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Underwood v. Royal

United States Court of Appeals, Tenth Circuit

July 2, 2018

KEVIN RAY UNDERWOOD, Petitioner - Appellant,
v.
TERRY ROYAL, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:12-CV-00111-D)

          Sarah M. Jernigan, Assistant Federal Public Defender (Patti Palmer Ghezzi, Assistant Federal Public Defender, Western District of Oklahoma, 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 MATHESON, KELLY, and BACHARACH, Circuit Judges.

          MATHESON, Circuit Judge.

         Kevin Ray Underwood appeals from the federal district court's denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. In 2008, a jury convicted Mr. Underwood of first degree murder and sentenced him to death in Oklahoma state court.

         The Oklahoma Court of Criminal Appeals ("OCCA") affirmed Mr. Underwood's conviction and sentence and later denied post-conviction relief.

         Mr. Underwood sought federal habeas relief from his death sentence under § 2254. The federal district court denied Mr. Underwood's requests for relief and for a certificate of appealability ("COA") on all eleven grounds raised in the § 2254 application. We granted COAs on six of the eleven grounds for relief.

         Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm the district court's denial of habeas relief on all six grounds.

         I. BACKGROUND

         We begin with the relevant factual history as presented by the OCCA.[1] We then provide an overview of the procedural history leading to this appeal. We present additional background below as relevant to our discussion of Mr. Underwood's claims.

         A. Factual History

         The OCCA, in addressing Mr. Underwood's direct appeal, set forth the following relevant facts:

