FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       August 3, 2012
                                       PUBLISH                      Elisabeth A. Shumaker
                                                                        Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT



 VICTOR WAYNE HOOKS,

             Petitioner-Appellant,
 v.                                                     Nos. 03-6049, 10-6076
 RANDALL G. WORKMAN, Warden,
 Oklahoma State Penitentiary,

             Respondent-Appellee.


                    Appeal from the United States District Court
                        for the Western District of Oklahoma
                    (D.C. Nos. CIV-96-732-M, 5:96-CV-00732-M)


Patti Palmer Ghezzi, Assistant Federal Public Defender (T. Kenneth Lee, Assistant
Federal Public Defender, with her on the briefs), Oklahoma City, Oklahoma, for
Petitioner-Appellant.

Jennifer Crabb, Assistant Attorney General (E. Scott Pruitt, Attorney General, with her on
the brief), Oklahoma Office of the Attorney General, Oklahoma City, Oklahoma, for
Respondent-Appellee.


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


HOLMES, Circuit Judge.


       In this consolidated appeal, Victor Wayne Hooks, an Oklahoma state prisoner

facing the death penalty, appeals two orders of the district court denying him habeas
relief. He seeks relief on three alternative grounds: (1) he is mentally retarded1 and thus

categorically ineligible for the death penalty; (2) aspects of his mental-retardation trial

(“Atkins trial”) denied him his Fifth and Sixth Amendment rights to due process and a fair

trial; and (3) his counsel was ineffective during both the guilt and sentencing phases of

his original trial. Grounds 1 and 2 arise in Appeal No. 10-6076; ground 3 arises in

Appeal No. 03-6049. The district court granted certificates of appealability on all claims.

       Our disposition, in brief, is as follows: (1) in No. 10-6076, we AFFIRM the

judgment of the district court denying habeas relief on all claims arising out of Mr.

Hooks’s Atkins trial; and (2) in No. 03-6049, we (a) AFFIRM the judgment of the district

court denying habeas relief as to Mr. Hooks’s 1989 conviction, but (b) REVERSE the

judgment of the district court and conditionally grant the writ of habeas corpus as to his

sentence.




       1
               We take note of the following: In 2006, the American Association on
Mental Retardation (“AAMR”) changed its name to the American Association on
Intellectual and Developmental Disabilities (“AAIDD”). “Intellectual disability,” rather
than “mental retardation,” is now the preferred terminology. See World’s Oldest
Organization on Intellectual Disability Has a Progressive New Name, Am. Ass’n on
Intellectual & Developmental Disabilities (Nov. 2, 2006), available at
http://www.aamr.org/content_1314.cfm. Also, recently enacted federal legislation known
as Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643 (2010), mandates the use of the term
“intellectual disability” in place of “mental retardation” in all federal enactments and
regulations. Nonetheless, throughout this opinion, we employ the old terminology
because the legal sources relevant to our analysis, including Oklahoma law, our own prior
opinions, and the opinions of the Supreme Court, use the terms “mental retardation” and
“mentally retarded.”

                                              -2-
                         I. Factual and Procedural Background

                                            A.

         At the time of her death, Shalimein Blaine was the common-law wife of Victor

Hooks. The couple had lived together for four years. They were the parents of a one-

year-old daughter, and Ms. Blaine was twenty-four-weeks pregnant with their second

child.

         On the evening of October 6, 1988, Mr. Hooks left his wife’s apartment and went

to the home of her mother, Virginia Plumley, less than a block away. He told Ms.

Plumley that Ms. Blaine had been beaten and raped and needed to be taken to the

hospital. He then left. Ms. Plumley and her daughter, Amanda, followed Mr. Hooks

back to the apartment, and when they arrived, they watched him load an unconscious Ms.

Blaine into the car. She was unclothed and wrapped in nothing but a blanket. Ms.

Plumley noticed that Ms. Blaine’s arms and legs were covered in bruises, her face was

swollen, and her head had been partially shaved.

         As they drove to the hospital, Ms. Plumley asked Mr. Hooks what happened. He

said Ms. Blaine had gone for a walk and returned two hours later, beaten and bloodied.

When Ms. Plumley asked why he had shaved Ms. Blaine’s head, Mr. Hooks responded

that he had not done that and that it must have been done by the person who beat and

raped her.

         When Ms. Blaine arrived at St. Anthony Hospital in Oklahoma City, she was

clinically dead. An ultrasound revealed that her unborn child was also dead, with a

                                            -3-
ruptured liver and bruising on its abdomen and head due to blunt-force trauma. Although

doctors were initially able to reestablish Ms. Blaine’s heartbeat and pulse, she was

pronounced officially dead the following morning.

       After preliminary questioning by Oklahoma City police officers, Mr. Hooks agreed

to let the officers search Ms. Blaine’s apartment. There, they discovered blood on the

bed, on the carpet near the bed, and on several wash cloths and towels in a clothes

hamper. They also found some hair in a trash can in the apartment. A search of a nearby

dumpster revealed more bloody wash cloths, bloody clothing, and a large clump of hair.

       Police brought Mr. Hooks to the Oklahoma City police station, where he was

questioned by Detectives Eric Mullenix and Randy Scott. Mr. Hooks initially told

detectives that Ms. Blaine had left the apartment for a walk, returned home, knocked on

the door, and fell into his arms when he answered. He claimed she had been beaten and

raped. According to Mr. Hooks, he then left the apartment to notify Ms. Plumley, and

when he returned, Ms. Blaine was in the bathtub. He wrapped her in a blanket and took

her to the hospital.

       When detectives confronted Mr. Hooks with the bloody items and hair they had

found, he began to cry and said he wanted to tell the truth. He told detectives that he and

Ms. Blaine had been fighting: Ms. Blaine slapped him, and he then struck her, knocked

her to the ground, and began kicking her in the stomach and face. He subsequently

removed her clothing, placed her in the bathtub, and shaved a portion of her head. He did

this, he claimed, because he was looking for head injuries. He then cleaned up the

                                            -4-
apartment. He also removed the blood from his one-year-old daughter, who had gotten it

on her in the course of her mother’s beating. He placed the bloody clothing and clump of

hair in the nearby dumpster.

                                              B.

       Mr. Hooks was charged by information in October 1988 with murder in the first

degree of Shalimein Blaine and with manslaughter in the first degree for the death of the

unborn quick child. At his trial in the District Court of Oklahoma County, Oklahoma, he

was represented by Ronald Evans, a private attorney retained by Mr. Hooks’s mother,

Clara Hooks. Mr. Evans, after consulting with experts, decided not to pursue an insanity

defense, believing there was an insufficient factual basis for it. Instead, and in light of

Mr. Hooks’s confession, he focused on obtaining a conviction for the lesser-included

offense of second-degree murder or first-degree manslaughter with respect to Ms. Blaine.

He sought to show that Mr. Hooks had acted in the heat of passion or with a depraved

mind, not with malice aforethought.

       The trial court, however, refused to instruct the jury on the lesser-included

offenses. On May 10, 1989, the jury found Mr. Hooks guilty of first-degree murder with

respect to Ms. Blaine and first-degree manslaughter with respect to the unborn quick

child. After a relatively brief sentencing phase, the jury sentenced Mr. Hooks to death for

the crime of first-degree murder and to five hundred years’ imprisonment for the crime of

first-degree manslaughter. The court entered judgment and sentenced Mr. Hooks

accordingly.

                                              -5-
       Post-trial proceedings followed a long and serpentine path through the state and

federal judicial systems, which we briefly review below. To summarize, we have

consolidated two separate appeals for our review. The first, No. 03-6049, concerns

claims of ineffective assistance of trial counsel pertaining to both the guilt and sentencing

phases of Mr. Hooks’s original trial. The second, No. 10-6076, involves several claims

arising out of a subsequent trial in Oklahoma district court on whether Mr. Hooks is

mentally retarded.

                                             1.

       Mr. Hooks’s conviction and sentence were affirmed on direct appeal by the

Oklahoma Court of Criminal Appeals (“OCCA”). See Hooks v. State, 

,

1284 (Okla. Crim. App. 1993), cert. denied, 

 (1994). As relevant here, Mr.

