BRISCOE, Chief Judge.
This matter is before the court on Appellant's Petition for Rehearing and Request for En Banc Consideration. We also have a response from the Appellee.
Upon consideration, rehearing is granted in part by the panel assigned to this matter originally. An amended opinion is attached to this order, and rehearing is granted to the extent of the amendments found on pages 36-39. The original opinion filed on November 18, 2013 is withdrawn, and the amended version shall be substituted as the decision of the court.
The petition for rehearing and request for en banc consideration were also transmitted to all of the judges of the court who are in regular active service. As no member of the panel and no judge in regular active service on the court requested that the court be polled, the request for en banc consideration is denied.
Petitioner Benjamin Cole, an Oklahoma state prisoner convicted of one count of first degree murder of a child and sentenced to death, appeals from the district court's denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court's denial of federal habeas relief.
On the evening of December 20, 2002, Cole's nine-month-old daughter, Brianna Cole, began having trouble breathing. Cole "performed CPR and instructed his wife to call 911." Cole v. State, 164 P.3d 1089, 1095 (Okla.Crim.App.2007) (Cole I). Rescue efforts failed, however, and Brianna died. A subsequent autopsy revealed that "Brianna's spine had been snapped in half, and her aorta had been completely torn through due to non-accidental stretching." Id. at 1092. "The official cause of death was described as a fracture of the
On December 26, 2002, Cole was charged by felony information in the District Court of Rogers County, Oklahoma, with one count of first degree murder of a child, in violation of Okla. Stat. tit. 21, § 701.7(c). On November 20, 2003, the State filed a bill of particulars alleging the existence of three aggravating circumstances: (1) Cole was previously convicted of a felony involving the use or threat of violence to the person;
The case proceeded to trial in October 2004. At the conclusion of the first-stage evidence, the jury found Cole guilty of murder in the first degree. At the conclusion of the second-stage evidence, the jury found the existence of two of the three aggravating factors alleged in the bill of particulars — the murder was especially heinous, atrocious or cruel, and that Cole had been previously convicted of a felony involving the use or threat of violence to the person — and fixed Cole's punishment at death.
On December 8, 2004, the state trial court, in accordance with the jury's second-stage verdict, sentenced Cole to death. Judgment in the case was entered that same day.
Cole filed a direct appeal with the OCCA asserting thirteen propositions of error. On July 11, 2007, the OCCA issued a published opinion affirming Cole's conviction and death sentence. Cole I, 164 P.3d at 1102.
On February 28, 2007, prior to the resolution of his direct appeal, Cole filed an application for state post-conviction relief with the OCCA asserting five propositions of error. On January 24, 2008, the OCCA issued an unpublished opinion denying Cole's application. Cole v. State of Okla., No. PCD-2005-23 (Okla.Crim.App. Jan. 24, 2008) (Cole II).
Cole initiated these federal habeas proceedings on June 2, 2008, by filing motions for appointment of counsel and for leave to proceed in forma pauperis. Those motions were granted and, on May 15, 2009, Cole's appointed counsel filed a petition for writ
On September 1, 2011, the district court issued an opinion and order denying Cole's petition, but granting him a certificate of appealability (COA) with respect to five issues: an alleged breakdown in communications between Cole and his defense counsel; defense counsel's failure to investigate and present additional mitigating evidence; improper admission of photographs of the victim; sufficiency of the evidence to support the heinous, atrocious or cruel aggravator; and prosecutorial misconduct. Judgment in the case was entered that same day.
Cole filed a timely notice of appeal. This court subsequently expanded the COA to include the issue of cumulative error. Cole has since filed a motion to further expand the COA to include the issue of his competency to stand trial.
Because Cole's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), both the district court and we are bound by AEDPA's standards of review. See Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007) (holding that AEDPA applies to § 2254 habeas petitions filed after its effective date).
Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id. If a claim was addressed on the merits by the state courts, our standard of review is governed by 28 U.S.C. § 2254(d), which provides:
28 U.S.C. § 2254(d).
"When reviewing a state court's application of federal law" under 28 U.S.C. § 2254(d), "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, 337 F.3d 1193, 1197 (10th Cir.2003). "Rather, we must be convinced that the application was also objectively unreasonable." Id. "This standard does not require our abject deference, but nonetheless prohibits us from substituting our own judgment for that of the state court." Snow, 474 F.3d at 696 (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. 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. McLuckie, 337 F.3d at 1197.
In Proposition One of his appellate brief, Cole argues that he "was denied his right to the effective assistance of counsel as
On July 11, 2003, Cole's defense team, comprised of two attorneys from the Oklahoma Indigent Defense System (OIDS), filed an application for a competency evaluation of Cole. State ROA, Vol. I at 55. In that application, the defense team expressed "doubts as to [Cole]'s ability to understand the nature of the charges against him and meaningfully assist his attorneys in his defense." Id. At a subsequent hearing on July 16, 2003, one of Cole's defense attorneys stated, in pertinent part, "it's one of those situations where I don't know necessarily if Mr. Cole doesn't like, or, for some reason, is resisting our conversations or advice, or if it's a situation where he doesn't understand." Tr. of 7/16/03 Hr'g at 3. The state trial court, at the conclusion of the hearing, ordered a competency evaluation of Cole. Id. at 5.
On August 22, 2003, the state trial court conducted a post-competency evaluation hearing. At the hearing, the defense team stipulated that the psychologist who examined Cole had found him to be competent. Tr. of 8/22/03 Hr'g at 3. In turn, the defense team "stipulated as [Cole's] counsel" that he was "competen[t] at this time." Id. The state trial court then asked Cole, on the record, if he understood the charges against him and if he believed that he was able to consult with his counsel and rationally assist in the trial preparations. Cole answered "yes" to these questions. Id. at 4. Ultimately, Cole waived his right to a jury trial on the issue of competency and stipulated that he was competent.
Approximately eleven months later, on July 9, 2004, the defense team filed a second application for determination of competency. In the application, the defense team alleged, in pertinent part, that Cole's "mental state and communication abilities [we]re such that they seriously interfere[d] with his understanding of the proceedings against him and with his capability of aiding his attorney in preparation for trial," Cole's "responses to questions pertaining to his defense [we]re unrelated and unresponsive to what was asked, and appear[ed] to be based on unrealistic and irrational thoughts and ideas," and "[d]efense counsel's investigation in the ... case ha[d] revealed that [Cole] ha[d] suffered from lifelong chronic alcoholism," "ha[d] a history of huffing gasoline as a child," and "ha[d] experienced physical head trauma resulting in loss of consciousness on more than one occasion during his lifetime." State ROA, Vol. II at 239. On July 15, 2004, the state trial court issued an order directing that Cole be "examin[ed] by qualified persons and technicians... to reach a conclusion as to [his] competency." Id. at 245.
