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Harmon v. Sharp

United States Court of Appeals, Tenth Circuit

August 29, 2019

MARLON DEON HARMON, Petitioner - Appellant,
v.
TOMMY SHARP, Warden, Oklahoma State Penitentiary, [*] Respondent - Appellee.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:13-CV-00080-M)

          Patti Palmer Ghezzi (Emma Victoria Rolls with her on the briefs), Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for the Respondent-Appellee.

          Jennifer Crabb, Oklahoma Attorney General's Office, Oklahoma City, OK, for the Respondent-Appellee.

          Before HARTZ, HOLMES, and CARSON, Circuit Judges.

          CARSON, Circuit Judge.

         Marlon Harmon ("Petitioner" or "Harmon") is a state prisoner in Oklahoma. After a bifurcated proceeding, the jury convicted him of first-degree felony murder and sentenced him to death. The Oklahoma Court of Criminal Appeals affirmed his conviction and sentence on direct appeal and later denied two applications for post-conviction relief. Harmon then filed a petition for relief in the United States District Court for the Western District of Oklahoma under 28 U.S.C. § 2254, which the district court denied. He now appeals the district court's denial of his petition. Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253. We affirm.

         I. Factual and Procedural History

         A. Factual History

         Under the Anti-Terrorism and Effective Death Penalty Act of 2006 (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). The OCCA found the following facts:

On August 17, 2004, Appellant Harmon picked up his friend, Jasmine Battle, and asked her to go with him to rob a nearby convenience store.1 Harmon was driving a green Honda Accord, and had brought a gun. As they neared the Q & S convenience store at 26th Street and Independence in Oklahoma City, Harmon got out of the car and walked to that store while Battle drove around the block. Shortly, she heard three gunshots and saw that Harmon had blood on his hands when he came running back to her. A frightened Battle abandoned the car and left.
FN1: Battle entered into a plea agreement, cooperated with the State and testified against Harmon.
A young girl riding her bicycle across from the store saw Harmon run out of the store. He was clutching money in one hand and a gun in the other. She watched him run away and saw Kamal Choudhury, the owner of the store, run out and fall to the ground. She tried to call 911 from a pay phone outside the store. Unsuccessful, she then ran home to tell her mother what she had witnessed. Lance Nicholas arrived just as Choudhury emerged from the store. He heard Choudhury calling for help and saw a red substance on his clothes. He called 911 and tried to help Choudhury. When Nicholas asked Choudhury to describe the man who shot him, Choudhury pointed to Nicholas' baseball cap, worn backwards.2 Choudhury was alert and responsive when he was transported to the hospital, but died early the next morning as a result of the gunshot wounds he sustained during the robbery.
FN2: Neighbors in the area saw a man fitting Harmon's description walking toward the store, a green Honda driven by a young African American woman circling the block, and a man running back to the car. Witnesses described Harmon as wearing shorts, a shirt, tennis shoes and a "scarf", "do-rag" or "beanie."
Inside the store responding police officers found a large amount of blood and what appeared to have been the contents of a wallet: money, an I.D. card, and notes. Choudhury's wallet and credit cards were missing. Harmon's palm print was identified on a blood stained piece of paper found among the contents of the wallet. By the following day, Choudhury's credit cards had been used sixteen times. A card was first used fifteen minutes after the shooting at a gas station located a block away from the apartment Harmon shared with his girlfriend. Cards were also used at gas stations in El Reno and Chandler; witnesses placed Harmon in both towns after the shooting. Battle identified Harmon and one of his friends on the security videotape obtained from the Chandler gas station.
Tyrone Boston provided information to the police about Harmon's involvement in the robbery-murder. Learning of Boston's statement, Harmon responded by saying Boston was a "snitch" and voicing his regret that he had not killed him. Boston claimed to suffer from memory problems at trial, but acknowledged that Harmon had told him that he (Harmon) had been required to "plug" a man.

Harmon v. Oklahoma, 248 P.3d 918, 926-27 (Okla. Crim. App. 2011).