[Mr. Underwood] was charged with murdering ten-year-old [J.B.] on April 12, 2006, in Purcell, Oklahoma. [Mr. Underwood] lived alone in the same apartment complex where [J.B.] lived with her father, Curtis Bolin. Due to her father's work schedule, [J.B.] was typically home alone for a period of time after school. On the day in question, [J.B.] played in the school library with a friend for a short time before going home. She was never seen alive again.
Police, firefighters, and a host of citizen volunteers began a search for [J.B.]. The day after [J.B.]'s disappearance, the Federal Bureau of Investigation [the "FBI"] added over two dozen people to the effort. On April 14, 2006, two days after [J.B.] was last seen, police set up several roadblocks around the apartment complex where she lived, seeking leads from local motorists. Around 3:45 p.m. that day, FBI Agent Craig Overby encountered a truck driven by [Mr. Underwood]'s father at one of the roadblocks; [Mr. Underwood] was a passenger in the truck. [Mr. Underwood]'s father told Overby that they had heard about the disappearance, and that in fact, [Mr. Underwood] was the girl's neighbor. From speaking with other neighbors at the apartment complex, Overby knew that a young man living there may have been the last person to see [J.B.]. Overby asked if [Mr. Underwood] would come to the patrol car to talk for a moment, and [Mr. Underwood] agreed, while his father waited in the truck. In the patrol car, [Mr. Underwood] made statements that piqued Overby's interest.[] Overby asked [Mr. Underwood] if he would come to the police station for additional questioning. Again, [Mr. Underwood] agreed, and Overby assured [Mr. Underwood]'s father that he (Overby) would give [Mr. Underwood] a ride home.
At the police station, [Mr. Underwood] was interviewed by Agent Overby and Agent Martin Maag. [Mr. Underwood] told them about seeing [J.B.] on April 12, and discussed his activities on that day and other matters. At the conclusion of this interview, which lasted less than an hour, the agents asked [Mr. Underwood] if they could search his apartment. [Mr. Underwood] agreed. The agents accompanied [Mr. Underwood] to his apartment around 5:00 p.m. While looking around the apartment, Overby saw a large plastic storage tub in [Mr. Underwood]'s closet; its lid was sealed with duct tape. [Mr. Underwood] saw Overby looking at the tub, and volunteered that he kept comic books in it; he said that he had taped the lid to keep moisture out. Overby asked if he could look inside the tub, and [Mr. Underwood] agreed. When Overby pulled back a portion of the tape and lifted a corner of the lid, he saw a girl's shirt-and realized that it matched [Mr. Underwood]'s description of the shirt [J.B.] was wearing on the day she disappeared.[] When Overby commented that he saw no comic books in the tub, [Mr. Underwood] interjected, "Go ahead and arrest me." Overby immediately responded, "Where is she?" [Mr. Underwood] replied, "She's in there. I hit her and chopped her up." [Mr. Underwood] then became visibly upset, began hyperventilating, and exclaimed, "I'm going to burn in Hell." He was placed under arrest and escorted out to the agents' vehicle. Agent Overby summoned local authorities to secure the scene.
Back at the police station, [Mr. Underwood] was advised of his right to remain silent, and his right to the assistance of counsel during any questioning, consistent with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because he asked for a lawyer, the interview was concluded. About fifteen minutes later (approximately 5:45 p.m.), police approached [Mr. Underwood] and asked if he would reaffirm, in writing, his original verbal consent to a search of his apartment. [Mr. Underwood] agreed, and spent the next few hours sitting in a police lieutenant's office. He conversed with various officers who were sent to guard him, and made some incriminating statements during that time.
Around 9:30 p.m. that evening, [Mr. Underwood] asked to speak with the two FBI agents he had initially talked to (Overby and Maag). Because [Mr. Underwood] had previously asked for counsel, [Oklahoma State Bureau of Investigation ("OSBI")] Agent Lydia Williams visited with him to determine his intentions. Agent Williams reminded [Mr. Underwood] that he had earlier declined to be questioned, and explained that because of that decision, police could not question him any further. [Mr. Underwood] emphatically replied that he wanted to talk to the agents. Around 10:15 p.m., Agents Overby and Maag interviewed [Mr. Underwood] at the police station. Before questioning began, Overby reminded [Mr. Underwood] of his Miranda rights, and [Mr. Underwood] signed a written form acknowledging that he understood them and waived them. When asked if anyone had offered him anything in exchange for agreeing to talk, [Mr. Underwood] replied that one of the officers had predicted things would go better for him if he cooperated. Besides acknowledging his waiver of Miranda rights, [Mr. Underwood] also signed another written consent to a search of his apartment. A video recording and transcript of the interview that followed, which lasted about an hour, was presented to the jury at trial and is included in the record on appeal.
In the interview, [Mr. Underwood] describes how he had recently developed a desire to abduct a person, sexually molest them, eat their flesh, and dispose of their remains. He explains in considerable detail how he attempted to carry out this plan on [J.B.], whom he had decided was a convenient victim. [Mr. Underwood] stated that he invited [J.B.] into his apartment to play with his pet rat. Once [J.B.] was inside, [Mr. Underwood] hit her on the back of the head several times with a wooden cutting board; she screamed in pain and begged him to stop. [Mr. Underwood] proceeded to suffocate the girl by sitting on her and placing his hand across her face. [Mr. Underwood] told the agents that this was not an easy task, and that fifteen to twenty minutes passed before she succumbed. [Mr. Underwood] claimed he then attempted to have sexual relations with the girl's body, but was unable to perform. He then moved her body to the bathtub and attempted to decapitate it with a knife, but was unsuccessful at that task as well. Frustrated, [Mr. Underwood] wrapped [J.B.]'s body in plastic sheeting and placed it in a large plastic container which he hid in his closet. [Mr. Underwood] also dismantled [J.B.]'s bicycle and hid it inside his apartment, to make it look as if she had left the apartment complex.
[J.B.]'s remains were taken to the Medical Examiner's office for an autopsy. The Medical Examiner noted bruises to the back of the girl's head, consistent with [Mr. Underwood]'s claim that he hit her forcefully with a cutting board. The examiner also noted petechia in the girl's eyes, and curved marks on her face, consistent with [Mr. Underwood]'s description of how he had suffocated her. The most pronounced wound on the body was a very deep incision to [J.B.]'s neck, which was also consistent with the injuries [Mr. Underwood] admitted to inflicting. The Medical Examiner also noted trauma to the girl's genital area, including tearing of the hymen. However, the Medical Examiner could not say that [J.B.] was alive, or even conscious, when her neck was cut or when she was sexually assaulted. The official cause of death was declared to be asphyxiation.