Cole was subsequently examined by Samina Christopher, a forensic psychologist employed at the Oklahoma Forensic Center, a state-run behavioral health facility.
On August 25, 2004, Cole's defense team requested that a jury trial be held on the issue of Cole's competency. The state trial court granted that request and a jury trial on the issue of Cole's competency was held on September 13 and 14, 2004. During the trial, one of Cole's defense attorneys testified that Cole was not very engaged in trial preparation, was distant, and declined to make decisions relevant to the defense strategy. At the conclusion of the trial proceedings, however, the jury found that Cole was competent to undergo further criminal proceedings.
On September 29, 2004, Cole sent a letter to the central office of OIDS "in regards of firing [his appointed defense team] due [to] my Christian beliefs." Id. at 416. Cole's letter stated that he "need[ed] a team who has a better relationship with my Lord Jesus Christ." Id. Cole acknowledged "this [wa]s probably a hard thing," but he stated that he "really d[id] need a new team, that [he] c[ould] better work with." Id. After learning of this letter, Cole's defense team filed a motion for continuance. In support of the motion, one of Cole's defense attorneys submitted an affidavit alleging that Cole was unhappy with his defense team and was unwilling to cooperate with them.
On October 4, 2004, the state trial court held a hearing on the motion for continuance. After hearing briefly from Cole's attorneys, the state trial court dismissed them from the courtroom and questioned Cole under oath. Cole testified that he believed his appointed attorneys were religiously prejudiced against him. Tr. of 10/04/04 Hr'g at 13. In support, Cole testified that he believed that, during the competency trial, his attorneys "exaggerated to what [his] intention was," and were effectively ridiculing his faith. Id. at 14. Cole also testified that he and two of his attorneys "ha[d] a difficult time communicating." Id. at 18. Cole further testified that one of the OIDS investigators "mock[ed] God in front of [Cole]." Id. at 20. Lastly, Cole testified that he knew his defense attorneys "[we]re good at what they do," id. at 21, but that he would nevertheless "like to have a team that [he] could confidently trust," id. at 20-21, and he "want[ed] it done in the Lord's sight for the right reasons," id. at 21. The state trial court ultimately found, however, that neither of Cole's appointed OIDS attorneys were prejudiced towards Cole's religious beliefs or had done anything that was "wrong." Id. at 23. The state trial court further found that both defense attorneys were simply trying "to be aggressive advocates on behalf of ... Cole." Id. Consequently, the state trial court denied the motion for continuance and urged Cole to work with his appointed counsel "to give [them] the information that [they] need[ed] to represent and present a defense on his behalf." Id. at 23-24.
In an affidavit submitted in connection with his federal habeas petition, Cole's lead trial counsel, James Bowen, stated that Cole's "competency and ability to assist the team became even worse after the competency trial," and they "could not get him to be engaged in his case." Dist. Ct. Docket No. 16, Att. 10 at 1. Bowen further described Cole's conduct at trial:
Id.
Cole first asserted this issue in Proposition Four of his direct appeal brief. The OCCA rejected it, stating as follows:
Cole I, 164 P.3d at 1093-94 (internal paragraph numbers omitted).
In challenging the OCCA's decision, Cole begins by identifying United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the clearly established federal law applicable to this claim. While these cases frequently guide our analysis in the habeas context, with the assumed exception of Strickland, we decline to accept them as the "clearly established federal law" relevant to this particular claim within the meaning of 28 U.S.C. § 2254(d)(1). Our understanding of the Supreme Court's "articulation of what constitutes clearly established law is noticeably more restrictive" than Cole suggests. See House v. Hatch, 527 F.3d 1010, 1016-17 (10th Cir.2008) (discouraging the practice of "draw[ing] clearly established federal law from general principles teased from precedent" and noting that "clearly established law consists of Supreme Court holdings in cases
At the outset, we note that Cole has not cited to any Supreme Court case, nor has our own independent research produced such a case, holding that a presumption of prejudice applies in situations where there has been a complete breakdown in communications between a criminal defendant and defense counsel. Cole does rely on Cronic, where the Supreme Court held that prejudice may be presumed in certain extreme "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." 466 U.S. at 658, 104 S.Ct. 2039. The Supreme Court emphasized that "[a]n accused's right to be represented by counsel is a fundamental component of our criminal justice system." Id. at 653, 104 S.Ct. 2039. And, the Court noted, "the core purpose of the counsel guarantee [i]s to assure `Assistance' at trial, when the accused [i]s confronted with both the intricacies of the law and the advocacy of the public prosecutor." Id. at 654, 104 S.Ct. 2039 (internal quotation marks omitted). "If no actual `Assistance' `for' the accused's `defense' is provided," the Court held, "then the constitutional guarantee has been violated." Id.
We find Cronic inapposite for at least two reasons. First, although the Supreme Court acknowledged the possibility of presuming prejudice in Cronic, it did so in a factually distinguishable context that did not involve a breakdown in communications between a criminal defendant and defense counsel. See 466 U.S. at 649, 104 S.Ct. 2039; see also House, 527 F.3d at 1016 (requiring "closely-related" facts). Defense counsel in Cronic was a relatively inexperienced real estate attorney who was appointed only twenty-five days before his client's mail-fraud trial. Cronic, 466 U.S. at 649, 104 S.Ct. 2039. And, second, "the Supreme Court and this court have emphasized the narrow application of Cronic." Lockett v. Trammel, 711 F.3d 1218, 1248 (10th Cir.2013); see Turrentine v. Mullin, 390 F.3d 1181, 1208 (10th Cir. 2004) (noting that "Cronic [is] inapplicable where counsel actively participated in all phases of the trial proceedings").
Moreover, to the extent that Cole asks us to accept as clearly established federal law our refinement of Cronic, as articulated in Romero and United States v. Hernandez, 849 F.2d 1325 (10th Cir.1988), we decline to do so. See Marshall v. Rodgers, ___ U.S. ___, 133 S.Ct. 1446, 1450-51, 185 L.Ed.2d 540 (2013) ("[An] appellate panel... may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to this Court, be accepted as correct."). We consequently "reject [his] alchemic efforts to transmute the holdings of these cases into clearly established federal law for this particular factual context." Littlejohn v. Trammell, 704 F.3d 817, 853 (10th Cir. 2013).
Because they too enunciate broad legal principles, Powell and Gideon likewise are not "clearly established federal law" within the meaning of 28 U.S.C. § 2254(d)(1). In Powell, the Supreme Court held
287 U.S. at 71-72, 53 S.Ct. 55 (internal quotation marks omitted). Similarly, in Gideon, the Supreme Court held that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." 372 U.S. at 344, 83 S.Ct. 792.