         B. Procedural History

         Petitioner ultimately confessed to the robbery and murder. After he confessed, he spoke with Battle at the Oklahoma City Police Department homicide office. During that conversation, which police recorded, he indicated to Battle that the police had them on camera and knew everything.

         The State of Oklahoma subsequently charged Petitioner with first-degree felony murder and sought the death penalty. At Petitioner's preliminary hearing, the court expressed concern that police violated Petitioner's right to remain silent and refused to consider his confession to the police.

         At trial, the prosecutor entered Petitioner's recorded conversation with Battle into evidence and elicited testimony from Battle regarding the conversation. During the guilt phase, the following conversation occurred between the prosecutor and Battle:

State: Do you recall hearing or seeing on that video [of the conversation] it's over, I'm through?
Battle: Yes.
State: What did you understand [Harmon] to mean by that?
Battle: That he had confessed to it.

         The judge admonished the jury that Battle's statement was "total and pure speculation and fiction," that it was to be ignored, and that it was "not to be considered during deliberations."

         The prosecutors also replayed the video for the jury twice during closing arguments in the guilt phase-first during the initial closing argument and then again during the prosecution's rebuttal argument. After playing the video during its initial closing argument, the prosecution stated:

Now, that's a piece of evidence. You can, of course, play it during your deliberations. I know you have to play it a few times to hear what it says, but he's not saying, oh my God, what are they talking about, why are they saying we did this? What is he saying? It's over. Candid camera got us. They know about El Reno.[1]

         After playing the tape for the second time, the prosecution argued:

Hardly the words of an innocent man, I think. Listen to what he says there. They know every mother fucking thing. They got everybody. It's over for me. I'm through. Not, my goodness, I can't figure out what's going on here, they're framing us, things are falling apart, none of that. That, Ladies and Gentlemen, is the tone; that, Ladies and Gentlemen, is the choice of words of resignation. He is straight there. It's over. They describe everything, he says. And she says everything what? What have they got? Everything. Candid camera in El Reno. They saw you getting out of the car.
You're witnessing two things right there on that video. The obvious one that we have talked so much about. There is something more suttle [sic] here and it came from that witness stand the other day when Jasmine Battle was testifying to you. She told you that she did not cooperate with the police and didn't tell them anything until that happened, right?

         The jury subsequently convicted Harmon of first-degree felony murder.

         The State moved the evidence from the guilt phase into evidence during the sentencing phase of the trial. The State also introduced evidence that the victim had consciously suffered before he died; that Petitioner had previously robbed individuals and threatened them with firearms both before and after the murder; that Petitioner had, with several other prisoners, attempted to sexually assault another prisoner (although the evidence did not show that Petitioner had sexually assaulted anyone); that Petitioner had stabbed another prisoner; and that Petitioner had committed the charged crime while on parole.

         The district court described the mitigation evidence presented by Petitioner:

