenge to the HAC Aggravator in the 

district court and inadequately briefing it here, Mr. Simpson has 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 district court as part of the 

habeas petition.”); Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir. 2013) (“We do not 

reach that issue in this case, however, because . . . we conclude that [Mr.] Heard never 

raised such a claim, in his petition or otherwise, before the federal district court.”). As a 

result, we consider only whether the OCCA’s sufficiency-of-the-evidence decision was 

unreasonable. Because the OCCA decided that issue on the merits, we afford it deference 

under AEDPA. See 28 U.S.C. § 2254(d). 

 37 Mr. Simpson argues that his Eighth Amendment claim is preserved 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 relies has been amended and superseded. The presentlycontrolling version of Pavatt clearly indicates that Mr. Pavatt raised both a Fourteenth 

Amendment sufficiency-of 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 petition and he has therefore 

not preserved any Eighth 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, after reviewing the evidence presented at trial in the light 

most favorable to the government, whether any rational trier of fact could have found the 

aggravating circumstance existed beyond a reasonable doubt.” Boltz v. Mullin, 415 F.3d 

1215, 1232 (10th Cir. 2005). “To assess the sufficiency of the evidence, we first 

determine the elements of the offense 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 of the evidence in capital cases, “aggravating factors 

operate as ‘the functional equivalent of an element of a greater offense.’” Ring v. 

Arizona, 536 U.S. 584, 609 (2002) (quoting Apprendi v. New Jersey, 530 U.S. 466, 494 

n.19 (2000)). The substantive elements of an aggravating factor necessary to impose the 

death penalty are a matter of 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 preceded 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 decided Mr. Simpson’s sufficiency-of-theevidence claim on direct appeal, AEDPA constrains our review. Review of sufficiency of 

the evidence under AEDPA “adds an additional degree of deference, and the question 

becomes whether the OCCA’s conclusion that the evidence was sufficient constituted an 

unreasonable application of the Jackson standard.” Hooks II, 689 F.3d at 1166 (internal 

quotation marks omitted). Mr. Simpson asserts the OCCA’s decision was unreasonable 

because it “did not assess the level of [Mr. Palmer’s] suffering, but rather assumed . . . 

that because [Mr.] Palmer died more slowly than [Mr.] Jones he was in ‘great physical 

anguish.’” Aplt. Br. at 97. The State counters that the question is not the length or extent 

of Mr. Palmer’s suffering; the question is whether there was sufficient evidence to 

support the jury’s conclusion that Mr. Palmer experienced conscious physical suffering as 

Oklahoma defines it. Reviewing the evidence in the light most favorable to the 

government, the State contends the OCCA was reasonable in concluding such evidence 

exists. We agree. 
74 

Here, the State relied on the testimony of Dr. Jeffrey Grofton, the coroner who 

performed Mr. Palmer’s autopsy, and London Johnson, the surviving victim, to establish 

that Mr. Palmer experienced conscious physical suffering. Mr. Palmer was shot four 

times, but was conscious long enough to perceive that he had been 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, testified that when he opened the car door, Mr. Palmer told him 

to “[s]hut that door. They’re going to come back.” Trial Tr. vol. 3 at 42. Mr. Palmer then 

revealed he had been shot and was unable to move. Mr. Johnson also 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 collapse the left lung making it exceedingly difficult to 

breathe.” Trial Tr. vol. 5 at 162–63. Mr. Palmer died before emergency 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 jury could have reasonably inferred that Mr. Palmer 

experienced conscious physical suffering based on the evidence about his wounds. Mr. 

Palmer was conscious and able to speak for some period of time before he died. He was 

aware of his injuries and struggled to breathe as his lungs filled with blood. Viewing the 

evidence in the light most favorable to the State and applying AEDPA’s deferential 
75 

standard of review, we cannot conclude the OCCA acted unreasonably in deciding there 

was sufficient evidence to support the jury’s finding that Mr. Palmer experienced 

conscious physical suffering as defined by Oklahoma law. We therefore deny Mr. 

Simpson relief on this claim. 

F. Ineffective Assistance of Counsel 

Mr. Simpson alleges his trial counsel was ineffective during both 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, Mr. Simpson argues trial counsel preformed ineffectively by 

failing to: (1) investigate, prepare, and present lay witnesses, (2) object to improper 

prosecutorial arguments, (3) object to the mitigating evidence jury instruction, and (4) 

object to the HAC jury instruction. 