Cole does his best job of trying to identify clearly established federal law when he directs us to Strickland, because of the well-recognized, extensive breadth of Strickland's standard. See Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (recognizing limited circumstances in which general standards such as the Strickland test constitute clearly established law). Proceeding with an abundance of caution, we are prepared to assume without deciding that Strickland provides clearly established federal law for this claim. In Strickland, the Supreme Court held that "[r]epresentation of a criminal defendant entails certain basic duties." 466 U.S. at 688, 104 S.Ct. 2052. In particular, the Court emphasized, "[f]rom counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution." Id.
Turning to the OCCA's decision, Cole argues that the OCCA's analysis of his claim was "unreasonable for two reasons." Aplt. Br. at 23. First, Cole argues that "the OCCA's finding that there was no `complete breakdown in communication' is unsupported by the record." Id. In fact, Cole asserts, "[t]he record demonstrates that the breakdown in communication began six months after counsel entered their appearance and continued all the way through trial." Id. Cole further asserts that it was unreasonable for the OCCA "to `set aside' [his] irrational and delusional hyper-religiosity, since it [wa]s his delusional and irrational belief system that prevented [him] from rationally assisting counsel." Id. at 23-24. "The bottom line," Cole argues, is that he did not, "due to his delusional and irrational beliefs," provide the information necessary for counsel to defend him. Id. at 24.
Second, Cole asserts "it [wa]s unreasonable [for the OCCA] to find [he] was simply being uncooperative in light of the meaningful evidence ... demonstrat[ing] [that he] was suffering from either a mental disease, disorder, or defect, and that this illness affected [his] ability to communicate with counsel." Id. at 24. In support, Cole points to testimony that was presented on his behalf during the competency jury trial, as well as affidavits from his defense counsel and defense team members that were submitted in connection with his federal habeas petition.
We conclude, however, that Cole's arguments are insufficient to warrant federal habeas relief under the standards of review outlined in § 2254(d). Although the record on appeal indicates, and the OCCA conceded, that Cole and his defense team had difficulties communicating with each other during the course of the pretrial proceedings, the OCCA found that
More importantly, a review of the trial transcript indicates that, notwithstanding these purported communication difficulties, Cole's defense team vigorously defended him during both stages of trial. In particular, Cole's defense team successfully persuaded the jury, during the second-stage proceedings, to reject one of the aggravators the State had alleged and to conclude that Cole did not present a continuing threat.
Relatedly, although Cole asserts that he was ultimately "forced to go to trial with attorneys with whom he could not discuss his case or legal strategies," Aplt. Br. at 28, he fails to identify precisely how, let alone establish that, he was prejudiced by these purported communication difficulties. For example, although the record indicates that Cole rejected a last-minute plea bargain offered by the prosecution, Cole does not suggest in his briefing, let alone support with any type of evidence, that the purported communication breakdown impacted his decision in that regard. Further, although Cole's habeas counsel suggested at oral argument that the purported communication difficulties may have impacted the defense team's investigation of mitigating evidence and its second-stage presentation, there is no factual basis in the record to support that suggestion.
We therefore conclude that Cole is not entitled to federal habeas relief on the basis of this claim.
In Proposition Two of his appellate brief, Cole contends that his trial counsel failed to investigate and present mitigation evidence from Cole's family members that would have "personalized" him to the jury. Consequently, Cole argues, he was deprived of his right to effective assistance of counsel in violation of the United States Constitution.
During the second-stage proceedings, Cole's defense team presented testimony from five witnesses.
Cole's second mitigation witness was psychologist Jeanne Russell. Russell testified that she was hired by defense counsel to perform a risk assessment on Cole. According to Russell, Cole admitted to her that he had been sexually abused on one occasion, but that he tended to minimize the effect this incident had on him. Russell testified that, in her opinion, Cole did not exhibit any symptoms indicating that he was psychotic or out of touch with reality. Likewise, Russell testified that Cole scored fairly low on the psychopathy test she administered to him. In Russell's view, Cole had issues with the abuse of alcohol, and his risk for violence, especially domestic abuse, tended to occur in connection with his abuse of alcohol. Russell also testified that Cole was impulsive, had very poor coping skills, and had a personality disorder that caused him to focus on his own needs and, in turn, to fail to recognize the needs of others. Russell opined that Cole would not have any problems in a structured setting such as prison, but that his risk of engaging in violence would increase if he were released into the community. Without access to alcohol, Russell testified, Cole tended to retreat into and obtain comfort from his religious beliefs. Consequently, she testified, Cole's behavior during the first-stage proceedings did not surprise her. Russell concluded her testimony by opining that Cole would likely be viewed by other prisoners as a weak person and would thus likely be preyed upon in a prison situation.
Cole's third mitigation witness was Michael Basso, an associate professor of psychology at the University of Tulsa. Basso testified that he was hired by defense counsel to evaluate Cole and to prepare a report outlining his findings. According to Basso, Cole may have suffered two types of brain damage. First, Basso testified, Cole reported that in 1985, while arguing with an acquaintance, he was struck over his right forehead with a hammer and lost consciousness for some period of time. In Basso's view, this incident posed a possible risk of brain damage to Cole. Second, and more significantly, Basso testified that Cole's longstanding history of excessive alcohol use posed a significant threat of brain damage. Basso explained that brain damage resulting from alcohol use leads to a deterioration in function that is often expressed in terms of "slowing people." Trial Tr., Vol. VIII at 67. For example, Basso testified, it would take a person longer to think things through, would negatively impact their memory, and would reduce their ability to pay attention and concentrate. Basso also testified that it would negatively impact concept formation, abstract reasoning, and problem solving. All of this, Basso testified, could have negatively impacted Cole's impulsivity. With respect to Cole specifically, Basso testified, his testing indicated that Cole had mild brain dysfunction, meaning that his brain did not function normally compared to other people his age.
The fourth mitigation witness to testify was Bill Sharp, a licensed psychologist hired by defense counsel to evaluate Cole. Based upon his testing of Cole, Sharp diagnosed Cole as having a "personality disorder otherwise not specified." Id. at 110.
The fifth and final mitigation witness was Jolynn Elkin-Hohenstein (Elkin), a detention officer employed by the Rogers County (Oklahoma) Sheriff's Office. Elkin testified that Cole had been an inmate at the Rogers County Jail for nearly two years and that, during that time, she had become acquainted with him while transporting him back and forth for court proceedings. She further testified that Cole seemed to interact well with the other people in his housing unit, was quiet, had not received any write-ups, and had never done anything violent while in the Rogers County Jail. Elkin opined that Cole was not a "problem inmate." Id. at 133.
