FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 1, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 GEORGE OCHOA,

              Petitioner - Appellant,
                                                         No. 02-6032
 v.                                                (D.C. No. CIV-99-538-R)
                                                       W.D. Oklahoma
 RANDALL G. WORKMAN, Warden,
 Oklahoma State Penitentiary,

              Respondent - Appellee.


                           ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and HOLMES, Circuit Judges.



      An Oklahoma state jury found George Ochoa guilty of, inter alia, two

counts of first degree murder and sentenced him to death. On direct appeal, the

Oklahoma Court of Criminal Appeals (“OCCA”) affirmed. Ochoa v. State, 

, 606 (Okla. Crim. App. 1998). After exhausting his Oklahoma state

post-conviction remedies, Ochoa filed a 28 U.S.C. § 2254 habeas corpus petition

in federal district court. The district court denied habeas relief in an extensive


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
order. Ochoa appeals the district court’s denial of habeas relief (No. 02-6032). 1

Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, this court

affirms the district court’s denial of Ochoa’s habeas petition.



                               I. BACKGROUND

      The following factual background is taken from the opinion of the OCCA

on direct appeal. Additional background, both factual and procedural, is set out

below where necessary to understand individual issues raised by Ochoa on appeal.

             During the early morning hours of July 12, 1993, Francisco
      Morales and his wife, Maria Yanez, were shot and killed in the
      bedroom of their Oklahoma City home. The sound of gunfire woke
      Yanez’s daughter Christina, who was 14 years old in the summer of
      1993. Christina called 911 and told the operator that she believed
      her step-father, Morales, may have been firing the gun. After
      hanging up the telephone, she looked out her bedroom door. A light
      was on in the living room; Christina saw two men. One man was
      wearing a white t-shirt and the other man was wearing a black t-shirt.
      Christina stated the man in the black t-shirt had something in his

      1
        After all briefing was complete and Ochoa’s appeal was set for oral
argument, this court stayed the appeal, upon Ochoa’s motion, so he could exhaust
an Atkins-based mental retardation claim in state court. See Atkins v. Virginia,

, 321 (2002) (holding that the Eighth Amendment “places a
substantive restriction on the State’s power to take the life of a mentally retarded
offender” (quotation omitted)). Oklahoma held a jury trial on Ochoa’s
Atkins claim; the jury concluded Ochoa had not proved he was mentally retarded
by a preponderance of the evidence. The OCCA affirmed. Ochoa v. State, 

, 670 (Okla. Crim. App. 2006). This court then granted Ochoa
permission to file a second § 2254 petition raising his Atkins claim in federal
district court. Ochoa v. Sirmons, 

(10th Cir. 2007). After the
district court denied habeas relief, Ochoa appealed to this court. Ochoa’s appeal
of the denial of his Atkins-based successive habeas petition remains pending
before this court (No. 10-6088).

                                         -2-
hand, but she did not know what it was. Christina initially denied
knowing the two men, but eventually identified Ochoa as the man in
the black t-shirt and [Osbaldo] Torres as the man in the white t-shirt.

       The shooting also awakened Christina’s step-brother,
Francisco, who was eleven years old in the summer of 1993.
Francisco saw the man in the black t-shirt shoot his father. He could
not identify the gunman.

      The police quickly responded to Christina’s 911 call. While
en route to the Yanez/Morales home, Officer Coats arrested Torres
and Ochoa, who were walking together a short distance from the
homicide. The men were sweating and nervous, and Coats claimed
he observed blood on the clothing of the men.

       A short time before the shootings, Torres and Ochoa parked
their car at a friend’s house. A witness observed one of the men take
a gun from the trunk of the car and put the gun in his pants. This
gun was different from the gun used in the murders. The witness
stated one of the men was Ochoa. She could not identify the other
man, but asserted that it was the other man—and not Ochoa—who
put the gun in his pants. Another witness testified that the man with
Ochoa was Torres.

      The jury convicted Ochoa and Torres on all counts and the
case proceeded to the capital sentencing phase of trial. The State
argued that Ochoa and Torres posed a continuing threat to society
based on the circumstances of the murders and the defendants’
membership in the Southside Locos, a local gang. To show that
Ochoa created a risk of death to more than one person, the State
offered the death of the two victims and the presence of three
children in the home at the time of the murders. The defense
presented in mitigation Ochoa’s personal history, his history of
mental illness, his borderline mental retardation and pleas of mercy
from his family. The jury found the existence of both aggravating
circumstances. After weighing the aggravating and mitigating
evidence, the jury imposed the death penalty.




                                   -3-


; see also generally Torres v. Mullin, 

(10th

Cir. 2003) (denying federal habeas relief to Ochoa’s co-defendant). 2



                          II. STANDARD OF REVIEW

      A petitioner is entitled to federal habeas relief only if a state court’s merits-

based adjudication of his claims “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). This court presumes a state court’s factual findings are correct

unless the petitioner rebuts that presumption by “clear and convincing evidence.”

      This court first determines “whether the principle of federal law upon

which petitioner relies was clearly established by the Supreme Court at the time

of the state court judgment.” Bland v. Sirmons, 

, 1009 (10th Cir.

2006). Clearly established law consists of Supreme Court holdings in cases

where the facts are similar to the facts in the petitioner’s case. House v. Hatch,

, 1016 (10th Cir. 2008). “The absence of clearly established

federal law is dispositive under § 2254(d)(1).” 

If clearly established

      2
       “George Ochoa was tried jointly with Osbaldo Torres by a jury in
Oklahoma County District Court, No. CF-93-4302.” Ochoa v. State, 

, 589 (Okla Crim. App. 1998).

                                         -4-
federal law exists, this court moves on to consider whether the state court

decision was contrary to or an unreasonable application of that clearly established

federal law. 

. “A decision is ‘contrary to’ clearly

established federal law . . . if the state court applies a rule that contradicts the

governing law set forth in [Supreme Court] cases or if the state court confronts a

set of facts . . . materially indistinguishable from a decision of [the Supreme

Court] and nevertheless arrives at a result different from the result reached by the

Supreme Court.” 

(alterations in original). “A state court

decision involves an ‘unreasonable application’ of federal law if the state court

identifies the correct governing legal principle from [Supreme Court] decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” 

This court “may not consider issues raised in a habeas

petition that have been defaulted in state court on an independent and adequate

procedural ground unless the petitioner can demonstrate cause and prejudice or a

fundamental miscarriage of justice.” 

(quotation

omitted).