Hooks claimed on direct appeal that his trial counsel was ineffective for advising him not

to testify at trial—a claim that the OCCA rejected on the merits. Id. at 1283. Mr. Hooks

then sought postconviction relief, arguing that his trial counsel was ineffective for a host

of other reasons. The OCCA found these claims procedurally barred because they were

not raised on direct appeal, and it denied postconviction relief. See Hooks v. State, 

, 1122 n.4 (Okla. Crim. App. 1995), cert. denied, 

 (1996).

       In December 1996, Mr. Hooks filed an application for writ of habeas corpus in the

United States District Court for the Western District of Oklahoma, asserting numerous

claims. His claims of ineffective assistance of trial counsel encompassed the claims he

had raised before the OCCA on both direct appeal and postconviction review. The

                                             -6-
district court held an evidentiary hearing in April 1997. It subsequently denied habeas

relief but granted a certificate of appealability (“COA”) on the ineffective-assistance

claims. See Hooks v. Ward, No. CIV-96-732-M (W.D. Okla. Mar. 30, 1998) [hereinafter

Hooks Habeas I].2

       On appeal to a panel of this court, the claims received bifurcated treatment. See

Hooks v. Ward, 

, 1213–20 (10th Cir. 1999). With respect to the claim that

trial counsel was ineffective for advising Mr. Hooks not to testify, our review was

constrained by the deferential standards of the Antiterrorism and Effective Death Penalty

Act (“AEDPA”). See 28 U.S.C. § 2254(d). We held that the OCCA did not unreasonably

apply Strickland v. Washington, 

 (1984), when it denied the claim on the

merits. 184 F.3d at 1220. As for the other allegations of ineffective assistance, to which

the OCCA applied a procedural bar on postconviction review, we remanded for a

determination of whether the procedural bar was adequate to preclude federal habeas

review of the merits. See id. at 1217–18. On remand, the district court held that the

procedural bar was inadequate and reaffirmed its previous ruling denying habeas relief on

the merits. Hooks v. Ward, No. CIV-96-732-M (W.D. Okla. Jan. 27, 2003). Mr. Hooks

filed a timely notice of appeal, and the district court granted a COA. The appeal was

docketed at No. 03-6049.




       2
            This decision is attached in slip-opinion form to Mr. Hooks’s opening brief
as Attachment 1. Citations herein are to the slip opinion.

                                            -7-
                                             2.

       In the meantime, the Supreme Court decided Atkins v. Virginia, 

, 321

(2002), in which it held that the execution of a mentally retarded person is “cruel and

unusual punishment[]” prohibited by the Eighth Amendment. In December 2002, Mr.

Hooks filed a second application for postconviction relief with the OCCA, alleging that

his execution would violate the Eighth Amendment, pursuant to Atkins. We subsequently

abated Appeal No. 03-6049 to allow Mr. Hooks to litigate the Atkins claim in state court.

The OCCA remanded the matter to the Oklahoma County District Court for a jury trial on

whether Mr. Hooks is mentally retarded.

       In June 2004, after a six-day trial, a jury concluded that Mr. Hooks is not mentally

retarded, and the OCCA upheld that determination on appeal. See Hooks v. State, 

, 645 (Okla. Crim. App. 2005) [hereinafter Hooks Atkins Appeal], cert. denied,

 (2006). Mr. Hooks then sought collateral relief on claims arising out of his

Atkins trial, which the OCCA denied in an unpublished decision. See Hooks v. State, No.

PCD-2006-350 (Okla. Crim. App. Oct. 10, 2006) [hereinafter Hooks Atkins Collateral].3

       We authorized Mr. Hooks to file a second or successive habeas petition to address

his Atkins claims. See Order at 2, Hooks v. Sirmons, Nos. 03-6049, 06-6105 (10th Cir.

Mar. 31, 2006). Mr. Hooks filed his second petition in April 2006, challenging the

procedures and result of the Atkins trial. The district court entered a stay pending the


       3
            This decision is attached in slip-opinion form to Mr. Hooks’s opening brief
as Attachment 5. Citations herein are to the slip opinion.

                                             -8-
OCCA’s collateral review of the claims. After the OCCA denied relief, Mr. Hooks filed

an amended federal habeas petition in December 2006.

       The district court denied habeas relief on the Atkins claims. See Hooks v.

Workman, 

, 1325 (W.D. Okla. 2010) [hereinafter Hooks Habeas II].

Mr. Hooks filed a notice of appeal, the district court granted a COA, and the appeal was

docketed at No. 10-6076.

       Appeal No. 03-6049 (the ineffective-assistance claims) and Appeal No. 10-6076

(the Atkins claims) have been consolidated for our review.

                                       II. Discussion

       Mr. Hooks seeks habeas relief on three alternative grounds. With respect to his

Atkins trial (Appeal No. 10-6076), he asserts (1) that he is mentally retarded and his

execution would violate Atkins, and (2) that numerous procedural irregularities made his

Atkins trial fundamentally unfair. With respect to his original trial (Appeal No. 03-6049),

he asserts (3) that his counsel was ineffective during both the guilt and sentencing phases.

As to grounds one and two, we agree with the district court that in light of AEDPA’s

deferential standard, Mr. Hooks is not entitled to habeas relief. (See Parts II.B. and II.C.

below.) As to ground three, our review is not constrained by AEDPA. We agree with the

district court that counsel was not ineffective during the guilt phase of Mr. Hooks’s

original trial. (See Part II.D.1. below.) However, we part ways with the district court

regarding counsel’s performance during the sentencing phase. With respect to that aspect

of the claim, we reverse the district court’s judgment and conditionally grant the writ.

                                             -9-
(See Part II.D.2. below.)

                                   A. Standard of Review

       AEDPA circumscribes our review of federal habeas claims that were adjudicated

on the merits in state-court proceedings. See, e.g., Byrd v. Workman, 

,

1165 (10th Cir. 2011). An applicant is not entitled to relief unless he can demonstrate

that the state court’s resolution 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)(1), (2); accord Phillips v. Workman, 

, 1209 (10th Cir. 2010).

This “‘highly deferential standard for evaluating state-court rulings[]’ . . . demands that

state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 

, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 

, 333 n.7 (1997)).

       Under § 2254(d)(1), the threshold question is whether there exists clearly

established federal law, an inquiry that focuses exclusively on holdings of the Supreme

Court. House v. Hatch, 

, 1015 (10th Cir. 2008) (calling Supreme Court

holdings “the exclusive touchstone for clearly established federal law”). “The absence of

clearly established federal law is dispositive under § 2254(d)(1).” Id. at 1018 (citing and

discussing Carey v. Musladin, 

 (2006)).

       If clearly established federal law exists, a state-court decision is “contrary to” it “if

the state court applies a rule different from the governing law set forth in [Supreme

                                             -10-
Court] cases, or if it decides a case differently than [the Supreme Court has] done on a set

of materially indistinguishable facts.” Bell v. Cone, 

, 694 (2002). A state-

court decision is an “unreasonable application” of clearly established federal law when

the state court “identifies the correct governing legal principle from th[e Supreme]

Court’s decisions but unreasonably applies that principle to the facts of petitioner’s case.”

Wiggins v. Smith, 

, 520 (2003) (quoting Williams v. Taylor, 

,

413 (2000)) (internal quotation marks omitted). “[R]eview under § 2254(d)(1) is limited

to the record that was before the state court that adjudicated the claim on the merits.”

Cullen v. Pinholster, 

, 1398 (2011).

       Habeas relief is also warranted if the state court’s adjudication of a claim on the

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

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). As the plain terms of the statute indicate, we also must not stray from the

record before the state court in conducting this AEDPA inquiry. Furthermore, factual

findings of the state court are presumed correct unless the applicant rebuts that

presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); accord Welch

v. Workman, 

, 991 (10th Cir. 2011). “We review the district court’s legal

analysis of the state court decision de novo.” Welch, 639 F.3d at 991 (quoting Bland v.

Sirmons, 

, 1009 (10th Cir. 2006)) (internal quotation marks omitted).

       For federal habeas claims not adjudicated on the merits in state-court proceedings,

we exercise our “independent judgment” and “review the federal district court’s

                                            -11-
conclusions of law de novo.” McCracken v. Gibson, 

, 975 (10th Cir. 2001).

The district court’s factual determinations are reviewed for clear error. Id. Any state-

court findings of fact that bear upon the claim are entitled to a presumption of correctness

rebuttable only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Hooks v.