Notwithstanding the presentation of this evidence, Cole now suggests that "[m]ajor elements of available mitigation, which would have saved [his] life and assisted his experts in evaluating him and explaining his actions were omitted due to trial counsel's incomplete investigation and utter failure to effectively present what was known." Aplt. Br. at 31. In support, Cole alleges that "the OIDS investigator assigned to [his] capital trial," Steve Leedy, "did not `conduct personal interviews or make appeals to' [Cole's brother] Darren Cole, Darren's wife Tammy, and Robert Cole [another of Cole's brothers] due to: (1) Tammy being `less than helpful' on the phone; (2) Robert stating that ... Cole should get death; and (3) the fact that he was not able to speak to Darren." Id. at 32 (quoting ROA, Vol. 1, Part 1, Doc. 16, Attach. 21, ¶¶ 1-2; footnote omitted). Had his trial counsel or Leedy actually interviewed these family members, Cole asserts, they would have obtained and could have presented to the jury evidence establishing that:
Cole in turn argues that, had this information been presented on his behalf during the second-stage proceedings, the outcome of those proceedings likely would have been different. More specifically, Cole argues, based upon the above-described evidence, that he "had a strong and compelling case in mitigation in the form of the abuse and trauma he suffered as a child, his mental illness, and his brain damage," and "[t]his is precisely the type of evidence where there exists a reasonable probability that at least one jury [sic] could have been moved by it and voted for a sentence less than death."
Cole first asserted this issue in Proposition Two of his application for state post-conviction relief. The OCCA rejected it, stating as follows:
Cole II. No. PCD-2005-23 at 5-6.
Respondent argues that Cole's claim is procedurally barred because the OCCA held that the claim could have been, but was not, raised on direct appeal and was thus waived for purposes of state post-conviction review. Aplee. Br. at 24. Although respondent concedes that the OCCA proceeded to review the claim on the merits, respondent asserts that the OCCA did so only because Cole, "[i]n an effort to avoid waiver, ... also raised [a claim of] ineffective assistance of appellate counsel." Id. Consequently, respondent asserts, the OCCA had to "review[] the substantive claim" on the merits "in order to evaluate [Cole's] appellate counsel claim." Id. Nevertheless, respondent argues, the OCCA's ultimate holding was that the ineffective assistance of trial counsel claim was waived. Therefore, respondent asserts, we must treat the claim as procedurally barred for purposes of federal habeas review.
Respondent's arguments are supported by Tenth Circuit precedent and the record in this case. In Thacker v. Workman, 678 F.3d 820 (10th Cir.2012), a recent federal habeas proceeding brought by an Oklahoma capital defendant, we held, under similar circumstances, that we had to "acknowledge and apply the OCCA's procedural bar ruling, even though the OCCA, on an alternative basis, briefly addressed and rejected the merits of [the habeas petitioner's] claim." Id. at 834 n. 5. In this case, as respondent correctly notes, the OCCA's primary basis for rejecting Cole's ineffective assistance claim was that it had been waived. In turn, the OCCA's sole reason for addressing the claim on the merits was to address and reject Cole's
Before treating Cole's ineffective assistance claim as procedurally barred for purposes of federal habeas review, however, we must determine whether the OCCA's procedural bar ruling was both independent and adequate. In Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court held that "federal habeas review ... is barred" in any case "in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule[,] ... unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 750, 111 S.Ct. 2546. In other words, "[i]f a particular claim was defaulted in state court on an independent and adequate state procedural ground, we recognize the state courts' procedural bar ruling and do not address the claim on the merits unless cause and prejudice or a fundamental miscarriage of justice is shown." Thacker, 678 F.3d at 835 (internal quotation marks omitted). "To be independent, the procedural ground must be based solely on state law." Id. "To be adequate, the procedural ground must be strictly or regularly followed and applied evenhandedly to all similar claims." Id. (internal quotation marks omitted).
It is beyond dispute that the procedural bar rule applied by the OCCA in Cole's case was based upon Oklahoma state law and thus is considered "independent" for purposes of federal habeas review. Therefore, that leaves only the question of adequacy. We have held that "[t]he Oklahoma requirement that a claim of ineffective assistance of trial counsel be raised on direct appeal is an adequate ground for procedural default if (1) the defendant's counsel on direct appeal [wa]s different from trial counsel and (2) the claim[ ] c[ould have] be[en] resolved on the trial record alone." Welch v. Workman, 639 F.3d 980, 1012 (10th Cir.2011). In this case, it is undisputed that Cole was represented on direct appeal by private counsel, rather than the two OIDS attorneys who represented him at trial. And, although Cole's claim of ineffective assistance could not be resolved on the trial record alone since it relied on evidence that was never presented at trial, respondent argues that OCCA Rule 3.11 would have allowed Cole on direct appeal to request an evidentiary hearing on his claim, and that such a hearing would have allowed Cole to effectively supplement the record on appeal with the additional evidence relevant to his claim. Moreover, respondent correctly notes that Cole "does not make any argument that Rule 3.11 is [in]adequate or that he could not supplement the record to the state court." Aplee. Br. at 27. "[B]ecause [Cole] did not challenge the method by which he could supplement the facts on appeal to the State ..., any argument that he was not provided an adequate procedure is waived." Welch, 639 F.3d at 1014.
We therefore conclude that Cole's claim of ineffective assistance of trial counsel is procedurally barred for purposes of federal habeas review.
Out of an abundance of caution, we shall proceed to review the merits of Cole's ineffective assistance claim. In identifying the clearly established federal law applicable to his challenge to the OCCA's determination, Cole begins by acknowledging that "[t]he two prong test of Strickland requires [him] to establish [that] counsel's
466 U.S. at 690-91, 104 S.Ct. 2052.
In addition to the principles outlined in Strickland, Cole argues that, under Wiggins, 539 U.S. at 524, 123 S.Ct. 2527, we must look to the ABA Guidelines in order to determine the professional standards applicable to defense counsel in capital cases. Id. That argument is supported by our recent decision in Littlejohn, where we noted that "[i]n capital cases, we refer to the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases ... in assessing" the prevailing "professional norms." 704 F.3d at 859 (internal quotation marks omitted). Under those Guidelines, "the topics defense counsel [generally] should investigate and consider presenting include medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experiences, and religious and cultural influences." Id. (emphasis and internal quotation marks omitted).
