FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                             January 14, 2013
                                    PUBLISH                Elisabeth A. Shumaker
                                                               Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT



 RONALD CLINTON LOTT,

          Petitioner-Appellant,
 v.                                                  No. 11-6096
 ANITA TRAMMELL, Interim
 Warden, Oklahoma State Penitentiary, *

           Respondent-Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                      (D.C. No. 5:05-CV-00891-M)


Randall Coyne, (Edna Asper Elkouri, Frank Elkouri, Professor of Law, University
of Oklahoma College of Law, Norman, Oklahoma, and Lanita Henricksen of
Henricksen & Henricksen Lawyers, Inc., Oklahoma City, Oklahoma, with him on
the briefs), for Petitioner-Appellant.

Robert Whittaker, Assistant Attorney General (E. Scott Pruitt, Attorney General
of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Respondent-
Appellee.


Before BRISCOE, Chief Judge, GORSUCH and HOLMES, Circuit Judges.


BRISCOE, Chief Judge.


      *
        Pursuant to Fed. R. App. P. 43(c)(2), Anita Trammel, who was appointed
Interim Warden of Oklahoma State Penitentiary on September 24, 2012, is
automatically substituted for Randall G. Workman as Respondent in this case.
      This is a death penalty appeal involving two murders that were committed

over twenty-five years ago. Petitioner Ronald Lott was convicted by an

Oklahoma jury of two counts of first-degree murder in December 2001. The state

trial court, in accordance with the jury’s verdict, sentenced Lott to death on both

counts in January 2002. After his direct appeal and application for state post-

conviction relief were unsuccessful, Lott sought federal habeas relief by filing a

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court

denied Lott’s petition. Having been granted a certificate of appealability with

respect to several issues, Lott now appeals. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we affirm the district court’s denial of federal habeas relief.

                                          I

                          The Fowler and Cutler murders

      The basic facts of the murders committed by Lott were described by the

Oklahoma Court of Criminal Appeals (OCCA) when ruling on Lott’s direct

appeal:

          Sometime after 10:30 p.m., September 2, 1986, Anna Laura
      Fowler was attacked in her home, raped and murdered. Mrs. Fowler
      was 83 years old and lived alone. As a result of the attack, Mrs.
      Fowler suffered severe contusions on her face, arms and legs, and
      multiple rib fractures. She died from asphyxiation.
          Zelma Cutler lived across the street from Mrs. Fowler. Mrs.
      Cutler was 93 years old and lived alone. During the early morning
      hours of January 11, 1987, Mrs. Cutler was attacked, raped and
      murdered in her home. Mrs. Cutler suffered severe contusions on her
      arms and legs as a result of the attack. She also suffered multiple rib
      fractures. Mrs. Cutler died from asphyxiation.

                                          2
Lott v. State (Lott I), 

, 327 (Okla. Crim. App. 2004) (internal

paragraph numbers omitted).

      The OCCA’s description, although accurate, fails to convey fully the brutal

nature of the rapes and murders. In both instances, the victims were vaginally

raped and orally sodomized. Further, the evidence presented at trial suggested

that Fowler was anally raped and that the perpetrator attempted to anally rape

Cutler as well. Lastly, the evidence presented at trial suggested that the rib

fractures sustained by Fowler and Cutler occurred as a result of the perpetrator

sitting directly on their chests and either orally sodomizing them and/or

suffocating them with pillows after the attack.

                 Post-crime events leading to Lott’s identification

      Notably, another individual, Robert Miller, was initially arrested, charged,

and convicted of the Fowler and Cutler murders. 

arrest, two additional elderly women living in the Oklahoma City area

were attacked and raped in their homes, in a manner similar to the attacks on

Fowler and Cutler. And Lott proved to be responsible for those crimes:

      Subsequent to Miller’s arrest, Grace Marshall was attacked and raped
      in her home on March 22, 1987. Eleanor Hoster was attacked and
      raped in her home on May 7, 1987. Both Mrs. Marshall and Mrs.
      Hoster were elderly ladies who lived alone. With the exception that
      Mrs. Marshall and Mrs. Hoster were not killed after being raped,
      there were striking similarities between the attacks on the four
      women. [Lott] was arrested, charged, and ultimately plead [sic]
      guilty to committing the rapes against Mrs. Marshall and Mrs.
      Hoster.

                                          3


1990s, DNA testing established that Lott, rather than Miller,

had raped Fowler and Cutler. 

Lott was still incarcerated and

serving time in connection with the Marshall and Hoster rape convictions.

                             The state trial proceedings

      On March 10, 1995, an amended information was filed in the District Court

of Oklahoma County, Oklahoma, Case No. CF-87-963, jointly charging Lott and

Miller with two counts of first-degree malice aforethought murder (Count 1 was

for the murder of Fowler and Count 2 was for the murder of Cutler) and, in the

alternative, with two counts of first-degree felony murder. On January 30, 1996,

however, those charges were dismissed at the request of the State.

      On or about March 19, 1997, the State reinstated the case by filing a third

amended information against Lott and Miller. The trial court appointed the

Oklahoma Indigent Defense System (OIDS) to represent Lott.

      On March 20, 1998, the State filed a bill of particulars asserting that Lott

“should be punished by death . . . due to and as a result of” the existence of three

“aggravating circumstance(s)”: (1) the murders were “especially heinous,

atrocious, or cruel”; (2) the murders were “committed for the purpose of avoiding

or preventing a lawful arrest or prosecution”; and (3) “[t]he existence of a

probability that [Lott] would commit criminal acts of violence that would

constitute a continuing threat to society.” State R., Vol. II, at 249.

                                           4
      On November 13, 2000, the State filed a fourth amended information.

Although the fourth amended information continued to charge Lott with two

counts of first-degree malice aforethought murder and, in the alternative, two

counts of first-degree felony murder, the charging language differed significantly

from that of the third amended information. Whereas the third amended

information alleged that the first-degree malice aforethought murder counts, as

well as the felony murder counts, were “feloniously committed . . . by Robert Lee

Miller Jr. and Ronald Clinton Lott . . . acting jointly [and] willfully,” 

47, the fourth amended information (a) omitted from the first-degree malice

aforethought murder charges the allegations that Lott acted jointly with Miller,

thus leaving only Lott as the named defendant in those counts, and (b) altered the

felony murder counts to allege that Lott was “aided and abetted by . . . Miller.”

735.

      The case proceeded to trial on October 29, 2001. But a mistrial occurred:

      In the middle of trial, the State requested a continuance when the
      medical examiner revealed he had evidence in his possession that had
      never been tested. The State requested the continuance so LabCorp
      could test the newly discovered evidence. The defense requested a
      mistrial. The State agreed to the mistrial if the defense would agree
      to stipulate to a continuance and stipulate to the chain of custody.
      The mistrial was granted and the trial rescheduled for December 3,
      2001.

Lott 

n.3.

      The December 2001 trial proceeded as scheduled. At the conclusion of the


                                            5
first-stage evidence, the jury found Lott guilty of both murders. At the

conclusion of the second-stage proceedings, the jury found, with respect to each

of the counts of conviction, the existence of two of the three alleged aggravating

circumstances: that the murders were especially heinous, atrocious, or cruel, and

that the murders were committed for the purpose of avoiding or preventing a

lawful arrest or prosecution. The jury in turn fixed Lott’s punishment at death for

each of the two counts of conviction.

      On January 18, 2002, the state trial court formally sentenced Lott to death

for each of the two murder convictions. Judgment in the case was entered that

same day.

                                  Lott’s direct appeal

      Lott filed a direct appeal asserting seventeen propositions of error. On

September 9, 2004, the OCCA issued a published opinion affirming Lott’s

convictions and death sentences.

      Lott filed a petition for writ of certiorari with the United States Supreme

Court, but his petition was denied on March 28, 2005. Lott v. Oklahoma, 

(2005).

                   Lott’s application for state post-conviction relief

      On August 9, 2004, Lott filed with the OCCA an application for post-

conviction relief, as well as a motion for an evidentiary hearing and discovery.

On November 22, 2004, the OCCA issued an opinion denying Lott’s application

                                           6
for post-conviction relief and his motion for an evidentiary hearing and discovery.

                          Lott’s federal habeas proceedings

      Lott initiated these federal habeas proceedings on August 4, 2005, by filing

a petition for writ of habeas corpus, as well as motions for appointment of

counsel and to proceed in forma pauperis. The district court granted Lott’s

motion for appointment of counsel. On February 17, 2006, Lott’s appointed

counsel filed a petition on Lott’s behalf asserting twenty-two grounds for relief.

      On March 31, 2011, the district court issued a memorandum opinion

denying Lott’s petition. The district court entered judgment in the case that same

day, and also issued an order granting Lott a certificate of appealability (COA)

with respect to seven of the twenty-two grounds raised in his petition.

      On April 7, 2011, Lott filed a notice of appeal. We subsequently granted

Lott a COA as to three additional issues. Lott has since filed an appellate brief

asserting a total of eight propositions of error.

                                           II

                                 Standards of review

      Our review of Lott’s appeal is governed by the provisions of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v.

Sirmons, 

, 696 (10th Cir. 2007). Under AEDPA, the standard of

review applicable to a particular claim depends upon how that claim was resolved

by the state courts. 

our focus here is upon the rulings of the

                                           7
OCCA, not those of the federal district court.

      If a claim was addressed on the merits by the state courts, we may not grant

federal habeas relief on the basis of that claim unless the state court decision “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “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)(2).

“When reviewing a state court’s application of federal law, we are precluded from

issuing the writ simply because we conclude in our independent judgment that the

state court applied the law erroneously or incorrectly.” McLuckie v. Abbott, 

, 1197 (10th Cir. 2003). “Rather, we must be convinced that the

application was also objectively unreasonable.” 

not

require our abject deference, but nonetheless prohibits us from substituting our

own judgment for that of the state court.” 

(internal

quotation marks and citation omitted).

      If a claim was not resolved by the state courts on the merits and is not

otherwise procedurally barred, our standard of review is more searching. That is,

because § 2254(d)’s deferential standards of review do not apply in such

circumstances, we review the district court’s legal conclusions de novo and its

factual findings, if any, for clear error. 

.




                                          8
                                         III

                                      Analysis

1) Speedy trial claim

      In Proposition One of his appellate brief, Lott contends that the state trial

court violated his Sixth Amendment rights by denying his motions to dismiss the

criminal proceedings on speedy trial grounds.

      a) Clearly established Supreme Court precedent

      Lott points to the Supreme Court’s decision in Klopfer v. North Carolina,

(1967), as providing the clearly established federal law applicable to

his claim. In Klopfer, the Supreme Court held “that the right to a speedy trial is

as fundamental as any of the rights secured by the Sixth 

, and that, consequently, the Sixth Amendment right to a speedy trial 1 “is to be

enforced against the States under the Fourteenth Amendment.” 

quotation marks omitted). The Court in Klopfer also addressed a unique aspect of

North Carolina criminal procedure, under which “the prosecuting attorney of a

county, denominated the solicitor, . . . may take a nolle prosequi” “if he does not

desire to proceed further with a prosecution.” 

“the taking of

[a] nolle prosequi does not permanently terminate proceedings on the indictment.”

noted, “the case may be restored to the trial docket when

      1
       The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend.
VI.

                                         9
ordered by the judge upon the solicitor’s application,” and “if the solicitor

petitions the court to nolle prosequi the case ‘with leave,’ the consent required to

reinstate the prosecution at a future date is implied in the order and the solicitor

(without further order) may have the case restored for trial.” 

omitted). Because “the indictment is not discharged by either a

nolle prosequi or a nolle prosequi with leave, the statute of limitations remains

tolled.” 

this extraordinary criminal procedure,” the

Court noted, is that “[a] defendant indicted for a [crime] may be denied an

opportunity to exonerate himself in the discretion of the solicitor and held subject

to trial, over his objection, throughout the unlimited period in which the solicitor

may restore the case to the calendar.” 

the Court held that

this procedure denies a criminal defendant “the right to a speedy trial . . .

guaranteed to him by the Sixth Amendment.” 

also relies on the Supreme Court’s decisions in United States v.

MacDonald, 

(1982), and Barker v. Wingo, 

(1972). In

MacDonald, the Court noted the general contours of the Sixth Amendment right

to a speedy trial: “no Sixth Amendment right to a speedy trial arises until charges

are pending,” and “the Speedy Trial Clause has no application after the

Government, acting in good faith, formally drops 

. In

turn, the Court noted that the purpose of “[t]he Sixth Amendment right to a

speedy trial is . . . not . . . to prevent prejudice to the defense caused by passage

                                           10
of time,” but rather “to minimize the possibility of lengthy incarceration prior to

trial, to reduce the lesser, but nevertheless substantial, impairment of liberty

imposed on an accused while released on bail, and to shorten the disruption of life

caused by arrest and the presence of unresolved criminal charges.” 

Barker, the Court adopted a “balancing test” for purposes of determining

whether a criminal defendant’s Sixth Amendment right to a speedy trial has been

. Four factors are relevant under that balancing test:

“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right,

and prejudice to the defendant.” 

the delay,” the Court noted,

“is to some extent a triggering mechanism” because “[u]ntil there is some delay

which is presumptively prejudicial, there is no necessity for inquiry into the other

factors that go into the balance.” 

stated, “the

length of delay that will provoke such an inquiry is necessarily dependent upon

the peculiar circumstances of the case,” including, for example, the seriousness

and complexity of the pending charges. 

related to length

of delay,” the Court noted, “is the reason the government assigns to justify the

delay,” and “different weights should be assigned to different reasons.” 

third factor, the defendant’s responsibility to assert his right, . . . is

closely related to the other [three] factors.” 

of his

speedy trial right,” the Court stated, “is entitled to strong evidentiary weight in

determining whether the defendant is being deprived of the right.” 

The fourth factor, prejudice to the defendant, “should be assessed,” the Court

held, “in the light of the interests of defendants which the speedy trial right was

designed to protect,” i.e., “(i) to prevent oppressive pretrial incarceration; (ii) to

minimize anxiety and concern of the accused; and (iii) to limit the possibility that

the defense will be impaired.” 

Court emphasized that “[o]f these,

the most serious is the last, because the inability of a defendant adequately to

prepare his case skews the fairness of the entire system.” 

Court

held, “none of the four factors [is] . . . either a necessary or sufficient condition to

the finding of a deprivation of the right of speedy trial.” 

they

are related factors and must be considered together with such other circumstances

as may be relevant.” 

rejection of Lott’s claim

       Lott asserted his speedy trial claim on direct appeal, “claim[ing that] all

four [Barker] factors clearly weigh[ed] in his favor and that his speedy trial right

ha[d] been unquestionably denied.” Lott 

. The OCCA agreed

that “the length of delay” between the filing of the third amended information and

the date of trial, which it calculated to be “approximately 4 years and 10 months,”

“was . . . substantial . . . and . . . sufficient . . . to necessitate a review of the other

three [Barker] factors.” 

the OCCA agreed that the first and

third Barker factors (length of the delay and assertion of the right by the accused)

“weigh[ed] in [Lott]’s favor,” it concluded that the remaining two Barker factors

                                             12
(reasons for the delay and prejudice) “favor[ed] the State.” 

the

OCCA ultimately concluded that Lott “was not deprived of his speedy trial rights

. . . , based upon the finding of reasonable reasons for the delay, the absence of

significant prejudice, and the less-than egregious deprivation of liberty.” 

to the OCCA’s decision

      In this federal habeas appeal, Lott focuses much of his attention on what he

perceives as flaws in the district court’s analysis of the Barker factors, rather than

focusing exclusively on the OCCA’s analysis of those factors. Because, however,

the OCCA resolved the speedy trial claim on the merits, § 2254(d) requires us to

focus exclusively on the OCCA’s analysis of the claim. Accordingly, we shall

give Lott the benefit of treating his arguments as challenges to the OCCA’s

decision, rather than the district court’s decision.

             1) Length of the delay

      Lott argues that, with respect to the first Barker factor, i.e., length of the

delay, “the day he was first charged [with the Fowler and Cutler murders], March

10, 1995, is the appropriate start date for assessing his speedy trial date.” Aplt.

Br. at 30. Consequently, he asserts, “[t]he length of delay between that date and

the start of trial was six years and eight months.” 

asserts that

the prosecution “did not act in good faith” in dismissing the original charges and

refiling them. 

he argues, his “situation is virtually identical to the

facts of [Klopfer].” 

      The OCCA concluded that Lott’s “reliance on Klopfer . . . [wa]s

misplaced.” Lott 

. Specifically, the OCCA noted that in

Klopfer, “the prosecutor was able to suspend proceedings indefinitely” and “the

charges were not dismissed,” whereas in Lott’s case, the original charges against

Lott were dismissed entirely and Lott “was incarcerated for a separate crime at

the time [of the dismissal].” 

in this regard is neither contrary to, nor an

unreasonable application of, Klopfer. In all key respects, Lott’s case differs from

Klopfer. Most importantly, unlike Klopfer, the original charges against Lott were

dismissed rather than simply suspended, and thus Lott did not remain “subject to

trial” during the time period between the dismissal of the charges on January 30,

1996, and the filing of the third amended information on March 19, 1997.

.

             2) Reasons for the delay

      Lott contends that the OCCA unreasonably applied Barker in concluding

that the reasons for the delay “w[ere] not solely attributable to the State,” and that

“the majority of the delays were necessary to further the ends of justice and

ensure that [Lott] received a fair and impartial trial.” Lott 

. In

support, Lott “asserts that the record reveals ample evidence of deliberate delay

by the State.” Aplt. Br. at 34. Most notably, Lott asserts, was “[t]he conduct of

Judge Owens, the original trial judge.” 

argues that “[a]lthough

                                          14
Judge Owens presided over the case from March 20, 1998 until he retired in

January of 1999, he did next to nothing to advance . . . Lott’s speedy trial

interests.” 

asserts that only once during the nine months that

Judge Owens presided over the case did Lott or his counsel appear before the

court, and on that occasion (May 1, 1998), “Judge Owens continued the [matter].”

argues that “[t]he record and circumstances strongly suggest that

Judge Owens was well aware, long before January of 1999, that he intended to

retire,” and “he obviously decided early on that he would not take any steps to

move the case along.” 

argues, Judge Owens engaged in

“purposeful conduct,” i.e., delay, “designed to thwart . . . Lott’s fundamental

constitutional rights.” 

citing the state trial court’s factual findings (made in

connection with its denial of Lott’s motion to dismiss on speedy trial grounds),

rejected these same arguments:

          In this regard, the trial court found[, after conducting an
      evidentiary hearing,] the case was delayed due to scheduling
      conflicts of both court and counsel. The trial court found that the
      docket of Judge Owens was such that he could not have tried a case
      of this magnitude during the four month time period encompassing
      the final completion of the preliminary hearing transcript and the
      date of his retirement. The trial court noted that Judge Owens chose
      not to hear any pre-trial motions in this case as he would not be the
      presiding judge at trial. The trial court found no defense request for
      trial during the time the case was pending before Judge Owens.
          Section 812.2(A)(2)(g) and (i) [of the Oklahoma statutes] require
      the court to look at whether the delay occurred because “the court
      has other cases pending for trial that are for persons incarcerated

                                          15
      prior to the case in question, and the court does not have sufficient
      time to commence the trial of the case within the time limitation
      fixed for trial,” and “the court, state, accused, or the attorney for the
      accused is incapable of proceeding to trial due to illness or other
      reason and it is unreasonable to reassign the case.” While we do not
      know from the record whether Judge Owens had other cases pending
      for trial that were for persons incarcerated longer than Appellant, we
      do have the trial court’s finding that Judge Owens’ docket was such
      that he could not try a case of this complexity prior to his retirement.
      While these delays appear to be a deliberate postponement of the
      case, taking judicial notice of the large caseload of criminal cases in
      the District Court of Oklahoma County, and the complex nature of
      the present case, we do not dispute the trial court’s finding that the
      delay pending Judge Owens’ retirement was reasonable. Therefore,
      this delay does not weigh in Appellant’s favor.