Underwood v. State, 252 P.3d 221, 230-31 (Okla. Crim. App. 2011) (footnotes omitted).

         B. Procedural History

         The following proceedings preceded Mr. Underwood's present appeal: (1) jury trial in Oklahoma state court, (2) direct appeal and application for state post-conviction relief in the OCCA, and (3) application for federal post-conviction relief in the United States District Court for the Western District of Oklahoma under § 2254. We provide a brief overview of each proceeding.

         1. Trial

         In 2008, an Oklahoma jury convicted Mr. Underwood of first degree murder, under Section 701.7(A) of Title 21 of the Oklahoma Statutes, and sentenced him to death.

         In the guilt stage, the jury found the evidence sufficient to establish that Mr. Underwood murdered J.B. Underwood, 252 P.3d at 229. Although Mr. Underwood "did not formally concede his guilt . . ., but instead required the State to present its evidence on that issue, neither did he seriously contest the guilt-stage evidence against him." Id. at 232. "In fact, defense counsel told the jury in guilt-stage opening statements that it would probably find [Mr. Underwood] guilty, but that there would be reasons to spare his life." Id. The guilt evidence presented to the jury included a video recording and printed transcript of Mr. Underwood's interview with the FBI agents, during which he had confessed to the murder. Id. at 238.

         In the punishment stage, the same jury found one aggravating circumstance and recommended the death penalty after weighing it against any mitigating circumstances established at trial. Id. at 229-30, 246. In its aggravation case, the State put evidence of two aggravating circumstances before the jury: (1) the murder was especially heinous, atrocious, or cruel (the "HAC" aggravator); and (2) Mr. Underwood posed a continuing threat to society (the "continuing threat" aggravator). Id. at 230 n.1. The jury found the existence of the HAC aggravator but not the continuing threat aggravator. Id. at 232. In his mitigation case, Mr. Underwood presented "extensive evidence . . ., including the testimony of family, friends, and three experts who had evaluated [his] mental health." Id. The jury recommended the death sentence, which the trial court imposed. Id. at 230.

         2. Direct Appeal and Application for State Post-Conviction Relief

         Mr. Underwood appealed to the OCCA, raising a variety of trial errors, including the six grounds for relief before us in this appeal. In 2011, the OCCA affirmed Mr. Underwood's conviction and sentence. Id. at 258.[2] The court also performed a statutorily mandated sentencing review and concluded that "the evidence was sufficient to support the one aggravating circumstance found by the jury" and that no "improper factor" influenced the jury's imposition of the death sentence. Id. Mr. Underwood then applied for post-conviction relief, which the OCCA denied in an unpublished summary opinion in 2012.

          3. Application for Federal Post-Conviction Relief under § 2254

         In 2013, Mr. Underwood filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. The petition presented eleven grounds for relief, including the six before us in this appeal. The district court denied relief on all eleven grounds. See Underwood v. Duckworth, 2016 WL 4059162 (W.D. Okla. July 28, 2016). It also denied a COA on all grounds. See Underwood v. Duckworth, 2016 WL 4120772 (W.D. Okla. July 28, 2016).

         Mr. Underwood appealed, and this court granted COAs on six of Mr. Underwood's grounds for relief, which we address below.

         II. DISCUSSION

         We begin with our standard of review. We then analyze the six grounds for relief on which we have granted COA: (1) ineffective assistance of trial counsel, (2) prosecutorial misconduct, (3) improper jury instruction and prosecutor statements on mitigating evidence, (4) admission of unconstitutional victim impact testimony, (5) imposition of the death penalty without a jury finding that the HAC aggravator outweighed any mitigating circumstances beyond a reasonable doubt, and (6) cumulative error. We conclude that Mr. Underwood is not entitled to relief on any of these grounds. Throughout our discussion, we provide additional background information as needed.

