from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:13-CV-00080-M)
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.
HARTZ, HOLMES, and CARSON, Circuit Judges.
CARSON, Circuit Judge.
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.
Factual and Procedural History
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).
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.
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.
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?
State: What did you understand [Harmon] to mean by that?
Battle: That he had confessed to it.
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
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.
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
jury subsequently convicted Harmon of first-degree felony
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.
district court described the mitigation evidence presented by
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
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
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).
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.
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
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. 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. Harmon v. Oklahoma, No.
PCD-2008-919 (Okla. Crim. App. Jan. 4, 2013) (the "First
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
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
Standard of Review
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
(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;
(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).
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).
§ 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).
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).
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
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).
these standards in mind, we turn to Petitioner's claims.
Ineffective Assistance of Counsel
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; and (3) discover and present evidence of
his childhood sexual abuse. We analyze the first two
arguments together because they are substantially related.
also contends appellate counsel was ineffective because
counsel failed to present Petitioner's ineffective
assistance of trial counsel claims on direct appeal.
Legal Framework Generally
review claims of ineffective assistance of counsel under the
framework laid out in Strickland v. Washington, 466
U.S. 668 (1984). 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).
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
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)).
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
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.
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
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)).
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).
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
State Procedural Bar
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.
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
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
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. We will address
these arguments in turn.
Existence of the Procedural Bar
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
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
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.
Cause and Prejudice for Ineffective of Assistance of
Counsel Claims Not Asserted on Direct Appeal Generally
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
(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
English, 146 F.3d at 1262-63.
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.