                                  III. DISCUSSION

      On appeal, Ochoa asserts he is entitled to habeas relief based on each of the

following five alleged constitutional errors: (1) admission of evidence about

Ochoa’s involvement in an Oklahoma City street gang rendered both the guilt and

                                           -5-
penalty phases of his trial unfair; (2) multiple incidents of prosecutorial

misconduct rendered both phases of his trial unfair; (3) the state trial court’s

refusal to instruct the jury to consider the relative degree of culpability of Ochoa

and Torres in arriving at a sentencing decision rendered his death sentences

unreliable; (4) admission of allegedly unreliable eyewitness identification

evidence rendered his trial unfair; and (5) the trial court’s refusal to specifically

instruct the jury as to the meaning of “life without the possibility of parole”

rendered his death sentences unreliable. As set out more fully below, the majority

of Ochoa’s claims for habeas relief are foreclosed by this court’s decision

affirming the denial of habeas relief to Ochoa’s co-defendant. See 

. Ochoa’s remaining claims fail on the merits.

A. Street-Gang Evidence

      1. Guilt Phase

      The basis of Ochoa’s claim is set out as follows in the opinion of the

OCCA:

      Ochoa complains the prosecution sought to introduce evidence of
      Ochoa’s gang affiliation during the first stage of trial. Although the
      trial court ruled that such evidence was inadmissible during first
      stage, the prosecution elicited from Officer Tays that the
      suspects—Ochoa and Torres—might be gang members. There was
      no objection to this testimony. On four occasions during closing
      argument, the prosecution referred to the defendants, either directly
      or indirectly, as gang members. Defense objected to two of the
      comments on the grounds that the statement was not in evidence; the
      objections were overruled. We review these claims for plain error
      and we are troubled that the prosecution attempted to deliberately

                                          -6-
      inject gang evidence into the first stage of trial. Not only did the
      evidence and comments regarding Ochoa’s gang membership violate
      the trial court’s order, but also such evidence was irrelevant to the
      question of guilt or innocence as the gang evidence was in no way
      connected to the Yanez/Morales’ murders. While we find the use of
      gang evidence in the first stage of trial to be error, Ochoa has failed
      to show that the error was sufficiently prejudicial. Accordingly,
      relief is denied.

.

      This claim of misconduct is foreclosed by this court’s decision in 

(noting claim by Torres that prosecutors improperly alluded

to alleged gang affiliation but rejecting claim on the ground that all of

prosecutor’s allegedly improper comments taken together did not render trial

fundamentally unfair). This court has reviewed the brief Torres filed with this

court in his appeal of the denial of his habeas petition. Torres’s brief raises a

claim that is in all material respects identical to the claim Ochoa is now raising

regarding guilt-phase evidence of gang activity. Torres and Ochoa were tried

jointly and the evidence against them appears to be equally strong. If anything

the case against Ochoa is stronger because the prosecution’s theory, supported by

the evidence, is that Ochoa was the shooter. 

.

Accordingly, this court’s determination in Torres that the prosecution’s gang-

related statements during the guilt phase did not, in the context of the entire trial,

render the trial fundamentally unfair, applies equally to Ochoa’s identical claim.

See 

. In any event, at oral argument, Ochoa’s counsel


                                          -7-
conceded that the guilt-phase aspect of Ochoa’s gang-related claim of

prosecutorial misconduct is foreclosed by the decision in Torres. Thus, the

district court properly denied this aspect of Ochoa’s claim of habeas relief.

      2. Penalty Phase

             a. Background

      To fully understand the basis of Ochoa’s claim for habeas relief flowing

from the admission of evidence of gang affiliation during the penalty phase of his

trial, it is helpful to set out at length the OCCA’s resolution of this issue on direct

appeal:

      Ochoa argues the trial court erred in allowing evidence of his gang
      affiliation to be introduced to prove continuing threat. . . . [He
      further] argues the evidence was insufficient to support the jury’s
      finding that he posed a continuing threat to society. These two
      propositions are closely related, and we consider them together.

             Oklahoma provides that the death penalty may be considered
      an appropriate punishment for first degree murder only in certain
      specific cases, which are narrowly defined by statutory aggravating
      circumstances. At issue here is the continuing threat aggravating
      circumstance which Oklahoma defines as the “existence of a
      probability that the defendant would commit criminal acts of
      violence that would constitute a continuing threat to society.” To
      prove this aggravating circumstance, the State relied on (1) the facts
      of the crime itself, and (2) Ochoa’s affiliation with the Southside
      Locos, a local gang.

             . . . Ochoa argues that admission of the gang evidence violated
      the First and Fourteenth Amendments of the federal constitution and
      violated the Supreme Court’s ruling in Dawson v. Delaware, 

(1992). In his majority opinion in Dawson, Chief Justice
      Rehnquist held that “the First and Fourteenth Amendments prohibit
      the introduction in a capital sentencing proceeding of the fact that the

                                          -8-
defendant was a member of an organization called the Aryan
Brotherhood, where the evidence has no relevance to the issues being
decided in the proceeding.” Although the Court recognized “the
First Amendment protects an individual’s right to join groups and
associate with others holding similar beliefs,” the Court rejected
Dawson’s claim that evidence of his membership in the Aryan
Brotherhood was per se invalid.

       In finding evidence of Dawson’s membership in the Aryan
Brotherhood to be improper, the Court appears to have been
particularly struck by two facts: (1) the Aryan Brotherhood evidence
was not connected to the murder of Dawson’s victim, who was white;
and (2) the prosecution failed to prove that the Aryan Brotherhood
was involved in any criminal activity. Rather, at issue in Dawson
was simply the following stipulation: “‘The Aryan Brotherhood
refers to a white racist prison gang that began in the 1960’s in
California in response to other gangs of racial minorities. Separate
gangs calling themselves the Aryan Brotherhood now exist in many
state prisons including Delaware.’” Without any other evidence of
criminal activity, Dawson’s membership in the Aryan Brotherhood
simply showed he was a racist and/or a member of a racist
organization, and that alone is not proper evidence. Nonetheless, the
Court did not close the door to all evidence relating to a defendant’s
associations. The Court noted, “In many cases, for example,
associational evidence might serve a legitimate purpose in showing
that a defendant represents a future danger to society. A defendant’s
membership in an organization that endorses the killing of any
identifiable group, for example, might be relevant to a jury’s inquiry
into whether the defendant will be dangerous in the future.”