Ward, 184 F.3d at 1223 (applying § 2254(e)(1)’s presumption of correctness to state-

court factual findings bearing upon the claim, even though the claim was not adjudicated

on the merits by the state court).

                           B. Existence of Mental Retardation

       Mr. Hooks first asks us to find that he is mentally retarded and that his execution is

categorically prohibited by the Eighth Amendment. An Oklahoma jury (hereinafter the

“Atkins jury”) found that Mr. Hooks is not mentally retarded, and that determination was

upheld by the OCCA on both direct appeal and collateral review.

       The essence of Mr. Hooks’s claim is a challenge to the sufficiency of the evidence.

He argues:

              The [Atkins] jury’s conclusion was based on insufficient evidence and
              [Mr. Hooks] separately asserts the trial evidence, coupled with the
              additional evidence appropriately presented in habeas, demonstrates he
              is so impaired [that] he falls within the range of mentally retarded
              offenders for which there is a national consensus against his execution.

Aplt. Opening Br. at 20–21. The OCCA rejected this legal challenge, concluding that “a

rational trier of fact could have found” that Mr. Hooks failed to show, by a preponderance

of the evidence, that he is mentally retarded. Hooks Atkins Appeal, 126 P.3d at 641.

       As we will explain, the OCCA’s conclusion did not contravene clearly established

                                            -12-
federal law. We first set forth Oklahoma’s standard for finding a person mentally

retarded within the meaning of Atkins. We then explain our standard of review in the

habeas context for the unique sort of sufficiency challenge that Mr. Hooks presents here.

Finally, we analyze whether the OCCA contravened clearly established federal law in its

decision to uphold the Atkins jury’s finding, and we conclude that it did not.

                                               1.

       In Atkins, the Supreme Court held that in light of a national consensus and its own

precedents, execution of mentally retarded criminal defendants violates the Eighth

Amendment’s prohibition on “cruel and unusual punishments.” See 536 U.S. at 311,

316–21 (quoting U.S. Const. amend. VIII) (internal quotation marks omitted). The Court

did not set forth a definition of mental retardation. Although it twice discussed clinical

definitions of the term, see id. at 308 n.3, 318, it acknowledged that “[n]ot all people who

claim to be mentally retarded will be so impaired as to fall within the range of mentally

retarded offenders about whom there is a national consensus,” id. at 317. The Court

therefore left “to the States the task of developing appropriate ways to enforce the

constitutional restriction upon their execution of sentences.” Id. (alterations omitted)

(quoting Ford v. Wainwright, 

, 416–17 (1986)) (internal quotation marks

omitted).

       In response to Atkins, the OCCA in Murphy v. State promulgated the following

definition of mental retardation for use in capital trials:

              A person is “mentally retarded”: (1) If he or she functions at a

                                              -13-
              significantly sub-average intellectual level that substantially limits his
              or her ability to understand and process information, to communicate,
              to learn from experience or mistakes, to engage in logical reasoning, to
              control impulses, and to understand the reactions of others; (2) The
              mental retardation manifested itself before the age of eighteen (18); and
              (3) The mental retardation is accompanied by significant limitations in
              adaptive functioning in at least two of the following skill areas:
              communication; self-care; social/interpersonal skills; home living;
              self-direction; academics; health and safety; use of community
              resources; and work. It is the defendant’s burden to prove he or she is
              mentally retarded by a preponderance of the evidence at trial.
              Intelligence quotients are one of the many factors that may be
              considered, but are not alone determinative. However, no person shall
              be eligible to be considered mentally retarded unless he or she has an
              intelligence quotient of seventy or below, as reflected by at least one
              scientifically recognized, scientifically approved, and contemporary
              intelligent quotient test.

, 567–68 (Okla. Crim. App. 2002) (footnotes omitted), overruled in part on

other grounds by Blonner v. State, 

, 1139 (Okla. Crim. App. 2006).4

       Mr. Hooks does not challenge Murphy’s definition of mental retardation as


       4
                The OCCA’s decision in Murphy was a stopgap measure. The court
adopted a judicial definition of mental retardation “only after the other branches of the
government were unable to reach a meeting of the minds on the issue.” Murphy v. State,
--- P.3d ----, 

, at *4 (Okla. Crim. App. Apr. 5, 2012) (citing Murphy,
54 P.3d at 567). In 2006, the Oklahoma legislature adopted Okla. Stat. tit. 21, § 701.10b,
which sets forth a statutory definition of mental retardation and prescribes procedures for
determining whether a defendant accused or convicted of capital murder is mentally
retarded. See Smith v. State, 

, 1235 (Okla. Crim. App. 2010) (“Section
701.10b governs the death penalty and mental retardation . . . .”). Because Mr. Hooks’s
Atkins trial took place in 2004, it was governed by Murphy, not § 701.10b, and neither the
State nor Mr. Hooks contends otherwise. See Murphy, 54 P.3d at 568 (“This standard
shall be used at all future and pending capital trials, until such time as it may be replaced
by a suitable legislative enactment.”); see also Lambert v. State, 

, 31–32 (Okla.
Crim. App. 2003) (setting forth procedures for postconviction mental-retardation
determination because the state legislature had not yet addressed the issue), superseded by
statute, Okla. Stat. tit. 21, § 701.10b.

                                             -14-
inconsistent with Atkins. Indeed, Murphy’s definition closely tracks the AAMR (now

AAIDD) definition discussed in Atkins. See 536 U.S. at 308 n.3, 318.5 Rather, Mr.

Hooks argues that the jury’s determination that he is not mentally retarded is based upon

insufficient evidence, and that the OCCA’s decision to uphold that determination was

contrary to, or an unreasonable application of, Atkins.

                                             2.

       A sufficiency-of-the-evidence challenge in a habeas petition presents a mixed

question of fact and law. Brown v. Sirmons, 

, 1089 (10th Cir. 2008). “We

ask whether the facts are correct and whether the law was properly applied to the facts,

‘which is why we apply both 28 U.S.C. § 2254(d)(1) and (d)(2) when reviewing

sufficiency of the evidence on habeas.’” Id. (quoting Maynard v. Boone, 

,

673 (10th Cir. 2006)).

       The typical sufficiency challenge in a habeas petition focuses on evidence of guilt

for the crime charged. In Jackson v. Virginia, 

, 319 (1979), a pre-AEDPA

decision, the Supreme Court held that such evidence is sufficient if, “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.” In federal

habeas proceedings, where a sufficiency challenge was resolved on the merits by the state



       5
              As the district court noted, “[t]he only significant difference between
Oklahoma’s definition and the [AAIDD] definition is that the [AAIDD] includes a tenth
possible deficit in the area of leisure.” Hooks Habeas II, 693 F. Supp. 2d at 1290 n.4.

                                            -15-
courts, we have held that AEDPA “adds an additional degree of deference,” and the

question becomes whether “the OCCA’s conclusion that the evidence was sufficient

constituted an unreasonable application of the Jackson standard.” Diestel v. Hines, 

, 1267 (10th Cir. 2007) (quoting Patton v. Mullin, 

, 796 (10th Cir.

2005)) (internal quotation marks omitted); see Coleman v. Johnson, 

, 2062

(per curiam). We call this standard of review “deference squared.” Young v. Sirmons,

, 666 n.3 (10th Cir. 2007) (quoting Torres v. Lytle, 

, 1313

(10th Cir. 2006)) (internal quotation marks omitted).

       In two respects, however, Mr. Hooks’s sufficiency challenge is somewhat atypical.

First, the substantive law at the basis of his sufficiency challenge consists not of the

“essential elements” of a state-law criminal offense, Jackson, 443 U.S. at 319, but rather

of the definition of mental retardation—a definition that, although dependent on state law

(here, Murphy), ultimately has Eighth Amendment underpinnings pursuant to Atkins. See

Ochoa v. Workman, 

, 1143 (10th Cir. 2012) (“The liberty interest at issue

in this case, the right of the mentally retarded to avoid execution, flows directly from the

Eighth Amendment.”). Thus, Mr. Hooks’s sufficiency challenge inescapably requires

that we consider the kinds of evidence that state courts may (or may not) rely upon in

adjudicating an Atkins claim.