Four of the nine witnesses who testified on behalf of Petitioner were family members. Petitioner's cousin, Jason Murphy, testified that he and Petitioner grew up together and that Petitioner had a tough home life. Mr. Murphy told the jury that Petitioner's mother used drugs and was not really there for him. Because of her, Petitioner saw things "a small kid shouldn't see[, ]" including domestic abuse. Petitioner spent many nights away from home in an attempt to avoid his unstable home environment. Mr. Murphy testified that Petitioner attended school about half of the time. When Petitioner was released from prison, Mr. Murphy tried to help him. Petitioner moved in with him, and Mr. Murphy continually encouraged Petitioner to get a job and quit hanging around with the wrong crowd. Mr. Murphy testified that he contacted the police when he learned of Petitioner's involvement in Mr. Choudhury's death. Mr. Murphy kept in contact with Petitioner while he was in jail. Petitioner regretted not taking Mr. Murphy's advice. Mr. Murphy asked the jury to spare Petitioner's life. On cross-examination, Mr. Murphy admitted that although he and Petitioner had similar backgrounds, he, unlike Petitioner, went to school, got a job, and was successful.
John Bromsey, Petitioner's uncle, testified that he looked after Petitioner. Mr. Bromsey testified that Petitioner often got kicked out of the house for defending his mother from his stepfather's abuse. When Petitioner stayed with him, which was often, Mr. Bromsey made sure Petitioner did his school work. Mr. Bromsey acknowledged his sister's drug habit, which was present even before Petitioner was born. Mr. Bromsey testified that because Petitioner's siblings were dealing with the same issues Petitioner did as growing up, he now took care of them. Mr. Bromsey, who had his own issues with drugs, was at one time incarcerated at the same facility as Petitioner. While in prison, Mr. Bromsey told Petitioner that when he was released, he should stay at his house and look after his siblings. Mr. Bromsey told him to "turn the lights on and stay out of trouble." Petitioner did not follow his advice. Mr. Bromsey asked the jury to spare Petitioner's life. He said that he would write and visit Petitioner.
Petitioner's aunt, Janice Williams, testified that she and her family raised Petitioner from a baby. From about age one to four or five, Petitioner was often in their care. Ms. Williams told the jury that her father, Petitioner's grandfather, had wanted to adopt Petitioner, but Petitioner's mother would not let him. When Petitioner was a teenager, a question arose as to whether her brother[-that is, Janice Williams's brother-]was actually Petitioner's father, but that did not change the way they felt about him. Ms. Williams testified that Petitioner had a great relationship with her father and that when Petitioner was with them, he was never in any trouble. Ms. Williams testified that she maintained contact with Petitioner and she asked the jury to spare his life. On cross-examination, Ms. Williams told the jury that when Petitioner first got into trouble at the age of fourteen, she tried to help him get back on track. She admitted that his struggles had been heartbreaking to her family .
Petitioner's little sister, JaQuinda Sims, who was only thirteen at the time of trial, also testified. She testified that she did not live with her parents, but with relatives, as did her brothers. She identified family pictures, which were introduced into evidence. She told the jury that she had written letters to Petitioner for a long time. Five of those letters were admitted into evidence. She and Petitioner had a special relationship. She said she would write him forever.
Petitioner fathered a child when he was only fourteen years old. His daughter, Trynecka, was twelve years old at the time of trial (Tr. VI, 90; Tr. VII, 155). His daughter's mother, Danielle Sheffey, and grandmother, Loretta Sheffey, both testified. Loretta Sheffey testified that when she met Petitioner "he was pretty much on his own." Petitioner stayed at her house two to three times a week. Ms. Sheffey grew to love Petitioner as one of her own. Petitioner wanted her to adopt him, but she was not in a position to do so. Ms. Sheffey testified that she still loved Petitioner and she asked the jury to spare his life. Danielle Sheffey gave more details about her relationship with Petitioner and Petitioner's relationship with their daughter. She testified that their daughter is deaf, and even though Petitioner's contact with her has been sporadic, she knows who her father is and she loves him. She asked the jury to spare Petitioner's life for their daughter's sake.
Devonna Bolden, Petitioner's girlfriend at the time of the crime, testified about her relationship with Petitioner. Ms. Bolden, who has lupus, told the jury that Petitioner took good care of her when they were dating. She also testified that when she got pregnant with his child and had a miscarriage, Petitioner was helpful in every way. Ms. Bolden had spent time with Petitioner and his daughter. She said Petitioner and his daughter were very close and that Petitioner had learned sign language in order communicate with her. Although their relationship ended when Petitioner went to jail, she testified that she still had feelings for him.
Nathaniel Thurman, an ordained minister, testified that he had been visiting with Petitioner in the county jail two to three times a month for the last three to four years. He testified that he and Petitioner had had some fairly in-depth conversations and that Petitioner had a strong faith. He described Petitioner as intelligent and articulate and said Petitioner was good at writing poems and drawing. Pastor Thurman told the jury that he would visit him in prison if the jury spared Petitioner's life.
Licensed clinical social worker Selonda Moseley compiled a social history of Petitioner's life and discussed her findings with the jury. She testified that she interviewed Petitioner's family members and reviewed all of his records. She told the jury that the purpose of a social history is "not to . . . explain away a person's behavior," but "to understand why someone thought or behaved certain ways or why they interacted with their environment the way they did." Ms. Moseley testified extensively about Petitioner's upbringing, using a governmental study which evaluates risk and protective factors in five categories-individual, family, school, peers, and community. Ms. Moseley concluded that Petitioner had multiple risk factors and less protective factors across all categories. In the individual category, he had eight out of ten risk factors and none of the seven protective factors; in the family category, he had all of the risk factors and one of four protective factors; in the school category, he had all of the risk factors and no protective factors; in the peer category, he had two of three risk factors and one of three protective factors; and in the community category, he had six of nine risk factors and all of the protective factors.
Ms. Moseley gave additional testimony about Petitioner's mother, who was only fifteen when she gave birth to him. Petitioner was a crack baby, whose mother would express her breast milk rather than feed him. Ms. Moseley testified that "because of his mother's depression, her substance abuse and her [violent] relationship with her husband, all of those factors interfered with her being a positive role model for [Petitioner] and being able to attend to his needs". His mother's issues often caused a reversal in their roles, i.e., Petitioner would come home and find his mother so high that he would have to take care of her. Ms. Moseley also testified about the issue of Petitioner's paternity and the affect that had on him.
Finally, Ms. Moseley testified about Petitioner's future. She testified that although she was aware of those instances when Petitioner got into trouble while incarcerated, she also recognized his ability to excel while confined and felt that he could be productive in prison.