In reviewing this claim, we begin with a general discussion of the relevant legal 

background. We then consider each allegation of ineffective performance individually. In 

doing so, we provide any further discussion of law pertinent to the particular allegation of 

ineffectiveness. We then review the OCCA’s decision to determine whether it rejected 

that claim on the merits. Finally, we address whether the OCCA’s merits decision was 

reasonable. In each instance, we conclude the OCCA’s merits decision 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 under the two-prong 

approach established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 

687–88 (1984). To establish an ineffective assistance of counsel claim, Mr. Simpson 

“must show both that his counsel’s performance ‘fell below an objective 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 whether counsel’s performance was deficient, “[t]he question is 

whether [the] representation amounted to incompetence under ‘prevailing professional 

norms,’ not whether it deviated from best practices or most common custom.” Richter, 

562 U.S. at 105 (quoting Strickland, 466 U.S. at 690). Judicial review under this standard 

is “highly deferential,” Strickland, 466 U.S. at 689, and “we strongly presume that an 

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

conduct might have been part of a sound trial strategy,” Hanson, 797 F.3d at 826 (internal 

quotation marks omitted). Furthermore, “[w]e must ‘judge the reasonableness of 

counsel’s challenged conduct’ on the specific facts of the case ‘viewed as of the time of 

counsel’s conduct.’” Id. at 826 (quoting Strickland, 466 U.S. at 690). 

Even if counsel performed in a constitutionally deficient manner, Mr. Simpson is 

not entitled to relief unless he can prove actual prejudice. See Strickland, 466 U.S. at 

687–88. To demonstrate prejudice, Mr. Simpson must show “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would have been 
77 

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 deferential, and when the 

two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (quoting Knowles 

v. Mirzayance, 556 U.S. 111, 123 (2009)). “When § 2254(d) applies, the question is not 

whether counsel’s actions were reasonable. The question is whether there is any 

reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

2. Failure to Investigate, Prepare, and Present Lay Witnesses 

a. Additional legal background

Under Strickland, “counsel has a duty to make reasonable investigations or to 

make a reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 

691. “When a petitioner alleges ineffective assistance of counsel stemming from a failure 

to investigate mitigating evidence at a capital-sentencing proceeding, we evaluate the 

totality of the evidence—both that adduced at trial, and the evidence adduced in habeas 

proceedings.” Williams v. Trammell, 782 F.3d 1184, 1215 (10th Cir. 2015) (internal 

quotation marks omitted). In doing 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), considering “the strength of the State’s case and the number of 

aggravating factors the jury found to exist, as well as the mitigating evidence the defense 

did offer and any additional mitigating evidence it could have offered,” Knighton v. 

Mullin, 293 F.3d 1165, 1178 (10th Cir. 2002). And, when conducting our reweighing 
78 

analysis, we “must consider not just the mitigation evidence that [Mr. Simpson] claims 

was wrongfully omitted, but also what the prosecution’s response to that evidence would 

have been.” Wilson v. Trammell, 706 F.3d 1286, 1306 (10th 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 investigation and presentation of mitigating evidence at the 

sentencing stage. On direct appeal, the OCCA stated: 

Next, [Mr. Simpson] complains that defense counsel was ineffective for 

failing to adequately investigate and present additional evidence of 

innocence. He first specifically complains that counsel was ineffective for 

failing to investigate and present additional mitigating evidence. While 

[Mr. Simpson] has shown this Court that additional mitigation witnesses 

could have been called and others that were called could have given 

additional testimony, he has not shown a reasonable probability that but for 

counsel’s alleged unprofessional error in not presenting this evidence, the 

result of the proceeding would have been different. 

Simpson I, 230 P.3d at 904–05. Thus, the OCCA assumed deficient performance but 

concluded Mr. Simpson failed to satisfy the prejudice prong of Strickland. We take a 
79 

similar path in resolving this claim, assuming deficient performance and giving AEDPA 

deference to the OCCA’s determination on the prejudice prong.

c. Merits

Mr. Simpson faults his trial counsel for not presenting a more comprehensive 

picture of his troubled upbringing. On direct appeal, evidence surfaced that Mr. 