          A. Standard of Review

         "Our review is . . . governed by the Antiterrorism and Effective Death Penalty Act of 1996 ('AEDPA'), which requires federal courts to give significant deference to state court decisions." Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013).[3]

         Under AEDPA, when a state court has decided a claim on the merits, we must defer to the court's adjudication of the claim unless it:

(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).[4]

         Section 2254(d)(1)'s "contrary to" and "unreasonable application of" language denotes two distinct inquiries. "An OCCA decision is 'contrary to' a clearly established law if it applies a rule different from the governing law set forth in Supreme Court cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts." Lockett, 711 F.3d at 1231 (alterations and quotations omitted); see also Bell v. Cone, 535 U.S. 685, 694 (2002). "An OCCA decision is an 'unreasonable application' of clearly established federal law if it identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of petitioner's case." Lockett, 711 F.3d at 1231 (quotations omitted); see also Bell, 535 U.S. at 694.

         "If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, . . . § 2254(d) . . . do[es] not apply . . ., [and] we review the [federal] district court's legal conclusions de novo and its factual findings, if any, for clear error." Cole v. Trammell, 755 F.3d 1142, 1148 (10th Cir. 2014).

         B. The Six Issues on Appeal

         Having presented our standard of review, we now address each of the six grounds for relief on which we have granted COA: (1) ineffective assistance of trial counsel, (2) prosecutorial misconduct, (3) improper jury instruction and prosecutor statements on mitigating evidence, (4) admission of unconstitutional victim impact testimony, (5) imposition of the death penalty without a jury finding that the HAC aggravator outweighed any mitigating circumstances beyond a reasonable doubt, and (6) cumulative error.

         1. Ineffective Assistance of Counsel

         Mr. Underwood contends that he is entitled to relief from his death sentence based on his trial counsel's failure to present expert rebuttal testimony relating to the timing of J.B.'s death. The OCCA rejected this claim on the merits. Underwood, 252 P.3d at 252.

         In addressing this claim, we begin with the relevant legal background and additional factual and procedural background. We then examine the OCCA's merits decision under § 2254(d) and conclude that it was not contrary to-or an unreasonable application of-Supreme Court law or based on an unreasonable determination of the facts. We therefore affirm the district court's denial of habeas relief on Mr. Underwood's ineffective assistance claim.[5]

         a. Legal background

         We first discuss the general framework set forth in Strickland v. Washington, 466 U.S. 668 (1984), to address ineffective assistance claims. We then focus on the deficient performance part of the test, which guides our analysis below.

         i. Overview

         "The Supreme Court has held that the Sixth Amendment right to counsel includes a right to effective representation." Frost v. Pryor, 749 F.3d 1212, 1224 (10th Cir. 2014); see also Strickland, 466 U.S. at 686. Counsel can "deprive a defendant of the right to effective assistance . . . by failing to render adequate legal assistance." Strickland, 466 U.S. at 686 (quotations omitted). To establish a violation under Strickland, a habeas petitioner must show that (1) "counsel's performance was deficient," and (2) "the deficient performance prejudiced the defense." Id. at 687. Because we rely only on deficient performance to resolve this case, we restrict our discussion accordingly. See Hooks v. Workman, 689 F.3d 1148, 1186 (10th Cir. 2012) ("These two prongs may be addressed in any order, and failure to satisfy either is dispositive.").

         ii. Deficient performance

         To establish constitutionally deficient performance, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (quotations omitted). In other words, counsel's performance "must have been completely unreasonable, not merely wrong." Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). "Every effort must be made to evaluate the conduct from counsel's perspective at the time." Littlejohn v. Trammell, 704 F.3d 817, 859 (10th Cir. 2013) (quotations omitted). "However, while we entertain a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, we nevertheless apply closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case." Id. (citations and quotations omitted).