Lott 

(footnote and internal paragraph numbers omitted).

      Lott does not seriously dispute any of the above-referenced factual findings

that were made by the state trial court and relied on by the OCCA. For example,

Lott does not dispute, and the record confirms, that at no time while Judge Owens

was presiding over the case did defense counsel request a trial or assert that Lott’s

speedy trial rights were being violated. As for the state trial court’s findings

regarding Judge Owens’ docket, there is simply no evidence in the record to

either confirm or dispute those findings. Because the burden rests on Lott to

establish that the OCCA’s analysis was “based on an unreasonable determination

of the facts,” 28 U.S.C. § 2254(d)(2), he has failed in this regard.

      Lott next takes issue with the OCCA’s determination that the state trial

court’s decision to grant two continuances requested by the State in order to

conduct mitochondrial DNA testing “were reasonable and prudent.” Lott I, 

. According to Lott, “scientific advances are commonplace and as a

matter of public policy should not be permitted as justification for delaying

justice or denying constitutional rights.” Aplt. Br. at 38. And, Lott argues, “the

State’s wrongful and nearly fatal prosecution and conviction of one innocent

man[, Miller,] should not be accepted as justification for discarding the

constitutional rights of another man presumed innocent.” 

do nothing to establish that the OCCA’s

determination was an unreasonable application of clearly established federal law.

In Barker, the Supreme Court expressly recognized that, in assessing “the reason

the government assigns to justify [a particular] delay,” “different weights should

be assigned to different 

. Given the unusual

background of this case, specifically the erroneous conviction of Miller, and the

serious nature of the potential punishment, the OCCA concluded, and we cannot

dispute, that it was entirely reasonable for the state trial court to have allowed the

State sufficient time to analyze the forensic evidence. In turn, the OCCA’s

classification of the State’s conduct as “reasonable and prudent” was neither

contrary to, nor an unreasonable application of, Barker. 2

      Lastly, Lott contends that it was unreasonable for the OCCA to conclude

      2
        As the OCCA correctly noted, “all of the evidence had been gathered,
[and] no new evidence was sought” by the prosecution. Lott 

.
Thus, “[i]t was merely a question of analyzing that evidence in the most accurate
method possible.” 

could have very easily been
exculpatory and therefore benefited [Lott].” 

delay from June 2, 2000, when Lott’s motion to dismiss on speedy trial

grounds was denied by the state trial court, to November 13, 2000, the

rescheduled trial date set by the state trial court (which included time to allow

Lott to seek mandamus relief from the OCCA) “d[id] not weigh in [Lott]’s favor

as [the mandamus action] was ultimately unsuccessful.” Lott 

.

In support, Lott argues that “[s]eeking a remedy for a colorable constitutional

violation is a valid reason, particularly since had [his] speedy trial rights been

vindicated by the OCCA, his mandamus action would have spared the State the

considerable time and expense it took to try and convict him.” Aplt. Br. at 39. In

short, he argues, “[i]t is patently unfair to tax [him] for promptly and zealously

seeking to vindicate his constitutional rights.” 

arguments. In reaching its conclusion, the OCCA relied in

part on the Supreme Court’s decision in United States v. Loud Hawk, 

(1986). In Loud Hawk, the Supreme Court considered how, under the Barker

test, “to weigh the delay occasioned by an interlocutory appeal when the

defendant is subject to indictment or restraint.” 

Court concluded,

in pertinent part, that “[i]n that limited class of cases where a pretrial appeal by

the defendant is appropriate, delays from such an appeal ordinarily will not weigh

in favor of a defendant’s speedy trial claims.” 

omitted). The

Court noted that “[a] defendant who resorts to an interlocutory appeal normally

should not be able upon return to the district court to reap the reward of dismissal

                                          18
for failure to receive a speedy trial.” 

attempts to

distinguish his case from Loud Hawk, arguing that he filed a mandamus action

rather than an interlocutory appeal, and that the speedy trial claim he asserted was

not meritless, the OCCA reasonably relied on Loud Hawk in concluding that the

delay associated with the mandamus action did not weigh in Lott’s favor. Indeed,

the critical holding in Loud Hawk, quoted above, was not contingent upon the

procedural vehicle used by a criminal defendant to appeal, or upon the

meritoriousness of the arguments asserted by the defendant.

             3) Assertion of the speedy trial right

      Lott argues that the OCCA, although weighing the third Barker factor in his

favor, “miscalculated the number of times [he] asserted [his speedy trial] right,”

and thus “failed to give this factor sufficient weight in performing the balancing

required by Barker.” Aplt. Br. at 40. In particular, Lott contends that the OCCA

“failed to recognize at least three occasions on which [he] vigorously asserted his

speedy trial rights.” 

arguments. To begin with, the OCCA did not make a

definitive finding regarding the precise number of times that Lott asserted his

speedy trial rights in the state trial court. Instead, it simply noted that he “made

an affirmative request for a speedy trial on at least nine different occasions.” Lott

. Moreover, the OCCA noted that the third Barker factor was

satisfied because Lott was incarcerated while awaiting trial. 

third

                                          19
factor, . . . incarceration makes the demand for one in custody.”). And, most

importantly, the OCCA expressly indicated that Lott’s assertion of his speedy

trial right was “entitled to strong evidentiary weight in determining whether [he]

[wa]s . . . deprived of the right.” 

omitted). Thus,

there is no basis for concluding that the OCCA’s analysis was unreasonable, or

that the outcome of its Barker analysis would have been different had it taken into

account additional instances of Lott asserting his speedy trial rights. Again, Lott

prevailed on this point. The OCCA concluded Lott had affirmatively asserted his

speedy trial rights and weighed that Barker factor in Lott’s favor.

             4) Prejudice

      Lott contends that the OCCA unreasonably analyzed and applied the fourth

Barker factor, prejudice. Lott suggests, as an initial matter, that the length of the

delay in his case (which he continues to argue should be considered to be six

years and eight months), standing alone, should have been considered prejudicial.

Aplt. Br. at 41-42. Lott further argues that he suffered actual prejudice due to the

fact that, as a result of the DNA testing, the State was able to “address

weaknesses in its case and shore up its prosecution.” 

Lott

contends that he also suffered prejudice because a potential defense witness, Janis

Davis Lhyane, a forensic chemist who worked for the Oklahoma City Police

Department, died prior to his trial. He explains:

      Lott was prejudiced by . . . Lhyane’s death because she had testified

                                          20
      at Robert Miller’s trial that while conducting DNA testing on
      evidence from the Fowler crime scene she found a Caucasian hair.
      The hair which caused the contamination of the evidence turned out
      to be . . . Lhyane’s hair. In addition, three other Caucasian hairs
      were found, and belonged neither to . . . Lhyane or . . . Fowler.

omitted).

      The first and third of these arguments must be rejected because they were

not presented to the OCCA in Lott’s direct appeal. Specifically, nowhere in his

direct appeal brief did Lott argue that the length of the delay, standing alone, was

presumptively prejudicial, nor did he argue that he was prejudiced by Lhyane’s

death. See Direct Appeal Br. at 22-24. Consequently, the OCCA was not asked

to, and thus did not, address these arguments. And we, in turn, cannot address the

arguments because they are subject to an anticipatory procedural bar. See

Anderson v. Sirmons, 

, 1139-40 n.7 (10th Cir. 2007)

(“‘Anticipatory procedural bar’ occurs when the federal courts apply procedural

bar to an unexhausted claim that would be procedurally barred under state law if

the petitioner returned to state court to exhaust it.” (internal quotation marks

omitted)).

      Moreover, even if we were to assume, for purposes of argument, that Lott

could circumvent this anticipatory procedural bar, there is no merit to his first and

third arguments. Lott’s “presumptive prejudice” argument is based upon the

Supreme Court’s decision in Doggett v. United States, 

(1992). In

Doggett, the Court held that a delay of eight-and-one-half years between the

                                          21
defendant’s indictment and his arrest, which was caused by government

negligence, violated his Sixth Amendment right to a speedy 

. In this case, in contrast, the delay was substantially shorter, roughly half

of the delay that was at issue in Doggett. Thus, it was reasonable for the OCCA

to have engaged in the Barker balancing test, rather than simply concluding that

the length of the delay, standing alone, warranted relief. As for Lott’s assertion

that he was prejudiced by Lhyane’s death, his explanation of that prejudice

simply makes no sense. Moreover, Lott’s trial counsel made the jury aware that

unidentified Caucasian hairs were found at the Fowler crime scene. Precisely

how Lhyane’s testimony would have further aided Lott in this regard is unclear.

      That leaves only Lott’s argument that he was prejudiced because the State

was able to strengthen its case against him by way of the additional DNA testing.

The OCCA, however, expressly rejected this argument, noting

         [t]he delays in the trial did not prevent [Lott] from challenging
      the expertise and credibility of any of the experts conducting DNA
      analysis. Further, the science of DNA testing is rapidly progressing
      and it was to the benefit of both the State and the defense to have the
      evidence subjected to the latest and most accurate type of analysis.
      Such testing could have very easily been exculpatory and therefore
      benefited [Lott]. The fact that the results proved favorable to the
      State and not [Lott] is not grounds upon which to base a finding of
      prejudice. . . . We find [Lott] was not prejudiced by the delays as his
      defense was not hindered or impaired.

Lott 

. Although Lott clearly disagrees with this analysis, he has

failed to identify any clearly established law that mandates a different result.


                                          22
Likewise, he has failed to demonstrate that the OCCA’s analysis of this argument

is in any way contrary to, or an unreasonable application of, Barker.

             5) Balancing of the Barker factors

      Finally, Lott contends that the OCCA’s balancing of the four Barker factors

was unreasonable. But his only argument in support is that, instead of the

OCCA’s conclusion that two of the factors favored the State and two factors

favored Lott, the OCCA should have treated “all four factors [as] favor[ing]

[him].” Aplt. Br. at 43-44.

      For the reasons we have outlined, however, Lott has failed to establish that

the OCCA erred in concluding that two of the Barker factors favored the State.

Consequently, Lott has in turn failed to establish that the OCCA’s balancing of

the Barker factors was erroneous.

2) Erroneous aiding and abetting instruction

      In Proposition Two of his appellate brief, Lott contends that the state trial

court violated his constitutional rights by instructing the jury that he could be

found guilty of felony murder on an accomplice liability theory, even though the

prosecution at a pretrial motions hearing had disavowed reliance on an aiding and

abetting theory of felony murder. Relatedly, Lott contends that the prosecution

and the state trial court effectively induced his trial counsel to act ineffectively

and concede Lott’s guilt on the felony murder charges without Lott’s consent.




                                          23
         a) Background facts

         As we have noted, the fourth amended information filed by the State on

November 13, 2000, charged Lott with two counts of first-degree malice

aforethought murder and, in the alternative, two counts of first-degree felony

murder. The felony murder charges in the fourth amended information alleged, in

pertinent part, that Lott was “aided and abetted by . . . Miller.” State R., Vol. IV,

at 735.

         At a pretrial motions hearing on March 23, 2001, the state trial court and

the parties discussed the question of whether the defense would be allowed to

introduce evidence regarding Miller’s potential involvement in the crimes. In the

course of that discussion, the parties referred to the aiding and abetting language

contained in the fourth amended information. To begin with, the prosecutor

argued that the aiding and abetting language was “surplusage” that did not impose

any “extra burden [on the State] to prove a connection between [Lott and

Miller].” Mot. Hr’g Tr., at 16, Mar. 23, 2011. Defense counsel argued, in

response, that “[t]hrough aiding and abetting they’re going to have to show some

sort of mental coming together between Lott and Miller,” “[a]nd they can’t.” 

prosecutor responded:

            We have charged in count two the defendant as committing a
         felony murder, that he killed these two ladies in the course of raping
         them. There is no aider and abettor language in there at all. There is

                                           24
      the surplusage which charges Miller as -- as conjointly acting.
      That’s not aider and abettor stuff. I don’t need to have any language
      for aider and abettor.
          ....
         All I got to show is -- is his commission of a felony rape, during
      the course of which these two ladies died. With or without Miller. It
      doesn’t matter.

counsel in turn stated:

          What I want to say on the aiding and abetting, I don’t know if
      we’re -- I just think that [the prosecutor] and I are somehow confused
      and I think it might be my fault, but if he wants to charge Ronnie
      Lott with felony murder -- he has charged Ronnie Lott with felony
      murder, with aiding and abetting language in with Robert Miller.
          If Ronnie Lott is guilty of felony murder, a rape homicide, then
      so be it, put on the evidence. But if you can’t draw a connection --
      and I’ve got some case law . . . that does say you have to show some
      sort of meeting of the minds, so to speak, for aiding and abetting.
          If you got to show that, then any evidence we can put on pointing
      towards Robert Miller debunks not just the malice murder, but the
      felony murder. If we can put Robert Miller there and get the jury
      thinking, somebody committed this crime, but we’re not sure who
      and we can’t convict . . . Ronnie Lott simply because we’ve got some
      evidence out there as to both of them, then that’s reasonable doubt.
          The only way that we hurt ourselves with the Robert Miller stuff
      is if, in fact, they’re right on an aiding and abetting theory. And I
      know [the prosecutor] keeps saying they’re not alleging it, but it’s in
      the language, and what I suspect is that we’re going to put on all our
      evidence of Robert Miller, they’re going to put on all their evidence
      of Ronnie Lott, and then, in closing argument, the State’s going to
      tell the jury it doesn’t matter who they believe because, even if they
      believe us, Ronnie Lott was aiding and abetting.
          And what I’m saying is, under the law, we don’t think they can do
      that and I’ve got the law here to show you, Your Honor, and if that’s
      true, then it does make a big difference who the jury thinks. They
      may have some real suspicions about Ronnie Lott, you know, but if
      they got real suspicions about Robert Miller, too, and Ronnie Lott’s
      charged alone, it may be reasonable doubt.

                                        25


further discussion, the prosecutor stated:

         [The aider and abettor language in the information is] surplusage
      and it should be deleted to the extent that this seems to be confusing
      the issues. We’re going to be entitled to an aider and abettor
      instruction as soon as [the defense] offer[s] the Miller evidence.
          ....
         Any time a defendant offers that kind of evidence, that, folks, if
      you believe Ronnie Lott raped these two women based on the DNA
      evidence, and but you also think that the guy who hatched the
      scheme and was rooting him on on the sideline is Robert Lee Miller,
      he’s just as guilty and he’s just as eligible for the death penalty.
         I mean, yeah, that’s definitely what we’re going to do, but as far
      as that language charging him conjointly, it’s surplusage, whether the
      jury hears about, [sic] it whether it’s stricken. That makes sense to
      me.

counsel asked the trial court, “can we still deal with the issue upon

aiding [and] abetting today?” 

trial court responded, “Let’s wait

and see how the evidence shakes out [at trial].” 

defense was permitted to introduce evidence regarding Miller’s

potential involvement in the crimes. This included evidence of Miller’s

statements to the police, some of which suggested an intimate knowledge of the

crimes that only someone present at the scene could have known, as well as

evidence that Miller was originally charged with and convicted of the Fowler and

Cutler murders.

      At the conclusion of the first-stage evidence, the trial court instructed the


                                         26
jury regarding the charges against Lott. With respect to the felony murder

charges, the instructions stated, in pertinent part:

      No person may be convicted of Murder In The First Degree (Felony
      Murder) unless the State has proved beyond a reasonable doubt each
      element of the crime. These elements are:
            First, the death of a human;
            Second, the death occurred as a result of an act or event, which
            happened in the commission of a forcible rape and a First
            Degree Burglary[;]
            Third, caused by the defendant or any person engaged with the
            defendant while in the commission of a forcible rape and a
            First Degree Burglary[;]
            Fourth, the elements of forcible rape and First Degree Burglary
            the defendant is alleged to have been in the commission
            of . . . .

State R., Vol. VII, at 1211 (Instruction Number 7) (emphases omitted).

      The jury instructions also addressed the concepts of principals and aiding

and abetting:

         All persons concerned in the commission of a crime are regarded
      by the law as principals and are equally guilty thereof. A person
      concerned in the commission of a crime as a principal is one who
      directly and actively commits the acts constituting the offense or
      knowingly and with criminal intent aids and abets in the commission
      of the offense or whether present or not, advises and encourages the
      commission of the offense.

Number 10).

         Merely standing by, even if standing by with knowledge
      concerning the commission of a crime, does not make a person a
      principal to a crime. Mere presence at the scene of a crime, or
      acquiescence in its commission, without participation, does not make
      a person a principal to a crime.
         One who does not actively commit the offense, but who aids,
      promotes, or encourages its commission, either by act or counsel or

                                           27
      both, is not deemed to be a principal to the crime unless he did what
      he did knowingly and with criminal intent. To aid or abet another in
      the commission of a crime implies a consciousness of guilt in
      instigating, encouraging, promoting, or aiding in the commission of
      that criminal offense.

Number 11). Notably, Lott did not object to any of these

instructions.

      Immediately following the trial court’s reading of the first-stage

instructions, the parties gave their respective closing arguments. The prosecution,

during its initial closing argument, discussed the elements of first-degree felony

murder:

          Want to walk you through here because we’re not fussing about
      any of this. This is the one that is real easy because it’s not in
      dispute in the evidence at all. First of all, that first element, death of
      a human, nobody’s fighting about that.
          Second, that it occurred as a result of the act or event which
      happened in the commission of forcible rape and first degree
      burglary. There is no dispute in the evidence, parties aren’t fussing
      at all that Zelma Cutler and Anna Fowler died during the commission
      of the acts of burglary and rape, okay. So that’s not in dispute.
          Third, caused by the defendant or any person engaged with the
      defendant while in the commission of forcible rape and first degree
      burglary. Gang, that’s not in dispute. We may be fussing about who
      did what. They may want you to believe it’s Robert Miller who leans
      in and smothers Zelma Cutler or leans in and smothers the life out of
      Goldie Fowler instead of him because, as you can see, it doesn’t
      make any difference in felony murder. Okay.
          Fourth, the elements of forcible rape and first degree burglary,
      you got to find that that’s what was going on. Mr. Albert took care
      of that. He was laughing at me for suggesting that this wasn’t a
      burglary. I think it was Mr. Albert. It may have been one of the
      other lawyers over yonder. They were -- Mr. Albert was angry at me
      in suggesting that the evidence was that this wasn’t a rape.
          So we’re not fighting about whether there was a burglary and a

                                          28
      rape going on. And even if you believe everything that the defense
      seems to be suggesting, that Robert Miller leaned in and did the
      killing, it doesn’t matter.
         Now here’s why. The reason behind the rule, so you just don’t
      think we do this. The reason behind the rule is, is that when two
      people agree to commit a crime and it involves one of these
      inherently violent crimes -- burglarizing a home when somebody’s
      there, armed robbery, rape -- crimes that are so dangerous that if the
      State proves that you deliberately participated in the commission of
      that crime, that that intent to commit the crime substitutes for the
      intent of malice aforethought.
         Now, it has a huge affect [sic] when we start talking about the
      death penalty, but in terms of guilt on first degree murder, if you
      knowingly, intentionally participate in one of these listed crimes,
      really dangerous crimes like burglary and robbery and rape, and
      somebody dies, you’re on the hook for the murder.
         Now again, big difference in penalty, but as far as whether or not
      you’re guilty of murder, it’s easy. So gang, if you can see this, you
      can see why when the defendant enters his plea of not guilty and
      you’re kind of scratching your head, gee, there must be a catch, the
      only catch is he entered a plea of not guilty because, under this
      instruction, even if you believe the stuff that the defense is talking
      about, that it’s Miller who did the killing, it doesn’t matter.