       The issue before us is Ochoa’s membership in the Southside
Locos. In contrast to Dawson, here the State introduced not only
evidence of Ochoa’s membership in the gang, but also introduced
evidence that the Southside Locos engaged in criminal activity
ranging from graffiti to drug trafficking to murder. This type of
membership in a criminal gang is the type of associational evidence
that the Supreme Court viewed as relevant and permissible in
Dawson. The problem here for the State is not the admissibility of
the evidence itself, but the ultimate probative value of this evidence
in this particular case.


                                   -9-
       The evidence of Ochoa’s membership in or affiliation with the
Southside Locos is, at best, of marginal value. There is no evidence
that the murders of Maria Yanez or Francisco Morales were in any
way connected to the gang or committed on behalf of or to earn
status in the gang. Indeed, the State in its brief explicitly states, “No
motive was ever discerned for the crime and it appears the Morales’
home may have been picked at random.” Further, although the State
introduced evidence that the Southside Locos engaged in a variety of
criminal activities, the State utterly failed to tie Ochoa to these
criminal activities. There is absolutely no evidence that Ochoa ever
engaged in any kind of criminal activity connected with the
Southside Locos. The only evidence of Ochoa’s affiliation with the
gang is that Ochoa told a police officer that he was a member of the
Southside Locos and he sported a tattoo of a “cholo,” which is a
purported symbol of gang membership. The State offered nothing
else to show the nature, extent or value of Ochoa’s relationship with
the gang. Such lack of connection between the gang’s criminal
activity and Ochoa makes this evidence, while admissible, of very
marginal value as to the question of whether Ochoa himself poses a
continuing threat to society. The marginal quality of this evidence
thus begs the next question: is the evidence sufficient to support the
continuing threat aggravating circumstance. The answer is no.

       As stated above, the State not only failed to show that Ochoa
engaged in any criminal gang activity, but also the State failed to
show that Ochoa ever committed any crime. Ochoa had no prior
criminal record and he had no prior unadjudicated offenses. There
was no evidence that since the murders Ochoa had engaged in any
violent or illegal activities. This lack of evidence of criminal
activity on the part of Ochoa stands in marked contrast with the
requirement “that the State present sufficient evidence concerning
prior convictions or unadjudicated crimes to show a pattern of
criminal conduct that will likely continue in the future to support its
‘continuing threat’ contention.” The State utterly failed to make
such a showing here.

       In other cases in which this Court has found the evidence
sufficient to support the continuing threat aggravating circumstance,
the State has introduced evidence of prior criminal acts of violence,
prior unadjudicated offenses, or evidence of criminal activity
occurring after the crime. We have none of that here. . . . The facts

                                   -10-
      of the crime in this case simply do not demonstrate . . . a pattern of
      criminal behavior. Here, the State proved that Ochoa engaged in a
      single act of violence and it showed that Ochoa belonged to a street
      gang. While the murders of Yanez and Morales were deplorable, the
      State has presented insufficient evidence to show a pattern of
      criminal conduct that will likely continue in the future. Absent this
      proof, we cannot say that Ochoa poses a continuing threat to society.

             Having found that the State failed to prove the continuing
      threat aggravating circumstance, “this Court has the authority to
      reweigh any remaining aggravating circumstances against the
      mitigating evidence to determine the validity of the death sentence.”
      ....

            . . . In mitigation, Ochoa offered his youth at the time of the
      crime, his lack of a criminal record, his personal history, his
      problems with drugs and alcohol, evidence showing he would
      function well in a structured prison setting, and expert testimony
      regarding his mental illness, his mental illness history and his
      borderline mental retardation. He also presented evidence of his
      family’s love for him and pleas of mercy. While Ochoa’s evidence
      had compelling aspects, we find, on balance that the aggravating
      evidence of the murder of two people outweighs the mitigating
      evidence. Accordingly, we sustain Ochoa’s death sentence.

(footnotes omitted).

      In his habeas petition, Ochoa asserted he suffered actual prejudice as a

result of the admission during the penalty phase of irrelevant and unconstitutional

evidence concerning gang affiliation. He further alleged that the OCCA’s

reweighing was so terse as to be constitutionally inadequate. The district court

rejected both contentions. As to Ochoa’s claim of actual prejudice flowing from

the admission of the gang evidence, the district court rejected the claim on two

independent grounds: (1) when it set aside the continuing threat aggravator and


                                        -11-
engaged in reweighing, the OCCA eliminated any possibility of prejudice flowing

from the admission of gang evidence; and (2) the admission of gang evidence did

not render the penalty phase of Ochoa’s trial so fundamentally unfair as to deny

him due process. As to Ochoa’s claim the OCCA’s reweighing was

constitutionally insufficient, the district court noted the OCCA had actually

reweighed Ochoa’s mitigating evidence against the sole remaining aggravator

and, consistent with the record, properly determined the death sentence remained

appropriate.

               b. Admission of Gang Evidence

      Ochoa’s claim comes before this court in an unusual posture. Ochoa

proceeds based on an apparent assumption that the admission of gang-related

evidence during the penalty phase was error and simply argues the matter of

prejudice. The OCCA, however, ruled that the evidence was relevant and

admissible under the Supreme Court’s decision in Dawson. 

. Only after having concluded the evidence was properly admitted did the

OCCA turn to the analytically distinct question of whether that evidence was

sufficient to support the continuing threat aggravator. 

At no point

in his brief to this court does Ochoa argue the decision of the OCCA—that the

gang-related evidence adduced by the prosecution during the penalty phase was

admissible—is “contrary to” or an “unreasonable application of” clearly

established Supreme Court precedent. 28 U.S.C. § 2254. This alone is sufficient

                                        -12-
to conclude Ochoa’s habeas claim relating to admission of gang-related evidence

during the penalty phase fails.

      Even if this court were to assume the admission of gang-related evidence

during the penalty phase implicated Ochoa’s right to a fundamentally fair trial,

the record in this case makes it clear he suffered no prejudice as a result of the

admission of the evidence. The OCCA’s conclusion that the continuing threat

aggravator was not supported by sufficient evidence, together with its conclusion

after reweighing that the death penalty was still warranted, wrung out of the

sentencing phase any possible prejudice flowing from the second-stage gang

evidence. See 

. That is, during the process of reweighing,

the OCCA entirely discounted the continuing threat aggravator and the

insufficient evidence the prosecution adduced in support of it at trial. 

so, it considered only whether the sole remaining aggravator—that Ochoa’s

conduct created a risk of death to more than one person—outweighed the

mitigation evidence adduced by Ochoa. 

court can conclude with

absolute confidence that the admission of gang-related evidence during the

penalty phase of Ochoa’s trial had no impact on the ultimate outcome of the trial.

             c. Reweighing

      Although Ochoa recognizes state courts can engage in appellate reweighing

after invalidating an aggravating circumstance, he asserts the OCCA decision is

too terse and generalized to be constitutionally adequate. In support of this

                                         -13-
contention, Ochoa relies on Stringer v. Black, 

(1992). 3 In response,

Oklahoma argues this claim is procedurally barred and, in any event, fails on the

merits.