Simpson’s mother became addicted to crack cocaine when he was a young child and that 

drug use and violence were common in the home. In the midst of this instability, Mr. 

Simpson became sexually active at fourteen and had fathered children with two separate 

women by the time he was sixteen years old. He also began skipping school, using and 

selling drugs, committing burglaries, and carrying guns as early as age fourteen. The 

evidence on direct appeal further indicated that Mr. Simpson reported being sexually 

assaulted as a teenager. Mr. Simpson faults his trial counsel for failing to develop the 

story of his traumatic childhood. 

To properly analyze Mr. Simpson’s claim, we first look at the evidence presented 

in mitigation during sentencing. Recall that the defense relied heavily on Dr. Massad’s 

testimony and the testimony of Mr. Simpson’s family about the paranoia Mr. Simpson 

exhibited after he was shot. From this evidence, the jury was informed of the violence 

surrounding Mr. Simpson during his teenage years; for what evidence could be more 

indicative of a violence-filled upbringing than Mr. Simpson being comatose for two 

months as a result of sustaining five gunshot wounds in a drive-by shooting. And the 

shooting of Mr. Simpson occurred in retaliation for him deciding not to kill a witness 
80 

slated to testify against one of his friends—a friend who had been involved in a violent 

crime. Thus, one of the thrusts of the evidence Mr. Simpson proffers in support of this 

ineffective assistance of counsel claim was, to some degree, already before the jury such 

that its theoretical mitigating value is minimized. Cf. Grant, 886 F.3d at 924 (upholding 

OCCA’s conclusion of no prejudice for sentencing phase ineffective assistance, by 

reasoning, inter alia, that “omitted evidence of organic brain damage . . . would have 

merely supplemented” other mitigation evidence already before the jury); Williams, 782 

F.3d at 1216 (finding lack of prejudice where additional evidence was cumulative of 

evidence already before the jury). 

The mitigating value of the unpresented evidence is further decreased when 

considered in light of the prosecution’s potential response. If the State had an opportunity 

to respond to Mr. Simpson’s additional 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 conclude the evidence would have actually 

increased the odds of a verdict of death as, by Mr. Simpson’s own admission, he, before 

turning sixteen, had already (1) dropped out of school; (2) impregnated two different 

women; (3) sold drugs; (4) committed burglaries; and (5) routinely carried a firearm. 

New and additional evidence from the State on these matters would have reduced any 

sympathy the jury had for Mr. Simpson because the evidence would not only have 

painted Mr. Simpson as living a lawless life contrary to the norms and expectations of 
81 

society, but also would have furthered the State’s argument relative to the continuing 

threat aggravator. 

Apart from the potential response by the state to the additional mitigating 

evidence, we cannot conclude the OCCA reached an unreasonable conclusion on the 

prejudice prong of Strickland when all the mitigating evidence is considered in light of 

the aggravating evidence. The state presented strong evidence in support of the death 

sentence, and the additional mitigation does little, if anything, to undermine the 

aggravating factors found by the jury. A key aspect of Mr. Simpson’s offense and a key 

aspect of his history and characteristics highlight the reasonableness of the OCCA’s 

conclusion. First, in committing his offense, Mr. Simpson sprayed fifteen to twenty 

bullets at the moving car driven by Mr. Palmer while the vehicle was passing through a 

residential area. Thus, not only did Mr. Simpson’s conduct result in the deaths and 

serious wounding of the three individuals in the vehicle, it also 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 in the back of the 

head, execution-style, after forcing his way into Mr. Pham’s house and stealing Mr. 

Pham’s wallet. 

In light of the strong evidence offered by the State, as well as the State’s likely 

response to the additional mitigation evidence Mr. Simpson’s trial counsel did not 

present, we conclude Mr. Simpson has not demonstrated the OCCA unreasonably applied 
82 

Strickland and its progeny when it concluded Mr. Simpson was not prejudiced by any 

alleged deficient performance by counsel. We therefore deny relief on this claim.38 

3. Failure to Preserve the Record 

 Mr. Simpson next raises ineffective assistance of counsel claims based on several 

instances where trial counsel allegedly failed to preserve issues 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 have already rejected as 

stand-alone claims for habeas relief. 

a. Failure to request a jury instruction on second-degree murder 

 Mr. Simpson first asserts that trial counsel was constitutionally ineffective for 

failing to request an instruction on second-degree depraved mind 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 instruction to constitute 

deficient performance, Mr. Simpson must have been entitled to such an instruction based 