Finally, Cole cites to a number of other Supreme Court cases, but does not provide pinpoint citations for most of these cases and otherwise does not explain their relevance. And a review of those cited cases indicates that they are, at best, only marginally relevant to the ineffective assistance claim he is now asserting. See Eddings v. Oklahoma 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) ("the sentencer in capital cases must be permitted to consider any relevant mitigating factor"); id. at 115, 102 S.Ct. 869 ("Evidence of a difficult family history and of emotional disturbance is typically introduced by defendants in mitigation."); Lockett v. Ohio, 438 U.S. 586, 607, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (noting general principle that sentencer in capital case must be allowed to consider as mitigating factors any aspect of the defendant's character and record or any circumstances of the offense); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ("we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death."); Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (approving of a Georgia capital sentencing procedure that "focus[ed] the jury's attention on the particularized nature of the crime and
Cole argues that the OCCA's analysis of his ineffective assistance of trial counsel claim was unreasonable in two respects. First, Cole argues that, contrary to the conclusion reached by the OCCA, his "trial counsel's decision not to contact [his] entire family cannot be deemed strategic because counsel had no way of knowing what information other family [members] had." Aplt. Br. at 47. And, Cole argues, "counsel's excuse not to find and contact the rest of the Cole family because two members were unsympathetic is nonsensical." Id. Second, Cole argues that "the OCCA was unreasonable in finding that counsel's actions were reasonable not to present testimony from [his] first son as `any focus on the earlier abuse was arguably unhelpful to [him].'" Id. at 47-48 (quoting Cole II, PCD-2005-23, at *6). According to Cole, "once the trial court allowed ... evidence [of Cole's abuse of his first son] to come in, [Cole's trial] counsel had a duty to respond" to that evidence. Id. at 48. Cole argues that "[h]ad counsel done the [c]onstitutionally required investigation: (1) counsel would have learned that Cole's son had no hostile feelings towards his father and would like the opportunity to visit, correspond, and get to know him; and (2) the damage to the left frontal-temporal region of Cole's brain resulted in Cole's inappropriate response to his first son's need for assistance." Id.
Addressing these arguments in order, we agree with Cole that the unsympathetic attitudes displayed by two of his brothers, when contacted by Cole's investigator, did not provide Cole's investigator or his trial counsel with a rational basis for failing to contact other members of Cole's family. Because "family and social history" is one of the crucial areas of investigation emphasized in the ABA Guidelines, we will therefore assume that Cole can satisfy Strickland's first prong, i.e., that his trial counsel's failure to contact other members of Cole's family was constitutionally deficient.
The focus then turns to Strickland's second prong, i.e., whether counsel's deficient performance so prejudiced Cole's second-stage defense that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the second-stage proceedings would have been different.
As noted, Cole also points to additional expert testimony that he contends should have been presented that would have established that he suffers from paranoid schizophrenia. The problem for Cole, however, is that he cannot establish that his defense counsel performed deficiently in failing to obtain this evidence prior to trial. Indeed, a review of the state court records indicates that Cole's defense counsel vigorously attempted to establish that Cole was incompetent and, in doing so, obtained professional opinions from several expert witnesses (and in turn presented some of those opinions to the jury during the second-stage proceedings). None of those experts concluded that Cole suffered from paranoid schizophrenia. Although Cole has, since the time of his trial, been diagnosed by a psychiatrist as having paranoid schizophrenia, Cole has not alleged, let alone established, that his trial counsel was deficient in failing to secure an expert witness for trial who would have offered a similar opinion. In short, Cole cannot satisfy the first Strickland prong with respect to this evidence.
Lastly, Cole complains that his trial counsel failed to obtain and present testimony from Cole's first child, Benjamin Robert Cole, Jr. (Cole Jr.). In resolving this challenge, we elect to proceed directly to the second prong of Strickland. That is, we focus on the question of whether trial counsel's failure to present testimony from Cole Jr. during the second-stage proceedings was prejudicial. See Gilson v. Sirmons, 520 F.3d 1196, 1248 (10th Cir. 2008) (proceeding directly to second prong of Strickland test). According to the record, had Cole's trial counsel interviewed Cole Jr., they would have learned that Cole Jr. (a) did not suffer any long-term injuries from Cole's abuse, (b) did not harbor ill will towards Cole, and (c) was interested in developing a relationship with Cole. We are not persuaded, however, that there is a reasonable probability that the outcome of the second-stage proceedings would have been different had Cole Jr. testified on Cole's behalf. To begin with, had Cole Jr. been presented as a defense witness during the second-stage proceedings, the prosecution undoubtedly would have questioned him regarding the serious injuries that Cole inflicted upon him when he was six months old. Those injuries included: a broken ankle; a cigarette burn to his left lower eyelid; bruises on the crown of his head, his forehead, his torso, and his arms; a swollen and bruised penis; and a large, deep red bruise mark across the back of his neck. Thus, Cole Jr.'s testimony may well have reinforced the jury's decision to sentence Cole to death, rather than persuading it otherwise. In any event, as with the other familial evidence cited by Cole, the testimony from Cole Jr. would not, and indeed could not, have altered the jury's findings regarding the two aggravating circumstances. Ultimately, we cannot say that there is a reasonable probability that Cole Jr.'s testimony would have altered either the jury's
For these reasons, we conclude that Cole was not prejudiced by his trial counsel's failure to investigate and present the various items of mitigating evidence that Cole now identifies.
In Proposition Three of his appellate brief, Cole argues that he was denied his constitutional rights to due process, a fundamentally fair trial, and a reliable sentencing hearing as a result of the state trial court's erroneous admission of "gruesome autopsy photographs" during the first-stage proceedings. Aplt. Br. at iv. According to Cole, "the prejudicial effect of this evidence was not limited to the jury's guilt determination" because "[t]he State incorporated all of the guilt stage evidence into the second stage." Id.
As Cole notes in his opening brief, "[t]hree of the photographs [at issue] were full-on autopsy photos depicting internal injuries and removed organs," and "[t]he medical examiner had to explain what exactly the pictures entailed." Id. at 55. State's Exhibit 7 "depicted the victim's broken spine and a separation between the third and fourth thoracic vertebrae where the spine was `opened up.'" Id. (quoting Trial Tr., Vol. VII at 17). State's Exhibit 8 "was a close up view `with the organs removed but the aorta remaining in place and the spinal fracture remaining in place.'" Id. (quoting Trial Tr., Vol. VII at 19). State's Exhibit 9 "was a picture of the removed `abdominal block of organs,' in other words, the medical examiner had removed, as a unit, then photographed the victim's `stomach and gastrointestinal tract and so forth.'" Id. (quoting Trial Tr., Vol. VII at 18). "Lastly, State[`s] Ex[hibit] 6... depicted [the victim's] face and chest while laying on the autopsy table, but prior to the actual autopsy." Id. When the trial court admitted Exhibit 6, it stated on the record, referring to the victim, "I think people need to know who she is and this at least gives somebody an opportunity to see a picture of her." Trial Tr., Vol. VI at 47.