       Second, the jury in Mr. Hooks’s Atkins trial was required to determine, not

whether he is guilty of an offense beyond a reasonable doubt (a question on which the

State would have borne the burden of proof), but whether he is mentally retarded by a

                                             -16-
preponderance of the evidence (a question on which Mr. Hooks bore the burden of proof).

The different standard of proof requires us to tailor Jackson to fit this context. We hold

that the relevant constitutional standard for the state appellate court was whether, viewing

the evidence in the light most favorable to the prevailing party (the State), any rational

trier of fact could have found Mr. Hooks not mentally retarded by a preponderance of the

evidence. See Maynard, 468 F.3d at 674. If so, Mr. Hooks’s evidentiary challenge would

fail. Put a different way, if any rational trier of fact could have found that Mr. Hooks

failed to establish, by a preponderance of the evidence, that he is mentally retarded, then

the jury verdict may be upheld.6


       6
                In Maynard, we faced a closely analogous sufficiency-of-the-evidence
challenge. In that case, the OCCA upheld a jury verdict finding the habeas applicant
competent to stand trial. 468 F.3d at 668. In our own review of the OCCA’s decision, we
sought guidance from Jackson and held that “[u]nder AEDPA, a challenge to the
sufficiency of the evidence must establish that no ‘rational trier of fact’ could have found
Maynard competent by a preponderance of the evidence.” Id. at 674 (quoting Jackson,
443 U.S. at 319). In a footnote, we explained that “[i]n Jackson, the sufficiency of the
evidence was ‘beyond a reasonable doubt,’ because that was the evidentiary burden for
the issue at trial. Competency, as we have noted, is determined based on a preponderance
of the evidence standard.” Id. at 674 n.6. That reasoning applies with equal force to this
case.

        We recognize that the unusual nature of Mr. Hooks’s sufficiency challenge creates
a semantic anomaly. In the typical case, a habeas applicant challenges the sufficiency of
the evidence as to a question on which the other party—the prosecution—has the burden
of proof at trial. The allegation is that the evidence was legally insufficient to meet the
prosecution’s burden. In a case like this, by contrast, the party challenging the verdict
and the party that had the burden of proof at trial are the same. Strictly speaking, the
challenger’s allegation is not that the evidence of mental retardation was insufficient, but
that the evidence was sufficient as a matter of law, such that no reasonable factfinder
could have failed to find in the applicant’s favor (i.e., could have failed to find that the
                                                                                  (continued...)

                                             -17-
       Of course, AEDPA adds a second layer of deference to this standard. We do not

directly review the jury’s verdict. AEDPA limits our gaze to “the highest state court’s

resolution of a particular claim.” Alverson v. Workman, 

, 1155 (10th Cir.

2010). We therefore ask whether the OCCA correctly identified the governing legal

principle from Jackson and reasonably applied it to the facts of Mr. Hooks’s case. See

Matthews v. Workman, 

, 1183 (10th Cir. 2009) (“Because the OCCA

applied the Jackson standard in deciding Mr. Matthews’s sufficiency claim on direct

review, our task is limited by AEDPA to inquiring whether the OCCA’s application of

Jackson was unreasonable.” (footnote omitted)). We reiterate that under both paragraphs

(1) and (2) of § 2254(d), we are precluded from considering evidence not before the

OCCA. See Pinholster, 131 S. Ct. at 1398 (construing 28 U.S.C. § 2254(d)(1)); 28

U.S.C. § 2254(d)(2).

       Based on the foregoing, we find that the OCCA’s decision, on its face, applied the



       6
        (...continued)
applicant is mentally retarded). But in either case, the underlying inquiry for an appellate
court is the same: In light of the facts in the record, the applicable law, and the standard of
proof, was it reasonable for the factfinder to reach the conclusion it did?

       For this reason, our “tailoring” of Jackson’s standard to meet the context of this
case does not hold the OCCA to something other than clearly established federal law.
Jackson’s rational-trier-of-fact standard is clearly established federal law. See Cavazos v.
Smith, 

, 3–4, 6 (2011) (per curiam). And Maynard is instructive on how that
standard applies in this case. A necessary, if implicit, premise of our Maynard decision
was that Jackson’s rational-trier-of-fact standard is clearly established federal law even
when, as here, the standard of proof is a preponderance of the evidence and the burden of
proof at trial rested on the habeas applicant.

                                             -18-
correct standard of appellate review. Reviewing Mr. Hooks’s sufficiency challenge, the

OCCA concluded, “Taken in the light most favorable to the prevailing party, a rational

trier of fact could have found that Hooks provided insufficient evidence to show he was

mentally retarded.” Hooks Atkins Appeal, 126 P.3d at 641. That is precisely what

Jackson requires in order to uphold the jury’s determination in this context. See

Maynard, 468 F.3d at 674. Accordingly, the OCCA’s decision was not “contrary to”

clearly established federal law. Cone, 535 U.S. at 694 (quoting 28 U.S.C. § 2254(d)(1)).

       “Because the OCCA applied the correct legal standard, our inquiry is limited to

whether its determination that the evidence was sufficient to support the jury’s verdict

was reasonable.” Young, 486 F.3d at 667. As noted, that inquiry also requires us to

consider whether the OCCA, in upholding the jury’s verdict, reasonably applied Atkins to

Mr. Hooks’s claim of mental retardation.

                                              3.

       The parties agree that Mr. Hooks meets the second prong of Murphy’s standard for

mental retardation (that the deficiencies manifested themselves before the age of

eighteen). See Hooks Atkins Appeal, 126 P.3d at 641. The dispute before the jury, before

the OCCA, and before us centers on whether Mr. Hooks meets the first and third prongs

of the Murphy test: viz., sub-average intellectual ability, and significant limitations in

adaptive functioning.




                                             -19-
                           a. Sub-average intellectual ability

       Under Murphy, a capital defendant’s IQ score is used both to establish eligibility

for a mental-retardation determination and as evidence to support a finding of sub-

average intellectual ability. Hooks Atkins Appeal, 126 P.3d at 640. An IQ score of 70 or

below meets the threshold requirement. See id. It is also strong evidence of sub-average

intelligence. See Atkins, 536 U.S. at 309 n.5 (“[A]n IQ between 70 and 75 or lower . . . is

typically considered the cutoff IQ score for the intellectual function prong of the mental

retardation definition.”); id. at 316 (suggesting that “a national consensus has developed

against” the execution of “offenders possessing a known IQ less than 70”); Murphy, 54

P.3d at 568 (“Intelligence quotients are one of the many factors that may be considered,

but are not alone determinative.”).

       Mr. Hooks has been subjected to IQ testing throughout his life, and the Atkins jury

was presented with nine of his IQ scores. These scores were obtained from tests

administered over a thirty-four-year period, between 1970 and 2004, and they ranged

from 53 to 80.7 On direct appeal of the jury verdict, the OCCA concluded:


       7
              The nine IQ scores presented to the jury and the OCCA on appeal were as
follows (identified by year, the type of IQ test, and the score): 1970 SB score of 80, 1972
WISC score of 70, 1978 WAIS score of 61, 1979 WAIS score of 57, 1982 BETA-II score
of 61, 1988 WAIS score of 80, 1994 WAIS-R score of 72, 2002 K-BIT score of 76, and
2004 WAIS-III score of 53.

      Mr. Hooks also points us to a WAIS-III score of 67, obtained in testing in 2006.
However, because this evidence was not before the OCCA on direct appeal, we are barred
from considering it. See Pinholster, 131 S. Ct. at 1398; 28 U.S.C. § 2254(d)(2). The
                                                                             (continued...)

                                            -20-
                      The experts agreed this range of scores put Hooks in a “gray
              area”. The tests of 70 and below all reflected some degree of lack of
              cooperation on Hooks’s part, from variable attention span to refusal to
              respond. Two of them were obtained after Hooks suffered the trauma
              of an accident and his father’s death, which could have caused him to
              test lower than his actual intellectual level. The expert witnesses
              agreed that the most reliable scores were those obtained by Dr. Gelbort
              and Dr. Cowardin, with results of 72 and 76. Neither of these scores
              meets the “seventy or below” requirement in Murphy, although Dr.
              Gelbort’s results are within that range using the standard error of
              measurement (a five-point range on either side). Given the other
              testimony, it was not unreasonable for jurors to determine that the most
              reliable IQ evidence offered did not fall within the first prong of the
              Murphy definition, functioning at a significantly sub-average
              intellectual level. A rational trier of fact could have found that Hooks
              failed to meet this burden by a preponderance of the evidence.