 38 Mr. Simpson also appeals the district court’s denial of his motion for an 

evidentiary hearing on this claim, 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 cannot show that counsel’s 

mitigation strategy fell below an acceptable level of performance as required to establish 

constitutional error for purposes of § 2254(e)(2)(B) or an entitlement to relief for 

purposes of the pre-AEDPA standard where § 2254(e)(2) does not apply because the 

petitioner tried to diligently develop the factual basis in state court. Therefore, the district 

court properly denied his request 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 failing to request an instruction to which [the defendant] was 

not entitled based on the evidence . . . .”). “[T]he availability 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 Oklahoma law, “[a] trial court 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 court must instruct the jury 

on every degree of homicide where the evidence would permit the jury rationally to find 

the accused guilty of the lesser offense and acquit him of the greater.” Malone v. 

State, 876 P.2d 707, 711 (Okla. Crim. App. 1994). A jury instruction on second-degree 

depraved mind murder is warranted only when the evidence “reasonably support[s] the 

conclusion that the defendant committed an act so imminently dangerous 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 analyzed two claims related to the Second 

Degree Depraved Mind Murder instruction. The OCCA first determined Mr. Simpson 

was not entitled to the instruction on the merits: 

[Mr. Simpson] argues that an instruction on th[e] lesser offense [of Second 

Degree Depraved Mind Murder] was warranted because at most, the
84 

evidence showed that he simply fired into the car in which [Mr.] Palmer, 

[Mr.] Jones and [Mr.] Johnson were riding. He asserts . . . there was no 

evidence that he intended to kill his victims. . . . We find otherwise. In light 

of the testimony that [Mr. Simpson] threatened to “chop” up [Mr.] Palmer 

and his companions, instructed [Mr.] Dalton to follow [Mr.] Palmer’s car 

and then shot as many as twenty rounds at the moving vehicle with an 

assault rifle, we find that the evidence did not reasonably support the 

conclusion that [Mr. Simpson] did not intend to kill the men in the Chevy. 

An instruction on Second Degree Depraved Mind Murder was not 

warranted by the evidence . . . . 

Simpson I, 230 P.3d at 897. 

The OCCA then considered whether Mr. Simpson’s counsel was ineffective for 

failing to request the second-degree murder instruction. The court stated, in relevant part: 

[Mr. Simpson] first argues that trial counsel was ineffective for failing to 

object to . . . the submission of improper jury instructions and verdict 

forms. These alleged failings concern issues raised and addressed above. 

. . . We found in Proposition III that an instruction on Second Degree 

Depraved Mind Murder was not warranted by the evidence. . . . Most of 

these alleged failings do not reflect a deficient performance by defense 

counsel and [Mr. Simpson] has not shown a reasonable probability that, but 

for counsel’s alleged unprofessional errors, the result of the proceeding 

would have been different. 

Id. at 904. Despite this language, Mr. Simpson contends “the OCCA did not specifically 

preclude deficient performance” for a failure to request the second-degree murder 

instruction. Aplt. Br. at 45. 

Mr. Simpson relies on the OCCA’s statement that, “[m]ost of these alleged 

failings do not reflect a deficient performance by defense counsel.” Simpson I, 230 P.3d 

at 904. Because the OCCA’s use of “most” indicates that some of counsel’s performance 

was deficient, Mr. Simpson claims the failure to request an instruction on second-degree 

murder falls within that group. We are not convinced. 
85 

The OCCA’s analysis addressed eight alleged failings of counsel, some of which 

(the admission of hearsay evidence 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 serious argument that the OCCA found, or even failed to 

decide whether, counsel was deficient for failing to request an instruction on seconddegree murder. See United States v. Barrett, 797 F.3d 1207, 1220 (10th Cir. 2015); Bland 

v. State, 4 P.3d 702, 731 (Okla. Crim. App. 2000). The OCCA expressly held “the 

evidence did not reasonably support the conclusion that [Mr. Simpson] did not intend to 

kill” the victims. Simpson I, 230 P.3d at 897. Thus, the OCCA reasoned a second-degree 

murder instruction “was not warranted by the evidence” and, as we now explain, it 

follows that counsel did not render ineffective assistance under 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 should have been instructed on second-degree 

depraved mind murder because there 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 asserts a failure to include this instruction violated 

his constitutional right under Beck v. Alabama, 447 U.S. 625, 635–36 (1980), to have the 

jury instructed on a lesser-included offense supported by the evidence, his claim fails. 