Cole raised a similar issue on direct appeal in Proposition Three of his direct appeal brief. Specifically, Cole argued in Proposition Three of his direct appeal brief that the trial court improperly admitted the three photographs of Brianna that were taken during or after the autopsy. Although Cole referred to the pre-autopsy photograph (Exhibit 6) and contrasted it with the remaining three photographs, he did not expressly challenge its admission.
The OCCA rejected Cole's arguments, stating as follows:
Cole I, 164 P.3d at 1096-1097 (internal paragraph numbers omitted).
In the "Mandatory Sentence Review" section of its opinion, the OCCA effectively concluded that the improper admission of State's Exhibit 8 did not prejudice Cole: "Upon review of the record and after carefully
Cole points to Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994), as providing the clearly established federal law applicable to this claim.
In challenging the OCCA's ruling, Cole does not explain precisely why, in his view, the OCCA was wrong in concluding that two of the three autopsy photographs (i.e., State Exhibits 7 and 9) were properly admitted. Although Cole acknowledges that the OCCA concluded these two photographs were "`highly probative to show both cause of death and the conscious physical suffering required by the especially heinous, atrocious, or cruel aggravator,'" Aplt. Br. at 56 (quoting Cole I, 164 P.3d at 1099 n. 9), he makes no attempt to explain how that conclusion was contrary to, or an unreasonable application of, the constitutional principles outlined in Romano.
In any event, we conclude, after carefully examining the record on appeal, that the OCCA's ruling on these two exhibits was entirely consistent with Romano. The two photographs were relevant in the first-stage proceedings for purposes of aiding the jury in understanding the medical examiner's testimony regarding the injuries suffered by Brianna (which, as the OCCA correctly noted, were not visible to the naked eye) and the cause of her death. The photographs were in turn probative during the second-stage proceedings to establish that Brianna, prior to her death, likely endured conscious physical suffering as a result of the injuries inflicted by Cole. That finding was relevant to the jury's finding that the crime was especially heinous, atrocious, or cruel.
As for the third autopsy photograph, State's Exhibit 8, Cole acknowledges that the OCCA concluded it was redundant and thus improperly admitted. Cole I, 164 P.3d at 1097 ("We think two of these shots, rather than three, would have sufficed, given that Appellant admitted being the cause."; "State's Exhibit 8 was fairly redundant as to the injuries and gruesomeness."). Cole takes issue, however, with the OCCA's ultimate conclusion that the improper admission of this photograph did not deprive him of a fair sentencing proceeding. In particular, Cole also asserts that the OCCA's "analysis [of Exhibit 8] is at odds with itself; given [that] the
Again, however, we conclude that the OCCA's analysis was neither contrary to, nor an unreasonable application of, Romano. Because Exhibit 8 was simply duplicative of the two exhibits the OCCA concluded were properly admitted, its admission did not "so infect[ ] the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process." Romano, 512 U.S. at 12, 114 S.Ct. 2004.
As a final matter, Cole argues that the OCCA was wrong in concluding that the introduction of State's Exhibit 6, the pre-autopsy photo, was not prejudicial. In support, Cole argues that this photo "appeared to depict an infant peacefully sleeping" and thus "was extremely damaging when considered in comparison to the other pictures." Aplt. Br. at 55. We note that this argument, however, is in direct contrast to the argument Cole asserted on direct appeal. In his direct appeal brief, Cole argued that it was the autopsy photographs, i.e., Exhibits 7, 8 and 9, when contrasted with Exhibit 6, that "acted to inflame the passions of the jury to [his] unending detriment."
In Proposition Four of his appellate brief, Cole argues that his rights under the Eighth and Fourteenth Amendments were violated because the evidence presented during the second-stage proceedings was insufficient to allow the jury to reasonably find that the murder was especially heinous, atrocious or cruel.
Cole first raised this issue in Proposition Six of his direct appeal brief.
Cole I, 164 P.3d at 1098-99 (internal paragraph numbers omitted).
Cole points to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980), as providing the clearly established federal law applicable to this claim. Aplt. Br. at 67. In Jackson, the Supreme Court held "that a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim." 443 U.S. at 321, 99 S.Ct. 2781. The Court further held that in reviewing such a claim, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319, 99 S.Ct. 2781 (emphasis in original).
In Hicks, the petitioner, an Oklahoma state prisoner, was convicted by a jury of unlawfully distributing heroin. Because petitioner had two prior felony convictions, the members of the jury were instructed, in accordance with the then-existing habitual offender statute, that if they found
The Supreme Court "granted certiorari to consider the petitioner's contention that the State deprived him of due process of law guaranteed to him by the Fourteenth Amendment." Id. Although the State of Oklahoma "argued that all that [wa]s involved in th[e] case [wa]s the denial of a procedural right of exclusively state concern," the Court disagreed. "Where," the Court held, "a State has provided for the imposition of criminal punishment in the discretion of the trial jury, ... [t]he defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State." Id. at 346. In turn, the Court held that the OCCA had denied petitioner "the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision." Id. "Such an arbitrary disregard of the petitioner's right to liberty," the Court held, "is a denial of due process of law." Id.
In his federal habeas appeal, Cole first asserts that "the OCCA employed an incorrect appellate standard of review" in assessing "the sufficiency of the evidence supporting the HAC aggravator." Aplt. Br. at 67. Although he concedes the OCCA "applied substantially the same standard of review as the one articulated [by the Supreme Court] in Jackson," he asserts that, "[c]onsistent with Oklahoma law, the OCCA should have applied the reasonable hypothesis standard" discussed in Lay v. Oklahoma, 179 P.3d 615, 623 (Okla.Crim.App.2008). Aplt. Br. at 68. "The [OCCA's] misapplication of state law," Cole argues, "result[ed] in a deprivation of a liberty interest ... and is therefore cognizable on federal habeas corpus review" consistent with the holding in Hicks. Id.
We note, at the outset, that Cole has never presented this argument to the Oklahoma state courts and it is therefore unexhausted and subject to an anticipatory procedural bar. See Anderson v. Sirmons, 476 F.3d 1131, 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)).
Further, even assuming the claim is not procedurally barred, it clearly lacks merit. The "reasonable hypothesis" test cited by Cole was first adopted by the OCCA in 1911 to apply in criminal cases where the only evidence in support of a defendant's guilt was circumstantial. See Easlick v.
Id. (quoting 117 P. at 505). At some point thereafter, the "reasonable hypothesis" test was adopted for use in the second stage of Oklahoma capital cases, and was incorporated into Oklahoma's uniform jury instructions for capital cases.