Trial Tr., Vol. IX, at 1608-11.

      Continuing, the prosecution discussed the principal and aiding and abetting

instructions:

         But what about Robert Miller? What about Robert Miller? Judge
      told you that you were going to get an instruction at the end of the
      case that was going to make all this clear and I want you to see how
      clear it really is.
         All persons concerned, you’re told in instruction number ten, in
      the commission of a crime are regarded by the law as principals and
      are equally guilty thereof. A person concerned in the commission of
      a crime as a principal is one who directly and actively commits the
      acts constituting the offense.
         That’s Ronald Lott. He actively commits the acts constituting the
      offense. But a principal can also be one who knowingly and with

                                         29
      criminal intent aids and abets in the commission of the events or,
      whether present or not, advises and encourages the commission of
      the offense?
         What does that criminal intent thing mean? It’s the design to
      commit a crime or acts, the probable consequences of which are
      criminal.
         Here’s the biggy. Hear’s [sic] the biggy. It’s instruction number
      eleven. Merely standing by with knowledge concerning the
      commission of a crime does not make a person a principal to the
      crime.
         Now, this may fly in the face of common sense, obviously that’s
      what Mr. Albert[, defense counsel,] had in mind when he was saying,
      doesn’t it make Robert Miller as sick as -- he didn’t say my client,
      but we are talking about Ronald Lott -- doesn’t it make Robert Miller
      as sick as the rapist? Well, yeah; it just doesn’t make you guilty.

counsel’s closing argument focused in part on the possibility that

Miller, rather than Lott, killed Fowler and Cutler. In discussing this issue,

defense counsel stated, in pertinent part:

         Last face [the victims] may have seen may have been Miller’s,
      and that’s the way you got to look at this case. We do cases about
      proof and about evidence. When [the prosecution] tell[s] you [it has]
      no evidence that Robert Miller was the killer, that cuts both ways
      because [it] also [has] no evidence what Ronald Lott was. None.
         I don’t know what you’re going to do with that DNA [evidence],
      but at worst [the prosecution] [has] proven that Ronald Lott was the
      rapist which we told you a long time ago. At worst.

know, since they want to use DNA, let’s use those terms. In
      proving this case in this courtroom, they cannot exclude Robert
      Miller as the killer. That’s a DNA term for you. They cannot
      exclude, because we all know he was there, we all know he knew
      things he shouldn’t have known, we all knew thing -- he knew things
      that go right to the death of these ladies, right to their bodies.

                                             30
         They cannot exclude in DNA terms Robert Miller as the killer and
      neither can you. That’s what it comes down to, comes down to
      proof. Since they can’t exclude him, then you have to have a
      reasonable doubt as to who the killer is. You may not like that.
      That’s the way it is.

prosecution, in its final closing argument, seized on defense counsel’s

statement that Lott was “at worst” the rapist:

         All right. At most he’s the rapist. At most Ronald Clinton Lott is
      the rapist of these two elderly ladies. [Defense counsel] just said it
      and that is guilty of felony murder, period. You can mark it down,
      check guilty on the box. He just said it. At most he’s guilty of
      felony murder and that’s what you have to decide right now.

controverts that Ronald Clinton Lott is the rapist. As a
      matter of fact, his lawyer tells you that at worst that’s what he is.

the jury was provided with a general verdict form, it is unclear

whether they found Lott guilty of first-degree malice aforethought murder or first-

degree felony murder. See State R., Vol. VII, at 1248-49.

      b) The OCCA’s rejection of Lott’s claim on direct appeal

      On direct appeal, Lott complained that the state trial court “instructed the

jury that they could find [him] guilty if they believed that the deaths were caused

by someone aiding and abetting [him] in the commission of the charged felonies,”

and “[d]uring closing argument, [his] defense [counsel] conceded that [he] had


                                         31
raped the ladies, but maintained that Miller caused the deaths.” 3 Direct Appeal

Br. at 45. In other words, Lott argued that the state trial court instructed the jury

on an “uncharged theory of the case based on the defendant’s defense,” and that

those instructions effectively “resulted in [a] concession of guilt” by defense

counsel. 

OCCA rejected Lott’s arguments:

           In his fourth assignment of error, Appellant contends the trial
      court erred by instructing the jury on aiding and abetting. We review
      only for plain error as no objection was raised to the instruction.
      Bland v. State, 

, ¶ 49, 

, 718, cert. denied,
      

, 

, 

(2001).
          In support of his contention, Appellant relies on Lambert v. State,
      

, 

. In Lambert, the defendant was
      charged with malice aforethought murder. The trial court gave
      instructions on felony murder. The appellant argued he was not
      given sufficient notice of this theory in the information, and this
      Court reversed on this basis. 

, ¶¶ 

. The situation in the present case is very different.
          In a Fourth Amended Felony Information, filed approximately
      one year before trial, Appellant was charged with two counts of first
      degree malice aforethought murder for the deaths of Mrs. Fowler and
      Mrs. Cutler. In the alternative, he was charged with two counts of
      felony murder by aiding and abetting Robert Lee Miller, Jr., who in
      the commission of first degree burglary and first degree rape killed
      the victims. (O.R. 734–735). The State’s theory throughout the

      3
         Lott also argued that at trial “[t]he defense relied on the charging
information in choosing its defense, believing that the State would be required to
show that [he] alone caused the death of the ladies during the commission of a
rape and burglary.” Direct Appeal Br. at 44. But that argument was clearly
rebutted by what transpired at the March 23, 2001, motion hearing. As noted, the
prosecution agreed at that hearing to strike the aiding and abetting language from
the fourth amended information, but it retained the right to reassert the language
and rely on an aiding and abetting theory in the event that Lott presented evidence
at trial of Miller’s potential role in the murders.

                                          32
proceedings was that Appellant committed the rapes, and that
Appellant either killed the victims himself or he aided and abetted
Miller in killing the victims. Unlike Lambert, Appellant was given
plenty of notice concerning the State’s alternative theories of guilt.
    Further, the aiding and abetting instructions were warranted by
the evidence. The State’s evidence included the results of DNA
testing showing Appellant was the donor of the semen found at the
crime scenes, and that Miller had been excluded as the semen donor.
The State also presented evidence showing Appellant had pled guilty
to committing two other rapes under very similar circumstances as
the charges on trial. During the cross-examination of several of the
State’s witnesses, the defense established that Miller had made
certain statements about the Fowler/Cutler crimes which were not
known to the general public, and that based in part upon those
statements, Miller had been previously convicted of committing the
Fowler/Cutler homicides. During re-direct examinations, the State
elicited testimony that it was possible there were two intruders into
the homes of Mrs. Fowler and Mrs. Cutler and that it was possible
that one intruder killed the victims while the other watched.
Additionally, during its case-in-chief, the defense introduced
evidence concerning Miller’s prior prosecution in the Fowler/Cutler
cases. Accordingly, the trial court did not abuse its discretion in
giving the instructions on aiding and abetting instructions. See
Cannon v. State, 

, ¶ 25, 

, 99. See also
Slaughter v. State, 

, ¶ 63, 

, 857 n. 9.,
cert. denied, 

, 

, 

(1998).
    Appellant further argues defense counsel was ineffective as
counsel admitted guilt as to the felony murder charge without
Appellant’s consent. This Court follows the test for ineffective
assistance of counsel set forth in Strickland v. Washington, 

, 687, 

, 2064, 

(1984). See Bland,

, ¶ 

. Under Strickland’s two-part
test, the appellant must overcome the strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance by showing: [1] that trial counsel’s
performance was deficient; and [2] that he was prejudiced by the
deficient performance. Unless the appellant makes both showings,
“it cannot be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result unreliable.”

, 104 S.Ct. at 2064. Appellant must
demonstrate that counsel’s representation was unreasonable under

                                  33
prevailing professional norms and that the challenged action could
not be considered sound trial strategy. 

S.Ct. at
2065. The burden rests with Appellant to show that there is a
reasonable probability that, but for any unprofessional errors by
counsel, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome. 

.
When a claim of ineffectiveness of counsel can be disposed of on the
ground of lack of prejudice, that course should be followed. 

S.Ct. at 2069. This Court has stated the issue is whether
counsel exercised the skill, judgment and diligence of a reasonably
competent defense attorney in light of his overall performance.
Bland, 

, ¶ 

.
   Appellant relies on Jackson v. State, 

, ¶ 15, 

, 398–399, where this Court reiterated its position that a
concession of guilt does not amount to ineffective assistance of
counsel, per se. The Court stated, “a complete concession of guilt is
a serious strategic decision that must only be made after consulting
with the client and after receiving the client’s consent or
acquiescence.” 

41 P.3d at 400. This Court placed the
burden on the appellant to show that he was not consulted and that he
did not agree to or acquiesce in the concession strategy. 

of the present case, and when all of the arguments
are read in context, it is clear that guilt was not conceded. The
defense was well aware from early on that the State had DNA
evidence which conclusively placed Appellant at the scene. The
defense filed numerous pre-trial motions challenging that evidence.
To counter the State’s evidence at trial, the defense showed that the
scientific evidence relied upon 14 years ago to convict Robert Miller
of the Fowler/Cutler crimes—hair and blood analysis—had since
been proven unreliable. Defense counsel questioned whether DNA
analysis might not also go the way of hair and blood analysis in light
of future advances in forensic testing. Counsel also argued that all
the State had to prove Appellant’s guilt was DNA and that relying on
DNA was like gambling and relying on mere probabilities. Defense
counsel urged the jury not to let the State’s experts decide the case
for them. The defense also presented evidence showing Miller’s
involvement in the Fowler/Cutler crimes and his knowledge of
details that only someone present at the crime scenes would have
known. Defense counsel argued in closing argument that the
evidence showed Miller wasn’t a mere observer to the crimes, but the

                                  34
      actual perpetrator of the crimes.
          Defense counsel also challenged the State’s alternative theories of
      guilt and argued the State could not assert that Miller was and was
      not the killer. Defense counsel argued that while Miller was in jail
      for the Fowler/Cutler crimes, other rape victims did not die. Defense
      counsel stated that when the State told the jury they had no evidence
      Miller was the killer, “that cuts both ways because they also have no
      evidence what Ronald Lott was. None.” Counsel then stated, “I
      don’t know what you’re going to do with that DNA, but at worst they
      have proven that Ronald Lott was the rapist . . .” Defense counsel
      further argued that merely because Miller was not included as a
      donor of the semen found at the scene, that did not mean that he was
      not a rapist and a killer. Counsel argued it merely showed Miller did
      not ejaculate at the scene. Counsel concluded his closing argument
      by asserting the State had not proven that Miller was not the killer,
      and because of that reasonable doubt as to Appellant’s guilt existed.
          In light of this record, counsel’s statement that at worst “they
      have proven [Appellant] was the rapist” was not a concession of guilt
      to the charged crimes. This was an isolated comment within defense
      counsel’s approximately 11 page closing argument. Any perceived
      conciliatory aspect of the remark was not prejudicial to Appellant.
      Claiming that Appellant had not been involved at all would have
      completely destroyed counsel’s credibility before the jury in light of
      the strong evidence of guilt. See Wood v. State, 

, ¶
      60, 

, 15–16. From the record, it appears that minimizing
      Appellant’s role in the crimes in light of the DNA evidence was the
      best possible method to gain an acquittal on the charges.
      Accordingly, we do not find counsel’s performance deficient under
      the circumstances. This assignment of error is denied.

Lott 

(alteration in original) (internal paragraph numbers

omitted).

      c) Lott’s arguments in this federal habeas action

      In this appeal, Lott argues that “the OCCA . . . miss[ed] the point” because

“[t]he issue is not whether the evidence adduced at trial was sufficient to warrant

an aiding and abetting instruction,” but rather “whether the prosecution should be

                                         35
permitted to specifically disavow an aiding and abetting charge pretrial, proceed

to try [him] on charges that do not include an aiding and abetting theory, and then

invite the jury to convict [him] of murder as an aider and abettor.” Aplt. Br. at

50. In support, Lott argues that his “entire defense was . . . based upon the

State’s reassurances that not only had it disavowed the aiding and abetting theory

of felony murder liability, but also had stricken the aiding and abetting language

from the fourth amended information.” 

after the defense had

presented its case,” Lott argues, “and after defense counsel had conceded to . . .

Lott’s involvement in the rapes, did the State spring its trap and renege on its

promise.” 

clearly fatal, problem with Lott’s arguments is that they

are based on a series of incorrect statements regarding what transpired in the state

trial court. As we have explained, the prosecution admittedly agreed at the March

23, 2001, motions hearing to strike the aiding and abetting language from the

fourth amended information. Importantly, however, the prosecution expressly

reserved the right to reassert that language in the event that Lott presented

evidence of Miller’s potential involvement in the charged crimes. And it is

undisputed that Lott did precisely that at trial, i.e., he presented evidence of

Miller’s potential involvement in the murders. Thus, in no way did the

prosecution “renege on its promise,” nor could Lott’s trial counsel have been

surprised by the state trial court’s decision to instruct the jury on aiding and

                                          36
abetting. Indeed, as the OCCA found in rejecting these same arguments on direct

appeal, Lott’s trial counsel did not object to the trial court’s aiding and abetting

instructions. And because the state trial court read its instructions to the jury

prior to the first-stage closing arguments, Lott’s trial counsel was well aware that

the jury would be permitted to consider an aiding and abetting theory of felony

murder liability.

      Relatedly, the OCCA expressly found that Lott’s trial counsel did not,

during the course of his first-stage closing arguments, concede Lott’s guilt of

felony murder. Although Lott disagrees with this finding, he has failed to rebut

by clear and convincing evidence the presumption of correctness we must afford

this finding under 28 U.S.C. § 2254(e)(1). As the OCCA correctly noted, a

review of defense counsel’s complete first-stage closing arguments reveals that

defense counsel was attempting to persuade the jury that a reasonable doubt

existed as to Lott’s responsibility for the murders under either theory of liability.

In this regard, defense counsel called into question the validity of the DNA

evidence presented by the prosecution, noting particularly the evidence indicating

that the prosecution had previously wrongfully convicted Miller based on what

had proven to be faulty scientific evidence, such as blood type grouping and hair

analysis. 4 And defense counsel not only cited evidence suggesting that Miller

      4
          For example, defense counsel argued:

                                                                         (continued...)

                                          37
was present at the scene of both crimes, but also argued that Miller may have in

fact been responsible for the crimes. 5

      Even if we were to assume that the OCCA’s finding on the purported



      4
       (...continued)
           We called Joyce Gilchrist to the stand, not for a spectacle, not to
      put her on trial, but to show you that the science in 1987 excluded
      this man[, Lott,] and included Robert Miller and that was their
      science of 1987 that I’m sure, although they tell you today it wasn’t
      as good as science, I am sure that when they put her on that witness
      stand, it was science.
           ....
           But now they get up there and they say, well, this is 2001, we’ve
      got DNA now. Forget that old science. We’ve got the science now.
      How do we know that? Until they get all six billion people and get
      all our DNA so we can all be put down on a chart, how do they know
      that? And how do you know that?
           That’s what this case comes down to. Science of 14 years ago
      was wrong. How do we know it’s so right now? And how do you
      base a decision like this on that? That’s what you have to decide.

Trial Tr., Vol. IX, at 1637-38. Only in that context did defense counsel then
state, “I don’t know what you’re going to do with that DNA, but at worst they
have proven that Ronald Lott was the rapist which we told you a long time ago.
At worst.” 

counsel subsequently returned to the issue of the
validity of the DNA evidence: “DNA. That’s what it comes down to. . . . But
are you going to let them use it to decide who lives and dies? That’s what you
got to decide. Probabilities, and 14 years ago science was wrong.” 

          Defense counsel argued, in pertinent part:

         They cannot exclude in DNA terms Robert Miller as the killer and
      neither can you. That’s what it comes down to, comes down to
      proof. Since they can’t exclude him, then you have to have a
      reasonable doubt as to who the killer is. You may not like that.
      That’s the way it is.

Trial Tr., Vol. IX, at 1643.

                                          38
concession issue constituted “an unreasonable determination of the facts,” 28

U.S.C. § 2254(d)(2), and in turn accept Lott’s characterization of what occurred,

i.e., a concession of guilt by defense counsel that occurred without notice to, or

the consent of, Lott, we are not persuaded that Lott would be entitled to federal

habeas relief. Considering both the first and second stages of trial as a whole, it

is clear that “a true adversarial criminal trial [was] conducted . . . [and] the kind

of testing envisioned by the Sixth Amendment . . . occurred.” United States v.

Cronic, 

, 656 (1984). Thus, we could not simply presume that Lott

was prejudiced by counsel’s purported concession. See Florida v. Nixon, 

, 190-91 (2004). Instead, we would have to consider whether, under the

second prong of Strickland, Lott was actually prejudiced by his counsel’s actions.

And, given the overwhelming evidence of Lott’s involvement in the charged

crimes, we could not say that Lott was prejudiced. During the first-stage

proceedings, the prosecution presented evidence indicating that vaginal, anal, and

oral swabs were taken from the bodies of both Fowler and Cutler. Two sources of

DNA were found in the vaginal swab taken from Fowler: DNA from Fowler’s

own vaginal cells and DNA from a sperm donor. The DNA profile of the sperm

donor was found to match Lott’s DNA profile, and the probability of randomly

selecting a matching profile approximately 1 in 15.7 quadrillion in the African-

American population. Similarly, the sperm samples taken from Cutler were found

to match Lott’s DNA profile (and Miller was excluded as the source of the

                                           39
sperm). In short, the DNA evidence alone overwhelmingly established that Lott

was responsible for the rapes of Fowler and Cutler. 6 Because it was undisputed

that Fowler and Cutler died during the commission of those crimes, Lott was

clearly guilty of felony murder. And lastly, there is no basis to conclude that

counsel’s purported concession during the first-stage proceedings had any

prejudicial impact during the second-stage proceedings. See generally 

(suggesting that, in a capital case involving overwhelming evidence and a

heinous crime, defense counsel must attempt to utilize first- and second-stage

strategies that are logically consistent). Thus, in sum, any purported concession

of guilt by Lott’s counsel was simply not prejudicial to Lott.

      As a final matter, we conclude there is no merit to Lott’s assertion that the

state trial court’s instruction regarding aiding and abetting “‘by itself so

[infected] the entire trial that the resulting conviction violates due process.’”

Aplt. Br. at 51-52 (quoting Cupp v. Naughten, 

, 147 (1973)). As the

OCCA aptly concluded, Lott “was given plenty of notice concerning the State’s

alternative theories of guilt.” Lott 

. Moreover, the trial court’s

aiding and abetting instruction was amply supported by the evidence presented by

the defense at trial attempting to suggest that Miller, rather than Lott, was

responsible for murdering Fowler and Cutler.

      6
        Lott all but concedes this point in his appellate brief: “The presence of
Mr. Lott’s DNA at the crime scenes proved the Fowler and Cutler rapes.” Aplt.
Br. at 59.

                                          40
3) Admission of other-crimes evidence

      In Proposition Three of his appellate brief, Lott contends that he was

deprived of his right to a fundamentally fair trial due to the admission at trial of

evidence that he was convicted of the Marshall and Hoster rapes.

      a) Background

      Prior to Lott’s trial, the prosecution filed a pleading entitled, “NOTICE OF

INTENT TO USE EVIDENCE OF OTHER CRIMES.” State R., Vol. IV, at 637.

The pleading essentially notified the state trial court and the defense of the

prosecution’s intention to introduce evidence at trial of the Marshall and Hoster

rapes. Lott filed a written motion objecting to the introduction of this evidence.