First, Mr. Simpson was not granted a COA on this issue and, as such, we do not have 

jurisdiction to resolve the claim without first issuing a COA ourselves. See Ryder ex rel. 

Ryder v. Warrior, 810 F.3d 724, 736 (10th Cir. 2016). Second, Mr. Simpson failed to 

request this instruction at trial and this court has held that a defendant may not prevail on 
86 

 As the OCCA noted, Mr. Simpson “threatened to ‘chop up’ [Mr.] Palmer and his 

companions,” Simpson I, 230 P.3d at 897, and testimony offered at trial equated 

“chopping up” with shooting them with an AK-47 rifle. The evidence 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 rounds into it with an assault 

rifle. And he did so knowing that three people were in the targeted car. We agree with the 

OCCA that the evidence presented at trial did not support a second-degree murder 

instruction because no reasonable jury could have concluded that 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, 1291–92 (10th Cir. 

2018). Nor is it likely that the trial court would have given such an instruction, even if 

trial counsel had requested it. Cf. Delo v. Lashley, 507 U.S. 272, 275 (1993) (“[W]e have 

said that to comply with due process state trial courts need to give jury instructions in 

capital cases only if the evidence 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). Finally, even assuming Mr. Simpson presented 

a proper Beck claim, it would fail on the merits because his jury was instructed on both 

first-degree murder and the lesser-included offense of first-degree manslaughter by 

misdemeanor. The Supreme Court has held the requirements of Beck are satisfied so long 

as the jury is presented with any evidentiary-supported alternative 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 concedes that it 

“technically applied to the evidence at hand.” Aplt. Br. at 46.
87 

fairminded jurist would agree with the OCCA that counsel did not perform deficiently by 

failing to request a jury instruction on second-degree depraved mind murder under the 

present facts. Thus, the OCCA’s adjudication of Mr. Simpson’s ineffective assistance of 

counsel claim was reasonable. 

b. Failure to object to improper prosecutorial arguments 

Next, Mr. Simpson contends his counsel performed deficiently by failing to object 

to improper prosecutorial arguments. 

i. OCCA decision

The OCCA considered this claim together with the ineffective assistance of 

counsel claim discussed above and stated, in relevant part: 

In Proposition VI, we found that none of the alleged improper comments 

made by the prosecutor could be found to have affected the jury’s finding 

of guilt or assessment of punishment. . . . Most of these alleged failings do 

not reflect a deficient performance by defense counsel and [Mr. Simpson] 

has not shown a reasonable probability that, but for counsel’s alleged 

unprofessional errors, the result of the proceeding would have been 

different. 

Simpson I, 230 P.3d at 904. Like 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 merits, and we review the OCCA’s prejudice 

determination under AEDPA’s and Strickland’s doubly deferential standard of review. 

But, because the OCCA did not address the conduct prong, we exercise 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 prosecutorial arguments Mr. 

Simpson challenges—the Moral Culpability Comments and comments denigrating the 

evidence in mitigation, comparing the victims’ deaths to Mr. Simpson’s incarceration, 

and calling for the death penalty as a civic duty—were improper. Trial counsel made a 

motion in limine to prohibit prosecutorial argument of this nature, but made no further 

objection to these improper comments during the sentencing trial. Failing to do so “fell 

below an objective standard of reasonableness,” see Strickland, 466 U.S. at 688, and 

rendered counsel’s performance deficient. As we previously concluded, however, the 

OCCA reasonably determined the misconduct did not deprive Mr. Simpson of a 

fundamentally fair sentencing trial. Because Mr. Simpson cannot show that he was 

actually prejudiced by counsel’s deficient performance, the OCCA was reasonable in 

concluding he was not denied effective assistance of counsel. See Hanson, 797 F.3d at 

837 (“We begin by noting that before [Mr.] Hanson can succeed on his counsel’s failureto-object claims, he must show that the underlying prosecutorial-misconduct claims 

themselves have merit.”). 
89 

c. Failure to object to the “mitigation evidence” jury instruction

As his next basis for ineffective assistance of counsel related to the failure to 

preserve the record, Mr. Simpson argues his counsel performed deficiently by failing to 

object to the jury instruction on mitigation evidence. We again disagree. 

i. OCCA decision

Mr. Simpson raised this claim on direct appeal. The OCCA addressed Mr. 