In 2004, however, the OCCA "abolish[ed] the `reasonable hypothesis' test and adopt[ed] a unified approach[, based upon Jackson.] in examining sufficiency issues." Id. at 557. In doing so, the OCCA noted that the "reasonable hypothesis" test, which it described as "antiquated," id., "was formed at a time when circumstantial evidence was universally distrusted," id. at 558. The OCCA held that, "given the current instructions defining direct and circumstantial evidence, the equal footing on which both types of evidence stand, along with the strength of the reasonable doubt standard, the fear of circumstantial evidence becomes unfounded." Id.
In Lay, the case cited by Cole, a capital defendant filed a direct appeal complaining, in part, "that the trial court erred in failing to instruct the jury [with regard to the "reasonable hypothesis" test] as required by OUJI-CR (2d) 4-77." 179 P.3d at 623. The trial court had "modified this instruction ... to conform to the holding of Easlick," which, as noted, "overruled years of settled law and abolished the `reasonable hypothesis' standard in the guilt/innocence instructions and on appellate review of sufficiency of the evidence claims." Id. The OCCA concluded that, because "Easlick did not address OUJI-CR (2d) 4-77," that was "still the required instruction for aggravating circumstances proven, entirely or in part, by circumstantial evidence." Id. However, because the defendant in Lay "failed to object to the instruction as modified," the OCCA concluded there was no plain error. Id.
Seven years later, in Harmon v. State, 248 P.3d 918, 938-939 (Okla.Crim.App. 2011), the OCCA expressly abolished the "reasonable hypothesis" test as applied to second-stage jury instructions regarding aggravating circumstances. In doing so, the OCCA noted that the reasons it outlined in Easlick for abandoning the "reasonable hypothesis" test for guilt/innocence instructions "appl[ied] to" second-stage aggravating circumstance instructions "as well." Id. at 938. Thus, under current Oklahoma law, the Jackson standard applies equally to a jury's first-stage guilt/innocence determinations and its second-stage aggravating circumstance determinations.
Notably, the trial court in Cole's case, consistent with then-existing Oklahoma law, instructed the jury regarding the "reasonable hypothesis" test as part of its second-stage instructions regarding the aggravating circumstances alleged by the prosecution. In particular, the trial court instructed the jury that, "[i]n order to warrant a finding of any aggravating circumstance or circumstances upon circumstantial evidence, each fact necessary to prove the existence of the circumstance must be established by the evidence beyond a reasonable doubt," and that "[a]ll of the facts and circumstances, taken together, must be inconsistent with any reasonable
Although the OCCA did not in turn apply the "reasonable hypothesis" test in conducting its appellate review of the sufficiency of the evidence supporting the heinous, atrocious or cruel aggravator, its failure to do so was not contrary to Hicks, nor did it otherwise deprive Cole of his right to due process. Indeed, Hicks, which involved a defendant who was effectively deprived of the right to have a jury exercise its discretion to impose a sentence on him, is not remotely on point. Further, our review of OCCA case law indicates that the OCCA, at the time it decided Cole's direct appeal, routinely applied the Jackson standard, rather than the "reasonable hypothesis" test, in assessing the sufficiency of evidence supporting a heinous, atrocious or cruel aggravator. E.g., Black v. State, 21 P.3d 1047, 1074 (Okla.Crim. App.2001); Malicoat v. State, 992 P.2d 383, 397 (Okla.Crim.App.2000). Finally, and most importantly, the OCCA applied the proper constitutional standard in assessing the sufficiency of the evidence supporting the jury's second-stage findings in Cole's case (Cole concedes that the OCCA effectively applied the constitutional standard of review outlined in Jackson). Consequently, Cole's due process rights were not violated by the manner in which the OCCA conducted its appellate review on that issue.
Finally, we conclude that the OCCA's decision was neither contrary to, nor an unreasonable application of, Jackson. In particular, we fully agree with the OCCA that the medical examiner's testimony was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that the murder was especially heinous, atrocious or cruel.
In Proposition Five of his appellate brief, Cole asserts that prosecutorial misconduct in seeking sympathy for the decedent, by way of repeated references to God and religion in both stages of the trial, resulted in violations of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Cole further asserts that his rights under the First Amendment were also violated by the prosecutorial misconduct. Additionally, Cole asserts, as part of Proposition Five, that his trial counsel was ineffective for failing to object to the alleged instances of prosecutorial misconduct.
Cole alleges that the prosecution "presented argument designed to inflame the passions and prejudice of the jury and evoke sympathy for Brianna by repeatedly injecting religion and God into the trial." Aplt. Br. at 76. In support, Cole first notes that the lead prosecutor, during first-stage opening statements and closing arguments, made repeated references to Christmas:
Cole next asserts that the prosecutor, during first-stage closing arguments, "dove head first into religion, God, and how children are a blessing," Aplt. Br. at 48, by stating:
According to Cole, "[t]hese statements were not designed to ... highlight important points, evidence, or testimony," Aplt. Br. at 77, but rather "were designed to inflame the passions and prejudices of the jury, to convict Cole not based on Oklahoma law, but because Cole violated God's law; broke God's trust; and was an affront to God because the homicide occurred five days before we celebrate the birth of God's son," id. at 78.
Cole contends that "the prosecutor continued down this same path during second stage closing arguments," id., when he described a personal incident to the jury:
Trial Tr., Vol. VIII at 144-45.
Cole asserts that "[t]he religious overtones and content of the prosecutor's argument acted to obliterate the separation
Lastly, Cole asserts that his trial counsel "failed to object [to any of this misconduct] and allowed this highly prejudicial and sympathetic evidence to be heard by Cole's jury." Aplt. Br. at 81.
Cole asserted some, but not all, of these arguments in Proposition Five of his direct appeal brief. In particular, Cole framed Proposition Five in the following manner: "PROSECUTORIAL MISCONDUCT IN SEEKING SYMPATHY FOR THE DECEDENT VIOLATED COLE'S RIGHT TO A FUNDAMENTALLY FAIR TRIAL AND SENTENCING PROCEEDING IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE II, SECTIONS 7 AND 20 OF THE OKLAHOMA CONSTITUTION." Direct Appeal Br. at 54 (capitalization in original). In turn, Cole pointed to the same instances of alleged misconduct that he now complains of in these federal habeas proceedings. Although Cole argued that the misconduct violated his right to a fair trial and sentencing proceeding, he did not argue that his First Amendment rights were violated.
As for his claim of ineffective assistance, it was asserted only in a footnote to his discussion of the alleged prosecutorial misconduct:
Direct Appeal Br. at 55-56, n.10 (internal citations, quotation marks, and brackets omitted).
The OCCA rejected Cole's prosecutorial misconduct claim, stating as follows:
Cole I, 164 P.3d at 1096-97 (internal paragraph numbers omitted). The OCCA did not mention Cole's allegation of ineffective assistance of trial counsel. Nor did the OCCA discuss whether the alleged prosecutorial misconduct violated Cole's First Amendment rights.