On November 6, 2000, the state trial court overruled Lott’s motion, concluding

that the proposed evidence tended to prove identity due to an unusual modus

operandi.

      At Lott’s trial, the prosecution, consistent with the trial court’s pretrial

ruling, was permitted to introduce evidence of Lott’s involvement in the Marshall

and Hoster rapes. This included fact witnesses who described the circumstances

of the Marshall and Hoster rapes. It also included testimony from Robert

Thompson, a former Oklahoma City police officer who was employed at the time

of trial as the chief investigator for the public defender’s office. Thompson

testified that he had worked on Miller’s post-conviction defense team and, in the

course of doing so, concluded through his investigative efforts that there were

                                          41
significant similarities between the Fowler and Cutler homicides and the Marshall

and Hoster rapes. Lastly, the evidence included testimony from Gerald McKenna,

an inspector with the Oklahoma City Police Department’s sex crimes unit.

McKenna testified generally about serial rapists and their methods. McKenna

opined that there was no reason to doubt Lott’s involvement in murdering and

raping Fowler and Cutler simply because he did not kill Marshall and Hoster.

McKenna also discussed the similarities between the four crimes.

      At the conclusion of the first-stage evidence, the state trial court instructed

the jury regarding the proper use of this evidence:

      Evidence has been received that the defendant has committed
      offenses other than those charged in the information. You may not
      consider this evidence as proof of the guilt or innocence of the
      defendant of the specific offenses charged in the information. This
      evidence has been received solely on the issue of the defendant’s
      alleged common scheme or plan and/or identity. This evidence is to
      be considered by you only for the limited purpose for which it was
      received.

State R., Vol. VII, at 1220 (Instruction Number 15).

      b) Clearly established Supreme Court precedent

      Lott points to the decision in Lisenba v. California, 

(1941), as

providing the clearly established federal law applicable to his claim. 7 In Lisenba,

      7
        Lott cites to a number of federal circuit decisions. But none of those
constitute clearly established federal law for purposes of 28 U.S.C. § 2254(d)(1).
Parker v. Matthews, 

, 2155 (2012) (holding that “circuit precedent
does not constitute ‘clearly established Federal law, as determined by the
Supreme Court’” for purposes of § 2254(d)(1) and thus “cannot form the basis for
                                                                      (continued...)

                                          42
the Supreme Court outlined a general due process standard that applies to

criminal trials:

         As applied to a criminal trial, denial of due process is the failure
      to observe that fundamental fairness essential to the very concept of
      justice. In order to declare a denial of it we must find that the
      absence of that fairness fatally infected the trial; the acts complained
      of must be of such quality as necessarily prevents a fair 

.

      Although not cited by Lott, two other Supreme Court decisions appear to be

applicable. In Payne v. Tennessee, 

, 825 (1991), the Supreme Court

held that when a state court admits evidence that is “so unduly prejudicial that it

renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth

Amendment provides a mechanism for relief.” And in Estelle v. McGuire, 

, 67-68 (1991), the Court made clear that this principle holds true

regardless of whether the evidence at issue was properly admitted pursuant to

state law.

      c) Lott’s direct appeal

      In his direct appeal, Lott argued that the state trial court erred in admitting

evidence of other crimes in violation of his constitutional right to a fair trial. In

particular, Lott argued that “evidence of the Hoster/Marshall rapes did not tend to

establish any fact of consequence other than the impermissible intermediate


      7
       (...continued)
habeas relief under AEDPA”).

                                           43
inference that since . . . Lott had later raped two other people, he must also have

raped and killed . . . Cutler and . . . Fowler.” Direct Appeal Br. at 35. Lott also

argued that “the crimes . . . were not unusual enough to indicate the identity of

the perpetrator as having committed all four.” 

OCCA rejected Lott’s arguments:

         Appellant contends the trial court erred in admitting evidence of
      the sexual assaults on Mrs. Marshall and Mrs. Hoster. Appellant
      relies on prior case law from this Court where we have stated that
      “similarity between crimes, without more, is insufficient to permit
      admission” of evidence of other crimes. See Hall v. State, 1980 OK
      CR 64, ¶ 5, 

, 1022.
         Prior to trial, the State filed a Notice of Intent to Use Evidence of
      Other Crimes and Brief in Support. The State alleged the similarities
      between the Fowler/Cutler homicides and the Marshall/Hoster
      assaults were “relevant as an aid in determining the identity of the
      assailant. Also, the evidence is admissible as being part of a
      common scheme or plan since it demonstrates a highly distinct
      method of operation.” The State cited 37 similarities between the
      Fowler/Cutler crimes and the Marshall/Hoster crimes. After hearing
      argument, the trial [sic] found the other crimes evidence to be
      relevant and admissible.
         The basic law is well established—when one is put on trial, one is
      to be convicted—if at all—by evidence which shows one guilty of
      the offense charged; and proof that one is guilty of other offenses not
      connected with that for which one is on trial must be excluded.
      Burks v. State, 

, ¶ 2, 

, 772, overruled in
      part on other grounds, Jones v. State, 

, 

.
      See also Hall v. State, 

, ¶ 21, 

, 37.
      However, evidence of other crimes is admissible where it tends to
      establish absence of mistake or accident, common scheme or plan,
      motive, opportunity, intent, preparation, knowledge and identity.
      Burks, 

, ¶ 

. To be admissible,
      evidence of other crimes must be probative of a disputed issue of the
      crime charged, there must be a visible connection between the
      crimes, evidence of the other crime(s) must be necessary to support
      the State’s burden of proof, proof of the other crime(s) must be clear

                                          44
and convincing, the probative value of the evidence must outweigh
the prejudice to the accused and the trial court must issue
contemporaneous and final limiting instructions. Welch v. State,

, ¶ 8, 

, 365, cert. denied, 

,

, 

(2000).
    When other crimes evidence is so prejudicial it denies a defendant
his right to be tried only for the offense charged, or where its
minimal relevancy suggests the possibility the evidence is being
offered to show a defendant is acting in conformity with his true
character, the evidence should be suppressed. 

the claim was properly preserved, the State must show on appeal that
admission of this evidence did not result in a miscarriage of justice
or constitute a substantial violation of a constitutional or statutory
right. 

2 P.3d at 366.
    This Court has allowed evidence of other crimes or bad acts to be
admitted under the “plan” exception of § 2404(B) where the methods
of operation were so distinctive as to demonstrate a visible
connection between the crimes. 

2 P.3d at 366–67. See
also Aylor v. State, 

, ¶ 5, 

, 593;
Driskell v. State, 

, ¶ 23, 

, 349; Driver v.
State, 

, ¶ 5, 

, 762–63. Distinctive
methods of operation are also relevant to prove the identity of the
perpetrator of the crime. Eberhart v. State, 

, ¶ 23,

, 1379–80.
    In this case, there is a substantial degree of similarity between the
Marshall/Hoster assaults and the Fowler/Cutler homicides. The
similarities show a visible connection sufficient to characterize a
common scheme and to be probative on the issue of identity of the
perpetrator. Briefly summarized, these similarities include: all four
victims were white females over the age of 71 who lived alone; all
four victims lived on the south side of the street and on corner lots;
the back porch screen door was cut on the homes of three of the
victims; the breaker box for the electricity to the residence was shut
off in the homes of three of the four victims; entry to the residence
was gained through a rear door in all four homes; a back door
window was broken in three of the homes; two of the victims were
awake when their homes was [sic] broken into and they were forced
to their bedrooms; all four victims were raped vaginally while in
their bedrooms; two of the four victims were also anally raped; all
four victims were raped either late at night or in the early morning;
all four victims were beaten about the head, face and arms; all four

                                    45
      victims suffered vaginal tears and bleeding; a knotted rag was found
      on the beds of three of the victims; a pillow was placed over the
      faces of three of the victims during the assault; none of the
      residences occupied by the four victims were ransacked and nothing
      of any significant value was taken from any of the homes; all four
      assaults occurred within an eight month time period with the
      Fowler/Cutler crimes occurring four months apart and the
      Marshall/Hoster crimes occurring two months apart; all four victims
      lived within three miles of each other; Appellant lived with his
      mother or sister near the Fowler/Cutler homes at the time of their
      murders and he lived with his brother near the Marshall/Hoster
      homes at the time of their assaults.
          Appellant contends there were just as many differences as there
      were similarities between the crimes. Chief among those differences
      is the fact that two of the victims were left alive while two were
      killed. Appellant argues that at the time these four crimes occurred,
      numerous instances of rapes and home invasions of elderly women
      were being reported in the media. Appellant asserts the crimes in
      this case were not unusual enough to point to a signature of one
      individual perpetrator. We disagree. The similarities in this case are
      far greater than those in Hall v. State, 

, ¶ 

relied upon by Appellant (similarities limited to each rape
      took place in an automobile, all three victims were under the age of
      consent, and each rape was committed in Tulsa County). Further, the
      similarities between the Fowler/Cutler homicides and the
      Marshall/Hoster assaults show a method of operation so distinctive as
      to demonstrate a visible connection between the crimes. In crimes
      involving sexual assaults, this Court has adopted a greater latitude
      rule for the admission of other crimes. Myers, 

, ¶¶
      

. See also 

.
          We further uphold the trial court’s ruling that the probative value
      of the evidence of the Marshall/Hoster assaults outweighed its
      prejudicial impact. See Mayes v. State, 

, ¶ 77, 

, 1309–10, cert. denied, 

, 

,
      

(1995). The evidence was necessary to support the
      State’s burden of proof despite its prejudicial nature. Finding the
      evidence properly admitted, this proposition is denied.

Lott 

(footnote and internal paragraph numbers omitted).




                                        46
      d) Lott’s challenge to the OCCA’s decision

      In this appeal, Lott concedes that, “had [his] DNA not been present to

prove that he raped . . . Cutler and . . . Marshall, the ‘other crimes’ evidence,

which the OCCA admitted was prejudicial, may have been necessary to support

the State’s burden of proof.” Aplt. Br. at 66. He argues, however, that “[g]iven

the presence of [his] DNA at the Fowler/Cutler crime scenes, . . . the Marshall

and Hoster rapes were hardly necessary to prove identification in regards to the

Fowler/Cutler crimes.” 

that “[t]he OCCA’s

determination that the ‘other crimes’ evidence was necessary to support the

State’s burden of proof was objectively unreasonable in light of the facts

presented at trial and should be afforded no deference under 28 U.S.C. §

2254(d)(2).” 

an initial matter, we note that the other-crimes evidence was properly

admitted under Oklahoma state law. As the OCCA explained, the four crimes

bore substantial similarities that, in the view of the prosecution’s expert witness,

indicated they were committed by the same serial rapist. Thus, the evidence was

relevant for purposes of proving the identity of the person responsible for raping

Fowler and Cutler. As for the OCCA’s conclusion that the probative value of the

evidence outweighed its prejudicial impact, it is important to note that the state

trial court’s ruling on this issue occurred prior to trial, and thus prior to the state

trial court hearing the precise nature of the prosecution’s DNA evidence. Lott

                                           47
may well be correct that the DNA evidence, standing alone, would have been

sufficient to allow the jury to convict him. But the state trial court was not privy

to that evidence at the time of its ruling and Lott did not renew his objection to

the other-crimes evidence at trial. Moreover, despite the prosecution’s

introduction of the DNA evidence, Lott’s defense team focused its efforts on

attacking the legitimacy of that DNA evidence (suggesting to the jury that it was

possible that the DNA evidence might be later discredited, as had the purported

scientific evidence that was previously used to convict Miller of the crimes).

Thus, we cannot say that the OCCA erred in concluding that the other-crimes

evidence was indeed necessary to support the prosecution’s burden of proof.

      That leaves, at most, only the question of whether the other-crimes

evidence was “so unduly prejudicial that it render[ed] [Lott’s] trial fundamentally

unfair.” 

. Notably, Lott did not argue this point in his

direct appeal, and thus the OCCA did not address it. Consequently, the argument

is subject to an anticipatory procedural bar in these federal habeas proceedings.

See 

n.7.

      And even if Lott could overcome this anticipatory procedural bar, a review

of the state court record indicates that Lott’s trial was not rendered fundamentally

unfair by the admission of the Marshall and Hoster evidence. Even aside from the

other-crimes evidence, the prosecution’s evidence of Lott’s guilt of the Fowler

and Cutler rapes/murders (particularly the DNA evidence) was overwhelming.

                                          48
Further, it is clear that the Marshall and Hoster evidence would have, at a

minimum, been admissible by the prosecution during the second-stage

proceedings in order to prove the continuing-threat aggravator. Lastly, the jury

rejected the continuing-threat aggravator, and thus it does not appear that the

Marshall and Hoster evidence had any impact on the jury’s sentencing decision.

4) Prosecutorial misconduct—introduction of hearsay statements of Robert
Miller

      In Proposition Four of his appellate brief, Lott contends that the

prosecution engaged in prejudicial misconduct by “injecting hearsay statements of

Robert Miller into both stages of . . . trial” in order “to prove that,” even though

Miller may have been present during the commission of the crimes, “it was . . .

Lott who killed both victims because he needed to eliminate witnesses.” Aplt. Br.

at 68. Lott also complains that the prosecutor “put [an additional] hearsay

statement before the jury,” i.e., that the victims begged for their lives and were

orally sodomized by Lott. 

to Lott, this misconduct violated

“his right to confrontation guaranteed under the Sixth Amendment.” 

Lott asserts that “Crawford v. Washington, 

(2004), requires that

[he] receive a new trial.” Aplt. Br. at 72.

      Lott’s claim derives, in part, from the first-stage testimony of McKenna,

the inspector with the Oklahoma City Police Department’s sex crimes unit.

During his direct examination, McKenna opined that there was no reason to doubt


                                         49
Lott’s involvement in raping and murdering Fowler and Cutler simply because of

the fact that he did not kill either Marshall or Hoster. On cross-examination,

McKenna testified that, based upon his experience, sex crimes of the type at issue

are committed by lone perpetrators, and not by two people. On redirect,

McKenna opined that the Fowler and Cutler murders were committed to eliminate

witnesses, and not because the suspect received sexual gratification from the

killings. The prosecutor and McKenna then engaged in the following colloquy:

      Q. Well, you were talked to about the Miller interviews and, to be
      fair to you, neither side, them or us, gave you the transcripts. You
      have not read the stacks of the transcripts of the Miller interview,
      right?

      A. No, sir, I have not.

      Q. Okay. When Robert Miller is asked about what he saw, he, the
      killer -- never himself -- he saw the killer do and he describes the
      raping, the oral sodomy that he saw, the begging for lives. And he’s
      asked the question, why did he kill her? And his first answer is I
      don’t know. He’s asked again, why did he kill her? And the answer
      is, he was scared. Scared of what? She was going to tell on him.
          Now, I understand you haven’t reviewed this, so whether or not
      he was led to these statements or whether and whether -- and to be
      very clear, I agree a hundred percent with Mr. Albert and the rest of
      those folks over there for what it’s worth, the State’s position is that
      Robert Miller’s statements reflect that he was present and we’re
      going to talk more about that later. You may not agree with that.
      Bob Thompson sure doesn’t.
          But my point to you is is [sic] that if Robert Miller was there or
      he had some other way of learning what Ronnie Lott was thinking,
      this answer, he killed her because he was scared she would tell on
      him, is that consistent with your opinion that this was a rape/murder
      done to kill in order to silence a witness?

      A. Yes, sir, it is.

                                          50
Trial Tr., Vol. VIII, at 1492-93.

      Lott’s claim also derives from the prosecutor’s second-stage closing

arguments. During those arguments, the prosecutor addressed the allegations that

the Fowler and Cutler murders were committed for the purpose of avoiding or

preventing a lawful arrest or prosecution:

         This aggravating circumstance is not established unless the
      State’s proved beyond a reasonable doubt, first, that there was
      another crime separate and distinct from the murder and, secondly,
      that the defendant committed the murder with the intent to avoid
      being arrested or prosecuted for that other crime.
         Ladies and gentlemen, again, I submit to you, this element -- this
      aggravating circumstance is proved without dispute. There is no
      evidence to contest this. The defendant raped both of these women.
         He, as Butch McKenna testified, following the cross examination
      by [defense counsel] over there, that rapists kill, serial rapists kill for
      two reasons. The act of the killing is the thing which gives them
      their sexual boost. For them, the rape is just a -- is just a thing on
      the way to the killing that’s really their deal or it’s all about the
      control and rape and the killing is done to silence a witness.
         The evidence of that is made absolutely clear by the fact that after
      Robert Miller had been arrested for these crimes, he quit killing and,
      instead, moved to threats to try and -- and other measures that y’all
      have already heard about to conceal his identity as the rapist.
         Robert Miller. Robert Miller in his interview with David Shupe.
      Why did he kill her? I don’t know. Why did he kill her? He was
      scared. Scared of what? She was going to tell on him.
         You hardly needed that statement from Robert Miller to confirm
      that the reason why the defendant did it is she was going to tell on
      him because that’s what Grace Marshall and Eleanor Hoster did when
      he left them alive.
         Ladies and gentlemen, we believe that the evidence on this is
      undisputed that these murders were committed to prevent lawful
      arrest and prosecution. The thing about this one is even if the
      defense that was offered to you in the first stage, that Robert Miller’s
      the bad guy here, this aggravator is still present, it’s still present.


                                          51


1795-97.

      a) Clearly established Supreme Court precedent

      As noted, Lott points to the Supreme Court’s decision in Crawford as

supplying the clearly established federal law applicable to his claim. In

Crawford, the Court addressed the question of whether the introduction at a

criminal trial of a witness’s tape-recorded statement to the police describing the

crime at issue, where the accused has no opportunity for cross-examination of that

witness, violates the Sixth Amendment Confrontation Clause’s guarantee that

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against 

. The Court, after

recounting the history of the Confrontation Clause, held that “even if the Sixth

Amendment is not solely concerned with testimonial hearsay, that is its primary

object, and interrogations by law enforcement officers fall squarely within that

class.” 

Court further held that “[t]he historical record . . .

support[ed] a second proposition: that the Framers would not have allowed

admission of testimonial statements of a witness who did not appear at trial unless

he was unavailable to testify, and the defendant had had a prior opportunity for

cross-examination.” 

the Court held that “[w]here

testimonial statements are at issue [in a criminal trial], the only indicium of

reliability sufficient to satisfy constitutional demands is the one the Constitution

actually prescribes: confrontation.” 

other words, the Court held,

                                           52
“the Sixth Amendment demands what the common law required: unavailability

and a prior opportunity for cross-examination.” 

Lott’s direct appeal

      Lott first asserted his arguments on direct appeal. Specifically, Lott

complained that the prosecution, during its first-stage examination of McKenna,

improperly “used hearsay/facts not in evidence from its ‘key eyewitness’, Robert

Miller, that [Lott] killed . . . Fowler and . . . Cutler for the purpose of avoiding

arrest or prosecution.” 8 Direct Appeal Br. at 83. And Lott argued that “[t]his

error warrant[ed] reversal . . . due to [the] deprivation of [his] right to confront

witnesses against him, a fundamental right.” 

OCCA rejected Lott’s arguments:

          In a related assignment of error, proposition number eleven,
      Appellant argues the prosecutor injected facts not in evidence
      through the questioning of Inspector McKenna. Specifically,
      Appellant complains that through the questioning of McKenna, the
      State put Robert Miller’s statements before the jury in order to prove
      that the homicides were committed for the purpose of avoiding arrest
      or prosecution, and to show that the victims begged for their lives
      and were orally sodomized. Appellant asserts McKenna’s testimony
      concerning Miller’s statements was inadmissible hearsay that
      influenced the first stage verdict. He argues the alleged error
      impacted the second stage, when combined with other second stage
      errors; it deprived him of a reliable sentencing stage.
          Initially, we note that our review is for plain error only as none of
      the challenged testimony was met with contemporaneous defense
      objections. Simpson v. State, 

, ¶ 19, 

,
      698.