Simpson’s challenge to the mitigation instruction in its discussion of the constitutionality 

of the instruction and briefly in its ineffective assistance of counsel analysis. With respect 

to the constitutionality of the instruction, the OCCA stated: 

In his twelfth proposition, [Mr. Simpson] argues that the definition of 

mitigating circumstances given to the jury in this case was unconstitutional 

as it impermissibly limited the jury’s consideration of mitigating evidence. 

This Court has consistently upheld constitutional challenges to the 

instruction at issue. 

Simpson I, 230 P.3d at 903. Thus, the OCCA rejected Mr. Simpson’s challenge to the 

mitigation instruction, and we have affirmed that conclusion. 

The OCCA also rejected Mr. Simpson’s ineffective assistance of counsel claim 

based on trial counsel’s failure to object to that instruction:

In his thirteenth proposition, [Mr. Simpson] argues that he was denied his 

Sixth Amendment right to the effective assistance of counsel for several 

alleged failings of trial counsel. . . . In support of his proposition, [Mr. 

Simpson] first argues that trial counsel was ineffective for failing to object 

to . . . the submission of improper jury instructions and verdict forms. 

These alleged failings concern issues raised and addressed above. . . . In 

Proposition XII, we found that the jurors’ consideration of the evidence 

offered in mitigation in this case was not unfairly limited. Most of these 

alleged failings do not reflect a deficient performance by defense counsel 

and [Mr. Simpson] has not shown a reasonable probability that, but for 
90 

counsel’s alleged unprofessional errors, the result of the proceeding would 

have been different. 

Id. at 904. 

From this discussion, it is fair to conclude the OCCA found no deficient 

performance with respect to trial counsel’s failure to object to the mitigation instruction. 

First, the OCCA held the instruction 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 statement of law, trial counsel did not 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 ineffective for failing to object to mitigation 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 instruction 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 to a jury instruction (or to request an additional 

instruction) constitutes unreasonably deficient performance only 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 adjudicated Mr. 

Simpson’s claim on the merits, we afford it appropriate deference under AEDPA. 

ii. Merits

In Section III.C, supra, we evaluated the merits of Mr. Simpson’s challenge to the 

jury instruction on mitigating evidence and concluded the OCCA acted reasonably in 
91 

denying relief because the instruction 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 is not expected to object to legally accurate jury 

instructions. See Castro, 138 F.3d at 830–31. Consequently, Mr. Simpson cannot show 

that his counsel’s performance in 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 was not constitutionally ineffective. 

d. Failure to object to the HAC jury instruction 

Finally, Mr. Simpson argues his counsel was ineffective for failing to object to the 

HAC jury instruction because the instruction “failed to clarify the HAC [A]ggravator was 

not to be alleged for Anthony Jones.” Aplt. Br. at 48. Recall that, although the State did 

not assert the HAC Aggravator with respect to the murder of Mr. Jones, the jury found it 

had been proved beyond a reasonable doubt as to the murder of Mr. Palmer and as to the 

murder of Mr. Jones. Mr. Simpson claims trial counsel could have avoided this confusion 

by objecting to the instruction for the murder of Mr. Jones, which erroneously listed the 

HAC Aggravator as an option that could be found unanimously by the jury.40 

 40 The instruction for Count 2, the count related to the murder of Mr. Jones, states: 
92 

i. OCCA decision

On direct appeal, the OCCA rejected Mr. Simpson’s ineffective assistance of 

counsel claim based on the HAC instruction. In considering Mr. Simpson’s standalone, 

non-ineffective-assistance-of-counsel challenge to the HAC Aggravator as to Mr. Jones’s 

death, the OCCA concluded the challenge was “well taken” and struck the aggravator. 

Simpson I, 230 P.3d at 903. The OCCA, however, denied relief on the non-ineffectiveassistance-of-counsel claim because the State did not present any evidence on the 

aggravator as to Mr. Jones such that the “the jury’s weighing process of mitigating 

evidence against aggravating circumstances was not skewed.” Id. In essence, the OCCA 

concluded that while an error occurred, the error did not prejudice Mr. Simpson. 