Harmon v. Royal, No. CIV-13-80-M, 2016 WL 6693561, at *26-28 (W.D. Okla. Nov. 14, 2016) (first, third, and fourth alteration in original, second alteration added).

         At the conclusion of the sentencing phase, the jury found three aggravating circumstances-the murder was especially heinous, atrocious, or cruel; the murder was committed by a person while serving a sentence of imprisonment for conviction of a felony; and at that time there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The jury sentenced Petitioner to death.

         Petitioner appealed to the OCCA. Among other issues, he argued that: (1) he was prejudiced when the judge admitted his videotaped conversation with Battle into evidence; and (2) the prosecutor committed misconduct by improperly describing the jury instructions to the jury and denigrating Petitioner's mitigation evidence. The OCCA affirmed his conviction and sentence. The United States Supreme Court denied certiorari.

         Petitioner later sought state collateral relief. In his first application for post-conviction relief (the "First APCR"), he argued that: (1) his trial counsel were ineffective because they failed to obtain a psychological evaluation and present evidence regarding his mental illness and other disorders, present his family history through the testimony of his relatives, and present evidence that he was sexually molested as a child; (2) his appellate counsel was ineffective because she failed to assert those claims on appeal; and (3) his appellate counsel was ineffective because she also failed to assert a claim that the prosecutor committed misconduct when the prosecutor asked questions of Battle that were intended to inform the jury of Harmon's confession.[2] Original Application for Post Conviction Relief at 7-16, 37-40, 46-48, Harmon v. Oklahoma, No. PCD-2008-919919 (Okla. Crim. App. Jan. 4, 2013). He also argued that even if these errors alone did not entitle him to habeas relief, the cumulative effect of the errors entitled him to such relief. See id. at 48-49. The OCCA denied Petitioner's application for post-conviction relief and also denied his motion seeking an evidentiary hearing.[3] Harmon v. Oklahoma, No. PCD-2008-919 (Okla. Crim. App. Jan. 4, 2013) (the "First APCR Opinion").

         Thereafter, Petitioner filed a petition for a writ of habeas corpus under 22 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. He named the warden of the Oklahoma State Penitentiary as the Respondent. The district court denied habeas relief and did not issue a certificate of appealability ("COA").

         Petitioner then appealed to this Court. We issued a COA with respect to several issues. First, "whether Mr. Harmon received constitutionally ineffective assistance of counsel"-with the exception of certain ineffective assistance claims for which we did not grant Petitioner a COA-and whether "Mr. Harmon is entitled to an evidentiary hearing concerning this ground for relief." Second, "whether the introduction of Mr. Harmon's incriminating statements to his co-defendant, Jasmine Battle, had a substantial and injurious effect on the jury's verdicts." Third, "whether prosecutorial misconduct during his sentencing proceedings denied Mr. Harmon due process." Fourth, "whether the cumulative effect of" those "errors denied Mr. Harmon a fundamentally fair trial and/or sentencing."[4]

         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 "demands that state- court decisions be given the benefit of the doubt." Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations 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 and citation 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 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. "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 (emphases in original).