      8
       Lott did not complain about the references to Robert Miller in the
prosecution’s first-stage opening statement.

                                           53
    Inspector McKenna first testified to Robert Miller’s involvement
in the case on cross-examination. Defense counsel cross-examined
McKenna extensively on statements made by Miller despite
McKenna’s acknowledgement [sic] that he never interviewed Miller
and was not aware of the substance of Miller’s statements. Defense
counsel repeatedly reviewed statements made by Miller and asked
McKenna his opinion as to whether or not the person making those
statements would have been at the scene of the crime. This type of
questioning continued on re-direct examination. McKenna testified
his opinion that the case was a rape/murder done to silence a witness
was consistent with the conclusion that Miller’s statements indicated
he was present at the scene or had some other way of learning what
Appellant was thinking. However, Appellant does not cite, nor do
we find in the record, that McKenna testified that based upon
Miller’s statements, the victim’s begged for their lives and were
orally sodomized.
    Any error in McKenna’s testimony concerning Miller’s
statements has been waived as defense counsel, and not the State,
opened up the issue of Miller’s statements with McKenna. [FN10] In
fact, the State objected to the questioning during cross-examination
for the reason that McKenna had not read all of Miller’s statements.
The trial court overruled the objection and permitted the questioning.
This Court has repeatedly held that an appellant will not be permitted
to profit by an alleged error that he or his counsel in the first instance
invited by opening the subject or by his or her own conduct, and
counsel for the defendant may not profit by whatever error was
occasioned by the admission of such incompetent evidence. Murphy
v. State, 

, ¶¶ 30–31, 

, 882–882, cert.
denied, 

, 

, 

(2003);
Welch v. State, 

, ¶ 10, 

, 1240; cert.
denied, 

, 

, 

(1999); Staggs v.
State, 

, ¶ 9, 

, 1299.

      FN10.As the defense initiated and invited McKenna’s
      testimony concerning Miller’s statements, we find
      Crawford v. Washington, [541] U.S. [36], 

, 

(2004) is not implicated.

    Further, Appellant asserts the State argued evidence in support of
the “avoid arrest” aggravator as direct evidence of Appellant’s intent.
Appellant directs us to the following argument during the State’s

                                   54
      second stage closing. “Robert Miller. Robert Miller in his interview
      with David Shupe. Why did he kill her? I don’t know. Why did he
      kill her? He was scared. Scared of what? She was going to tell on
      him.” Reviewing for plain error only, we find none.
         The record shows that in support of the aggravator of “avoid
      arrest”, the State presented Inspector McKenna’s expert opinion that
      the murders were committed to eliminate witnesses. McKenna
      testified his opinion was not based upon any statements made by
      Robert Miller, but on his years of investigating hundreds of sexually
      related homicides. McKenna testified Miller’s statement simply
      corroborated his opinion. The prosecutor’s comments during closing
      argument were based on the evidence and did not deprive Appellant
      of a fair sentencing proceeding. See Bland, 

, ¶ 

.

Lott 

(internal paragraph numbers omitted).

      c) Lott’s challenge to the OCCA’s decision

      Lott contends in this federal habeas appeal that, “[b]ecause there was no

adjudication on the merits of [his] confrontation claim, no deference is warranted

[to the OCCA’s decision] under 28 U.S.C. § 2254(d).” Aplt. Br. at 71. Lott,

however, is clearly incorrect on this point. As the above-quoted language from

the OCCA’s decision makes clear, the OCCA concluded that Crawford was

inapplicable to Lott’s case, and that Lott’s rights under the Confrontation Clause

were not violated, because Lott’s counsel “initiated and invited McKenna’s

testimony concerning Miller’s statements.” Lott 

n.10.

      For purposes of our review, the OCCA’s determination involves both a

threshold factual finding, i.e., that Lott’s counsel was the one who initiated the

questioning of McKenna concerning Miller’s statements, and a resulting legal


                                          55
conclusion, i.e., that the OCCA’s invited error doctrine precluded Lott from

asserting a Crawford challenge. After carefully examining the trial transcript, we

are unable to say that the OCCA’s threshold factual finding was

“unreasonable . . . in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2). As the OCCA correctly noted, it was

Lott’s counsel who first introduced Miller’s statements into evidence by cross-

examining McKenna regarding Miller’s statements, even though McKenna stated

that he had neither interrogated Miller nor reviewed the transcript of Miller’s

statements.

      To be sure, Lott suggests that it was the prosecutor who in fact first

introduced Miller’s statements to the jury. But a review of the trial transcript

proves Lott wrong on this point. During the first-stage opening statements, the

prosecution began by providing the jury with a brief chronological history of the

events that lead to Lott being charged with the Fowler and Cutler murders. In the

course of doing so, the prosecution noted that after Fowler and Cutler were

murdered, the “police flooded the neighborhood” and began interviewing

potential suspects. Trial Tr., Vol. III, at 447. “[O]ne of the folks they stopped,”

the prosecution asserted, “immediately caught their attention, was a fellow named

Robert Lee Miller.” 

to state:

         But [the police] begin asking [Miller] questions and Robert Miller
      begins making statements that he does not know about [the murders],
      and he begins making statements that cause the police to want to

                                          56
      interview him.
         Over the next dozen hours or so and the next couple of days,
      Robert Miller is interviewed by police where he makes a number of
      statements that just make no sense whatsoever, complete jibberish.
         But yet in the middle of jibberish there are statements which
      caused the police to connect those statements with things at the scene
      that were a you had to be there kinds of things, not like the kind of
      things that you would guess, not things he was told or that were in
      the news, and so the police focused their suspicion on Robert Miller.

prosecution then explained to the jury how Miller was charged,

convicted, and ultimately exonerated of the Fowler and Cutler crimes. Thus, in

sum, although the prosecutor first made general reference to Miller’s statements

to the police, the prosecutor did not describe for the jury any statements from

Miller that were damaging to Lott. Nor, importantly, did the prosecutor first

attempt to introduce Miller’s statements into evidence. Thus, as we have

concluded, the OCCA’s factual finding on this issue was entirely reasonable.

      As for the OCCA’s application of its own invited error doctrine, the

question for us is whether that results in Lott’s Crawford claim being

procedurally barred for purposes of federal habeas review. “‘A federal habeas

court will not review a claim rejected by a state court if the decision of [the state]

court rests on a state law ground that is independent of the federal question and

adequate to support the judgment.’” Walker v. Martin, 

, 1127

(2011) (alteration in original) (quoting Beard v. Kindler, 

, 614

(2009)) (internal quotation marks omitted). “The state-law ground may be a

substantive rule dispositive of the case, or a procedural barrier to adjudication of

                                          57
the claim on the merits.” 

an ‘adequate’ procedural ground, a

state rule must be ‘firmly established and regularly followed.’” 

S. Ct. at 618).

      The OCCA’s decision satisfies both of these requirements. To begin with,

it is beyond dispute that the OCCA’s rejection of Lott’s Crawford claim rested

exclusively on a state law ground, specifically a state procedural barrier to

adjudication of the claim on the merits, that was independent of the federal

question posed by the claim. See Sandoval v. Ulibarri, 

, 912 (10th

Cir. 2008) (treating New Mexico Court of Appeals’ application of its invited error

doctrine as an independent state procedural ground). In turn, our review of

Oklahoma case law persuades us that this state law ground, i.e., the invited error

doctrine, is firmly established and regularly followed by the OCCA. See Cuesta-

Rodriguez v. State, 

, 237 (Okla. Crim. App. 2010) (applying invited

error doctrine); Welch v. State, 

, 1240 (Okla. Crim. App. 1998)

(“Any error in the prosecutor’s inquiry in this case must be deemed invited error

as Appellant initially raised the issue during his direct examination.”); Pierce v.

State, 

, 1259 (Okla. Crim. App. 1990) (“We have often recognized

the well established principal [sic] that a defendant may not complain of error

which he has invited, and that reversal cannot be predicated upon such error.”);

Casey v. State, 

, 888 (Okla. Crim. App. 1987) (“The rule is well

settled that a party may not complain of error which he himself has invited.”);

                                          58
Griffin v. State, 

, 822 (Okla. Crim. App. 1930) (“Counsel for defendant

invited whatever error was occasioned by the admission of this alleged

incompetent evidence and cannot profit by the same.”).

      Of course, we could still address Lott’s Crawford claim on the merits if

Lott could “‘demonstrate cause and prejudice or a fundamental miscarriage of

justice.’” Johnson v. Champion, 

, 1226-27 (10th Cir. 2002)

(quoting English v. Cody, 

, 1259 (10th Cir. 1998)). But Lott makes

no attempt to establish cause and prejudice. And, given the overwhelming

evidence establishing Lott’s involvement in the Fowler and Cutler murders, we

are not persuaded that a fundamental miscarriage of justice will occur if we treat

his Crawford claim as procedurally barred.

5) Trial counsel’s failure to investigate and present mitigating evidence

      In Proposition Five of his appellate brief, Lott contends that his trial

counsel was ineffective for failing to investigate and present at the second-stage

trial proceedings available mitigating evidence. According to Lott, this included

evidence that:

      1) he is the youngest of ten children;

      2) he was born into extreme poverty in rural Texas, with his siblings
      and parents sharing a five-room shack with no heat or running water;

      3) he spent the first three weeks of his life in the hospital, and his
      mother was paralyzed during the first year of his life, which
      interfered with their bonding relationship;


                                         59
4) as a child, he and his family rarely had enough to eat;

5) his father was abusive, mean, and emotionally unavailable, and, on
a regular basis, he corporally punished the children with large
switches over the slightest perceived infraction or no infraction at
all;

6) his siblings typically left the family home around the age of
fifteen, in order to get away from their abusive father;

7) when he was ten years old, his mother left his father and took Lott
and the next oldest sibling, Mageline, and moved to Lawton,
Oklahoma;

8) after living in Lawton for a year, he and his mother moved to
Oklahoma City;

9) his mother worked two jobs in Oklahoma City, leaving him
virtually parentless at the age of eleven;

10) he began experimenting with drugs and alcohol at age eleven;

11) when he was twelve years old, his mother kicked him out of her
home and he was forced to live on the streets;

12) when he was in the eighth grade, he would occasionally stay with
a friend, Rick Berry, and Berry recalled Lott being filthy and hungry
and having to sneak into his mother’s home to steal food;

13) at age fourteen, he was arrested by authorities for unauthorized
use of a motor vehicle and placed on juvenile probation;

14) at age sixteen, his mother informed juvenile authorities that he
had violated probation for “lack of parental control” and he was
placed in the Oklahoma Children’s Center (OCC) juvenile home in
Taft, Oklahoma;

15) he was held in OCC beyond completion of his sentence because
the Oklahoma Department of Human Services had no place to release
him to;


                                   60
      16) he was ultimately released from OCC in 1978, approximately six
      months before he turned eighteen;

      17) in 1979, an investigation was conducted into Oklahoma’s
      juvenile facilities, including OCC, and widespread abuses were found
      to have occurred during the time he was incarcerated at OCC,
      including hog-tying children, leaving them in solitary confinement
      for extended periods of time, keeping them after completion of their
      sentences without due process, and not providing education;

      18) upon his release from OCC, he began living in Oklahoma City
      and doing landscaping work;

      19) in 1985, he was in a car accident, received a mild to moderate
      head injury to the frontal lobe area, and was knocked unconscious for
      approximately thirty minutes;

      20) while incarcerated in 1988, he experienced headaches of such
      severity that he was transported to a hospital for evaluation and
      treatment;

      21) intelligence testing revealed inconsistencies in his cognitive
      functioning suggestive of brain damage;

      22) neuropsychological testing and evaluation revealed the same
      inconsistencies, indicating that he suffered cognitive dysfunction,
      with causation unknown, and had an overall IQ of 74, and fit into a
      borderline mental retardation classification;

      23) Dr. Jeanne Russell, a psychologist, conducted a risk assessment
      prior to trial and concluded that, although he would continue to pose
      a risk of violence in society at large, he would not pose a risk of
      future violence in a prison setting (with the unavailability of his
      target victims and a structured environment).

Aplt. Br. at 88-90.

      a) Clearly established Supreme Court precedent

      Lott’s claim of ineffective assistance of trial counsel is governed by the


                                         61
standards outlined in Strickland v. Washington, 

(1984). In

Strickland, the Supreme Court held that “[a] convicted defendant’s claim that

counsel’s assistance was so defective as to require reversal of a conviction or

death sentence has two 

. “First,” the Court noted,

“the defendant must show that counsel’s performance was deficient.” 

that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

noted, “the defendant must show that the deficient

performance prejudiced the defense.” 

makes both

showings,” the Court held, “it cannot be said that the conviction or death sentence

resulted from a breakdown in the adversary process that renders the result

unreliable.” 

Court has, on several occasions in recent years, been

critical of, and deemed unconstitutional, a trial attorney’s failure to thoroughly

investigate and present at the sentencing phase of a capital trial available

mitigating evidence. All of these cases, however, have involved inexcusable

neglect on the part of trial counsel, rather than strategic decision-making. See

Sears v. Upton, 

, 3264 (2010) (trial counsel’s investigation of

mitigating evidence, which amounted to less than a day, was limited to talking to

witnesses selected by the defendant’s mother); Porter v. McCollum, 

, 453 (2009) (trial counsel met only briefly with defendant prior to penalty

                                          62
phase and neglected to obtain defendant’s school, medical, and military records or

to interview defendant’s family members); Wiggins v. Smith, 

, 524-

26, 534-35 (2003) (trial counsel abandoned, through “inattention,” an

investigation that would have revealed abuse, alcoholism, molestation, and

diminished mental capacity); Williams v. Taylor, 

, 395-96 (2000)

(noting that trial counsel’s investigation of mitigating evidence, begun a week

before trial, if properly done should have uncovered that defendant endured a

“nightmarish childhood,” and counsel erroneously believed that state law barred

his access to records).

      b) Background information relevant to claim

      During second-stage opening statements, the prosecution outlined for the

jury the three aggravating circumstances that it had alleged and would be

attempting to prove. The defense team, in its opening statement, acknowledged

the jury’s first-stage verdicts and stated that they were “not in any way going to

suggest to [the jury] that the[] deaths [we]re anything less than awful.” Trial Tr.,

Vol. IX, at 1690. Instead, defense counsel noted, its second-stage “[e]vidence

w[ould] really involve three things”:

          Number one, the evidence will show you that since May of 1987,
      Ronnie Lott’s life has consisted of incarceration.
          And you’ll have an opportunity to hear from people in both the
      jail system here who have had contact with him, as well as people in
      the penal system, penitentiary, who have had contact with him, and
      be able to hear from them the observations that they have made in
      their contact during these past 15 years with Ronnie Lott.

                                          63
         And I anticipate that what you will hear from them, the behavior,
      the characteristics of Ronnie Lott, are entirely opposite or
      diametrically opposed to the violence, the horribleness that you’ve
      seen in regard to these crimes.
         The evidence will be that while in either the county jail or the
      penal system, Ronnie Lott has not presented himself as a threat or as
      a danger to anyone, that during his incarceration that he has made a
      change, that he has done positive things during that time.
         Now, that’s in month [sic] way to suggest that that in some way
      makes what you have determined all right, but it’s an opportunity for
      us to show you what other people have seen in regard to Ronnie Lott.
      That’s number one.
         Number two. You will have an opportunity to hear from a family
      member of Ronnie Lott, get to know a little bit about him in that
      context, and hear what his family’s about, and that he is loved and
      that he is important to those family members, as well.
         And then finally, as [the prosecutor] suggested, we will present to
      you testimony of Jim Fowler, Jim Fowler being the son of Anna
      Laura Fowler, and we anticipate that he will tell you that it is his
      opinion, based in this particular case, that the appropriate punishment
      for Ronnie Lott is something other than the death sentence.

prosecution proceeded to incorporate by reference all of the evidence it

presented during the first-stage proceedings. The prosecution also presented

victim impact testimony from three witnesses: Mary Elizabeth Templin (a

daughter of Fowler), Harold Fowler (a son of Fowler), and Cynthia Houston

(Fowler’s oldest granddaughter). All three of these witnesses were asked by the

prosecution if they had an opinion as to what the appropriate punishment should

be for Lott, and all three testified that, in their view, death was the appropriate

punishment.

      Lott’s defense team in turn presented mitigating evidence in the form of

                                          64
testimony from five witnesses. The first of these witnesses, Charles Harris,

worked as a tag supervisor for Oklahoma Correctional Industries, and he testified

that Lott was a dependable worker who was generally fun to work with and never

exhibited any violent behavior. The second and third witnesses, Jason Ledford

and Terry Williams, had worked at the Oklahoma County Jail while Lott was

confined there awaiting trial, and both testified that they had not experienced any

serious problems with Lott’s behavior. The fourth witness, Harriet Tingle, was

Lott’s niece. She testified that Lott was like an older brother to her, that Lott had

people in his family who loved and cared for him, and that she would always love

Lott, his crimes notwithstanding. The fifth and final witness was Fowler’s oldest

son, Jim Fowler. He testified that, in his view, the appropriate punishment for

Lott was life without parole. The state trial court, citing Oklahoma state law,

refused to explain Jim Fowler’s reasoning to the jury.

      During second-stage closing arguments, the prosecution discussed the three

alleged aggravating circumstances and outlined the evidence that was presented in

support of each one. The prosecution also commented on Lott’s attempt to use

his purported family support as a mitigating factor:

         And let me interrupt myself to say when we get to the mitigating
      circumstances, that mitigator that Ronald Lott has a good and loving
      family, this is a difficult case, we’re supposed to be on opposite
      sides, but let the State of Oklahoma be clear. We feel nothing but
      sympathy and respect for that family.
         They did nothing, nothing to contribute to this behavior. On the
      contrary, they reached out with love and harmony and support.

                                          65
      [Lott] has no excuse that his family didn’t love and support him.
      And what he did with that is use it as a base of operations to do
      things that that family never, never knew about, never did anything
      about, would have done what they could to stop, if they had known
      about it. And that’s what he did.

1798.

      Defense counsel focused their closing arguments on Lott’s post-crime

behavior in prison:

         [N]ormally these cases come up right after the crimes and the DA
      can say, well, we don’t know if he can survive in prison without
      killing somebody. That’s why you have to give him death.
         We know that’s not true [for Lott]. We know for a fact that he
      can survive in prison and not hurt anybody because he’s done it for
      15 years.

is Ronnie Lott the worst of the worst? Obviously that’s
      what you will have to decide. If we focus only on the offense and no
      further, we know what that answer would be. But I hope I’ve
      conveyed to you that’s only part of it. No, Ronnie Lott has
      demonstrated that he can function in prison without being a threat.

deliberating, the jury rejected the continuing-threat aggravator

alleged by the prosecution, but found the existence of the other two alleged

aggravators, i.e., that the murders were especially heinous, atrocious, or cruel,

and that the murders were committed for the purpose of avoiding or preventing a

lawful arrest or prosecution. The jury in turn fixed Lott’s punishment at death for

each of the two murders.