 

We, the jury, empaneled and sworn in the above entitled cause, do upon our oaths 

unanimously find the following statutory aggravating circumstance[] or 

circumstances as shown by the circumstance or circumstances checked: 

____ The defendant, prior to this sentencing proceeding, was convicted of 

a felony involving the use or threat of violence to the person;

____ During the commission of the murder, the defendant knowingly 

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 defendant will 

commit criminal acts of violence that would 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 counsel claim 

relative to the jury instruction on the HAC Aggravator, it stated: 

[W]e found that the heinous, atrocious or cruel aggravating circumstance 

was proven beyond a reasonable doubt as to the murder of Glen Palmer. 

Although this aggravating circumstance was stricken as to the murder of 

Anthony Jones, [Mr. Simpson’s] jury did not consider improper 

aggravating evidence in deciding punishment. . . . Most of these alleged 

failings do not reflect a deficient performance by defense counsel and [Mr. 

Simpson] has not shown a reasonable probability that, but for counsel’s 

alleged unprofessional errors, the result of the proceeding would have been 

different. 

Id. at 904. Before this court, Mr. Simpson acknowledges that the OCCA’s holding on his 

ineffective assistance of counsel argument relevant to the HAC Aggravator as to Mr. 

Jones’s “did not preclude deficient performance.” Aplt. Br. at 49. Rather, the OCCA 

determined Mr. Simpson was not prejudiced by the seemingly deficient 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. Simpson’s ineffective assistance of counsel claim 

on the merits, we afford its decision deference under § 2254(d). We conclude the OCCA 

did not act unreasonably in rejecting Mr. Simpson’s claim. We have already determined 

that the instruction was a correct statement of Oklahoma law, and the OCCA struck the 

aggravator as to Mr. Jones. Because there was no evidence introduced solely to support 

the HAC Aggravator, we cannot conclude that the OCCA’s decision that Mr. Simpson 
94 

was not prejudiced was unreasonable. Accordingly, we deny Mr. Simpson relief on this 

claim. 

G. Cumulative Error 

Mr. Simpson’s final claim is that even if the individual errors in his trial do not 

warrant relief, their cumulative impact denied him a fundamentally 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 analysis. Finally, having found no errors the OCCA did not 

include in its analysis, we review the reasonableness of its decision under AEDPA’s 

deferential standard of review. Ultimately, we conclude the OCCA’s decision was 

reasonable, and we deny Mr. Simpson relief on this claim. 

1. Legal Background 

“Cumulative error analysis is an extension of harmless error and conducts the 

same inquiry as for individual error, focusing on the underlying fairness of the trial.” 

Darks, 327 F.3d at 1018 (internal quotation marks and citations omitted). This analysis 

“aggregates all errors found to be harmless and analyzes whether their cumulative effect 

on the outcome of the trial is such 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 applies only where there are 
95 

two or more actual constitutional errors.” (quotation marks omitted)); United States v. 

Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990) (en banc) (“[A] cumulative-error analysis 

should evaluate only the effect of matters determined to be error, not the cumulative 

effect of non-errors.”). To determine the harmlessness of the cumulative error, “courts 

look to see whether the defendant’s substantial rights were affected.” Rivera, 900 F.2d at 

1470; see also Darks, 327 F.3d at 1018. A defendant’s substantial rights are affected 

when “the cumulative effect of the errors . . . had a ‘substantial 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 denied Mr. Simpson relief on his cumulative error 

claim, concluding that, “[a]ny errors were harmless beyond a reasonable doubt, 

individually and cumulatively.” Simpson I, 230 P.3d at 906. This is a decision on the 

merits, and we are bound by the OCCA’s cumulative error determination unless it is 

contrary to or an unreasonable application of the cumulative error doctrine. See Hanson, 

797 F.3d at 852 (“Because the OCCA considered the merits of the cumulative error 

claim, we review its decision through the deferential lens of AEDPA.”); Thornburg, 422 

F.3d at 1137 (“We must defer to [the OCCA’s cumulative error] ruling unless it 

constitutes an unreasonable application of the cumulative-error doctrine.”). 
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3. Merits 

Upon reviewing Mr. Simpson’s claims, we, like the OCCA, have identified four 

sentencing-stage errors that do not individually entitle Mr. Simpson to habeas relief: (1) 

prosecutorial misconduct; (2) counsel’s deficient performance in 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 prosecutorial misconduct; and 

(4) counsel’s deficient performance in failing to object the HAC Aggravator jury 

instruction.42

 41 Where we presume deficient performance for purposes of the first prong of an 

ineffective assistance of counsel claim but reject the claim on the prejudice prong, we 

include the assumed error in our 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 should also include the harmless errors identified by the 

OCCA in our cumulative error analysis, specifically the invalidation of the HAC 

Aggravator as to the murder of Mr. Jones and the admission of hearsay evidence by Mr. 