Hooks Atkins Appeal, 126 P.3d at 640–41 (footnote omitted).

       Mr. Hooks assails this conclusion in two ways. First, he contends that four of his

IQ scores (scores of 80, 80, 61 and 76) “are of limited value and lack reliability.” Aplt.

Opening Br. at 25. We shall call this group of scores the “First Group.” Second, after

tossing out the above four scores, Mr. Hooks contends that the remaining five (scores of

70, 61, 57, 72, and 538)—what we shall call the “Second Group”—must be adjusted

downward for a statistical phenomenon known as the Flynn Effect. After adjustment, the

       7
         (...continued)
OCCA did consider the 2006 score in collateral proceedings, but only in the context of
Mr. Hooks’s claim of ineffective assistance of counsel at the Atkins trial. See Hooks
Atkins Collateral, slip op. at 8–9. (Specifically, Mr. Hooks claimed that Atkins counsel
was ineffective for failing to obtain a more updated score.) However, the 2006 score
cannot enter into our calculus in assessing the OCCA’s decision to uphold the jury
verdict.
       8
             As noted, Mr. Hooks also points to the additional IQ score of 67 obtained in
2006, but we do not consider it. See supra note 7.

                                            -21-
five scores become 63, 54, 50, 67, and 50, respectively—all well below Murphy’s

threshold of 70. On this view of the evidence, Mr. Hooks argues that the OCCA’s finding

that he is in a “gray area” was unreasonable.

       We note that the First Group includes the K-BIT score of 76 and the Second Group

includes the WAIS-R score of 72, both obtained by Mr. Hooks’s own experts (Dr. Nancy

Cowardin and Dr. Michael Gelbort, respectively) and deemed by the OCCA, based on the

opinions of experts from both sides, to be the “most reliable” of all the IQ scores. Hooks

Atkins Appeal, 126 P.3d at 640. Mr. Hooks does not contest that conclusion. With

respect to the K-BIT score, he contends only that “caution” must be used in interpreting

the score because Dr. Cowardin’s test was “not meant to substitute for a comprehensive

intelligence test.” Aplt. Opening Br. at 26. But Dr. Cowardin was Mr. Hooks’s own

expert, and her testing formed the basis for her conclusion that Mr. Hooks is mildly

mentally retarded. See 4 M.R. at 116.9 Mr. Hooks’s other expert, Dr. Gelbort, relied on

Dr. Cowardin’s report and his own evaluation to opine that Mr. Hooks is mildly mentally

retarded, see 3 M.R. Tr. at 112–13, although even he admitted that Mr. Hooks fell into a

“gray area,” id. at 95. Finally, the State’s expert, Dr. Terese Hall, thought the evaluations

by Drs. Cowardin and Gelbort were “the best testing we have.” See 5 M.R. Tr. at 42.

The OCCA found that many of the other scores, particularly those on the low end, posed

reliability problems. That finding is presumed correct, and in any event, our independent


       9
              Throughout this opinion, we employ the abbreviation “[volume number]
M.R. Tr.” to refer to a particular volume of the six-volume transcript of the Atkins trial.

                                            -22-
review of the record confirms it. See 3 M.R. at 23, 44, 47–49 (Test. of Dr. Beck); id. at

86–88, 94–95, 174–75 (Test. of Dr. Gelbort); 4 M.R. at 111–12 (Test. of Dr. Cowardin);

5 M.R. at 19–20, 38–41 (Test. of Dr. Hall). Accordingly, it was not unreasonable for the

OCCA to find the K-BIT and WAIS-R scores the “most reliable” and to accord them

greater weight.

       Mr. Hooks asserts that the Second Group of scores, including the WAIS-R score of

72, must be downwardly adjusted for the Flynn Effect. The Flynn Effect is a

phenomenon named for James R. Flynn, who discovered that the population’s mean IQ

score rises over time, by approximately 0.3 points per year. Under his theory, if an

individual’s test score is measured against a mean of a population sample from prior

years, then his score will be inflated in varying degrees (depending on how long ago the

sample was first employed) and will not provide an accurate picture of his IQ. See, e.g.,

Walton v. Johnson, 

, 177 n.22 (4th Cir. 2006) (en banc) (“The premise of the

‘Flynn Effect’ is that IQ scores increase over time and that IQ tests that are not renormed

to take into account rising IQ levels will overstate a testtaker’s IQ score.”); James. R.

Flynn, Tethering the Elephant: Capital Cases, IQ, and the Flynn Effect, 12 Psychol. Pub.

Pol’y & L. 170, 172 (2006) [hereinafter Flynn, Tethering the Elephant] (“Naturally,

judges want to know whether defendants were actually two standard deviations below

their peers at the time they were tested and not how they rank against a group selected at

some random date in the past.” (emphasis added)). See generally James R. Flynn, The

Mean IQ of Americans: Massive Gains 1932 to 1978, 95 Psychol. Bull. 29 (1984). Flynn

                                            -23-
posited that a downward adjustment to scores is necessary when a test without current

norms is used. See Flynn, Tethering the Elephant, supra, at 174–75.

       However, neither Murphy nor its progeny requires an adjustment for the Flynn

Effect, see Murphy, 54 P.3d at 567–68; see also Smith, 245 P.3d at 1237 n.6 (“[U]nder the

Oklahoma statutory scheme, the Flynn Effect, whatever its validity, is not a relevant

consideration in the mental retardation determination for capital defendants.”), and the

OCCA did not address its relevance on direct appeal. It mentioned it briefly on collateral

review, stating that “some experts noted Hooks’s reliable score of 72 could have been

slightly inflated [due to the Flynn Effect].” Hooks Atkins Collateral, slip op. at 8–9. The

only Flynn Effect evidence presented to the Atkins jury came from the testimony of Dr.

Gelbort, who noted that the Flynn Effect is a “well-researched and published”

phenomenon, 3 M.R. Tr. at 159, and suggested that “people who talk about the Flynn

Effect would argue” that certain of Mr. Hooks’s IQ scores are “a little higher than [they]

ought to be,” id. at 219–22, due to the non-current population samples that were used to

normalize (i.e., derive a population mean for) his scores. Mr. Hooks argues that the

OCCA’s failure to account for and apply the Flynn Effect was “contrary to Atkins because

it fails to deal with the real [IQ] scores.” Aplt. Reply Br. at 7.

       The OCCA’s failure to account for and apply the Flynn Effect was not “contrary

to” or “an unreasonable application of” clearly established federal law, 28 U.S.C. §

2254(d)(1), because the threshold requirement—the existence of clearly established

federal law—is not met here. See House, 527 F.3d at 1015. Atkins does not mandate an

                                             -24-
adjustment for the Flynn Effect. Moreover, there is no scientific consensus on its

validity. See Thomas v. Allen, 

, 757 (11th Cir. 2010) (“[T]he Flynn effect is

a statistically-proven phenomenon, although no medical association recognizes its

validity.”); Frank M. Gresham & Daniel J. Reschly, Standard of Practice and Flynn

Effect Testimony in Death Penalty Cases, 49 Intell. & Developmental Disabilities 131,

131, 136–37 (2011) (arguing that the Flynn Effect is “a well-established psychometric

fact” that should be accounted for in IQ testing, but noting the lack of a consensus in the

clinical community on its use). In addition, federal and state courts are divided over the

use of the Flynn Effect, and “there is no uniform consensus regarding the application of

the Flynn effect in determining a capital offender’s intellectual functioning.” Thomas,

607 F.3d at 757–58 (collecting cases); see also Maldonado v. Thaler, 

, 238

(5th Cir. 2010) (“[N]either this court nor the [Texas Court of Criminal Appeals] has

recognized the Flynn Effect as scientifically valid.”).

       Even if this Circuit were prepared to take a side in this debate and hold that, under

Atkins, the Flynn Effect must be considered in determining whether a defendant is

mentally retarded, we could not do so on habeas review. “No decision of th[e Supreme]

Court . . . squarely addresses the issue . . . .” Wright v. Van Patten, 

, 125

(2008) (per curiam). “Because [the Court’s] cases give no clear answer to the question

presented, let alone one in [Mr. Hooks’s] favor,” id. at 126, it cannot be said that the

OCCA’s failure to consider and apply the Flynn Effect is contrary to, or an unreasonable

application of, clearly established federal law.

