HARTZ, Circuit Judge.
An Oklahoma jury convicted Defendant Brian Darrell Davis of the first-degree murder and rape of Josephine "Jody" Sanford, the mother of his girlfriend Stacey Sanford. On the recommendation of the jury, Defendant received a 100-year prison sentence for the rape and a death sentence for the murder.
After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA), see Davis v. State, 103 P.3d 70, 83 (Okla.Crim.App.2004), and pursuing postconviction relief in state court, see Davis v. State, 123 P.3d 243, 249 (Okla.Crim.App. 2005), Defendant unsuccessfully sought relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. The district court denied a certificate of appealability (COA) but this court granted a COA on two issues: whether Defendant's statements to police officers while he was hospitalized were knowing, intelligent, and voluntary; and whether his counsel was ineffective in failing to present scientific evidence that he was impaired while making those statements. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application). We affirm on these issues because the OCCA did not unreasonably determine the facts or unreasonably apply federal law in rejecting these claims. We also deny Defendant's Motion for Additional Issues in COA because no reasonable jurist could dispute the district court's resolution of the issues raised in the motion. We do, however, grant a COA on a claim that Defendant apparently thought was encompassed by our prior grant of a COA — namely, the claim that his counsel was ineffective for failing to argue that police officers coerced him into making his hospital statements by withholding pain medication. But we affirm the denial of the claim.
The OCCA's decision on direct appeal offers a detailed description of the pertinent events:
Davis, 103 P.3d at 73-75.
Defendant's § 2254 application asserted 14 claims: (1) that Defendant did not understand his Miranda waiver and that his later statements to the police at the hospital were coerced by officers calling him a cold-blooded killer; (2) that his counsel was ineffective in failing to present scientific evidence that Defendant was impaired while making statements to the police; (3) that Defendant's counsel was ineffective in failing to argue that his hospital statements to police were the product of coercion caused by withholding of pain medication; (4) that the State's presentation of rebuttal witnesses without pretrial notice violated due process; (5) that presentation of the rebuttal witnesses violated his rights under the Sixth, Eighth, and Fourteenth Amendments; (6) that the conviction of first-degree murder was not supported by sufficient evidence; (7) that the state court's refusal to give instructions on circumstantial evidence violated the Sixth, Eighth, and Fourteenth Amendments; (8) that the court denied his right to confront witnesses and to compulsory process by restricting evidence of the affair of the victim's husband; (9) that the cumulative impact of errors rendered the state-court proceedings fundamentally unfair; (10) that the jury's finding that the murder was especially heinous, atrocious, or cruel was not supported by sufficient evidence; (11) that his counsel was ineffective in failing to challenge the discriminatory use of peremptory challenges during jury selection; (12) that the state court erred in failing to make adequate findings after its hearing on the motion to suppress Defendant's statements to the police, and that his counsel was ineffective in failing to assert that the lack of adequate findings violated due process; (13) that the state court erred in allowing the introduction of Defendant's privileged communications to Stacey Sanford; and (14) that the state court did not have jurisdiction to consider the aggravating circumstances set forth in a bill of particulars because they were not properly charged.
In this court Defendant sought a COA on claims 1 to 12, and we granted a COA on claims 1 and 2: "[w]hether [Defendant's] statements made to police officers while hospitalized were knowingly, intelligently, and voluntarily made"; and "whether [Defendant] was denied effective
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), our review in a § 2254 proceeding is highly deferential. See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). For claims adjudicated on the merits in state court, a federal court can grant relief only if 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," 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)(1), (2). As the Supreme Court has explained:
Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted). "Indeed, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. (internal quotation marks omitted). In addition, AEDPA requires deference to the state court's findings of fact. We presume those findings to be correct, and "[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
On November 4, 2001, the same day that Jody Sanford was found dead in Defendant's home in Ponca City, Oklahoma, Defendant was seriously injured in a one-car accident and transported to a hospital for treatment. He was placed under arrest for driving under the influence of alcohol before being transferred to a regional hospital in Wichita, Kansas. He arrived by 12:40 p.m. and was interviewed about five hours later by Detective Donald Bohon. Two days later, on November 6, Detectives Bohon and Bob Stieber interviewed him again. At the beginning of each interview, he received Miranda warnings and waived his rights. The State does not contest that
Statements to the police during a custodial interrogation are inadmissible if the defendant did not waive his Miranda rights knowingly and voluntarily. See Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010). Whether the waiver was valid is a mixed question of law and fact. See Mitchell v. Gibson, 262 F.3d 1036, 1059 (10th Cir. 2001). "The inquiry has two distinct dimensions." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). As the Supreme Court explained:
Id. (internal quotation marks omitted).