         If we determine that a state-court decision is either contrary to clearly established Supreme Court law or an unreasonable application of that law, or that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding, we then apply de novo review and may only grant habeas relief if the petitioner is entitled to relief under that standard. See Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir. 2014) ("Miller's satisfaction of the § 2254(d)(1) standard has two related effects . . . Second, it requires us to review de novo his ineffective assistance of appellate counsel claim, rather than deferring to the OCCA's resolution of that claim."); Hancock v. Trammell, 798 F.3d 1002, 1012 (10th Cir. 2015) ("If the OCCA had misunderstood the basis for the district court's ruling, as Mr. Hancock argues, the mistake would likely have constituted an unreasonable determination of fact and allowed us to consider the merits of the underlying constitutional claim.").

         Similarly, 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 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); see also Victor Hooks v. Ward ("Victor Hooks I"), 184 F.3d 1206, 1223 (10th Cir. 1999) (presuming the correctness of state-court findings on a claim not adjudicated on the merits). Although a petitioner bears a heavy burden under AEDPA, 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 Petitioner's claims.

         III. Discussion

         A. Ineffective Assistance of Counsel

         Petitioner contends that his trial counsel was ineffective because counsel failed to: (1) fully investigate and present Petitioner's documented history of mental health disorders; (2) hire a qualified medical expert to evaluate Petitioner and, during the sentencing proceedings, explain Petitioner's mental impairments and how those impairments, coupled with his difficult childhood, impaired his ability to regulate emotions and control impulses;[5] and (3) discover and present evidence of his childhood sexual abuse. We analyze the first two arguments together because they are substantially related.

         Petitioner also contends appellate counsel was ineffective because counsel failed to present Petitioner's ineffective assistance of trial counsel claims on direct appeal.

         1. Legal Framework Generally

         We review claims of ineffective assistance of counsel under the framework laid out in Strickland v. Washington, 466 U.S. 668 (1984).[6] Byrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011). Under Strickland, a petitioner "must show both that his counsel's performance 'fell below an objective standard of reasonableness' and that 'the deficient performance prejudiced the defense.'" Id. (emphasis omitted) (quoting Strickland, 466 U.S. at 687-88). "These two prongs may be addressed in any order, and failure to satisfy either is dispositive." Victor Hooks v. Workman ("Victor Hooks II"), 689 F.3d 1148, 1186 (10th Cir. 2012).

         "[O]ur review of counsel's performance under the first prong of Strickland is a 'highly deferential' one." Byrd, 645 F.3d at 1168 (quoting Danny Hooks v. Workman, 606 F.3d 715, 723 (10th Cir. 2010)). "Every effort must be made to evaluate the conduct from counsel's perspective at the time." Littlejohn v. Trammell ("Littlejohn I"), 704 F.3d 817, 859 (10th Cir. 2013). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Victor Hooks II, 689 F.3d at 1187 (quoting Byrd, 645 F.3d at 1168). And the "petitioner 'bears a heavy burden' when it comes to overcoming that presumption." Byrd, 645 F.3d at 1168 (quoting Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000)). "To be deficient, the performance must be outside the wide range of professionally competent assistance. In other words, it must have been completely unreasonable, not merely wrong." Danny Hooks, 606 F.3d at 723 (internal quotation marks and citation omitted).

         "A state prisoner in the § 2254 context faces an even greater challenge." Victor Hooks II, 689 F.3d at 1187 (citing Byrd, 645 F.3d at 1168). "[W]hen assessing a state prisoner's ineffective-assistance-of-counsel claims on habeas review, '[w]e defer to the state court's determination that counsel's performance was not deficient and, further, defer to the attorney's decision in how to best represent a client.'" Id. (alterations in original) (quoting Byrd, 645 F.3d at 1168). "Thus our review of ineffective-assistance claims in habeas applications under § 2254 is 'doubly deferential.'" Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

         "Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether any reasonable argument exists that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105 (emphasis added). And "because the Strickland standard is a general standard, a state court has . . . more latitude to reasonably determine that a defendant has not satisfied that standard." Byrd, 645 F.3d at 1168 (emphasis added).