                                            -25-
       We are left, then, with a number of IQ scores, some below and some above a score

of 70. We do not believe this set of scores unquestionably qualifies Mr. Hooks as

significantly sub-average in intellect. Given the reliability problems associated with

many of the scores and the strong reliability of the scores of 72 and 76 from Mr. Hooks’s

own experts, we agree that Mr. Hooks falls into a “gray area.” Hooks Atkins Appeal, 126

P.3d at 640 (internal quotation marks omitted); see also Atkins, 536 U.S. at 309 n.5

(“[A]n IQ between 70 and 75 or lower . . . is typically considered the cutoff IQ score for

the intellectual function prong of the mental retardation definition.”). A rational trier of

fact could conclude from this evidence that Mr. Hooks indeed functions at a sub-average

intellectual level, but it could also rationally draw the conclusion that he does not. Cf.

Anderson v. Bessemer City, 

, 574 (1985) (“Where there are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.”). Accordingly, it was not an unreasonable application of Jackson for the

OCCA to find that Mr. Hooks’s evidentiary burden was not met and to uphold the jury

verdict.

                                 b. Functional limitations

       As an alternative basis for its holding, the OCCA also rejected Mr. Hooks’s

sufficiency-of-the-evidence challenge under the third prong of Murphy, which required

Mr. Hooks to show that he has “significant limitations in adaptive functioning in at least

two of [nine] skill areas.” Murphy, 54 P.3d at 567–68. After a summary of the evidence

both for and against Mr. Hooks, the OCCA concluded that “a rational trier of fact could

                                             -26-
have determined that this evidence did not show significant deficits in adaptive

functioning” and that Mr. Hooks had “failed to meet his burden on this issue.” Hooks

Atkins Appeal, 126 P.3d at 641.

       Mr. Hooks argues that he satisfied Murphy’s third prong because of his

deficiencies in two skills areas (communication and academics), and he assails the

OCCA’s conclusion on two grounds. First, he faults the OCCA for focusing on his

strengths rather than his limitations, which he contends was contrary to Atkins. Second

and relatedly, he argues that a proper focus on his limitations, to the exclusion of his

strengths, puts the existence of his mental retardation beyond dispute. We reject both

arguments. Requiring the OCCA to focus only on Mr. Hooks’s limitations and to ignore

his strengths is not clearly established federal law, and based on the evidence (limitations

and strengths), a rational trier of fact could conclude that Mr. Hooks failed to satisfy the

third prong of Murphy by a preponderance of the evidence.10

       Mr. Hooks first argues that the OCCA’s focus on his strengths rather than his

limitations was objectively unreasonable because it is contrary to the “holistic approach”

recommended by the AAIDD, which “focuses on the individual’s limitations.” Aplt.

Opening Br. at 44 (quoting AAIDD, Intellectual Disability: Definition, Classification,


       10
              Some of the evidence that Mr. Hooks highlights in his opening brief was
not before the OCCA. This includes statements by Pat Prater, a counselor at Oklahoma
State Penitentiary; statements by Walanzo Robinson and Paris Powell, fellow prisoners of
Mr. Hooks; and the supplemental report of Dr. Cowardin. See Aplt. Opening Br. at
35–37, 41–42. We are barred from considering this evidence. See Pinholster, 131 S. Ct.
at 1398; 28 U.S.C. § 2254(d)(2).

                                            -27-
and Systems of Supports 94 (11th ed. 2010)) (internal quotation marks omitted). He

continues: “When the Atkins[] Court determined there was a national consensus that

offenders meeting the clinical definition of mentally retarded could not be executed, it

essentially adopted the clinical definition of the condition. Further, the focus is on

deficits, not strengths, as clearly established within the clinical community and by

Atkins.” Aplt. Reply Br. at 10. We are not persuaded.

       While Atkins is undoubtedly clearly established federal law, the precise contours of

the definition of mental retardation are not. “The Supreme Court specifically left to the

various states ‘the task of developing appropriate ways to enforce the constitutional

restriction’ on the execution of mentally retarded criminals.” Ochoa, 669 F.3d at 1133

n.1 (quoting Atkins, 536 U.S. at 317). Nothing in Atkins (or Oklahoma law for that

matter) requires the OCCA to ignore a defendant’s strengths in determining whether in

fact he exhibits significant functional limitations in certain skill areas.

       Mr. Hooks bases his argument to the contrary on language in the Atkins opinion

such as the following: “[C]linical definitions of mental retardation require . . . significant

limitations in adaptive skills.” Atkins, 536 U.S. at 318 (emphasis added); see Aplt. Reply

Br. at 10. This argument is unavailing. Murphy, too, requires a defendant to show

“significant limitations in adaptive functioning.” 54 P.3d at 567 (emphasis added). But

this is a legal standard, and whether it is satisfied depends upon the facts: What is a given

defendant able and unable to do? Both strengths and deficiencies enter into this equation

because they make up the universe of facts tending to establish that a defendant either has

                                              -28-
“significant limitations” or does not. Not only does Murphy not require the OCCA to

focus on deficiencies to the exclusion of strengths but—most relevant to our inquiry

here—neither does Atkins.

       Furthermore, even if the AAIDD’s “holistic approach” requires a clinician to

ignore functional strengths, as Mr. Hooks contends, the clinical standard is not a

constitutional command. Section 2254(d)(1) refers to “clearly established Federal law, as

determined by the Supreme Court of the United States,” and as we have explained,

“Supreme Court holdings” are “the exclusive touchstone for clearly established federal

law.” House, 527 F.3d at 1015. The Supreme Court in Atkins could have adopted the

clinical standard, but explicitly declined to do so. See Atkins, 536 U.S. at 317; Ochoa,

669 F.3d at 1133 n.1. We therefore conclude that the OCCA’s consideration of evidence

of Mr. Hooks’s strengths was not “contrary to” or “an unreasonable application of”

Atkins. 28 U.S.C. § 2254(d)(1).

       That being so, Mr. Hooks’s second contention must fail. Having argued that

evidence of his strengths should not be considered to support the Atkins jury’s conclusion,

he selectively highlights those portions of the trial record that support his limitations in

adaptive functioning. See Aplt. Opening Br. at 32–35, 39–41. But this was not the only

evidence before the jury. For example:

       C      Some experts found that Mr. Hooks communicated well and could express
              his thoughts and feelings clearly. 5 M.R. Tr. at 32–33, 55 (Test. of Dr.
              Hall).

       C      Mr. Hooks read the Bible, 4 M.R. Tr. at 210 (Test. of Shanna Dinh); read

                                             -29-
              other books in prison, id. at 125–26 (Test. of Dr. Cowardin); and could use
              a dictionary, id. at 125.

       C      Mr. Hooks wrote a number of letters in which he communicated his feelings
              forcefully and clearly. Id. at 126–32; see State’s Exs. 1–6 to M.R.11

       C      Mr. Hooks communicated with multiple landlords and filled out rental
              applications. 4 M.R. Tr. at 205 (Test. of Ms. Dinh); 5 M.R. Tr. at 31 (Test.
              of Dr. Hall); 5 M.R. Tr. at 167 (Test. of Eric Mullenix). He also negotiated
              with a car salesman to obtain the price he wanted on a vehicle. 4 M.R. Tr. at
              206–07 (Test. of Ms. Dinh).

       C      Mr. Hooks lived independently and traveled to see his mother often. 2
              M.R. Tr. at 184–85 (Test. of Clara Hooks); 5 M.R. Tr. at 30 (Test. of Dr.
              Hall); 5 M.R. Tr. at 169 (Test. of Mr. Mullenix). He talked about running
              errands, shopping, and having a loose muffler repaired. 5 M.R. Tr. at 167
              (Test. of Mr. Mullenix).

       C      Mr. Hooks managed his money “just fine” and paid his bills. Id. at 31
              (Test. of Dr. Hall). He frequently pawned items or sold food stamps to earn
              cash for groceries and items for his child. Id.; 4 M.R. Tr. at 211 (Test. of
              Ms. Dinh); 5 M.R. Tr. at 168 (Test. of Mr. Mullenix).