                                         66
      c) The OCCA’s rejection of this claim

      Lott first presented his ineffective assistance claim to the OCCA in

connection with his direct appeal. More specifically, Lott raised the issue in his

direct appeal brief, and also filed with the OCCA an application for an

evidentiary hearing on the claim. The OCCA rejected Lott’s claim and denied his

request for an evidentiary hearing. The OCCA’s explanation for its denial,

though lengthy, bears quoting:

         In his fifteenth assignment of error, Appellant contends he was
      denied the effective assistance of counsel by counsel’s failure to
      present any evidence regarding Appellant’s background in the second
      stage of trial. Appellant asserts that abundant information was
      available to defense counsel, but counsel did not investigate the
      information sufficiently to make it presentable to the jury. Appellant
      argues much information existed about his background that could
      have reduced his moral culpability and humanize [sic] him to the
      jury. Appellant asserts this claim of error is almost exclusively
      based on facts outside of the appellate record; therefore his claim of
      error is raised fully in his Application for an Evidentiary on Sixth
      Amendment Claims filed concurrently with his appellate brief.
         Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, 22
      O.S.2001, Ch. 18, App. allows an appellant to request an evidentiary
      hearing when it is alleged on appeal that trial counsel was ineffective
      for failing to “utilize available evidence which could have been made
      available during the course of trial . . . .”. Once an application has
      been properly submitted along with supporting affidavits, this Court
      reviews the application to see if it contains “sufficient evidence to
      show this Court by clear and convincing evidence there is a strong
      possibility trial counsel was ineffective for failing to utilize or
      identify the complained-of evidence.” Rule 3.11(B)(3)(b)(i). See
      Short, 

, ¶ 

.
         In order to meet the “clear and convincing” standard set forth
      above, Appellant must present this Court with evidence, not
      speculation, second guesses or innuendo. This requirement of setting
      forth evidence does not include requests for more time to develop

                                         67
and investigate information that was readily available during trial
preparation. Under the provisions of Rule 3.11, an appellant is
afforded a procedure to have included in the record for review on
appeal evidence which was known by trial counsel but not used or
evidence which was available but not discovered by counsel. It is
not a procedure for post-trial discovery. With these standards in
mind, we review Appellant’s Application for Evidentiary Hearing on
Sixth Amendment Grounds.
    ....
    Appellant . . . contends trial counsel was ineffective for failing to
adequately investigate and present mitigating evidence. He argues
trial counsel failed to competently advise him of the meaning and
availability of mitigating evidence. Appellant asserts that trial
counsels’ failure to consult with him and obtain his consent not to
offer evidence of his background in second stage was not the product
of deliberate trial strategy, but rather the result of failure to fully
investigate mitigation.
     In Appellant’s Exhibit B, Gretchen Mosley, appellate counsel,
admits in her sworn affidavit that a mitigation investigation was
conducted in preparation for trial. She states that investigation
included interviewing Appellant (which she did herself) and his
family members regarding his childhood, family history, substance
abuse, significant relationships and life events, psychological and
social development, and life circumstances and events surrounding
the time of the crimes. Ms. Mosley also states intelligence and
psychological testing was done, as well as an evaluation by a
neuropsychologist for brain damage. A Risk Assessment was also
conducted by licensed psychologist, Dr. Jeanne Russell, Ed.D.
    Ms. Mosley states that none of this information was presented to
the jury. She states that when she asked trial counsel why he had not
presented any evidence of Appellant’s background, trial counsel
responded, “that they had ‘no way to put it on.’”
    Appellant now argues that the mitigation investigation should
have put trial counsel on notice that Appellant’s background would
be a significant mitigating factor at trial, and therefore, trial counsel
should have retained an appropriate expert to conduct a social history
of Appellant. Appellant asserts trial counsel should at least have
presented the Risk Assessment Report prepared by Dr. Jeanne
Russell.
    In support of his argument, Appellant presents the affidavit of
appellate counsel; a Social History report prepared by Dr. Jeanne

                                   68
Russell, Ed.D., licensed psychologist, at the request of appellate
counsel (Appellant’s Exhibit C); a Risk Assessment prepared by Dr.
Jeanne Russell at the request of trial counsel (Appellant’s Exhibit I);
a copy of an internal memo from the Oklahoma Indigent Defense
System (OIDS) mitigation investigation stating that co-counsel
received more information from Appellant about his childhood and
family, and that lead counsel decided not to use the additional
information, but go with what evidence they had at the time
(Appellant’s Exhibit D); and affidavits from Sid Conaway and Paula
Alfred, capital defense attorneys in the Tulsa County Public
Defender’s Office, stating in pertinent part, it is the practice of
capital attorneys in Oklahoma to retain a mental health/sociology
expert to prepare and present to the jurors the client’s background
(Appellant’s Exhibits E and F).
   To support his burden of establishing that trial counsels’ failings
were not the result of reasonable trial strategy, Appellant presents his
own affidavit (Appellant’s Exhibit A) stating that counsel never
discussed with him their strategy of not investigating or presenting
mitigation regarding his background; a copy of an OIDS internal
memo prepared by trial counsel after Appellant’s trial concerning the
decision not to impeach state’s witness Brian Wraxall (Appellant’s
Exhibit G); and a copy of an OIDS internal memo (apparently from a
mitigation investigator to lead counsel) suggesting a change of
counsel to an African–American attorney from Oklahoma County
based upon certain concerns of Appellant’s family (Appellant’s
Exhibit H).
   Appellant has provided a great deal of information in his
Application and accompanying affidavits. However, we find he has
failed to set forth sufficient evidence to warrant an evidentiary
hearing. The affidavits submitted by Appellant show a substantial
mitigation investigation was conducted in this case. However,
Appellant finds fault with trial counsels’ failure to conduct a further
investigation. Appellant asserts trial counsel should have requested
“expert forensic mental health assistance to explain the importance of
Appellant’s experiences to his development and commission of the
crimes” and presented this to the jury in the form of a Social History
Report. Indeed, in Oral Argument, appellate counsel argued the
information contained in the Social History was the only information
that could have saved Appellant’s life and that trial counsel had an
obligation to put that information before the jury. For the reasons
discussed below, we find Appellant has failed to show by clear and

                                   69
convincing evidence that trial counsels’ failure to present a Social
History Report of Appellant to the jury warrants an evidentiary
hearing.
    As part of the mitigation investigation, a Risk Assessment Report
was prepared. In Appellant’s Exhibit I, Dr. Russell stated that
Appellant was referred by defense counsel for evaluation of his
potential risk of future violent behavior. Dr. Russell stated her
assessment was based upon interviews with Appellant, jail staff, and
OIDS Investigator Leedy; and review of transcripts from preliminary
hearings in Appellant’s prior convictions; records from the
Department of Institutions, Social and Rehabilitative Services
(DISRS) and Department of Corrections (DOC), and results of
intelligence and psychological tests.
    In her assessment, Dr. Russell set forth the reasons for
Appellant’s incarceration, his family history, education, substance
abuse history, psychiatric history, medical history, relationships,
employment, and criminal history. Additionally, the assessment
contains Dr. Russell’s observations on Appellant’s behavior and
mental status. She stated he is “guarded in his responses to interview
questions”, but shows “no symptoms of a major mental disorder such
as hallucinations or delusions”. Also included in the Risk
Assessment are Assessment Results and Appellant’s aggression
history. In the Assessment Results portion of the report, Dr. Russell
stated Appellant scored high for the presence of psychopathy, which
she explained was “characterized interpersonally by grandiose,
egocentric, manipulative, and deviant interactions”, and “by a lack of
empathy, guilt or remorse”. She also stated psychopathy was defined
“behaviorally in terms of impulsivity and sensation seeking”. Also
included in the Assessment Results were Dr. Russell’s statements of
Appellant’s Personality Factors. She stated there was “no evidence
of psychotic thinking or other symptoms related to a major mental
illness”. Instead, “test results indicated Appellant was self-centered
or absorbed and may have difficulty in delaying gratification”. She
said his “behavior vacillated from agreeable to accusatory and this
type of behavior often keeps others on edge never knowing if he will
react in an obliging or resentful manner”. She also stated, “many of
his legal difficulties were most likely the product of these attributes
coupled with a chronic substance abuse problem. Results further
suggest he has not developed internal controls and as a result
functions best in a controlled, structured environment such as a
prison until such control is developed.”

                                  70
   As for the Aggression History portion of the report, Dr. Russell
noted Appellant’s two prior convictions for violent rapes against
elderly women. She stated, “he offered few insights into motive
behind victim selection”. Dr. Russell also stated that a review of
DOC records “revealed 11 misconducts over a 10 year time period
none of which included physical aggression.”
   In the Summary section of the Report, Dr. Russell stated that an
evaluation of potential risk to others was conducted for the purpose
of assessing continuing threat. She stated risk was assessed for both
community and prison settings. Dr. Russell noted Appellant had
been incarcerated for 14 of his 41 years. She said Appellant reported
drinking alcohol on a daily basis since he was 15 years old. He also
reported some use of marijuana but denied use of other drugs. Dr.
Russell concluded that Appellant’s risk to others in the community
should be considered high as he lacks internal controls, has access to
alcohol, and his acts of aggression have always occurred in the
community and involved elderly women. Dr. Russell also concluded
that Appellant’s risk to others in a prison setting should be
considered low based in part on the structure of the prison system.
She also stated, “since incarceration for the most part minimizes the
defendant’s access to alcohol, drugs, weapons and potential victims,
the risk for future aggression significantly decreases when placed in
a more secure setting”.
   At the request of appellate counsel, Dr. Russell also conducted a
Social History of Appellant. In Appellant’s Exhibit C, Dr. Russell
explained that a Social History is to assess the impact of both
psychological and sociological factors on Appellant’s offense. She
also stated it differs from the Risk Assessment performed previously
as the Social History looks at historical factors to better understand
behavior while the risk assessment “focuses on the interaction of the
environment and personality traits in assessing the probability for
future aggression.”
   A comparison of the reports show, that but for one exception, the
same sources were relied upon for information. The one exception,
“interviews with family members and friends”, is listed as a resource
on the Social History Report but not the Risk Assessment Report.
Consequently, Appellant’s family history and childhood is set forth
in greater detail in the Social History. However, as Appellant and
family members were interviewed as part of the mitigation
investigation, trial counsel was presumably aware of the information
provided by family members. Further, many of the conclusions set

                                  71
forth in the Social History Report are the same as those set forth in
the Risk Assessment Report. FN19 While recognizing the different
purposes behind the Social History and the Risk Assessment, the two
reports in this case contained much of the same information.
Therefore, when we consider the information gathered from the
mitigation investigation and known to trial counsel, we find
Appellant has failed to show by clear and convincing evidence there
is a strong possibility trial counsel was ineffective for failing to
expand his investigation to include a social history of Appellant.

      FN19. In the Risk Assessment, Dr. Russell stated
      Appellant “tries to present himself in a favorable light
      which may be due to a combination of denial and lack of
      self-awareness.” In the Social History she states
      Appellant “employs denial and repression to deal with
      psychological pain.” Both the Risk Assessment and
      Social History note the early onset and long-lasting use
      of alcohol by Appellant. Both reports also note the lack
      of internal controls on Appellant’s part. Both reports
      conclude that in the absence of any external controls,
      either the Oklahoma Children’s Center where Appellant
      was admitted as a delinquent child or the adult prison
      system, combined with the lack of internal personal
      controls, Appellant engages in a pattern of daily
      drinking, use of drugs and criminal activity.

    Next, we turn to the presentation of mitigation evidence. Defense
counsel presented five witnesses during second stage: Charles
Harris, Tag Supervisor for the Oklahoma Correctional Industries at
RBD Connors Correctional Facility, and Jason Ledford and Terry
Williams, Detention Officers at the Oklahoma County Jail. Each of
these witnesses testified to Appellant’s conduct and behavior while
incarcerated. Harris testified that Appellant was a good worker in
the tag facility and has risen to a position where he assisted Harris in
overseeing the operation. Harris described Appellant as dependable,
and said if Appellant were sent back to him in the tag facility; he
would have no problem working with him. Harris said he never saw
Appellant exhibit any aggressive or violent behavior. Ledford and
Williams both testified that they had not seen any violent behavior or
had any problems with Appellant while he was incarcerated in the
Oklahoma County Jail.

                                   72
    Also presented was Harriett Tingle, Appellant’s niece. Ms.
Tingle testified she was only eight years younger than Appellant and
that he was more like a big brother to her than an uncle. In addition
to detailing prior experiences with Appellant, she stated that while
Appellant was incarcerated, she stayed in contact with him. Ms.
Tingle testified that no matter what sentence Appellant received, she
and his family would continue to support him. The final defense
witness was Jim Fowler, Mrs. Fowler’s son. Mr. Fowler testified
generally against the death penalty.
    Trial counsel’s decision to limit the mitigating evidence to the
above witnesses appears to have been reasonable trial strategy.
Presenting witnesses who would testify to Appellant being a
productive member of prison society was consistent with information
contained in the Risk Assessment that the risk of future aggression
from Appellant significantly decreased when he was in a secure
prison environment.
    Further, Ms. Tingle was the only family member who testified
although she stated she had been accompanied to trial by an uncle
and his girlfriend, her grandmother (Appellant’s mother), an aunt and
a cousin. There is no indication in the record or in Appellant’s
Application for Evidentiary Hearing why those relatives did not
testify at trial.
    Therefore, it comes down to counsel’s failure to present evidence
of Appellant’s life history and the circumstances surrounding the
crimes as contained in the Social History. Looking at both the Risk
Assessment Report and the Social History Report it was reasonable
trial strategy not to put too much of Appellant’s life history before
the jury. For every witness the defense presents, the State has the
opportunity to cross-examine. While Appellant argues that
presenting evidence of his life history and an explanation of his
conduct in light of his psychological and social development would
have enabled the jury to see him as a person and not as a monster,
the evidence could have the opposite impact on the jury. Both the
Risk Assessment and Social History contain information unflattering
to Appellant. Presenting detailed evidence concerning the behavioral
impact of Appellant’s life history of having no external or internal
controls (except when incarcerated) combined with chronic substance
abuse “could reasonably be viewed as mitigating to one person and
aggravating to another.” Murphy, 

, ¶ 

.
    Information contained in the Social History which could arguably

                                 73
be seen as mitigating evidence consisted of descriptions of
Appellant’s father as “unloving” and “a strict disciplinarian” who
regularly “whipped” his children and spent his salary on his own
needs instead of feeding his family; that Appellant was the youngest
of 10 children and his mother had a difficult pregnancy with him; the
family lived in a small home with only five rooms and no running
water; his parent’s [sic] separation when he was young and his
accompanying his mother, and his young siblings, to live in the city
where his mother “worked all the time in an effort to take care of the
family and eventually ‘kick[ed] him out of the house for getting in
trouble’”; Appellant’s placement in the Oklahoma Children’s Center
as a delinquent child when he was 16; and psychological testing
which reported Appellant was “anxiously troubled, lonely and
socially apprehensive most of the time” and that “he often turns to
alcohol to fulfill a number of otherwise difficult to achieve
psychological functions”.
   Dr. Russell stated in part the Social History was to provide a
background for understanding why Appellant eventually aggressed
against older women in such a violent and abusive way. She
concluded that although he had a positive relationship with his
mother, her decision to leave his father and move from the country to
the city was “the single most devastating event in his life.” Dr.
Russell also noted a relationship Appellant had with a woman named
Donna Burton. Burton apparently gave birth to a daughter during
their relationship although the paternity of the child was in question.
After the relationship between Burton and Appellant ended,
Appellant continued to provide for the child. Dr. Russell noted the
relationship ended in 1984 or 1985, about the time the first of the
rapes occurred. Dr. Russell claimed the relationship with Burton
provided additional insight into how Appellant dealt with
abandonment and may have been the catalyst for his aggression.
   By contrast, information in the Social History which could be
described as not mitigating includes Dr. Russell’s statement that
Appellant had a very different view of the way he was raised and
“glamoriz[ed]” his early years, his description of his relationship
with his father as “close”, his reported memory lapse concerning his
move to the city with his mother and that Appellant’s descriptions of
his early life was inconsistent with that of other family members and
DISRS records. The Social History lists Appellant’s seven prior
convictions from two different states ranging from conspiracy to sell
marijuana to first degree rape and robbery with firearms and that

                                   74
Appellant has been in prison since 1987. Also included in the Social
History is information concerning Appellant’s alcohol and substance
abuse which could be seen in either a mitigating or non-mitigating
light. This is a brief, and admittedly incomplete synopsis of the
Social History, which Appellant argues defense counsel was
ineffective in failing to present.
   Having reviewed the information in the Social History, we find
presentation of that evidence would not have been helpful to
Appellant and might even have been counterproductive. If in fact,
Dr. Russell had been put on the witness stand to testify to the Social
History, the topic of the Risk Assessment and the information and
conclusions therein would have been relevant information for the
State to address on cross-examination. In that scenario, the jury
would certainly have heard that Appellant was a chronic alcohol and
drug abuser, he was self absorbed, lacked empathy, guilt and remorse
and without warning exhibited wide mood swings which affected his
interaction with others. The jury might also have heard that
Appellant’s conduct could not be explained or excused due to a
major mental illness or psychotic thinking, as there was no evidence
he suffered from either condition. Further, Appellant has received 11
misconduct reports while incarcerated the past 10 years. Although
none of the incidents included physical aggression, they did include
verbal aggression toward staff. FN20

      FN20.Having compared the Risk Assessment and the
      Social History, and finding much of the information
      contained in the two reports to be similar, we take this
      opportunity to note that when read in their entirety, the
      two reports paint a much different picture of Appellant.
      While recognizing the differing purposes behind the two
      reports, Appellant comes across as a much meaner more
      violent person in the Risk Assessment than in the Social
      History. We note this distinction as a way to caution
      expert witnesses not to attempt to deceive the courts by
      intentionally leaving out information that could be
      relevant to a jury’s consideration.

    Instead of taking the risk that cross-examination could reveal
such “negative” information that would harm Appellant’s chances for
a sentence less than death, counsel chose to focus on more “positive”
evidence of Appellant’s life in prison. This evidence showed that

                                  75
while Appellant was incarcerated he was not violent or aggressive,
that he was a good worker and had proved himself sufficiently
responsible to work at making license tags and to oversee other
inmates in the tag facility. We find trial counsel’s choice to limit the
second stage evidence to that showing Appellant was a productive
member of prison society and he had family who loved him, while
excluding potentially damaging evidence of Appellant’s
psychological and social development, especially in light of his
history of aggression towards elderly women, was reasonable trial
strategy well within the range of professional reasonable judgment.
In fact, counsel would have been ineffective if the door to the
damaging Risk Assessment Report and evidence contained therein
had been opened and the State had been able to exploit it to their
advantage. The Social History in this case contained the “double
edge” the Supreme Court has found sufficient to justify limited
investigations. See Burger v. Kemp, 

, 

,

(1987). We find it sufficient to justify a limited
presentation of evidence.
   Defense counsel in this case consisted of a team of four attorneys
well known to this Court to be experienced in both the prosecution
and defense of capital cases. Having reviewed the contents of the
Social History, trial counsel’s response to appellate counsel that the
Social History was not presented because there was “no way to put it
on” can be interpreted as saying the evidence could not be “safely”
presented to the jury, not that it couldn’t be put on at all. The record
shows a reasoned strategic decision, made after a reasonably
thorough investigation, not to present the Social History because it
would have opened the floodgates to evidence very harmful to
Appellant. Even with the evidence contained in the Social History,
the State’s evidence in aggravation was great in this case, while the
mitigating evidence was much weaker.
   Appellate counsel argued at oral argument that negative
information about Appellant was already before the jury in that he
had been convicted of committing admittedly horrific crimes.
Appellate counsel argued that trial counsel had an obligation to
present additional facts and psychological factors to explain
Appellant’s conduct. To the contrary, counsel does not have an
obligation to introduce any and all evidence that might conceivably
be considered mitigating in the hope that it might outweigh the
aggravating evidence and save the defendant’s life. Counsel’s
obligation is to use reasonable professional judgment in making

                                   76
decisions concerning the defendant’s case. FN21

      FN21.Further, counsel does not have an obligation to get a
      waiver from the defendant on the decision not to present
      certain mitigating evidence. While this Court has held
      that when a competent defendant intends to completely
      forego the presentation of any mitigating evidence
      during second stage, counsel must obtain a knowing
      waiver to that effect, Wallace v. State, 

,
      ¶ 27, 

, 376, we have not extended the need
      for a waiver to a case where some mitigation evidence is
      offered. Therefore, contrary to Appellant’s claim,
      counsel was not obligated to obtain a written waiver
      from Appellant concerning the decision to limit
      presentation of his background in second stage.