         Despite our strong presumption that counsel rendered constitutionally reasonable assistance, "we have recognized a need to apply . . . closer scrutiny when reviewing attorney performance during the sentencing phase of a capital case." Cooks v. Ward, 165 F.3d 1283, 1294 (10th Cir. 1998); see also Osborn v. Shillinger, 861 F.2d 612, 626 n.12 (10th Cir. 1988) ("[T]he minimized state interest in finality when resentencing alone is the remedy, combined with the acute interest of a defendant facing death, justify a court's closer scrutiny of attorney performance at the sentencing phase."). "We judge counsel's performance by reference to 'prevailing professional norms,' which in capital cases include the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ('ABA Guidelines')." Victor Hooks II, 689 F.3d at 1201 (quoting Young v. Sirmons, 551 F.3d 942, 957 (10th Cir. 2008)). "Among the topics defense counsel should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences." Young, 551 F.3d at 957.

         "Counsel has a duty to conduct a 'thorough investigation-in particular, of mental health evidence-in preparation for the sentencing phase of a capital trial.'" Victor Hooks II, 689 F.3d at 1201 (quoting Michael Wilson v. Sirmons ("Michael Wilson I"), 536 F.3d 1064, 1083 (10th Cir. 2008)). "[D]rawing on a trilogy of Supreme Court cases-[Terry] Williams v. Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510 (2003), and Rompilla v. Beard, 545 U.S. 374 (2005)-involving ineffective assistance at capital-sentencing proceedings[, ]" we divined the following three principles:

First, the question is not whether counsel did something; counsel must conduct a full investigation and pursue reasonable leads when they become evident. Second, to determine what is reasonable investigation, courts must look first to the ABA guidelines, which serve as reference points for what is acceptable preparation for the mitigation phase of a capital case. Finally, because of the crucial mitigating role that evidence of a poor upbringing or mental health problems can have in the sentencing phase, defense counsel must pursue this avenue of investigation with due diligence. Our own Circuit has emphasized this guiding principle. In Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004), we held that it was "patently unreasonable" for trial counsel to fail to present evidence of Smith's borderline mental retardation, brain damage, and troubled childhood, and stated that this type of mitigating evidence "is exactly the sort of evidence that garners the most sympathy from jurors."

Michael Wilson I, 536 F.3d at 1084-85 (citations omitted).

         "Under the prejudice prong [of Strickland], a petitioner must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Littlejohn v. Royal ("Littlejohn II"), 875 F.3d 548, 552 (10th Cir. 2017) (quoting Strickland, 466 U.S. at 694). "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'" that AEDPA permits us to consider. Jeremy Williams v. Trammell, 782 F.3d 1184, 1215 (10th Cir. 2015) (quoting Smith v. Mullin, 379 F.3d 919, 942 (10th Cir. 2004)).

         More specifically:

we reweigh the evidence in aggravation against the totality of available mitigating evidence, 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.

Littlejohn II, 875 F.3d at 553 (10th Cir. 2017) (quotations and citations and omitted). "[W]e must consider not just the mitigation evidence that Defendant claims was wrongfully omitted, but also what the prosecution's response to that evidence would have been." Michael Wilson v. Trammell ("Michael Wilson II"), 706 F.3d 1286, 1306 (10th Cir. 2013).

         "If there is a reasonable probability that at least one juror would have struck a different balance, . . . prejudice is shown." Littlejohn I, 704 F.3d at 861 (quoting Victor Hooks II, 689 F.3d at 1202). Put another way, in the capital-sentencing context, if the petitioner demonstrates a reasonable probability that "at least one juror would have refused to impose the death penalty," the petitioner has successfully shown prejudice under Strickland. Victor Hooks II, 689 F.3d at 1202.