       11
               There is a dispute over whether Mr. Hooks had help writing these letters.
None of the letters mentioned that Mr. Hooks had received help until after the evidentiary
hearing on his Atkins claim, where Dr. Gelbort testified that the relevance of the letters to
the question of mental retardation depended on whether Mr. Hooks wrote them himself.
Following Dr. Gelbort’s testimony, Mr. Hooks’s next letter stated, “I’m having some help
write [sic] this letter.” State’s Ex. 6 to M.R. There are two possible interpretations of this
evidence. Under one interpretation, Mr. Hooks had in fact received writing assistance all
along, and when it became apparent at the evidentiary hearing that this assistance was
relevant, he or the individual helping him wanted to clarify that fact. Under a second
interpretation, Mr. Hooks had never received writing assistance, but upon discovering that
his writing abilities might hurt his case for mental retardation, he attempted to portray
himself as less capable. The latter interpretation is what the State argued to the jury. See
3. M.R. Tr. at 195–96 (cross-examination of Dr. Gelbort). Before us, Mr. Hooks argues
that he had help writing the letters and points to evidence that was not before the OCCA.
Limiting our review, as we must, to the record in the state-court proceedings, and in light
of two plausible interpretations of the evidence, a rational trier of fact could have doubted
Mr. Hooks’s claim to have received assistance.

                                            -30-
       C      Mr. Hooks ran a prostitution ring, rented apartments for prostitutes, paid
              their rent, and collected money from them. 4 M.R. Tr. at 198–205 (Test. of
              Ms. Dinh).

       The evidence concerning Mr. Hooks’s behavioral limitations was controverted,

and resolving the limitations question “depended heavily on the factfinders’ appraisal of

witness credibility and demeanor.” Bryan v. Gibson, 

, 1172 (10th Cir.

2001) (quoting Thompson v. Keohane, 

, 111 (1995)) (internal quotation marks

omitted), vacated in part on other grounds sub nom. Bryan v. Mullin, 

,

1211 (10th Cir. 2003) (en banc). A rational trier of fact could have found that Mr. Hooks

failed to establish, by a preponderance of the evidence, that he has significant adaptive

limitations, and accordingly, the OCCA’s decision to uphold the jury verdict was not an

unreasonable application of Jackson.12

       12
               Before the district court, Mr. Hooks argued that he has adaptive behavioral
limitations in four skill areas: communication, academics, health and safety, and self-
direction. See Hooks Habeas II, 693 F. Supp. 2d at 1295. His opening brief to this court
makes no argument concerning health and safety and self-direction, see Aplt. Opening Br.
at 32 (“[T]he deficiency is so clear in two skill areas of communication and academics,
Petitioner will focus on those two areas.”), and his reply brief mentions health and safety
and self-direction in only cursory fashion, see Aplt. Reply Br. at 12. Ordinarily we would
consider any argument concerning limitations in health and safety and self-direction to be
abandoned. See Fairchild v. Workman, 

, 1146 (10th Cir. 2009) (finding
that the State “forfeited” an argument because it had “effectively abandoned the argument
by failing to make it in its appellate brief”); Bronson v. Swensen, 

, 1104
(10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised,
or are inadequately presented, in an appellant’s opening brief.”).

        If we were to entertain the argument, however, it would not warrant a different
result. As with communication and academics, a rational trier of fact could conclude,
based on the record before it, that Mr. Hooks did not have significant limitations in health
                                                                               (continued...)

                                            -31-
                              C. Fairness of the Atkins Trial

       Mr. Hooks’s second claimed ground for habeas relief implicates the fundamental

fairness of his Atkins trial. He asserts that a number of errors during trial violated his

Fifth, Sixth, and Fourteenth Amendment rights. He puts forward the following six

claims: (1) a potential juror was improperly removed for cause; (2) the trial court

improperly prohibited cross-examination of Shanna Dinh, one of the State’s witnesses;

(3) the State committed a Brady violation; (4) the trial court committed two state-law

evidentiary errors that denied him due process; (5) his attorney at the Atkins trial was

ineffective; and (6) the cumulative effect of these errors resulted in an unfair trial.

       Some of these claims were adjudicated on the merits by the OCCA, and some were

not. We address the appropriate standard of review in the context of each claim. We

ultimately reject all six claims and conclude that Mr. Hooks is not entitled to relief on

these grounds.

       Before proceeding, we pause to note that each of these claims is properly an

“Atkins claim” subject to federal habeas review under 28 U.S.C. § 2254. See Ochoa, 669

(...continued)
and safety and self-direction. In that regard, as our discussion of the record reveals, there
was evidence that Mr. Hooks lived independently, traveled to see his mother often,
managed his money and paid his bills, accepted the responsibility of caring for his wife
and child, pawned items for cash, and managed a prostitution ring. In addition, Mr.
Hooks required the apartments he rented for prostitutes to be clean, 4 M.R. Tr. at 204
(Test. of Ms. Dinh), and his mother described him as a “neat person” who kept his clothes
and own house clean, 2 M.R. Tr. at 214–16 (Test. of Clara Hooks). There was also
evidence that Mr. Hooks had worked as a laborer. 2 M.R. Tr. at 152 (Test. of Virginia
Betts); id. at 182 (Test. of Clara Hooks); 3 M.R. Tr. at 168 (Test. of Dr. Gelbort); State’s
Ex. 8 to M.R. at 15 (E. State Hosp. Med. Record Summ., dated 1982).

                                             -32-
F.3d at 1143. It is true that Atkins does not provide “definitive procedural or substantive

guid[ance]” on how state courts should or must adjudicate Atkins claims. Bobby v. Bies,

, 831 (2009) (quoting Atkins, 536 U.S. at 317). But the Supreme Court has

also indicated “that state court ‘measures for adjudicating claims of mental retardation . . .

might, in their application, be subject to constitutional challenge.’” Ochoa, 669 F.3d at

1142 (quoting Schriro v. Smith, 

, 7 (2005)). In our recent decision in Ochoa,

we held that the Fourteenth Amendment’s due-process protections are applicable in an

Atkins proceeding because “Oklahoma adopted the jury trial, with its historically

attendant procedural protections, as the method to vindicate” the right of the mentally

retarded to avoid execution. Id. at 1143. On that basis, we proceed to an examination of

Mr. Hooks’s claims.

                        1. Removal of Venire Member for Cause

       Mr. Hooks asserts error based on the trial court’s removal for cause of a potential

juror, Donna Paddock. Ms. Paddock was familiar with the clinical definition of mental

retardation and suggested that if the clinical definition conflicted with the legal one, she

might be unable to apply the latter impartially. See 1 M.R. Tr. at 105, 124, 159–63. The

trial court granted the State’s motion and excluded her for cause. Id. at 167.

       On appeal, the OCCA denied Mr. Hooks’s claim of error, citing the Supreme

Court’s decision in Wainwright v. Witt, 

 (1985), and stating, “The decision to

excuse a juror for cause is within the trial court’s discretion. A juror must agree to follow

the law; any other response would prevent or substantially impair performance of her

                                             -33-
duties in accordance with her instructions and oath.” Hooks Atkins Appeal, 126 P.3d at

645 (footnote omitted). The OCCA noted that there was “little likelihood of conflict”

between the clinical and legal definitions of mental retardation, but that “the issue” was

Ms. Paddock’s duty to “follow the law, whatever it was,” which “[s]he could not do.” Id.

It concluded that “[t]he trial court did not abuse its discretion in excusing her for cause.”

Id.

       Mr. Hooks claims that the OCCA’s decision was an unreasonable application of

Witt because Ms. Paddock’s views would not have prevented or substantially impaired

her performance as a juror. The State counters that Witt is not clearly established federal

law because “the Supreme Court has not extended [Witt] to mental retardation

proceedings,” Aplee. Br. at 35, and that, in any event, the OCCA’s application of Witt

was not unreasonable.

       At the outset, in the unique setting of an Atkins proceeding, we reject the State’s

suggestion that Witt is not clearly established federal law solely because the Supreme

Court has not expressly “extended” it to such proceedings. We find this argument to be

unpersuasive under the rationale of our decision in Ochoa and, indeed, conclude that it is

foreclosed by that precedent. See 669 F.3d at 1143. We do hold, however, that Witt

cannot be read to extend to the unique “factual context,” House, 527 F.3d at 1016

(emphasis added), of Mr. Hooks’s claim, and for that reason, there is no clearly

established federal law that allows us to evaluate the claim.