    This is not to say that counsel is to make all of the decisions in
the case. As I stated in my special concurrence to Grant v. State,

, 

, (Lumpkin, J. special concur), it is the
(competent) client’s case, not the lawyer’s. While, [sic] counsel has
the responsibility to advise, inform, and consult with the client, the
defendant has the right be [sic] involved in the decision process that
will affect his or her life. 

California, 

, 819, 

, 

(1975).
    In the present case, there is no indication that during trial,
Appellant disagreed with counsel’s decision to limit the presentation
of mitigating evidence. Further, the record reflects no question as to
Appellant’s competency for trial. The record shows that counsel’s
decision was a strategic choice made after a thorough investigation
and within the exercise of reasonable professional judgment.
Accordingly, we find presentation of the Social History would not
have significantly influenced “the jury’s appraisal” of Appellant’s
moral culpability. Cf. Wiggins v. Smith, 

, 

, 2544, 

(2003) quoting Williams v. Taylor, 

, 398, 

, 

(2000).
    Accordingly, having thoroughly reviewed Appellant’s Application
and accompanying affidavits, we find he has failed to show by clear
and convincing evidence a strong possibility that defense counsel
was ineffective for failing to investigate further and utilize the
complained-of evidence. We decline to grant Appellant’s application
for an evidentiary hearing on sixth amendment [sic] grounds.

                                  77
Lott 

(alterations in original) (footnote and internal paragraph

numbers omitted).

      d) The federal district court’s analysis of the claim

      Notwithstanding the OCCA’s lengthy analysis and rejection of Lott’s

ineffective assistance claim, the district court in this case concluded that it was

bound by our decision in Wilson v. Workman, 

(10th Cir. 2009) (en

banc), to review the claim de novo:

         Petitioner’s claim was presented to the OCCA through a Rule
      3.11 motion because it relied upon matters outside of the record.
      While thoroughly addressing the non-record evidence, the OCCA
      reviewed Petitioner’s claim within its Rule 3.11 framework and
      denied Petitioner his requested evidentiary hearing because he “failed
      to show by clear and convincing evidence a strong possibility that
      defense counsel was ineffective for failing to investigate further and
      utilize the complained-of evidence.” 

. In
      Wilson, the Tenth Circuit determined that this analysis of an
      ineffectiveness claim is not owed AEDPA deference. “This is an
      explicit application of the Rule 3.11 standard which . . . does not
      replicate the federal standard and therefore does not constitute an
      adjudication on the merits as to whether [Petitioner’s] non-record
      evidence could support his Strickland claim. A federal court
      therefore does not owe deference to the OCCA’s rejection of
      [Petitioner’s] ineffectiveness claim.” 

.
      Thus, in accordance with Wilson, Petitioner’s claim is subject to de
      novo review.

ROA, Vol. I, Pt. 4, at 765-66 (alterations in original).

      Reviewing Lott’s claim de novo, the district court concluded first that

Lott’s trial counsel “conducted a substantial mitigation investigation” and thus

“knew [Lott]’s life history” and the result of his mental health evaluations. 

In turn, the district court concluded that Lott’s trial counsel, “fully aware of

the difficulties encountered by [Lott] in his life, opted to pursue a different

mitigation strategy” that focused on Lott’s “extensive history of life in

incarceration” and his ability to “be productive and nonviolent” in a prison

setting. 

trial counsel also, the district court noted, “presented

evidence that [Lott] had a family who loved and supported him, and a sentence

recommendation of life without parole from one of the victim’s own family

members.” 

district court concluded, “[t]his was

sound trial strategy.” 

also, out of an abundance of caution,

analyzed the prejudice prong of the Strickland test and concluded that Lott had

“failed to establish prejudice.” 

Which standard of review to apply in this appeal

      The parties disagree on what standard of review we must apply in

reviewing Lott’s ineffective assistance claim. Lott contends that we, like the

district court, should apply a de novo standard of review. In support, Lott cites to

Wilson. In Wilson, a majority of this court held, for three essential reasons, that

“[a] federal court . . . does not owe deference to the OCCA’s rejection of [an]

ineffectiveness claim” under the OCCA Rule 3.11 

.

First, the majority expressed concern that the OCCA might not analyze the

proffered non-record evidence in every instance in which it denies a motion for an

evidentiary hearing under Rule 3.11. 

and relatedly, the

                                          79
majority concluded in the cases before it that, because of the summary nature of

the OCCA’s rulings, the OCCA had not analyzed the petitioners’ proffered non-

record evidence and had, instead, denied the petitioners’ ineffective assistance

claims based solely upon the record evidence. 

the cases

before us, the [OCCA] disposed of mixed questions of law and fact, but did so on

a factual record that was, solely as a result of the state procedural rule,

incomplete.”). Third, the majority held that “[b]ecause [OCCA] Rule 3.11 creates

a higher evidentiary burden than the federal [Strickland] standard, [it] cannot [be

said] that the OCCA’s failure to grant an evidentiary hearing under this standard

necessarily constitutes a determination that the defendant could not satisfy the

federal standard.” 

district court in this case, considering itself

bound by Wilson, afforded no deference to the OCCA’s decision in Lott I and

instead reviewed Lott’s ineffective assistance claim de novo.

      Respondent argues on appeal that “[s]ince Wilson was decided, the OCCA

has clarified the relationship between the Strickland standard and OCCA Rule

3.11.” Aplee. Br. at 66. Specifically, respondent notes that in Simpson v. State,

(Okla. Crim. App. 2010), the OCCA stated as follows:

         In conjunction with [his ineffective assistance of counsel] claim,
      Appellant has filed a Rule 3.11 motion for an evidentiary hearing on
      the issue of ineffective assistance of counsel asserting that counsel
      was ineffective for failing to adequately investigate and identify
      evidence which could have been made available during the trial.
      Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title
      22, Ch.18, App. (2007). In accordance with the rules of this Court,

                                           80
      Appellant has properly submitted with his motion affidavits
      supporting his allegations of ineffective assistance of counsel. Rule
      3.11(B)(3)(b), Rules of the Oklahoma Court of Criminal Appeals,
      Title 22, Ch.18, App. (2007). As the rules specifically allow
      Appellant to predicate his claim on allegations “arising from the
      record or outside the record or a combination of both,” 

      course, incumbent upon this Court, to thoroughly review and
      consider Appellant’s application and affidavits along with other
      attached non-record evidence to determine the merits of Appellant’s
      ineffective assistance of counsel claim. Our rules require us to do so
      in order to evaluate whether Appellant has provided sufficient
      information to show this Court by clear and convincing evidence that
      there is a strong possibility trial counsel was ineffective for failing to
      utilize or identify the evidence at issue. Rule 3.11(B)(3)(b), Rules of
      the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.
      (2007). This standard is intended to be less demanding than the test
      imposed by Strickland and we believe that this intent is realized.
      Indeed, it is less of a burden to show, even by clear and convincing
      evidence, merely a strong possibility that counsel was ineffective
      than to show, by a preponderance of the evidence that counsel’s
      performance actually was deficient and that but for the
      unprofessional errors, the result of the proceeding would have been
      different as is required by Strickland. Thus, when we review and
      grant a request for an evidentiary hearing on a claim of ineffective
      assistance under the standard set forth in Rule 3.11, we do not make
      the adjudication that defense counsel actually was ineffective. We
      merely find that Appellant has shown a strong possibility that
      counsel was ineffective and should be afforded further opportunity to
      present evidence in support of his claim. However, when we review
      and deny a request for an evidentiary hearing on a claim of
      ineffective assistance under the standard set forth in Rule 3.11, we
      necessarily make the adjudication that Appellant has not shown
      defense counsel to be ineffective under the more rigorous federal
      standard set forth in 

. In light of this explanation in Simpson, respondent argues, it

is now clear that “Rule 3.11 does not place on defendants a heavier burden to

demonstrate ineffectiveness of counsel than Strickland,” Aplee. Br. at 67, and we


                                          81
must therefore apply to the OCCA’s decision the more deferential standard of

review outlined in § 2254(d)(1). Respondent also argues that, even if we apply a

de novo standard of review to the claim, “the factual findings the OCCA made in

reviewing the proffered evidence should be given a presumption of correctness”

under § 2254(d)(2). 

the respondent. In Simpson, the OCCA made clear that Rule

3.11 obligates it to “thoroughly review and consider [a defendant’s Rule 3.11]

application and affidavits along with other attached non-record 

. Thus, even in cases, such as Wilson, where the OCCA summarily

disposes of a defendant’s Rule 3.11 application without discussing the non-record

evidence, we can be sure that the OCCA in fact considered the non-record

evidence in reaching its decision. Such a conclusion, we note, is entirely

consistent with the Supreme Court’s repeated admonitions that AEDPA’s

deferential standards of review “do[] not require that there be an opinion from the

state court explaining the state court’s reasoning.” Harrington v. Richter, 131 S.

Ct. 770, 784 (2011). The OCCA’s decision in Simpson also clarifies that the

interplay of Rule 3.11’s “clear and convincing” evidentiary standard and its

“strong possibility of ineffectiveness” substantive standard is “intended to be less

demanding than the test imposed by 

. In other

words, the OCCA in Simpson has now assured us that “when [it] review[s] and

den[ies] a request for an evidentiary hearing on a claim of ineffective assistance

                                         82
under the standard set forth in Rule 3.11, [it] necessarily make[s] the adjudication

that Appellant has not shown defense counsel to be ineffective under the more

rigorous federal standard set forth in Strickland.” 

plain to

us, as a matter of federal law, that any denial of a request for an evidentiary

hearing on the issue of ineffective assistance of counsel filed pursuant to OCCA

Rule 3.11, including the one made by the OCCA in Lott’s direct appeal, operates

as an adjudication on the merits of the Strickland claim and is therefore entitled to

deference under § 2254(d)(1). Lastly, it is indisputable that we are bound to defer

to the OCCA’s factual findings (regarding what pretrial investigative steps Lott’s

trial counsel took) under § 2254(d)(2).

      f) Analysis of the OCCA’s decision

      The only aspects of the OCCA’s decision that give us some pause are its

findings, made in the course of considering the first Strickland prong, that Lott’s

trial counsel decided as a matter of trial strategy to forego presenting evidence of

Lott’s social history, and that when Lott’s trial counsel stated to Lott’s appellate

counsel after trial that there was “no way to put [the Social History] on” at trial,

they were “saying the evidence could not be ‘safely’ presented to the jury, not

that it couldn’t be put on at all.” Lott 

. But those findings, made

on the basis of the OCCA’s review of the record on direct appeal, must “be

presumed to be correct” unless Lott rebuts the presumption by “clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1). And after conducting our own

                                          83
review of the record in this case, we cannot say that Lott has made such a

showing. As the OCCA apparently concluded, the only reasonable inference that

can be drawn from the record is that Lott’s counsel determined that introduction

of Lott’s social history would be more detrimental than beneficial, and thus made

a strategic decision not to present that evidence.

      Even if we were to assume that the OCCA’s first-prong analysis 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)(2), we would still be bound to

defer to the OCCA’s prejudice analysis under Strickland’s second prong. In the

OCCA’s view, although the Social History Report prepared by Dr. Russell

contained some potentially mitigating information, it also included information

“which could be described as not mitigating,” Lott 

, and that

“might even have been counterproductive,” 

OCCA also noted

that, had Dr. Russell testified about the Social History Report, the prosecution

would have cross-examined her about “the Risk Assessment and the information

and conclusions therein,” and that, consequently, the jury “would certainly have

heard that [Lott] was a chronic alcohol and drug abuser, . . . was self absorbed,

lacked empathy, guilt and remorse and without warning exhibited wide mood

swings which affected his interactions with others,” his “conduct could not be

explained or excused due to a major mental illness or psychotic thinking, as there

was no evidence he suffered from either condition,” and he “ha[d] received 11

                                          84
misconduct reports while incarcerated [during the] 10 years” prior to trial. 

concluded, “[e]ven with the evidence contained in the Social

History, the State’s evidence in aggravation was great in this case, while the

mitigating evidence was much weaker.” 

the record

on appeal, we cannot quarrel with this conclusion, and we in turn conclude that it

is neither contrary to, nor an unreasonable application of, Strickland.

6) Admission of improper victim impact evidence

      In Proposition Six of his appellate brief, Lott contends that the state trial

court’s admission of improper victim impact testimony from witness Cynthia

Houston, the granddaughter of victim Fowler, resulted in the arbitrary and

capricious imposition of the death penalty in violation of the Eighth and

Fourteenth Amendments. According to Lott, Houston’s testimony “did not meet

[Oklahoma’s] statutory requirements of admissible victim impact evidence,”

which limit such testimony to “immediate family members.” Aplt. Br. at 101-02

& n.49. In turn, Lott argues, Houston “read a lengthy, poignant statement in

which she related several of her grandmother’s personal characteristics to the

jury,” 

then proceeded “to testify about the impact her

grandmother’s death had on her father, her aunt and her uncles,” 

Lott complains, “Houston concluded her testimony by giving her personal

opinion that the appropriate punishment was death.” 

a whole,

Lott argues, the probative value of Houston’s testimony was substantially

                                         85
outweighed by its prejudicial effect.

      a) Clearly established Supreme Court precedent

      The Supreme Court’s decisions in Payne and Booth v. Maryland, 

(1987), provide the clearly established federal law applicable to this claim.

In Booth, the Court held “that evidence and argument relating to the victim and

the impact of the victim’s death on the victim’s family are inadmissible [under the

Eighth Amendment] at a capital sentencing hearing.” 

n.2.

That holding was overruled by the Court in Payne. 

n.2. “Booth also

held that the admission of a victim’s family members’ characterizations and

opinions about the crime, the defendant, and the appropriate sentence violates the

Eighth Amendment.” 

Payne did not overrule this portion of

Booth. 

constitutionally improper for the family members of

a victim to provide characterizations and opinions about the crime, the defendant,

and the appropriate sentence during the penalty phase of a capital case.” DeRosa

v. Workman, 

, 1237 (10th Cir. 2012) (internal quotation marks

omitted).

      b) The OCCA’s rejection of Lott’s claim

      On direct appeal, Lott asserted some, but not all, of the arguments he now

asserts in this federal habeas appeal. In Proposition X of his direct appeal brief,

Lott alleged in a heading that the admission of Houston’s testimony violated

Oklahoma state law (specifically the Oklahoma statute governing admission of

                                          86
victim impact evidence), and also “resulted in arbitrary and capricious imposition

of the death penalty in violation of the Eighth and Fourteenth Amendments.”

Direct Appeal Br. at 74 (capitalization in original altered). But the body of the

argument in support of Proposition X made no further mention of the United

States Constitution or any Supreme Court case. Instead, Lott’s arguments focused

on the admissibility of Houston’s testimony under Oklahoma state law. And,

although Lott complained generally about Houston having offered her opinion of

the appropriate sentence, Lott did not argue that Houston’s testimony in that

regard violated his constitutional rights.

      In rejecting Lott’s direct appeal, the OCCA addressed both Lott’s state law

arguments and his general assertion that the admission of Houston’s testimony

violated his constitutional rights, but did not specifically address whether the

admission of Houston’s sentencing recommendation was constitutionally

improper 9:

          In his tenth assignment of error, Appellant contends the trial court
      erred in admitting the victim impact testimony of Cynthia Houston.
      Ms. Houston was the granddaughter of Mrs. Fowler. Appellant
      argues her testimony was inadmissible for the following reasons: 1)
      the testimony contained irrelevant evidence about the impact of the
      victim’s death on non-immediate family members; 2) she testified as
      a family designee when family members had already testified; and 3)

      9
       Although we question whether, in light of this procedural history, Lott has
adequately exhausted his challenge to the admission of Houston’s sentencing
recommendation, the State has expressly acknowledged that this constitutional
claim was exhausted and, thus, has waived any argument on that basis. See 28
U.S.C. § 2254(c).

                                             87
the testimony was highly prejudicial.
    Prior to trial, Appellant objected to Ms. Houston’s testimony on
the same grounds now raised on appeal. In a Cargle FN11 hearing
during the second stage of trial, the court ruled that Ms. Houston did
not qualify under the statute as a member of the victim’s immediate
family but could testify if designated as a family representative. The
trial court limited her testimony to the effects of Mrs. Fowler’s death
on her father, her aunt, and her uncles.

      FN11. Cargle v. State, 

, 

,
      cert. denied, 

, 

, 

(1996), habeas corpus granted and remanded for a
      new trial on other grounds, Cargle v. Mullin, 

([10th Cir.] 2003).

    During the presentation of the victim impact evidence, Mrs.
Fowler’s son and daughter, Harold Fowler and Mary Templin,
testified. Ms. Houston, having been designated the family
representative by Harold Fowler, was the third and final victim
impact witness. Reading from a prepared statement, Ms. Houston
described how her grandmother was greatly loved by the family, that
someone in the family visited her on a daily basis, and that her
kitchen was a comfortable place for the family to congregate. Ms.
Houston also testified to her grandmother’s abilities in sewing and
gardening. She described the “great impact” her grandmother’s loss
had on her father and his siblings. Ms. Houston concluded her
testimony by stating her personal opinion that the appropriate
punishment was death. No defense objections were raised during
Ms. Houston’s testimony therefore we review only for plain error.
Murphy v. State, 

, ¶ 

. FN12

      FN12. The trial court’s ruling on the admissibility of the
      victim impact evidence was similar to a ruling on a
      motion in limine, advisory only and not conclusive. See
      Short v. State, 

, ¶ 65, 980 P.2d
      1081,1102–03, cert. denied, 

, 

, 

(1999). To properly preserve the
      issue for appellate review, an objection must raised [sic]
      at the time the testimony is given. 

object to Ms. Houston’s testimony at the time
      it was offered, waives all but plain error.

                                  88
    Victim impact evidence is constitutionally acceptable unless “it is
so unduly prejudicial that it renders the trial fundamentally
unfair . . . .” Payne v. Tennessee, 

, 825, 

,
2608, 

, 735 (1991). In 

,
this Court addressed at length victim impact evidence as addressed
by the Supreme Court and by our state statutes. Since that time we
have had numerous occasions to revisit the statutory guidelines that
control the content and use of victim impact evidence. However,
Appellant’s second challenge to Ms. Houston’s testimony has not
been specifically addressed by this Court in previous cases. The
resolution of this challenge determines whether it is necessary to
review his other objections to the testimony.
    Victim impact evidence is set forth in 22 O.S.2001, §§ 984,
984.1. FN13 The manner in which victim impact evidence is to be
presented and used at trial is set forth in § 984.1. This section
provides in pertinent part, “each victim, or members of the
immediate family of each victim or person designated by the victim
or by family members of the victim, may present a written victim
impact statement or appear personally at the sentence
proceeding. . . . .” (emphasis added). This language limits the
persons who may give victim impact evidence to three types of
people: 1) the victim; 2) members of the victim’s immediate family;
or 3) a person designated by the victim or the victim’s family. The
listing in the disjunctive of the persons who may give victim impact
evidence indicates the Legislature’s intent to make these three
categories of victim impact witnesses mutually exclusive. This
restrictive view of who may give victim impact testimony is
consistent with the limitations placed on victim impact evidence by
the Legislature and by this Court. See Cargle, 

, ¶ 

(“victim impact evidence is intended to provide a
quick glimpse of a victim’s characteristics and the effect of the
victim’s death on survivors.”)