Prosecutorial misconduct can result in constitutional error in one of two ways. "First, prosecutorial misconduct can prejudice `a specific right, such as the privilege against compulsory self-incrimination, as to amount to a denial of that right.'" Matthews v. Workman, 577 F.3d 1175, 1186 (10th Cir.2009) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). Second, absent the infringement of a specific constitutional right, prosecutorial misconduct can result in constitutional error if it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. In other words, in the habeas context, the petitioner must establish that the prosecutor's misconduct was "of sufficient significance to result in the denial of the [petitioner]'s right to a fair trial." Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (internal
Notably, Cole does not cite to Donnelly or Greer. Instead, he cites to several other Supreme Court cases, as well as circuit cases. But none of the Supreme Court cases cited by Cole are remotely on point. And, as we have noted, circuit cases are inapplicable in our determination of whether the OCCA's rulings were contrary to, or an unreasonable application of, clearly established federal law under § 2254(d)(1). Consequently, we will treat Donnelly and Greer as the "clearly established federal law" applicable to Cole's claim for purposes of § 2254(d)(1) analysis.
In challenging the OCCA's analysis and rejection of his claims, Cole begins by asserting it was "unreasonable" for the OCCA to find that "`the occurrence of th[e] murder on the week before Christmas [wa]s a tragic circumstance that [wa]s instantaneously obvious to everyone'" and that could not "`be disentangled from a criminal trial on the basis that they also evoke sympathy.'" Aplt. Br. at 83 (quoting Cole I, 164 P.3d at 1101). More specifically, Cole argues that "[w]hile it is painfully obvious that Brianna was killed days before Christmas, there was absolutely no need for the prosecutor to continually emphasize that fact." Id. at 83-84. "The prosecutor's arguments," Cole asserts, "pulled on the heart strings of the jury by placing before it God's gifts and blessing — children, particularly healthy and `perfect' children (like Brianna), and God's gift of his Son who gave us all eternal life — counterposed with Cole's action of killing this `blessing' from God, and giving the gift of death." Id. at 84.
Focusing solely on the prosecutor's references to the timing of the murder in proximity to Christmas, we are not persuaded that the OCCA's analysis was contrary to, or an unreasonable application of, Donnelly or Greer. As the OCCA noted, the fact that Brianna's death occurred just days before Christmas was obvious to the jury. Further, although Cole suggests that the prosecutor "continually emphasize[d] that fact," in actuality the prosecutor made only two references to this fact during his first-stage opening statement. Considering the trial as a whole, which lasted over a week, these references were not of sufficient significance to deprive Cole of his right to a fair trial.
As for the prosecutor's references during first-stage closing arguments to children being a blessing or gift from God, the OCCA concluded that "[t]hese [blessing] comments f[e]ll within the wide latitude of discussion permitted both the state and the defense in closing argument." Cole I, 164 P.3d at 1101. The OCCA also concluded that "[i]t is probably safe to say that most Americans, probably a strong majority, would agree ... wholeheartedly" with the prosecutor's suggestion that children are a "gift" from God. Id. Although the OCCA conceded that this statement from the prosecutor was "perhaps objectionable, as possibly injecting God into the mix and for its intentional melodrama," it concluded that the statement, "standing alone, [did not] amount to plain error." Id.
Cole argues that "[t]his finding is unreasonable because the question is not whether [he] violated God's laws and trust, but whether [he] violated the laws of Oklahoma." Aplt. Br. at 84. While Cole is certainly correct in stating that the proper question before the jury was whether he violated Oklahoma law, we conclude that the OCCA's analysis of this prosecutorial
Finally, Cole argues that it was unreasonable for the OCCA to conclude that Cole, through his behavior during trial, injected religion into the trial and that the prosecutor's arguments about God were nothing more than an "adversarial balance" to Cole's positions on religion. We construe the OCCA's comments as addressing not only the prosecutor's remarks from the first-stage proceedings, but also the prosecutor's comments in second-stage closing arguments, including notably the comments regarding a baby's cry and what God asks from parents. See Cole I, 164 P.3d at 1101 (finding that neither "[Cole's] trial [n]or sentencing" was "rendered unfair" "or when all of the examples [we]re considered together"). Nevertheless, Cole cannot prevail on this challenge. Although we agree with Cole that "at no time did [he] or his attorneys present any evidence of [his] position on religion, or [his] religious views, or assert [his] religiousness as a defense," Aplt. Br. at 85, we nevertheless conclude, for the reasons already discussed above, that the prosecutor's comments, when considered in light of the trial as a whole, see Cole I, 164 P.3d at 1101, did not result in a deprivation of Cole's due process right to a fair trial and sentencing proceeding.
As for Cole's assertion that his trial counsel was ineffective for failing to object to the alleged instances of prosecutorial misconduct that occurred during the trial, our review of the state court record leads us to conclude that Cole did not properly raise the issue on direct appeal. OCCA Rule 3.5 outlines the requirements of an appellant's brief, and subsection (A)(5) thereof specifically provides that "[m]erely mentioning a possible issue in an argument or citation to authority does not constitute the raising of a proposition of error on appeal." OCCA R. 3.5(A)(5). That same subsection further provides that "[f]ailure to list an issue pursuant to the[ ] requirements [of the rule] constitutes waiver of alleged error." Id. In Cole's case, his claim of ineffective assistance was neither listed nor treated as a distinct issue in his direct appeal brief. Rather, as we have noted, the issue was mentioned by Cole in one sentence in a footnote to his discussion of the alleged prosecutorial misconduct. In turn, the OCCA did not acknowledge, let alone address, the issue in disposing of Cole's direct appeal, and it thus appears, consistent with OCCA Rule 3.5(A)(5), to have treated the issue as not properly raised. Consequently, the issue is unexhausted and, in turn, procedurally barred for purposes of federal habeas review.
In his sixth and final proposition of error, Cole asserts that the cumulative effect of the errors that occurred at his trial deprived him of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. "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, 595 F.3d 1142, 1162 (10th Cir.2010) (internal quotation marks and brackets omitted).
Having reviewed all of the state court records in this case, we conclude that, notwithstanding the constitutional errors alleged by Cole in these federal habeas proceedings, Cole received a fundamentally fair trial. In other words, even aggregating the constitutional errors alleged by Cole, we conclude that those errors did not have a substantial and injurious effect or influence on either the jury's determination of Cole's guilt or its decision to sentence Cole to death. See generally Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (outlining the harmless error standard to be applied on federal habeas review).
The judgment of the district court is AFFIRMED. Cole's motion to expand the certificate of appealability is DENIED.