      This court need not decide whether this claim is procedurally barred

because it clearly fails on the merits. 28 U.S.C. § 2254(b)(2) (providing that a

habeas petition may be denied on the merits “notwithstanding the failure of an

applicant to exhaust” his state court remedies). The Supreme Court has made

clear that it has never specified “the degree of clarity with which a state appellate

court must reweigh in order to cure an otherwise invalid death sentence.”

Richmond v. Lewis, 

, 48 (1992). This lack of specificity has led

appellate courts to reject claims similar to Ochoa’s, even before the advent of the


      3
          In particular, Ochoa relies on the following passage from Black:

      [W]e have not suggested that the Eighth Amendment permits the
      state appellate court in a weighing State to affirm a death sentence
      without a thorough analysis of the role an invalid aggravating factor
      played in the sentencing process.

             We require close appellate scrutiny of the import and effect of
      invalid aggravating factors to implement the well-established Eighth
      Amendment requirement of individualized sentencing determinations
      in death penalty cases. In order for a state appellate court to affirm a
      death sentence after the sentencer was instructed to consider an
      invalid factor, the court must determine what the sentencer would
      have done absent the factor. Otherwise, the defendant is deprived of
      the precision that individualized consideration demands under [our]
      cases.

Stringer v. Black, 

, 230-31 (1992).

                                          -14-
AEDPA’s heightened standard. See, e.g., Jeffers v. Lewis, 

, 414-15

(9th Cir. 1994). Because there is no clearly established Supreme Court precedent

on this issue, Ochoa’s claim necessarily fails. 

. 4



      4
        In a supplement to his original brief, Ochoa asserts he is entitled to habeas
relief pursuant to the Supreme Court’s decision in Brown v. Sanders, 

(2006). The decision in Brown, however, does not relate in any way to the
issues raised before the district court in Ochoa’s habeas petition. Instead, it
announced a new rule applicable to non-weighing death penalty states:

             We think it will clarify the analysis, and simplify the
      sentence-invalidating factors we have hitherto applied to
      non-weighing States . . . if we are henceforth guided by the following
      rule: An invalidated sentencing factor (whether an eligibility factor
      or not) will render the sentence unconstitutional by reason of its
      adding an improper element to the aggravation scale in the weighing
      process unless one of the other sentencing factors enables the
      sentencer to give aggravating weight to the same facts and
      circumstances.

Ochoa argues that even though Oklahoma is a weighing state, Mullett
v. Mullin, 

, 918-19 (10th Cir. 2003), he should receive the benefit of
the rule announced in Brown. Generally, this court will not consider an issue
raised for the first time on appeal. Rhine v. Boone, 

, 1154 (10th
Cir. 1999). Ochoa has offered no reason for this court to deviate from this well-
established rule. In any event, the Supreme Court made clear in Brown that the
rule announced therein did not prevent state appellate courts from engaging in

(“In a weighing State, therefore, the sentencer’s
consideration of an invalid eligibility factor necessarily skewed its balancing of
aggravators with mitigators and required reversal of the sentence (unless a state
appellate court determined the error was harmless or reweighed the mitigating
evidence against the valid aggravating factors.” (citations omitted)); see also
Wilson v. Mitchell, 

, 507 (6th Cir. 2007) (noting the decision in
Brown “leaves intact the Court’s prior jurisprudence regarding weighing states”).
Furthermore, Brown issued long after the OCCA decided Ochoa’s direct appeal.
Thus, it was not clearly established for purposes of § 2254(d). Gilson v. Sirmons,

, 1220 (10th Cir. 2008).

                                        -15-
      3. Ex Parte Contacts

             a. Background

      After trial, an investigator working on Ochoa’s behalf interviewed several

jurors. According to the investigator, the jury foreman had conversations with the

trial judge about security issues relating to the presence of gang-member

defendants and gang members in the courtroom during the jury proceedings. In

resolving this claim on post-conviction review, the OCCA first noted there was no

indication in the investigator’s affidavit that the conversation took place during

deliberations. Furthermore, the OCCA concluded the security questions were

more akin to housekeeping matters not material to guilt or innocence and,

therefore, Ochoa was not prejudiced by not being present during the discussion.

      Accompanying his § 2254 petition, Ochoa filed a substantially more

detailed affidavit. In summary, the investigator averred that the jury foreman: (1)

noted significant anxiety on the part of the jury flowing from the defendants’

gang membership, (2) learned the defendants were gang members from the

arguments of the prosecutors; (3) personally requested extra protection from the

trial judge; and (4) indicated the jury imposed the death penalty because Ochoa

was a gang member and gang members could not be rehabilitated. Based on the

investigator’s affidavit, the district court ordered the deposition of both the jury

foreman and the trial judge. Those depositions did not bear out the allegations in

the investigator’s affidavit. In fact, the district court was chagrined by the

                                         -16-
differences in the affidavit and the deposition testimony. Dist. Ct. Order at 10

(“The investigator’s attestations are disturbing when compared with the

deposition testimony of [the jury foreman] and [trial judge].”). The depositions

revealed that if there was any kind of ex parte contact between the jury and a

member of the trial court staff, a doubtful proposition, it was nothing more than a

chat with the judge’s clerk or secretary about safety concerns. Because the bulk

of the investigator’s affidavit contained material inadmissible under Fed. R. Evid.

606(b) (disallowing testimony about jury’s thought processes) and the remainder

was hearsay that the district court deemed incredible, the district court declined to

rely in any way on the investigator’s affidavit. Accordingly, in resolving this

claim, the district court concluded it would only consider that the jury became

concerned regarding their safety due to the presence of young men in the

courtroom gallery and that the jury foreman expressed this concern to one of the

judge’s staff—without knowledge of the trial judge—during or after first stage

jury deliberations began. 5

      With the factual background established, the district court moved on to

consider whether the jury foreman’s brief contact with a member of the trial

judge’s staff had a “substantial and injurious effect” on the outcome of the trial.

See Crease v. McKune, 

, 1192-93 (10th Cir. 1999) (applying this

      5
       In so concluding, the district court recognized its assumption was contrary
to the OCCA’s factual determinations, but noted the testimony of the jury
foreman was not available to the OCCA.