Defendant advances two arguments to contest the validity of his Miranda waiver. We first address his argument that his narcotic medication prevented him from knowingly and intelligently waiving his rights. We then address his coercion argument.
Defendant contends that his morphine medication kept him from being fully aware of the rights being abandoned during the second hospital interview. He points out (1) that he testified at trial that he was "half-asleep" with his eyes closed when the police read him his Miranda rights at the beginning of the interview, Aplt. Br. at 61; (2) that one of the officers acknowledged the possibility that Defendant was in a "medicated sleep" when he was approached for the interview, id. at 62; and (3) that an affidavit submitted in postconviction proceedings by a defense expert, Dr. Thomas Kupiec, states that "it is certainly plausible to expect an effect on an individual's cognitive function following a post-accident administration of morphine...." Verified Appl. for Post-Conviction Relief, App. 12 at 4, Davis v. Oklahoma, Case No. PCD-2003-686 (Okla. Crim.App. Mar. 4, 2005). Defendant asserts that "`[p]lausible to expect' is a quantitative measure meaning at least more than 50% or a reasonable probability," Aplt. Br. at 44 n. 11; but he does not cite any testimony or other authority to support the assertion.
On direct appeal the OCCA upheld Defendant's waiver, stating:
Davis, 123 P.3d at 247 (footnote omitted).
What Defendant presents to us on appeal fails to overcome the deference owed to the OCCA decision. The expert report is hardly definitive; it merely states that there was a possibility of impairment. And even if Defendant was groggy when the officers arrived, there was ample evidence that he soon became alert. Officer Stieber testified that Defendant was "fully lucid and alert" and understood the rights read to him. R., Vol. 2, State Court Records: Tr. of Jackson v. Denno Proceedings at 55. Further, the interview transcript shows that he gave relevant responses to each question asked. Perhaps most indicative of his mental capacity were his responses immediately after being read his rights:
We hold that the state court did not unreasonably determine the facts or unreasonably apply clearly established federal law in concluding that Defendant knowingly and intelligently waived his rights.
Defendant next argues that his waiver of Miranda rights was not the product of a free and deliberate choice because the officers coerced him into confessing to the murder by calling him a "`cold-blooded killer.'" Aplt. Br. at 68. The OCCA determined that although Officer Stieber "use[d] phrases like `cold blooded killer' and `cold blooded bastard'" during the second interview, Defendant's statements were not coerced. Davis, 103 P.3d at 81. It stated:
Id.
As shown by the transcript of the hospital interview,
We affirm the district court's decision upholding the state court's determination that Defendant's statements were admissible.
Defendant argues that his trial counsel was ineffective in failing to present scientific evidence that would have shown his mental impairment when he gave his statements at the hospital.