      FN13.   22 O.S.2001, § 984 provides in pertinent part:

      1. “Victim impact statements” means information about
      the financial, emotional, psychological, and physical
      effects of a violent crime on each victim and members of
      their immediate family, or person designated by the
      victim or by family members of the victim and includes
      information about the victim, circumstances surrounding

                                    89
      the crime, the manner in which the crime was
      perpetrated, and the victim’s opinion of a recommended
      sentence;
      2. “Members of the immediate family” means the
      spouse, a child by birth or adoption, a stepchild, a
      parent, or a sibling of each victim; (emphasis added).
      22 O.S.2001, § 984.1(A) provides:
      A. Each victim, or members of the immediate family of
      each victim or person designated by the victim or by
      family members of the victim, may present a written
      victim impact statement or appear personally at the
      sentence proceeding and present the statements orally.
      Provided, however, if a victim or any member of the
      immediate family or person designated by the victim or
      by family members of a victim wishes to appear
      personally, such person shall have the absolute right to
      do so. (emphasis added).

    The victim is usually the best person to testify to the effects of a
crime perpetrated against him or her. In a homicide case when the
victim cannot speak, family members are usually in the best position
to give victim impact evidence. However, if family members choose
not to take the witness stand or for any reason are unable to testify,
they may designate another person to speak for them. The purpose
behind a family designee is to give a voice to family members unable
to testify in court. It was not intended to provide an opportunity for
those family members not listed in the statute and other interested
persons to give victim impact testimony.
    Applying the statutory language to the present case, as Mrs.
Fowler’s son and daughter testified as members of her immediate
family, it was not necessary to have a family designee or
representative testify. FN14 Therefore, it was error to allow Ms.
Houston to testify as a family designee. FN15

      FN14. In Williams v. State, 

, ¶ 66, 

, 719, cert. denied, 

, 

,
      

(2002), this Court cited 22
      O.S.Supp.1992, § 984.1 and stated that the Legislature
      had provided that any family member who wished to
      appear personally [to give victim impact evidence] shall
      have the absolute right to do so. This statement was in

                                   90
             response to the appellant’s argument that this Court
             should adopt a rule limiting the number of victim impact
             witnesses to one. This Court refused to adopt such a
             rule finding no statutory authorization for setting such
             limits on the number of witnesses. In that regard, the
             ruling in the present case is not intended to be a
             limitation of the number of victim impact witnesses. As
             long as a witness properly qualifies under the statute to
             give victim impact evidence, the number of witnesses
             the jury will hear is left to the sound discretion of the
             trial court.

             FN15. Further, as a granddaughter Ms. Houston does not
             fall under the statutory definition of immediate family
             permitted to give victim impact evidence. This Court
             has not extended the statutory definition to include
             persons related to victims in ways other than those
             designated by the Legislature. Hanson v. State, 

, ¶ 28, 

.

          However, having reviewed her testimony, we find nothing which
      “improperly weighted the scales” in the trial. FN16 Ms. Houston’s
      testimony was brief and did not focus on the emotional aspects of the
      victim’s death. Certain portions were cumulative to the testimony of
      her father and aunt.

             FN16.   See 

, 111 S.Ct. at 2606–07;

          Further, the jury was properly instructed, pursuant to OUJI–CR
      (2d) 9–45 on the use of victim impact evidence. Appellant had been
      convicted of raping and killing two elderly, defenseless women in
      their homes. Evidence of the aggravating circumstances was
      overwhelming and evidence of the aggravating circumstances clearly
      outweighs the mitigation evidence. Reviewing the entire record, we
      cannot say admission of Ms. Houston’s testimony caused the verdict
      to be the result of an unreasonable emotional response. Accordingly,
      we find no plain error, and this assignment of error is denied.

Lott 

(second alteration in original) (internal paragraph

numbers removed).

                                          91
      c) Analysis of the OCCA’s decision

      In this appeal, Lott argues that, “in determining whether [federal] habeas

relief is warranted on the basis of Payne, the question under 28 U.S.C. § 2254(d)

is whether the OCCA properly applied Chapman[ v. California, 

(1967),]” in concluding that the admission of Houston’s testimony was harmless

beyond a reasonable doubt. Aplt. Br. at 102-03. And, according to Lott, the

OCCA’s harmless error analysis was flawed because “[t]he poignant testimony

[Houston] presented regarding her grandmother, plus her recommendation of

death – the third such recommendation made to the jurors – had a substantial and

injurious effect on the jury’s verdict.” 

omitted).

      As an initial matter, we reject Lott’s suggestion that the question at issue

“is whether the OCCA properly applied Chapman.” In Fry v. Pliler, 

(2007), the Supreme Court made clear “that in § 2254 proceedings a court must

assess the prejudicial impact of constitutional error in a state-court criminal trial

under the ‘substantial and injurious effect’ standard set forth in Brecht[ v.

Abrahamson, 

, 637 (1993)], whether or not the state appellate court

recognized the error and reviewed it for harmlessness under the ‘harmless beyond

a reasonable doubt’ standard set forth in Chapman . . . 

.

Thus, if we determine that the admission of Houston’s victim impact testimony

was constitutional error, then we must assess the prejudicial impact of that error

under the Brecht test, rather than “the more liberal AEDPA/Chapman standard

                                          92
which requires only that the state court’s harmless-beyond-a-reasonable-doubt

determination be unreasonable.” 

thus turn to the question of whether the admission of Houston’s

testimony violated Lott’s constitutional rights. As we have noted, the OCCA

concluded that it was a violation of Oklahoma state law for the trial court to allow

Houston to testify as a family designee. Consequently, as we read its decision,

the OCCA did not reach the question of whether the admission of Houston’s

testimony also violated Lott’s constitutional rights. We therefore must review

that issue de novo.

      It is clear to us that Lott’s constitutional rights were violated by the

admission of Houston’s testimony opining about the appropriate sentence for

Lott. See 

. As we have noted, that type of victim

impact testimony remains inadmissible under Booth. 

Houston’s testimony, however, was not violative of Lott’s constitutional rights.

Specifically, the remainder of Houston’s testimony was aimed at reminding the

jury that Fowler “[wa]s an individual whose death represent[ed] a unique loss to

society and in particular to h[er] family.” 

(internal

quotation marks omitted). Although its admission may have violated Oklahoma

state law, it did not violate the Eighth Amendment. See 

thus hold

that if the State chooses to permit the admission of victim impact evidence . . . ,

the Eighth Amendment erects no per se bar.”). Thus, we must assess whether the

                                          93
admission of Houston’s testimony regarding the appropriate sentence for Lott had

a “substantial and injurious effect” on the outcome of the second-stage

proceedings.

      As the OCCA noted in conducting its own plain-error analysis, the entirety

of Houston’s testimony was brief (comprising a total of six trial transcript pages),

and the constitutionally offending testimony was comprised of four words: “My

opinion is death,” which were stated in response to the prosecutor’s question, “Do

you have an opinion as to what the appropriate punishment in this case is?”

Given the overwhelming evidence of Lott’s guilt of the two rapes/murders, as

well as his admitted guilt of the two subsequent rapes, and the cruel and brutal

nature of the crimes, we conclude that the admission of Houston’s offending

testimony did not have a substantial and injurious effect on the jury’s sentencing

determination. In other words, we can say, “with fair assurance, after pondering

all that happened [at Lott’s trial] without stripping the erroneous action from the

whole, that the [jury’s sentencing verdict] was not substantially swayed” by

Houston’s offending testimony. 10 Kotteakos v. United States, 

, 765

(1946).


      10
         We note, in passing, that the other victim impact witnesses, Mary
Elizabeth Templin and Harold Fowler, also testified, in response to questioning
by the prosecution, that they believed that death was the appropriate punishment
for Lott’s crimes. Lott, however, has never objected to the admission of this
testimony. Out of an abundance of caution, we did not consider that testimony in
assessing the prejudicial impact of Houston’s testimony.

                                         94
7) Sufficiency of evidence—avoid arrest or prosecution aggravator

      In Proposition Seven of his appellate brief, Lott contends that insufficient

evidence was presented at his trial to support the jury’s second-stage findings that

the two murders were committed in order to avoid arrest or prosecution.

According to Lott, “[t]he cause of death [in each case] was asphyxiation,”

“[t]here was no evidence that the homicides were separate and distinct from the

rapes, and the deaths of the[] two elderly victims likely occurred without [his]

intent to kill either of the victims.” Aplt. Br. at 107. Lott further argues that

“[t]he evidence showed that in . . . three of the rapes [he] used a pillow to subdue

the three victims,” and, “[l]ikely, the asphyxiation of . . . Fowler and . . . Cutler

occurred during the rapes as they were subdued.” 

Clearly established Supreme Court precedent

      Lott points to Jackson v. Virginia, 

(1979), and Lewis v.

Jeffers, 

(1990), as providing the clearly established law applicable

to this claim. In Jackson, the Supreme Court addressed “[t]he question . . . [of]

what standard is to be applied in a federal habeas corpus proceeding when the

claim is made that a person has been convicted in a state court upon insufficient

. And it “h[e]ld that in a challenge to a state criminal

conviction brought under . . . § 2254[,] . . . the applicant is entitled to habeas

corpus relief if it is found that upon the record evidence adduced at the trial no

rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

                                          95


Lewis, the Court held that this same standard of review applies “to

federal habeas review of a state court’s finding of aggravating 

. Under that standard, “[a] state court’s finding of an aggravating

circumstance in a particular case . . . is arbitrary or capricious if and only if no

reasonable sentencer could have so concluded.” 

The OCCA’s rejection of Lott’s claim

      Lott asserted these same arguments on direct appeal. 11 The OCCA rejected

them, stating as follows:

          In his twelfth assignment of error, Appellant challenges the
      evidence supporting the finding that the murders were committed for
      the purpose of avoiding lawful arrest or prosecution. To support a
      finding of this aggravating circumstance the State must prove the
      defendant killed in order to avoid arrest or prosecution. Williams,
      

, ¶ 

; Mollett v. State, 

, ¶ 49, 

, 13, cert. denied, 

, 

,
      

(1998).
          The defendant’s intent is critical to this proof and can be inferred
      from circumstantial evidence. Williams, at ¶ 

.
      Furthermore, there must be a predicate crime, separate from the
      murder, for which the defendant seeks to avoid arrest or prosecution.
      

of the evidence of an aggravating
      circumstance is challenged on appeal, the proper test is whether there
      was any competent evidence to support the State’s charge that the
      aggravating circumstance existed. Hain v. State, 

, ¶
      62, 

, 1146, cert. denied, 

, 

,
      

(1996). See also Abshier, 

, ¶¶
      156–157, 

, 610, cert. denied, 

, 

, 

(2002). In making this determination, this

      11
         In doing so, Lott also argued that neither Miller’s statements to police,
nor Detective McKenna’s testimony, were admissible and thus could not be
considered in assessing the sufficiency of the evidence to support the aggravator.
Direct Appeal Br. at 85-86.

                                           96
      Court should view the evidence in the light most favorable to the
      State. Hain, at ¶ 

.
          In the present case, the evidence showed Appellant subdued and
      raped both victims. While Appellant and the victims did not know
      one another, there is no indication Appellant attempted to hide his
      identity during the rape. That the victims could have identified their
      assailant if left alive is sufficient to support the conclusion that the
      victims were killed in order to prevent their identification of
      Appellant and his subsequent arrest and prosecution. See Wackerly
      v. State, 

, ¶ 43, 

, 14–15, cert. denied, 

, 

, 

(2001); Mollett, 

, ¶ 49, 939 at 13, 

.
          Citing Barnett v. State, 

, 

, Appellant
      further contends the rape was not a separate predicate crime arguing,
      “it is likely . . . the victims died during the rape as Appellant tried to
      subdue them, rather than Appellant completing the rapes and killing
      the victim before he left so that they would not tell.” In Barnett, this
      Court found the “assault and battery was not separate and distinct
      from the murder itself, but rather was part of a continuing transaction
      which culminated in the death of the victim.” 

, ¶ 

.
          The evidence in the present case shows the victims’ deaths were
      not the result of the rape. Both victims died as a result of
      asphyxiation. The evidence at both crime scenes revealed numerous
      bruises on the victims’ arms indicating they had been bound by the
      hands. Further, both victims suffered fractured ribs that Appellant
      concedes was consistent with the perpetrator having sat on the
      victim. However, the existence of pillows, and their condition, at
      both scenes supports the inference Appellant sat on the victims after
      the completion of the rape and smothered them. Reviewing this
      evidence in the light most favorable to the State, a rational jury could
      have found beyond a reasonable doubt the rapes were distinct and
      separate crimes from the murders, and that Appellant killed the
      victims in order to avoid lawful arrest or prosecution.

Lott 

(footnote and internal paragraph numbers omitted). 12

      12
        We note that although the OCCA initially identified the “proper test” for
assessing Lott’s sufficiency-of-the-evidence challenge as the “any competent
evidence” test, it ultimately framed its conclusion in terms of the standard
                                                                       (continued...)

                                          97
      c) Analysis of the OCCA’s decision

      Lott now argues that the OCCA’s analysis was unreasonable in four

respects. To begin with, he notes that the prosecution’s “other crimes” evidence

established that “[n]either . . . Hoster nor . . . Marshall[, the surviving victims of

the rapes,] knew . . . Lott, yet neither of them was killed.” Aplt. Br. at 109.

Consequently, he asserts, it was unreasonable for the OCCA to conclude “that

because [he] did not hide his identity during the rapes [of Fowler and Cutler] he

therefore killed the[m] to prevent them from identifying him . . . .” 

that, contrary to the conclusion reached by the OCCA, his “supposed

use of a pillow to subdue his victims does not prove an intent to kill the victims”

because “during three of the rapes the victims were subdued with pillows, yet

only . . . Cutler and . . . Fowler were killed.” 

that “the

OCCA’s reliance on the injuries to the victims as a basis for finding that the rapes

were separate from the crimes [wa]s likewise unreasonable” because the evidence

presented at trial established that all four victims, including the two survivors,

sustained injuries to their head, face, and arms. 

that

“[t]he OCCA’s finding that [he] sat on the victims ‘after the completion of the

rape and smothered them’ . . . is in direct conflict with th[e] [OCCA’s] findings


      12
        (...continued)
outlined by the Supreme Court in Jackson. Lott does not argue that the OCCA
applied the wrong legal standard or for application of de novo review due to the
OCCA’s reference to the “any competent evidence” standard.

                                           98
regarding [his] claim concerning the admission of ‘other evidence’ crimes . . . .”

Lott 

). “In resolving that claim,” he

asserts, “the OCCA found that ‘a pillow was placed over the faces of three of the

victims during the assault.’” 

Lott 

). Thus, he

argues, “[t]he OCCA unreasonably twisted the facts in order to justify the

admissibility of the other crimes evidence and to validate the finding of the

‘avoiding arrest’ aggravator,” and its “findings regarding these two issues cannot

be reconciled.” 

in reverse order, it is true that the OCCA, in

discussing the admissibility of the other-crimes evidence and outlining the

similarities between the four crimes, noted that “a pillow was placed over the

faces of three of the victims during the assault . . . .” Lott 

. It is

also true that the OCCA in turn, in addressing Lott’s challenge to the sufficiency

of the evidence supporting the “killed to avoid arrest or prosecution” aggravator,

concluded that the evidence, viewed in the light most favorable to the

prosecution, “support[ed] the inference [that Lott] sat on [Fowler and Cutler] after

the completion of the rape[s] and smothered them.” 

to Lott’s

assertions, however, these two separate determinations are not necessarily

inconsistent. By accurately noting that a pillow was employed in three of the

cases (the evidence was undisputed on this point), the OCCA was merely

describing one (among many) similarities in how the crimes were carried out.

                                           99
And its language describing those similarities was not intended in any way to

suggest that the employment of the pillows occurred during any of the three rapes.

Rather, the OCCA carefully and appropriately used the word “assault” to describe

the overall attacks in the three cases (since the victims in all three cases were not

only raped, but severely beaten). In contrast, when it discussed the sufficiency of

the evidence to support the aggravator, it employed different language, noting that

Lott “sat on [Fowler and Cutler] after the completion of the rape[s] and smothered

them.” 

other three arguments, all of which focus on the similarities between

the four crimes, can be disposed of based upon the testimony of prosecution

witness Gerald McKenna. McKenna, the Oklahoma City Police Department

inspector who specialized in sex crimes, testified that, in his opinion, the murders

of Fowler and Cutler were committed to eliminate them as witnesses, and not

because Lott received sexual gratification from those killings. McKenna also

testified that, in his opinion, the person who committed the third crime, i.e., the

rape/assault of Marshall (the other crime that involved the use of a pillow over

the victim’s face), realized that if he killed Marshall, he would effectively alert

the police, who had already arrested and charged Miller with the murders of

Fowler and Cutler, that the killer was still on the loose. Thus, despite the fact

that there were significant similarities between the four crimes, the specific

evidence introduced regarding the Fowler and Cutler crimes, particularly when

                                          100
viewed in the light most favorable to the prosecution, would clearly have allowed

the jury to infer that the perpetrator intended to kill those women in order to

avoid arrest or prosecution for the rapes/assaults.

      In the end, we conclude that the OCCA reasonably described both the

evidence relevant to the aggravator and the reasonable inferences that a jury could

have drawn from that evidence. Thus, we in turn conclude that the OCCA’s

determination that the evidence was constitutionally sufficient to support the

jury’s finding of the aggravator was neither contrary to, nor an unreasonable

application of, clearly established federal law.

8) Cumulative error

      In Proposition Eight of his appellate brief, Lott contends that the

cumulative effect of all of the constitutional errors in his case warrants federal

habeas relief. Lott raised a similar issue in his direct appeal, asserting that “the

aggregate impact of the errors in []his case warrant[ed] reversal of his convictions

and at the very least modification of his death sentence.” Lott 

.

The OCCA denied that assignment of error, stating: “[h]aving found no errors

warranting reversal or modification, we find relief is not warranted upon a

cumulative error argument.” 

OCCA did not identify

the constitutional error arising from the introduction of the improper victim

evidence, we will not grant deference to its decision and instead review Lott’s

cumulative error claim de novo. See Hooks v. Workman, 

, 1194

                                         101
(10th Cir. 2012).

      We recently “note[d] that there is a split in the circuits on whether the need

to conduct a cumulative-error analysis is clearly established federal law under §

2254(d)(1).” 

Our “body of precedent may very well signal

where our court has come down on this issue—viz., that cumulative-error analysis

is clearly established law.” 

no need to resolve that question

here, as we have identified only a single constitutional error.

      “In the federal habeas context, a cumulative-error analysis aggregates all

constitutional errors found to be harmless and analyzes whether their cumulative

effect on the outcome of the trial is such that collectively they can no longer be

determined to be harmless.” Alverson v. Workman, 

, 1162 (10th

Cir. 2010) (internal quotation marks and brackets omitted). “[A]s the term

‘cumulative’ suggests, . . . we undertake a cumulative-error analysis only if there

are at least two errors.” 

.

      The only clear constitutional error that occurred at Lott’s trial was the

admission of the improper victim impact evidence. However, that error, standing

alone, does not implicate cumulative-error analysis. And even if we were to

assume the existence of additional constitutional errors, we cannot say, having

exhaustively examined the record on appeal, that Lott’s trial was “so infected . . .




                                         102
with unfairness as to make the resulting conviction[s] [or sentences] a denial of

due process.” 

quotation marks omitted).

      AFFIRMED.




                                        103