                                         -17-
standard in a similar factual context). With that standard in mind, the district

court denied relief. It noted the jury foreman had never received a response from

the judge or his staff. Although the foreman remembered increased security later

in the trial, the trial judge testified extra security was present throughout the trial.

The substance of the discussion involved security and not jury deliberations.

Finally, the jury foreman’s difficulty recalling any specifics of the conversation,

further convinced the district court it was not critical and did not have a

substantial or injurious effect on the verdict or sentence.

             b. Analysis

      On appeal, Ochoa argues the mere fact a meeting between the jury foreman

and a member of the trial court’s staff took place creates a “high probability that

the ability of not only the jury foreman but the rest of the jury to weigh

impartially the evidence presented during the proceedings was compromised to

Ochoa’s detriment.” Relying on the Supreme Court’s decision in Remmer v.

United States, 

(1954), he further argues that such ex parte contacts

give rise to a strong presumption of prejudice and a corresponding heavy burden

on the government to rebut such presumption. Oklahoma counters by noting this

claim was resolved by the OCCA in post-conviction proceedings. In those

proceedings, the OCCA determined the communication did not occur during

deliberations and were not on a matter material to the guilt or the penalty phase.




                                          -18-
These matters of historical fact are presumed correct absent clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

      There exists a substantial procedural impediment to granting Ochoa habeas

relief on this claim, albeit one not discussed by any party: the factual basis of the

claim Ochoa now raises is significantly different than the factual basis of the

claim as presented to the OCCA on post-conviction review. Having failed to

adequately develop the factual basis of the claim in state court, Ochoa is

precluded from relying on the newly developed evidence to obtain habeas relief.

28 U.S.C. § 2254(e)(2). More importantly, however, because this issue was

adjudicated on the merits by the OCCA, Ochoa can obtain habeas relief only by

satisfying the demanding requirements of § 2254(d). Harrington v. Richter, 

, 786 (2011). The analysis mandated under § 2254(d) is strictly focused

on the factual record as it existed at the time of the OCCA’s resolution of this

claim. 28 U.S.C. § 2254(d)(2) (providing habeas relief may not be granted unless

the petitioner demonstrates the state court’s adjudication of the claim “resulted in

a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding”); Cullen v. Pinholster, 

, 1398-1400 (2011) (holding “that review under § 2254(d)(1) is

[likewise] limited to the record that was before the state court that adjudicated the

claim on the merits”). Because Ochoa has not even attempted to demonstrate that

the decision of the OCCA, based on the factual record before it, was “contrary to,

                                         -19-
or involved an unreasonable application of” clearly established Supreme Court

precedent or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented” to the OCCA,

§ 2254(d) mandates his habeas petition “shall not be granted with respect to” this

particular claim. 28 U.S.C. § 2254(d); 

. 6

B. Prosecutorial Misconduct

      1. Testimony of Maria Calderon

      At trial, Maria Calderon testified that on the morning of the murders she

saw an unidentified man accompanying Ochoa put a small gun in his belt. 7 While

the case was on direct appeal, Calderon signed an affidavit stating she could not

be sure the object she observed was a gun. According to the affidavit, Calderon

      6
       Even if this court were to consider the evidence newly adduced during
Ochoa’s federal habeas proceedings, this court would still deny relief on the same
grounds stated by the district court. The district court did not abuse its discretion
in refusing to consider the affidavit of Ochoa’s investigator in resolving the
claim. All of the statements therein were hearsay and none of the deposition
testimony of the jury foreman supports the allegations in the investigator’s
affidavit. For that reason, it was perfectly reasonable for the district court to rely
exclusively on the actual testimony of the jury foreman and the trial judge in
resolving the claim. Furthermore, since the only evidence adduced did not
demonstrate any material issues of fact, it was appropriate for the district court to
determine the question of prejudice on the basis of the undisputed facts. Based
on the testimony of the jury foreman and trial judge, there is no reason to
conclude whatever type of ex parte contact took place had a substantial and
injurious effect on the outcome of the sentencing proceeding.
      7
       To be clear, Calderon’s testimony regarding the presence of a gun did not
implicate either Torres or Ochoa in the murders. Calderon testified at trial that
she was familiar with the gun used in the murders, a Tech-9, and that the gun she
saw was not large enough and was not that make or model.

                                         -20-
testified the object was a gun under pressure from prosecutors. When Ochoa

attempted to raise the issue on appeal by asking the OCCA for a new trial, the

OCCA concluded the request was untimely and the issue therefore waived. When

Ochoa again raised the issue in his state petition for post-conviction relief, the

OCCA again held, in an unpublished order, that the issue was waived: “Trial

counsel knew about this issue as it was raised at the first trial. Appellate counsel

also knew about this issue, but did not raise it in the direct appeal brief.”

      The district court concluded the matter was subject to a procedural bar. It

further concluded Ochoa could not make the necessary showing of cause and

prejudice to overcome the procedural bar. In particular, the district court noted

Ochoa could not demonstrate prejudice. The only element of Calderon’s

testimony that was substantially changed was her testimony about the presence of

a weapon during her observations of Torres and Ochoa. Because she had made

clear during her testimony at trial that the weapon she observed could not have

been the murder weapon, the district court resolved that her proposed change in

testimony had only a negligible impact on the weight of the evidence against

Ochoa.

      This court’s resolution of Torres’s identical claim, which came before this

court in a procedural posture identical to Ochoa’s present claim, precludes the

granting of relief to Ochoa:




                                          -21-
       As to the fourth instance of alleged misconduct—that the
prosecution pressured a witness to testify falsely, we agree with the
district court that the claim is procedurally barred. Mr. Torres’
argument is based on an affidavit of Maria Calderon. The OCCA
determined that the claims concerning Ms. Calderon could have been
raised on direct appeal, but were not, and they did not support a
conclusion that the outcome of the trial would have been different or
that the defendant was factually innocent.

       Our review of the record indicates that Ms. Calderon’s
affidavit was signed on April 10, 1997, during the pendency of Mr.
Torres’s direct appeal. Thus, the district court properly concluded
that the claim arising out of Ms. Calderon’s affidavit “could have
been but was not raised on direct appeal.” As a result, Mr. Torres is
not entitled to raise this claim unless he can show either (a) cause for
the procedural default and resulting prejudice or (b) that a
fundamental miscarriage of justice will result if the court does not
consider the claim. See Coleman v. Thompson, 

, 749-50
(1991).