To succeed on an ineffectiveness-of-counsel claim, Defendant must make two showings: "that counsel's representation fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), rendering his or her performance deficient, see id. at 687, 104 S.Ct. 2052; and that the deficiency prejudiced the defense through errors "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," id. To demonstrate prejudice, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors," id. at 694, 104 S.Ct. 2052, the jury "would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052. When reviewing a state court's application of Strickland, we must
To try to establish prejudice, Defendant relies on an affidavit of Dr. Kupiec submitted in his postconviction proceedings. He cites Dr. Kupiec's statement that "repeated dose administration appears to result in an enhanced analgesic effect of morphine, and if administered this way, it would also have more effects on cognition and psychomotor performance." Verified Appl. for Post-Conviction Relief, App. 12 at 3 (footnote omitted), Davis v. Oklahoma, Case No. PCD-2003-686. He also notes the doctor's testimony that "[t]he elimination half-life of morphine ranges from 1.5 to 4.5 [hours,]" id., to argue that he was impaired during the interview on November 6, when he received a morphine injection at 5 a.m., about three hours before the start of the interview. Defendant implicitly suggests that this evidence would have caused the trial judge or the jury to exclude his hospital statements as involuntary. (The jury was instructed that it should not consider a statement by Defendant unless it found that the statement was voluntary.)
The OCCA rejected the argument in Defendant's postconviction proceedings. See Davis, 123 P.3d at 247-48. As previously noted, the court said that, at the most, the medical records and expert's report showed a "potential for impairment" from the medications. Id. at 247 (internal quotation marks omitted). It ruled that the outcome of the trial would not have been different if the evidence had been presented.
Defendant has not made the necessary showing that the OCCA "unreasonably concluded that [he] was not prejudiced" by counsel's failure to present at trial the additional evidence of impairment. Cullen, 131 S.Ct. at 1408. We note at the outset that even if the hospital records and expert report would have led to exclusion of his November 4 statement, the verdict would not have changed. In that statement Defendant said that he did not remember what happened. The prosecution made no attempt to exploit that statement at trial, and we fail to see how it could have prejudiced Defendant.
As for the second interview, Dr. Kupiec's new statements merely recite some general principles about how morphine functions in the body, but do not specify how Defendant would have been affected on that particular day. The OCCA could properly decide that the additional evidence would not have overcome the contrary evidence already considered in our earlier discussion of whether the Miranda waiver was knowing and voluntary. We cannot say that the OCCA unreasonably ruled that the new evidence would not likely have convinced the trial judge or jury to exclude Defendant's November 6 statement.
In the alternative, Defendant requests an evidentiary hearing to present additional evidence that his statements should have been excluded. But we have already considered all the evidence that he presented to the Oklahoma courts, and under AEDPA our review of the OCCA decision on this issue must be confined to the state-court record. See id. at 1398 ("[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits."); Black v. Workman, 682 F.3d 880, 895 (10th Cir. 2012) ("[E]ven if a federal-court evidentiary hearing is not barred by [28 U.S.C.] § 2254(e)(2), the evidence so obtained is
Defendant contends that his trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers' refusing to allow him to receive morphine for his pain until they had completed their questioning. The parties dispute whether we have granted a COA on this claim. We think the State has the better of the argument. But Defendant's reply brief alternatively requests a COA, which we grant. Although our doing so at this stage could prejudice the State, because it has not briefed (and would not be expected to have briefed) the merits of the issue, we find no merit to the claim, eliminating any prejudice.
Before we turn to the merits of the claim, we address two more procedural issues. We hold that the claim is not procedurally barred and that our standard of review is de novo. To reach these conclusions, we must examine the proceedings before the OCCA.
In Defendant's appeal to the OCCA of the denial of postconviction relief, he raised the claim that his counsel had been ineffective by failing to argue that the detectives coerced him into making his statements by withholding the administration of morphine. The OCCA denied relief without discussing the merits, stating that its decision on direct appeal had already decided the substance of this coercion argument, and therefore the principle of res judicata barred Defendant from relitigating the same claim in the guise of an ineffective-assistance-of-counsel argument. See Davis, 123 P.3d at 248. A state court's invocation of res judicata does not, however, create a procedural bar to relief under § 2254. See Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 1781, 173 L.Ed.2d 701 (2009) ("When a state court declines to review the merits of a petitioner's claim on the ground that it has done so already, it creates no bar to federal habeas review."). Moreover, contrary to the OCCA's belief, the record of Defendant's direct appeal to the OCCA discloses that Defendant never argued, and the OCCA never considered, a claim, either directly or in the course of an ineffective-assistance claim, that his hospital statements were coerced by the withholding of morphine. Because there has been no state-court adjudication on the merits of the claim, AEDPA's § 2254(d) does not apply. See Byrd v. Workman, 645 F.3d 1159, 1166 (10th Cir.2011). Further, the district court did not address the merits. No prior court having addressed the merits, our review is necessarily de novo.