Collins. But the Order granting COA authorizes Mr. Simpson to raise “cumulative error, 

limited to errors in the grounds on which a Certificate of Appealability has been 

granted.” Case Management Order at 2, dated December 1, 2016 (emphasis added). 

Neither the district court nor this court issued a Certificate of Appealability on Mr. 

Simpson’s claims related to invalidation 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. Notwithstanding that omission, we have recognized that cumulative 

error review requires the aggregation of all constitutional errors found to be harmless and 

any “substantive errors . . . individually determined not to warrant habeas relief because 

of a lack of sufficient prejudice under substantive constitutional standards.” Cargle v. 

Mullin, 317 F.3d 1196, 1220 (10th Cir. 2003). As a result, the limitation in the Order 

granting COA may be inappropriately narrow. We need not resolve this question, 

however, because neither of the errors identified by the OCCA are constitutional errors. 

First, with respect to the jury’s finding of the HAC Aggravator as to the murder of 

Mr. Jones, the OCCA concluded there was no constitutional error because the jury “did 

not consider improper aggravating evidence in deciding punishment.” Simpson I, 230 
97 

We now determine their cumulative impact. See Cargle v. Mullin, 317 F.3d 1196, 

1207 (10th Cir. 2003) (holding prosecutorial misconduct and deficient performance by 

counsel “should be included in the cumulative-error calculus if they have been 

individually denied for insufficient prejudice”). All the identified errors occurred at the 

sentencing stage of the trial; therefore, we review whether the errors “rendered the 

sentencing fundamentally unfair in light of the heightened degree of reliability demanded 

in a capital case.” Thornburg, 422 F.3d at 1137 (internal quotation marks omitted). 

The OCCA held the cumulative effect of these errors was “harmless beyond a 

reasonable doubt.” See Simpson I, 230 P.3d at 906. Under AEDPA’s deferential standard 

of review, we cannot conclude that no reasonable jurist would agree with that assessment. 

Despite the identified errors, the jury was presented with copious amounts of aggravating 

evidence, overwhelming evidence of guilt, and proper instructions from the trial court. 

Recall that Mr. Simpson pursued the victims in response to an altercation that occurred 

over an hour earlier and did so armed with an assault rifle. When Mr. Simpson’s vehicle 

 

P.3d at 903. Under these circumstances, 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 invalidation of an aggravating sentencing factor from its 

cumulative error analysis where all the evidence admitted under the invalidated 

aggravator was properly admissible under other valid aggravators). 

Second, the OCCA agreed with Mr. Simpson that five letters written by Mr. 

Collins and introduced at trial “were hearsay for which no exception applied.” Simpson I, 

230 P.3d at 898. But importantly for our purposes, the OCCA rejected Mr. Simpson’s 

argument that admission of the letters violated his Sixth Amendment right to 

confrontation because “[Mr.] Collins testified at trial and was subject to cross 

examination.” Id. at 899; see id. at 906. 
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drew abreast of the victim’s car, he fired up to twenty rounds into that car, killing two of 

the passengers and severely wounding the other. Before leaving the scene, Mr. Simpson 

announced, “I’m a monster. I’m a motherfucking monster. Bitches don’t want to play 

with me.” Trial Tr. vol. 4 at 44–46. He then proceeded with his plans to rendezvous with 

some women he had met earlier at a club. The evidence also revealed 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 OCCA’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 convictions in the guilt stage of his trial and as to his death 

sentences. We DENY Mr. Simpson’s motion for modification of his COA. 

 43 Mr. Simpson also raises a cumulative error claim as to his convictions. Having 

found no error related to the guilt stage of Mr. Simpson’s trial, 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 absent at least two errors.”).