        We agree with the district court that Mr. Torres has failed to
make this showing. In this regard, we recognize that Ms. Calderon’s
affidavit constitutes a modification of her trial testimony at the first
and second trials that an unidentified individual she saw with Mr.
Ochoa on the morning of the murders put a small gun in his belt.
She now cannot identify the object. At both trials, however, Ms.
Calderon’s somewhat inconsistent testimony about the gun, its
characteristics and the origins of that testimony were subject to
adequate cross-examination and impeachment and the jury was left to
sort it out. See Tapia v. Tansy, 

, 1563 (10th Cir.
1991).

       “[A] conviction obtained by the knowing use of perjured
testimony is fundamentally unfair, and must be set aside if there is
any reasonable likelihood that the false testimony could have
affected the judgment of the jury.” United States v. Agurs, 

, 103 (1976). Mr. Torres has failed to establish that the prosecutor
knowingly presented false testimony at the second trial, let alone that
the testimony was false. See Van Woudenberg v. Gibson, 

, 569 (10th Cir. 2000); Romano v. Gibson, 

, 1175
(10th Cir. 2001). On the latter point, Ms. Calderon’s affidavit does

                                  -22-
      not contradict the substantial remainder of her testimony, its
      corroboration, or the other facts of the crime. The gun in question
      was not the murder weapon. Mr. Torres accompanied Mr. Ochoa in
      breaking down a locked residential door at 2:40 a.m., while Mr.
      Ochoa was armed with a semiautomatic weapon. The victims were
      fired upon repeatedly. Rather than leaving promptly, Mr. Torres and
      Mr. Ochoa remained in the home, yet only a purse was taken. With
      or without the testimony about the precise nature of the object Mr.
      Torres placed in his belt, we conclude that Mr. Torres cannot
      demonstrate prejudice as there is no reasonable likelihood that the
      testimony on this comparatively small point could have affected the
      judgment of the jury when considered against the overwhelming
      evidence of guilt.

(footnotes omitted).

      For the same reasons set out by this court in resolving Torres’s appeal,

Ochoa cannot demonstrate any prejudice relating to Calderon’s testimony and

thus cannot overcome his procedural default of this issue in state court.

Accordingly, the district court correctly denied Ochoa habeas relief on this

alleged ground of prosecutorial misconduct.

      2. Allegedly Improper Comments

      Ochoa sets out a catalog of allegedly improper comments on the part of

prosecutors and asserts these comments, taken together, rendered both the guilt

and penalty phases of his trial fundamentally unfair. As noted by both the district

court and the OCCA, Ochoa never objected at trial to the bulk of these allegedly

improper statements. On direct appeal, the OCCA concluded Ochoa “waived” his

objections to most of the alleged improper statements by not raising them at trial.

. As to the remaining improper statements, the OCCA

                                        -23-
concluded they were harmless. 

On habeas review, the district

court recognized that in the normal case misconduct is only grounds for federal

habeas relief if it deprived the petitioner of a fundamentally fair trial, an

exceedingly high standard. See Donnelly v. DeChristoforo, 

, 643

(1974). Ignoring the issue of procedural bar, and considering all allegedly

improper comments in the aggregate, Greer v. Miller, 

, 765-66

(1987), the district court concluded Ochoa was not deprived of a fundamentally

fair trial.

       The allegedly improper remarks fall into the following general categories:

          a. Comments by the prosecutor allegedly impacting Ochoa’s
presumption of innocence and right to remain silent.

       We begin by recognizing that this particular claim of prosecutorial

misconduct is subject to a different standard because it amounts to an argument

that the prosecutor’s remarks deprived Ochoa of a specific constitutional right.

. “Where prosecutorial misconduct directly affects a

specific constitutional right such as the presumption of innocence or privilege

against self-incrimination, a habeas petitioner need not establish that the entire

trial was rendered unfair, but rather that the constitutional guarantee was so

prejudiced that it effectively amounted to a denial of that right.” 

Nevertheless, this argument fails because Torres specifically held the prosecutors’

comments at issue “did not so prejudice the presumption of innocence as to result


                                          -24-
in a denial of that right” and “hardly resulted in a denial of the privilege against

self 

.

           b. Additional comments on the part of prosecutors tying the
murders to gang activity.

      This argument fails because Torres held that the gang-related comments,

even when considered along with all other allegedly improper comments “did not

render . . . the trial fundamentally unfair.” 

             c. Comments tending to incite societal alarm, elicit sympathy for
the victims, and indicate the prosecutors thought this was an appropriate
case for the death penalty.

      This argument fails because it too was rejected in Torres. 

(noting Torres’s claim of prosecutorial misconduct centered around “various

improper comments during the trial and in closing arguments”); 

(concluding catalog of allegedly improper remarks, “[c]onsidered collectively and

in the context of the trial as a whole,” “did not render [the] trial fundamentally

unfair”).

           d. Comments demonizing Ochoa (i.e., referring to him as a
murderer and killer) while vouching for a witness (i.e., pointing out one of
the responding officers was the prosecutor’s son).

      For those reasons set out in the proceeding paragraph, this argument is

foreclosed by this court’s decision in Torres.

      In concluding Ochoa’s claim of prosecutorial misconduct is foreclosed by

the decision in Torres, this court specifically reviewed the parties’ briefs in


                                         -25-
Torres to insure Ochoa’s claim of prosecutorial misconduct was in all material

respects identical to Torres’s claim of misconduct. Because Torres’s and Ochoa’s

claims of misconduct are indeed identical in all material respects, and because the

trial record of these jointly tried co-defendants is also identical, Torres controls

the disposition of Ochoa’s claim of prosecutorial misconduct.

      Even if this court were to assume, however, that minor differences in the

presentation of Torres’s and Ochoa’s claims of misconduct allowed this court to

evaluate Ochoa’s claim unrestrained by the outcome in Torres, we would still

affirm the district court’s denial of habeas relief on this claim. Setting aside all

issues of procedural bar and reviewing all allegedly improper prosecutorial

comments in the context of the whole trial, it is absolutely clear the comments did

not render Ochoa’s trial fundamentally unfair. In particular, it is far from clear

that all of the remarks identified by Ochoa are improper. At least some of the

allegedly improper remarks amount to valid comments on the evidence presented

at trial. 

(holding some comments identified by Ochoa fell

“within the broad parameters of effective advocacy and do not constitute error”).

As to the remaining remarks, we simply note that, contrary to Ochoa’s

contentions, the evidence against him at both the guilt and penalty phases was

sufficiently strong that this court is confident the improper comments had no real

impact on the outcome of the trial. Cf. 