Now, to the merits. To assess Defendant's ineffective-assistance-of-counsel claim, we first examine the strength of the claim omitted by his counsel — the claim that he was coerced by the withholding of morphine. Defendant bases that claim on the following evidence and argument. First, he cites two pieces of evidence that he was told on November 4 that he would not receive any morphine until his interview was over. One is a hospital nurse's note at 5:30 p.m. on November 4 saying that he was told by a nurse that an "officer wanted to talk [with him] prior to any pain meds being administered[.]" Verified Appl. for Post-Conviction Relief, App. 6 at 2, Davis v. Oklahoma, Case No. PCD-2003-686. The other is the following exchange with Detective Bohon during the 25-minute interview (which began about 20 minutes after the nurse's note):
R., Vol. 2, State Court Records: Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 1 at 10 (emphasis added). Defendant contends that from the statements by the nurse and Bohon, he "was trained ... that the only way he could end the interview was to be submissive, answer the questions and he got morphine." Aplt. Br. at 61.
Second, although Defendant never testified expressly that he spoke to the officers only to get morphine for his pain (indeed, when asked at trial whether Detective Stieber threatened him in any way, he answered, "Just the comment.... Either you're a cold-blooded killer or a mean mother fucker." R., Vol. 2 State Court Records: Tr. of Jury Trial, Vol. 7-A at 16), he argues that he implied this on the following two occasions during his cross-examination:
Id. at 15-16 (emphasis added).
Id., Vol. 7-B at 52 (emphasis added).
Defendant also points to the occasions during his November 6 interview when Bohon and Stieber continued to question him despite his complaints that he was in pain. His first indication of pain was about an hour and a half into the interview:
Id., Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 2 at 58. A nurse entered the room about two minutes later and remained for two minutes, during which the nurse administered antinausea and blood-thinner medication and discussed with the officers the procedures for taking a photograph
Id. at 69-70. Finally, Defendant notes his trial testimony that when the officers read him his Miranda rights at the start of the November 6 interview, he was, "Tired, in pain, wanting to sleep." Id., Tr. of Jury Trial, Vol. 7-B at 61.
Defendant's claim that he was coerced by the withholding of morphine is flawed on many levels. First, the evidence that Defendant felt coerced by the withholding of morphine is very weak, if not nonexistent. The only statements that he points to regarding his state of mind are two ambiguous comments during his cross-examination. Asked whether he was testifying that his statement to Stieber on November 6 was not voluntary, he responded: "At one point it wasn't, at the beginning, but I have to be submissive in the hospital cause of being treated and things like that." Id., Vol. 7-A at 15-16 (emphasis added). And asked if he was afraid about what was going to happen to him when the officers came to interview him, he answered: "No, I wasn't scared. I was just tired and I was hurting, I wanted to be left alone, but had to be submissive to get treatment." Id., Vol. 7-B at 52 (emphasis added). Nothing in the record expands upon those statements, which make no reference to morphine.
Second, Defendant's claim is conceptually confusing, almost incoherent. Ordinarily, when one thinks of a coerced confession, one thinks of law-enforcement officers telling the suspect that he must confess, or else. That, however, is not Defendant's claim, and nothing in the record even hints at such a communication from the officers to Defendant. Defendant points to the November 4 statements by the nurse and Bohan that he would not receive any morphine until the interview was over. But the evidence regarding that interview shows the opposite of such alleged coercion: the sooner he quit talking, the sooner he would get morphine. Bohan left after 25 minutes, shortly after Defendant said, "I'm hurting and I'm tired," id., Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 1 at 11, even though Defendant had been saying
Third, there is no evidence in the record that Defendant was suffering significant pain during the critical part of the November 6 interview. His first mention of pain was about 90 minutes into the interview. What he said after that point would not have affected the outcome of the trial; he had already described his struggles with the victim. Given Defendant's willingness to mention his pain at that point, it would be surprising if he had kept silent while suffering earlier in the interview, particularly when, as Stieber testified, medical personnel entered the room during the interview to check on Defendant four or five times.