         b. Relevant facts

         In his interview with the FBI agents, Mr. Underwood described J.B.'s murder. He told them he had "hit [J.B.] on the back of the head several times with a wooden cutting board" and that she had "screamed in pain and begged him to stop." Underwood, 252 P.3d at 231. He stated that he had "suffocate[d] [J.B.] by sitting on her and placing his hand across her face" and that "fifteen to twenty minutes passed before she succumbed." Id. He "claimed he then attempted to have sexual relations with the girl's body, but was unable to perform[, ] . . . and attempted to decapitate it with a knife, but was unsuccessful at that task as well." Id.

         During the guilt stage of Mr. Underwood's trial, Dr. Inas Yacoub, the Medical Examiner, testified for the State regarding the possibility that J.B. had survived Mr. Underwood's attempt to suffocate her and was still alive or even conscious when he then attempted to sexually assault and decapitate her. Dr. Yacoub had previously performed J.B.'s autopsy and determined that J.B. died from "asphyxiation." Id. at 231, 251. At trial, Dr. Yacoub testified that the injuries observed in J.B.'s genital area and on her neck may have occurred while she was still alive and even conscious. Trial Tr. Vol. VII at 1174-78, 1817-19. On cross-examination, trial counsel for Mr. Underwood elicited Dr. Yacoub's acknowledgement that she could not determine with scientific certainty at what point J.B. lost consciousness. Id. at 1817-19.

         In the punishment stage of Mr. Underwood's trial, the State "incorporated the testimony from the guilt stage to show that the murder was especially, heinous, atrocious, or cruel." Underwood, 252 P.3d at 232.[6] In closing argument, the State referenced Dr. Yacoub's testimony to support its theory that J.B. experienced conscious physical suffering before her death: "And the medical examiner told you there was probably- there's a possibility that there was more that preceded her last breath. And when she talks about the injuries to her vagina, and she talks about the injuries to her throat . . . . There's a lot of stuff that preceded her last breath." Trial Tr. Vol. X at 2553-54.

         Before trial, Mr. Underwood's trial counsel "had retained [a] forensic pathologist, Dr. John Adams, to review the autopsy findings." Underwood, 252 P.3d at 251. But trial counsel never called Dr. Adams to testify. Id.

         c. OCCA and federal district court decisions

         In his appeal to the OCCA, Mr. Underwood argued that trial counsel's failure to call Dr. Adams to rebut Ms. Yacoub's testimony constituted reversible error. Id. at 250. He submitted a sworn affidavit, secured by appellate counsel, in which Dr. Adams stated his expert opinion that J.B. could not have been alive during the attempted decapitation. Defendant's Appeal Exhibit A. Dr. Adams based his conclusion in part on his observation that the crime scene photographs showed very little blood spatter, whereas "widespread[] [blood spatter] would support a theory of antemortem injury." Id. at 3-4. The OCCA denied Mr. Underwood's ineffective assistance claim on the merits, "discern[ing] sound strategic reasons for the defense team not calling its forensic pathologist, and . . . find[ing] no prejudice flowing from that decision." Underwood, 252 P.3d at 253. Mr. Underwood then sought federal habeas relief, which the district court denied. Underwood, 2016 WL 4059162, at *13.

         d. Analysis

         We review the OCCA's decision under §§ 2254(d)(1) and (d)(2) and conclude that it was not contrary to-or an unreasonable application of-clearly established Supreme Court law or based on an unreasonable determination of the facts. Although the OCCA addressed both deficient performance and prejudice in its Strickland analysis, our analysis begins and ends with the former ground, which alone provides a sufficient basis for denying relief. See Hooks, 689 F.3d at 1186 ("[F]ailure to satisfy either [Strickland prong] is dispositive.").

         i. Section 2254(d)(1): Reasonableness of legal determinations

         The OCCA's conclusion that Dr. Adams's affidavit did not overcome the presumption of sound trial strategy was consistent with and a reasonable application of Strickland. In determining whether counsel's performance was deficient, "[e]very effort must be made to evaluate the conduct from counsel's perspective at the time." Littlejohn, 704 F.3d at 859 (quotations omitted). Here, the OCCA reasonably evaluated the value of Dr. Adams's rebuttal testimony from trial counsel's perspective and determined it "might have done more harm than good." Underwood, 252 P.3d at 252.