(noting

evidence of Ochoa’s intent to kill was much greater than evidence of Torres’s

                                          -26-
intent); 

(“[T]he State’s theory of the case was that Ochoa

was the shooter and that Torres aided and abetted in the killings. The evidence

supports this theory.”). Furthermore, most of the improper remarks identified by

Ochoa occurred during closing arguments. The jury was instructed, however, to

decide the case only on the basis of the evidence produced by the prosecution and

was instructed that “Evidence is the testimony received from the witnesses under

oath, agreements as to fact made by attorneys, and the exhibits admitted into

evidence during the trial.” Considered within the context of the entire trial, this

court has no doubt that the improper prosecutorial comments identified by Ochoa

did not render his trial fundamentally unfair.

C. Relative Culpability Instruction

      Relying on the Supreme Court’s decisions in Enmund v. Florida, 

(1982), and Tison v. Arizona, 

(1987), Ochoa contends the trial

court’s refusal to instruct the jury to consider the relative degree of culpability of

himself and Torres in arriving at a sentencing decision violated the Eighth

Amendment. The OCCA rejected this claim on the merits, determining the

Enmund/Tison line of cases did not apply because Ochoa was convicted of

committing malice murder. 

-05. Relying on that same

basis, this court rejected an identical claim raised by Ochoa’s co-defendant:

             Mr. Torres argues that his death sentence violates the Eighth
      Amendment because the trial court’s instructions failed to direct the
      jury to give individualized consideration to Mr. Torres’s involvement

                                         -27-
      in the homicides. The Eighth Amendment does not permit
      imposition of a death sentence upon a defendant who did not
      “himself kill, attempt to kill, or intend that a killing take place or that
      lethal force be employed,” 

], or unless that
      defendant was a major participant in the underlying felony and acted
      with a “reckless indifference to human life,” 

]. This case does not involve felony murder—the Oklahoma
      County District Attorney’s Office dismissed the felony murder
      charges against Mr. Torres, and tried him on malice murder counts.
      Having concluded that the jury instructions adequately instructed the
      jury on these counts, we must conclude that the OCCA’s similar
      rejection of this Eighth Amendment claim was not an unreasonable
      application of federal law.

.

      The facts of Ochoa’s case are in all relevant respects identical to the facts

of Torres’s case, i.e., in trying Ochoa, the prosecution proceeded solely on the

basis of malice murder. Furthermore, Ochoa does not assert any infirmities in the

jury instructions regarding malice murder. 8 Because the jury could not have

convicted Ochoa of the murders without first finding he acted with intent to kill

the victims, the Enmund/Tison line of cases simply does not apply. 

58, 1161. Accordingly, the district court properly denied Ochoa habeas relief on

this ground.




      8
       Even if Ochoa had challenged the propriety of the trial court’s malice
murder and aiding-and-abetting instructions, this court would be bound to reject
such a challenge based on Torres’s conclusion that “the instructions when read
reasonably and as a whole[] would [not] allow the jury to impute a finding of
malice aforethought from one defendant to another.” 

.

                                          -28-
D. Eyewitness Identification Evidence

      1. Background

      The most crucial evidence at trial was Christina Yanez’s eyewitness

testimony identifying Ochoa and Torres as the murderers. 

. On direct appeal to the OCCA, Ochoa asserted it was error to admit Yanez’s

in-court eyewitness identification because it was tainted by her observation of

Ochoa in handcuffs at the crime scene. 

asserted it was error to

admit testimony by Officer Mullenix that Yanez had identified Ochoa as one of

the killers during an interview at the police station shortly after the murders

occurred. 

rejected both aspects of Ochoa’s claim, concluding as

follows:

             In his fourth proposition of error, Ochoa, for the first time,
      challenges the admissibility of Christina Yanez’s identification of
      him and Torres. Since Ochoa did not lodge a contemporaneous
      objection to the evidence, relief will only be granted upon a showing
      that plain error occurred as a result of the admission of this evidence.

            Christina’s identification of Ochoa and Torres was crucial to
      the State’s case. Initially, she denied knowing the men who killed
      her parents. Christina admitted this initial denial explaining she
      made the initial denial because she was frightened. The initial denial
      does not render Christina’s subsequent identification inadmissible;
      the evidence merely goes to the issue of credibility and reliability,
      which was a proper issue for the jury to decide.

             Ochoa next contends that Christina’s subsequent identification
      of the men was tainted because Christina saw the men in handcuffs at
      the crime scene. The record does not support this contention. There
      is no testimony that Christina ever saw the defendants prior to telling
      Officer Mullenix at the police station that Ochoa was one of the men

                                        -29-
      she saw in her home that night. Ochoa points to testimony that, after
      their arrest, Ochoa and Torres were taken to the crime scene and held
      in handcuffs there for some time. It was possible for the Yanez/
      Morales neighbors to see the defendants under arrest. However,
      there was no evidence that Christina saw the defendants or even
      knew they were there, and defense counsel never questioned
      Christina about this matter. Moreover, Officer Brett Macy testified
      that neither Christina nor her step-brother Francisco came into
      contact with the defendants at the crime scene. Based on this record,
      Ochoa has failed to show that there was a show-up identification and
      we cannot say that under the totality of the circumstances Christina's
      identification was tainted and/or unreliable. Accordingly, admission
      of her testimony and identification was proper.

               Ochoa also alleges it was error for Detective Mullenix to
      testify that Christina identified Ochoa at the police station. Again
      Ochoa failed to lodge a contemporaneous objection and we review
      for plain error. This Court has stated “a witness, after making an
      in-court identification of the defendant, may testify that ‘at a
      particular day, place, and time or times, [he or she] had occasion to
      see, recognize and identify the defendant as the person who
      committed the crime.’” However, “[o]nly the identifier may testify
      that an identification was made . . . . Testimony by a third party that
      an identification was made, or that a particular person was identified
      is . . . error.” Nonetheless, “[w]hen such testimony follows an
      in-court identification of the accused by the identifier the error has
      been found to be harmless.” Here, it was error for Mullenix to testify
      that Christina told him that one of the intruders was Ochoa.
      Nonetheless, the testimony was merely cumulative of Christina’s
      testimony. The error is not prejudicial and relief is not warranted.

Ochoa, 

(footnotes omitted) (alterations in original).

      As had the OCCA, the district court concluded, upon habeas review, that

Ochoa’s claim as to Yanez’s testimony failed because there was simply no

evidence in the record that Yanez had ever observed Ochoa at the crime scene.