For Defendant to prevail on his claim of ineffective assistance of counsel, he must establish that any competent attorney would have raised the morphine-coercion claim and that he was prejudiced by the failure of his attorneys to do so. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. But the coercion claim was so far-fetched that Defendant fails on both counts. His attorneys were not acting unreasonably in failing to pursue the claim, and there is no reasonable chance that his hospital statements would have been suppressed (and a different verdict rendered) if they had done so.
In his opening brief in this court, Defendant suggests that he should be granted an evidentiary hearing on this coercion claim. He argues in a footnote:
Aplt. Br. at 34 n. 8. Because the OCCA did not address this coercion issue on the merits and § 2254(d) therefore is inapplicable, evidence from a federal-court evidentiary hearing could be considered in resolving the issue. It does not necessarily follow, however, that Defendant is entitled to an evidentiary hearing. We have said that
A COA will issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires "a demonstration that ... includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the [application] should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation marks omitted). In other words, the applicant must show that the district court's resolution of the constitutional claim was either "debatable or wrong." Id. And for those of Applicant's claims that the OCCA adjudicated on the merits, "AEDPA's deferential treatment of state court decisions must be incorporated into our consideration of [his] request for [a] COA." Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.2004).
We now turn to Defendant's request for a COA on claims 4 to 9.
Defendant requests a COA on two related claims challenging the admission of the rebuttal testimony of Russell Busby, who was not disclosed on the state's pretrial list of witnesses. Busby, the chief investigator for the District Attorney, testified as an expert to rebut Defendant's trial version of events. Based on his review of photographs and reports of the crime scene, as well as consultations with the medical examiner's office, he expressed his opinion (1) that the absence of blood stains on the bedroom carpet showed that all the knife wounds to the victim could not have been inflicted, as Defendant testified, while she was standing in the bedroom by the bathroom door, and (2) that the two parallel wounds on his arm did not appear to be defensive wounds. Defendant contends (1) that the lack of pretrial notice of the intention to call Mr. Busby deprived him of a due-process right created by Oklahoma law requiring prior notice of the expert witness, as well as of the fundamental fairness that is the essence of due process, see Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); and (2) that permitting the State not to disclose such a witness violated due-process principles articulated in Wardius v. Oregon, 412 U.S. 470, 475, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973) ("[I]n the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a `search for truth' so far as defense witnesses are concerned, while
The OCCA held that Busby's testimony was admissible, stating that it "was relevant to refute Defendant's claims made for the first time during his trial testimony concerning the manner and locations of the knife attack that were different than his pre-trial statements." Davis, 103 P.3d at 77. The district court agreed, reasoning that the state was previously unaware of the version presented at trial.
We agree that AEDPA requires affirmance. First, the Oklahoma notice requirement did not create a federal due-process right. See Elliott v. Martinez, 675 F.3d 1241, 1244-45 (10th Cir.2012) (a state-created procedural right is not a liberty interest protected under the Constitution's Due Process Clause). Therefore, even if the state rule was violated, Defendant cannot obtain relief on that ground under § 2254, which limits review to claims based on federal law. See Turrentine v. Mullin, 390 F.3d 1181, 1195-96 (10th Cir.2004) ("[A] federal court under § 2254 may not grant relief unless there was an error of federal law, in other words, unless this error amounted to a violation of the federal constitution.").