         As the OCCA reasoned, Dr. Adams's testimony would have had no relevance in the guilt stage and, in the punishment stage, could have drawn the jury's attention away from Mr. Underwood's affirmative mitigation case and back to the "gruesome" details of the crime. Id. For example, Dr. Adams based his conclusion that J.B. was already deceased at the time of the attempted decapitation in part on the absence of widespread blood spatter, as captured in the crime scene photographs. He also noted that "a massive exsanguination," or loss of blood, would support the possibility that J.B. was alive during the attempted decapitation. Defendant's Appeal Exhibit A at 3-4. But in his confession, Mr. Underwood had stated that, when he started cutting J.B.'s neck, "[he] couldn't believe the amount of blood that came out." State's Trial Exhibit 162 at 69. Had Dr. Adams testified, the prosecution likely would have questioned him on cross-examination about this statement. This line of questioning could potentially have discredited Dr. Adams's conclusions and "would arguably have distracted the jury in a way unfavorable to the defense." Underwood, 252 P.3d at 252.

         We acknowledge Mr. Underwood's concern about the emotional impact of Dr. Yacoub's unrebutted testimony on the jury, and we may even disagree with trial counsel's challenged course of action here. But under AEDPA's deferential standard, we cannot conclude that the OCCA unreasonably applied Strickland in determining that trial counsel's strategy was at least reasonable.

         ii. Section 2254(d)(2): Reasonableness of factual determinations

         Mr. Underwood contends that the OCCA based its conclusion-that Dr. Adams's affidavit failed to overcome the presumption of sound trial strategy-on unreasonable factual determinations under § 2254(d)(2) because it "completely disregarded [Dr.] Yacoub's key prejudicial testimony" and "ignored Dr. Adams's conclusive condemnation of [her] alternate theories." Aplt. Br. at 24.[7] We need not decide whether § 2254(d)(2), rather than § 2254(d)(1), supplies the appropriate standard of review.[8] Under either standard, Mr. Underwood's argument fails for the same reason-the OCCA did not disregard Dr. Yacoub's testimony. Rather, the OCCA observed that her testimony was "inconclusive" and reasoned that it arguably related to "a collateral matter." Underwood, 252 P.3d at 252. Likewise, the OCCA did not disregard the testimony Dr. Adams was prepared to offer. Instead, the OCCA reasonably determined, as discussed above, that Dr. Adams's testimony "might have done more harm than good." Id.

         2. Prosecutorial Misconduct-Arguing Facts Not in Evidence

         Mr. Underwood contends that he is entitled to relief from his death sentence based on the State's closing argument in both stages of the trial that the evidence established he had shaved J.B.'s pubic region with a razor. The OCCA rejected this claim on the merits. Underwood, 252 P.3d at 249.

         In addressing this claim, we begin with the relevant legal background and additional factual and procedural background. We assume without deciding that the OCCA's decision was based on an unreasonable determination of the facts under §2254(d)(2). We therefore review the issue de novo and conclude that Mr. Underwood is not entitled to relief because he has not shown the alleged error violated his due process. We affirm the district court's denial of habeas relief on Mr. Underwood's prosecutorial misconduct claim.

         a. Legal background

         We first provide a general overview of prosecutorial misconduct standards and the framework under Donnelly v. DeChristoforo, 416 U.S. 645 (1974), for determining when prosecutorial misconduct warrants reversal of state court convictions and sentences. We then focus on case law regarding prosecutorial argument of facts not in evidence, the type of misconduct alleged here.