         2. State Procedural Bar

         Before we turn to the merits, we must address a procedural argument raised by the Respondent. The Respondent contends that we cannot consider Petitioner's ineffective assistance of trial counsel claims because Petitioner waived those claims when he failed to assert them on direct appeal.

         In Oklahoma, a defendant must assert any available ineffective assistance of counsel claims on direct appeal, or the defendant waives those claims. See Sporn v. Oklahoma, 139 P.3d 953, 953-54 (Okla. Crim. App. 2006) ("As with all other claims that could have been raised upon direct appeal, a claim of ineffective assistance of trial counsel, available at the time of a defendant's direct appeal, must be presented in that direct appeal or it is waived."). Because Petitioner did not assert these claims until the First APCR, the OCCA held that he waived these claims. Harmon, No. PCD-2008-919, slip op. at 3.

         "On habeas review, this court does not address issues that have been defaulted in state court on an independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice." See English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). Thus, unless Petitioner can show cause and prejudice or a fundamental miscarriage of justice, the Court cannot reach his ineffective assistance of trial counsel claims.

         Petitioner argues that his claims are not procedurally barred because, despite noting that the claims were barred, the OCCA nevertheless reached their merits. He also argues that we should set aside the procedural bar because: (1) the same public defender's office represented him at trial and on direct appeal; and (2) his appellate counsel was ineffective when appellate counsel failed to investigate and assert his ineffective assistance of trial counsel claims.[7] We will address these arguments in turn.

         i. Existence of the Procedural Bar

         Petitioner contends that no procedural bar exists because, although the OCCA characterized his ineffective assistance of trial counsel claims as waived, it reached the merits of those claims.

         Significantly, the OCCA reached the merits of his claims while discussing whether to set aside its procedural bar-that is, the OCCA considered whether appellate ineffective assistance of counsel warranted setting aside that bar but determined that it did not because appellate counsel was not ineffective for failing to assert meritless ineffective assistance of trial counsel claims.

         Charitably construed in Petitioner's favor, the OCCA's opinion, at best, states alternative holdings. When a state court determines that a procedural bar exists and then reaches the merits of a federal claim as an alternative holding, federal courts must "honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law." Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). Thus, a federal habeas court should not "reach the merits of a federal claim where the state court addressed the merits" when "the state court clearly alternatively held that the petitioner had procedurally defaulted." Shafer v. Stratton, 906 F.2d 506, 508-10 (10th Cir. 1990). Accordingly, we may only grant relief on Petitioner's ineffective assistance of trial counsel claims if grounds exist for us to set aside the procedural bar.[8]

         ii. Cause and Prejudice for Ineffective of Assistance of Counsel Claims Not Asserted on Direct Appeal Generally

         In states that require defendants to assert ineffective assistance of trial counsel claims on direct appeal, cause and prejudice justifies bypassing the procedural bar for any meritorious claims that were asserted in the first application for post-conviction relief, unless the state's procedures:

(1) allow[] petitioner an opportunity to consult with separate counsel on appeal in order to obtain an objective assessment of trial counsel's performance and (2) provid[e] a procedural mechanism whereby a petitioner can adequately develop the factual basis of his claims of ineffectiveness.

English, 146 F.3d at 1262-63.

         "[T]he state bears the burden of proving the adequacy of a state procedural bar in order to preclude federal habeas review," and thus must prove both that: (1) trial counsel and appellate counsel are separate; and (2) the state provides an adequate procedural mechanism for the petitioner to supplement the record. Cuesta-Rodriguez v. Carpenter, 916 F.3d 885, 901 (10th Cir. 2019) (separate counsel); Victor Hooks I, 184 F.3d 1206, 1217 (10th Cir. 1999) (state procedure for supplementing the record). At the same time, once the state invokes a procedural bar, the petitioner has the "responsibility to put the adequacy of the state procedural bar at issue" by, "at a minimum," making "specific allegations . . . as to the inadequacy of the state procedure." Id. at 1216-17. "The scope of the state's burden of proof" is then "measured by the specific claims of inadequacy put forth by the petitioner." Id.

         a. Sep ...


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