Second, there is nothing so unfair as to violate due process in permitting the government to put on a rebuttal witness to challenge defense testimony that could not be anticipated before trial. And Defendant has cited no Supreme Court decision suggesting that such a rebuttal witness must be disclosed before trial. Wardius, which dealt with a notice-of-alibi rule, did not address rebuttal testimony. Defendant argues that the OCCA unreasonably determined the facts in saying that his testimony could not have been reasonably anticipated and that Busby was therefore a proper rebuttal witness. He relies on Stacey Sanford's trial testimony that in the second of three versions of events conveyed to her by Defendant (and presumably reported to the state before trial), he said that one of the stabbings occurred in the bedroom. But this evidence is hardly clear and convincing evidence that the OCCA got it wrong. See 28 U.S.C. § 2254(e)(1) (determination of factual issue by state court is presumed correct and presumption can be overcome only by clear and convincing evidence). The second version recited by Stacey was too vague to be contradicted by the physical evidence testified to by Busby. Busby's testimony was useful only because of the specificity of Defendant's trial version of the stabbings.
Moreover, Defendant has not cited to any Supreme Court decision clearly establishing that due process requires the state to disclose expert testimony before trial when the defendant has not been required to disclose its witnesses on the same subject. The holding in Wardius is only that the government cannot require the defendant to disclose an alibi defense witness unless the government will also disclose its witnesses rebutting that defense. Defendant was not required to provide any pretrial discovery regarding the locations of the stabbings. No reasonable jurist could debate the district court's conclusion that Defendant is not entitled to relief on this claim.
Defendant argues that there was insufficient evidence to support a finding of guilt if his statements to the police or Busby's rebuttal testimony is held to be inadmissible. But (1) we have rejected his challenges to the admission of the evidence; and (2) when considering a challenge to the sufficiency of the evidence, we consider all evidence admitted at trial,
Defendant argues that because the evidence of malice aforethought was entirely circumstantial, he had a due-process right to the following requested jury instruction:
OUJI-CR 9-5, Vernon's Okla. Forms 2d 456 (2003 ed.) (brackets omitted). See Riley v. State, 760 P.2d 198, 199 (Okla.Crim. App.1988) ("[C]onvictions based entirely upon circumstantial evidence cannot be sustained unless the evidence presented excludes every reasonable hypothesis except that of guilt."). The OCCA rejected the argument on the ground that there was both direct and circumstantial evidence of guilt. See Davis, 103 P.3d at 79. The district court agreed and found no error.
In any event, even if state law required the instruction, a violation of a state rule is not in itself a ground for relief under § 2254. See Turrentine, 390 F.3d at 1195-96. And Defendant has not directed our attention to any decision of the United States Supreme Court requiring a circumstantial-evidence instruction as a matter of constitutional law. No reasonable jurist could debate the district court's rejection of this claim.
Defendant argues that his rights to confrontation and compulsory process were violated when the trial court did not allow him to question witnesses about an alleged affair of the victim's husband. He maintains that evidence of the affair would have supported his testimony that the victim was crying over her husband's affair, Defendant tried to comfort her, they engaged in consensual sex, and she (already feeling rejected by her husband) attacked him when he criticized her sexual performance. The OCCA rejected the argument, writing:
Davis, 103 P.3d at 79-80 (citations and footnote omitted). Footnote 6 states:
Id. at 79 n. 6.
The district court analyzed Defendant's constitutional claims as follows:
R., Vol. 1 pt. 3 at 432-34.
In our view, no reasonable jurist could debate the district court's conclusion that
Finally, Defendant contends that the cumulative impact of errors rendered the state-court proceedings fundamentally unfair. See Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir.2003) ("Cumulative error is present when the cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error." (internal quotation marks omitted)). The OCCA ruled that cumulative error did not render Defendant's trial unfair. See Davis, 123 P.3d at 248. Discerning no error, the district court agreed. No reasonable jurist could debate the district court's conclusion that the OCCA did not unreasonably apply federal law or unreasonably find facts in rejecting this claim.
We AFFIRM the district court's denial of claims 1, 2, and 3. For all other claims for which Defendant has sought a COA from this court, we DENY the request.
R., Vol. 2 State Court Records: Tr. of Jackson v. Denno Proceedings, Pl.'s Ex. 2 at 20-21 (emphasis added).