Having concluded there was no error in the admission of Yanez’s eyewitness


                                        -30-
identification, the district court concluded the admission of Officer’s Mullenix’s

testimony had not prejudiced Ochoa in any way.

      2. Analysis

             a. Yanez’s In-Court Identification

      As noted by both the OCCA and the district court, this claim fails for one

obvious reason: Ochoa has never presented any evidence that Yanez saw him

when he was brought to the crime scene. Recognizing this critical deficiency in

his claim, Ochoa asserts in his reply brief that “Yanez never testified that she saw

Ochoa in custody after the homicides; but, she was never asked.” Accordingly

Ochoa requests that this court remand this case for an evidentiary hearing on this

issue so that he can attempt to establish that an unfairly suggestive show-up did,

in fact, occur. Because Ochoa failed to establish the factual basis of this claim in

state court, 28 U.S.C. § 2254(e)(2) precludes a federal habeas court from

conducting an evidentiary hearing on the matter absent certain enumerated

circumstances. Ochoa does not even attempt to argue his claim fits within the

narrow enumerated circumstances set out in § 2254(e)(2). Thus, he is not entitled

to an evidentiary hearing for the purpose of trying to establish Yanez observed

him at the crime scene.

      In any event, because this issue was adjudicated on the merits by the

OCCA, Ochoa can obtain habeas relief only by satisfying the demanding

requirements of § 2254(d). 28 U.S.C. § 2254(d)(2) (providing habeas relief may

                                        -31-
not be granted unless the petitioner demonstrates the state court’s adjudication of

the claim “resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding”);

-1400 (holding “that review under § 2254(d)(1) is

[likewise] limited to the record that was before the state court that adjudicated the

claim on the merits”). Because Ochoa has not attempted to demonstrate the

decision of the OCCA, based on the factual record before it, was “contrary to, or

involved an unreasonable application of” clearly established Supreme Court

precedent or “resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented” to it, § 2254(d)

mandates his habeas petition “shall not be granted with respect to” this particular

claim. 28 U.S.C. § 2254(d); 

.

             b. Officer Mullenix’s Testimony

      Ochoa’s claim regarding the testimony of Officer Mullenix fails for an

equally fundamental reason: the evidentiary rule at issue is one of state law.

Ochoa has not identified any provision of the United States Constitution that

would prohibit Officer Mullenix from testifying Yanez identified Ochoa as her

parents’ killer shortly after the murders, given that Yanez herself was a trial

witness. “Federal habeas review is not available to correct state law evidentiary

errors; rather it is limited to violations of constitutional rights.” Smallwood v.

Gibson, 

, 1275 (10th Cir.1999).

                                         -32-
      Even assuming the issue is properly raised in federal habeas, Ochoa has

failed to identify any meaningful prejudice flowing from Officer Mullenix’s

testimony. The entirety of Ochoa’s briefing on the question of prejudice is the

following: “[T]he error was prejudicial. No other evidence placed Ochoa at the

scene. It cannot be said beyond a reasonable doubt that the inadmissible

identification testimony ‘did not contribute to the verdict obtained.’ Chapman v.

California, 

, 24 (1967).” Merely asserting the existence of prejudice,

however, is not enough. Ochoa must instead demonstrate, by reference to the

record, exactly how he was prejudiced. As noted above, Christina’s in-court

identification was entirely proper. Furthermore, under the relevant state

evidentiary rule, it would have been entirely proper for Christina to bolster her

own in-court identification by reference to her earlier out-of-court identification,

if her in-court identification would have been challenged on the basis now raised

by Ochoa. 

. Given these facts, it is difficult to see how

Officer Mullenix’s testimony prejudiced Ochoa. Ochoa’s citation of Chapman

and his reference to a beyond-a-reasonable-doubt standard is inapt. The relevant

question is whether this evidentiary error rendered Ochoa’s trial fundamentally

unfair, thereby amounting to a denial of due process. Duckett v. Mullin, 

, 999 (10th Cir. 2002) (“We may not provide habeas corpus relief on the basis

of state court evidentiary rulings unless they rendered the trial so fundamentally




                                         -33-
unfair that a denial of constitutional rights results.” (quotations omitted)). There

is no doubt the answer to that question is no.

E. Instruction as to Meaning of Life Without the Possibility of Parole

      Prior to the submission of the penalty question to the jury, Ochoa requested

that the trial court instruct the jury that life without the possibility of parole

actually meant Ochoa would never be paroled. The trial court refused to give the

requested instruction, simply instructing the jury it had three sentencing options:

death, life without the possibility of parole, and life with the possibility of parole.

The OCCA concluded the trial court’s instructions were proper and its refusal to

further define the three possible types of punishment was consistent with state

law. 

. The district court denied habeas relief on the

merits, determining the decision of the OCCA was consistent with clearly

established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).

      On appeal, Ochoa argues the trial court’s refusal to specifically inform the

jury that if he was sentenced to life without parole he would never be let out of

prison is inconsistent with the Supreme Court’s decisions in Simmons v. South

Carolina, 

(1994), and Shafer v. South Carolina, 

(2001).

In Simmons, the Supreme Court held that when a defendant’s future

dangerousness is at issue, and the only available alternative sentence to death is

life imprisonment without possibility of parole, due process requires that the

sentencing jury be told the defendant is parole 

. The

                                          -34-
Court reasoned that consideration of a defendant’s future dangerousness is

affected by the possibility the defendant may be allowed to return to society. 

The Court further noted that given the extant understanding in popular

culture, the jury might assume any person not executed might at some point be

paroled. 

Similarly, in Shafer the Court held, because the jury was

only given two sentencing options—life imprisonment or death—without being

told the meaning of life imprisonment, the sentence must be 

.

      This court has repeatedly rejected attempts to apply Simmons/Shafer to

Oklahoma’s three-option sentencing scheme, absent highly unusual circumstances

not present in this case. Welch v. Workman, 

, 1005 (10th Cir. 2011)

(collecting cases). The false choice at issue in South Carolina simply does not

come into play when the jury is told, as it was here, it has three distinct

sentencing options and those options distinguish (on their face) between life

imprisonment with and without the possibility of parole. 

of

constitutional error is foreclosed by this court’s precedents.




                                         -35-
                              IV. CONCLUSION

     For those reasons set out above, the order of the district court denying

Ochoa’s § 2254 petition for habeas relief is hereby AFFIRMED.

                                             ENTERED FOR THE COURT


                                             Michael R. Murphy
                                             Circuit Judge




                                      -36-