         i. Overview

         The Supreme Court has "counselled prosecutors 'to refrain from improper methods calculated to produce a wrongful conviction [or sentence].'" United States v. Young, 470 U.S. 1, 7 (1985) (alterations omitted) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)); see Le v. Mullin, 311 F.3d 1002, 1018 (10th Cir. 2002). Although "the adversary system permits the prosecutor to . . . 'strike hard blows, he is not at liberty to strike foul ones.'" Id. (quoting Berger, 295 U.S. at 88).

         Prosecutorial misconduct does not necessarily result in constitutional error warranting habeas relief. "Generally, there are two ways in which prosecutorial misconduct . . . can result in constitutional error." Littlejohn, 704 F.3d at 837. "First, it can prejudice a specific right as to amount to a denial of that right." Id. (alterations and quotations omitted). "Additionally, absent infringement of a specific constitutional right, a prosecutor's misconduct may in some instances render a habeas petitioner's trial 'so fundamentally unfair as to deny him due process.'" Id. (quoting Donnelly, 416 U.S. at 645). "This determination may be made only after considering all of the surrounding circumstances, including the strength of the state's case." Malicoat v. Mullin, 426 F.3d 1241, 1255 (10th Cir. 2005). The fundamental unfairness test applies to instances of prosecutorial misconduct occurring in either the guilt or sentencing stage of trial. Smallwood v. Gibson, 191 F.3d 1257, 1275-76 (10th Cir. 1999).

         ii. Arguing facts not in evidence

         Although "[a] prosecutor may comment on and draw reasonable inferences from evidence presented at trial," Thornburg v. Mullin, 422 F.3d 1113, 1131 (10th Cir. 2005), arguing "prejudicial facts not in evidence" is one type of prosecutorial misconduct. See Berger, 295 U.S. at 84. As with other types of prosecutorial misconduct, "[t]he line separating acceptable from improper advocacy is not easily drawn; there is often a gray zone." Young, 470 U.S. at 7.

         b. Relevant facts

         In closing argument in both stages of Mr. Underwood's trial, the State interpreted the evidence as showing that Mr. Underwood had shaved J.B.'s pubic region with a razor. Trial Tr. Vol. VII at 1853-54 (guilt stage); Trial Tr. Vol. X at 2522, 2554 (punishment stage). The evidence included a photograph of Mr. Underwood's home, taken by law enforcement, depicting a blue object on a desk. State's Trial Exhibit 90. The evidence also included the testimony of Jolene Russell, an OSBI criminalist. Ms. Russell, after identifying the blue object in the photograph as an "electric razor," had recalled the following observations "about [J.B.]'s vaginal area at the morgue when the body [was] being processed": (1) "loose hairs around the pubic region," (2) "[attached] pubic hair in the vaginal area," and (3) what appeared to be a "clean" area above the vaginal area. Trial Tr. Vol. VI at 1522. Finally, the evidence included the testimony of Dr. Yacoub, who recalled removing "a hair from the pubic area" during J.B.'s autopsy but did not otherwise comment on the presence or absence of hair in that area. Trial Tr. Vol. VII at 1760.

         c. OCCA and federal district court decisions

         In his appeal to the OCCA, Mr. Underwood argued that the prosecution's remarks constituted reversible error. Underwood, 252 P.3d at 249.[9] The OCCA denied Mr. Underwood's prosecutorial misconduct claim on the merits, determining that the prosecution's remarks (1) were not improper, because they were "reasonably based on the evidence," and (2) "while [they] may have, to some degree, underscored the vile nature of the entire crime, [they] did not unfairly overshadow the other depraved things [Mr. Underwood] freely admitted to doing." Id. In its discussion of this claim, the OCCA stated that "[Ms.] Russell noticed that the girl's pubic area appeared partially shaven." Id. Mr. ...


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