       In Witherspoon v. Illinois, 

, 522 (1968), the Supreme Court held that

                                             -34-
venire members in a capital case may not be excused for cause “simply because they

voice[] general objections to the death penalty.” Such exclusion violates a capital

defendant’s Sixth and Fourteenth Amendment right to an impartial jury, for it empanels

“a jury uncommonly willing to condemn a man to die.” Id. at 521. In Witt, the Court,

building upon Witherspoon, set forth “the proper standard for determining when a

prospective juror may be excluded for cause because of his or her views on capital

punishment.” 469 U.S. at 424. “That standard is whether the juror’s views would

‘prevent or substantially impair the performance of his duties as a juror in accordance

with his instructions and his oath.’” Id. (quoting Adams v. Texas, 

, 45

(1980)). In Gray v. Mississippi, 

, 668 (1987), the Court affirmed these

principles, holding that the erroneous “Witherspoon exclusion” of a qualified juror in a

capital case entitles the defendant to automatic reversal of his sentence.

       Important as it is, the Witherspoon-Witt rule is a narrow one. First, it does not

apply outside the context of capital sentencing. See Lockhart v. McCree, 

,

183 (1986) (“We reject [the] suggestion that Witherspoon and Adams have broad

applicability outside the special context of capital sentencing . . . .”); United States v.

Prince, 

, 1264 (10th Cir. 2011) (“The Court has never extended this

doctrine beyond the death penalty context.”). Second, and more importantly for present

purposes, the Supreme Court has never applied the rule to the removal of a venire

member for reasons other than the member’s “views on capital punishment.” Witt, 469

U.S. at 424; cf. Ross v. Oklahoma, 

, 87–88 (1988) (“We decline to extend the

                                              -35-
rule of Gray beyond its context: the erroneous ‘Witherspoon exclusion’ of a qualified

juror in a capital case. We think the broad language used by the Gray Court is too

sweeping to be applied literally, and is best understood in the context of the facts there

involved.” (footnote omitted)). Thus, as our sister circuits have recognized, apart from

“questions of death penalty scruples,” exclusion of a particular venire member does not

ordinarily entitle a defendant to relief because “[a] defendant has no constitutional or

other right to the service of a particular juror.” United States v. Joseph, 

,

124 (D.C. Cir. 1989); see Jones v. Dretke, 

, 355 (5th Cir. 2004). Where a

potential juror is excused for reasons other than her views on the death penalty, even an

erroneous exclusion is not constitutional error “so long as the jury that sits is impartial.”

Jones, 375 F.3d at 355 (quoting United States v. Martinez-Salazar, 

, 313

(2000)) (internal quotation marks omitted); see also United States v. Perez, 

,

208 (2d Cir. 2004) (“Not every error during voir dire compels a new trial, and outside of

the limited realm that Gray carved out for capital sentencing, the inquiry we ordinarily

engage in asks whether an error of exclusion resulted in prejudice to the defendant. Since

appellant does not contest that the jury ultimately impaneled was fair and impartial, his

allegation of error does not implicate his constitutional right to a fair trial.”); United

States v. Brooks, 

, 606 (8th Cir. 1999); United States v. Padilla-Mendoza,

, 734 (9th Cir. 1998).

       In light of the foregoing, we hold that there is no clearly established federal law

entitling Mr. Hooks to relief. The Witherspoon-Witt rule applies only in the capital-

                                              -36-
sentencing context, and only when a venire member is erroneously removed for cause

“because of his or her views on capital punishment.” Witt, 469 U.S. at 424. Here, the

venire member, Ms. Paddock, was excused not “because of . . . her views on capital

punishment,” id., but because she professed an apparent inability to set aside her clinical

training and adhere to the legal definition of mental retardation. This is not the fact

pattern implicated by Witherspoon-Witt. Accordingly, Mr. Hooks’s impartial-jury claim

must focus “on the jurors who ultimately sat.” Ross, 487 U.S. at 86. However, since he

“does not contest that the jury ultimately impaneled was fair and impartial, his allegation

of error does not implicate his constitutional right to a fair trial.” Perez, 387 F.3d at 208.

The claim thus fails at the threshold for lack of clearly established federal law, and we

need not evaluate the OCCA’s resolution of it. See House, 527 F.3d at 1018 (“The

absence of clearly established federal law is dispositive under § 2254(d)(1).”).

                          2. Cross-Examination of Shanna Dinh

       At the Atkins trial, Shanna Dinh, a witness for the State and a former friend of Mr.

Hooks, testified at length about Mr. Hooks’s daily routine, numerous girlfriends, running

of a prostitution ring, negotiation with landlords and a car salesman, and meticulous

cleaning habits, among other things. See 4 M.R. Tr. at 194–215. On cross-examination,

counsel sought to impeach Ms. Dinh’s credibility with prior inconsistent statements,

including statements she made at Mr. Hooks’s original trial in 1989. The most notable

inconsistency concerned Ms. Dinh’s living arrangements. She claimed at the 1989 trial to

have lived with Mr. Hooks “for a couple of months,” 2 Trial Tr. at 413 (Test. of Ms.

                                             -37-
Dinh),13 but claimed at the 2004 Atkins trial to have lived with him for years, see 4 M.R.

Tr. at 197–98. Mr. Hooks avers that the trial court “prohibited all inquiry” into this and

other alleged inconsistencies,14 thereby denying him his right to confrontation under the

Sixth and Fourteenth Amendments. Aplt. Opening Br. at 53.15

       “The Confrontation Clause of the Sixth Amendment guarantees the right of an

accused in a criminal prosecution ‘to be confronted with the witnesses against him.’”

Delaware v. Van Arsdall, 

, 678 (1986). “Confrontation means more than

being allowed to confront the witness physically.” Davis v. Alaska, 

, 315

(1974). Central to the Clause’s purpose is “secur[ing] for the opponent the opportunity of

cross-examination.” Van Arsdall, 475 U.S. at 678 (emphasis omitted) (quoting Davis,

415 U.S. at 315–16) (internal quotation marks omitted). The right of confrontation

through cross-examination is not absolute, however. “[T]rial judges retain wide latitude



       13
               Throughout this opinion, we employ the abbreviation “[volume number]
Trial Tr.” to refer to a particular volume of the three-volume transcript of the original
trial.
       14
               Mr. Hooks also points us to allegedly inconsistent statements by Ms. Dinh
concerning whether Ms. Blaine worked for Mr. Hooks as a prostitute. Our independent
review of the record reveals no inconsistency in this regard, so we do not address it
further. Compare 2 Trial Tr. at 415–16 (Test. of Ms. Dinh) (stating that Mr. Hooks tried
to persuade Ms. Blaine to work as a prostitute for him but “[s]he wouldn’t”), with 4 M.R.
Tr. at 222 (Test. of Ms. Dinh) (stating that Ms. Blaine engaged in prostitution “once and
she didn’t like it and whenever [Mr. Hooks] tried to make her do it again[,] she didn’t do
it”).
       15
            To the extent that Mr. Hooks asks us to consider evidence not before the
OCCA, we are precluded from doing so. See Pinholster, 131 S. Ct. at 1398; 28 U.S.C. §
2254(d)(2).

                                            -38-
insofar as the Confrontation Clause is concerned to impose reasonable limits on such

cross-examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’[s] safety, or interrogation that is repetitive or only

marginally relevant.” Id. at 679. And “the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” Delaware v. Fensterer,

, 20 (1985).

       The OCCA rejected Mr. Hooks’s Confrontation Clause claim, resting its

conclusion on the ground that, while Ms. Dinh may not have truthfully testified about her

living arrangements, “[Mr.] Hooks offers no evidence to suggest that [Ms. Dinh’s]

testimony regarding her observations during the time she did spend with him were

inaccurate.” Hooks Atkins Appeal, 126 P.3d at 643. In light of our ultimate disposition of

this challenge, it suffices for us to assume without deciding that the Supreme Court’s

Confrontation Clause jurisprudence is clearly established law in the Atkins context. Cf.

Wilson v. Sirmons, 

, 1111 (10th Cir. 2008) (“[W]e have recently stated that

it is far from clear whether the Confrontation Clause even applies at capital sentencing

proceedings.” (quoting United States v. Barrett, 

, 1099 (10th Cir. 2007))

(internal quotation marks omitted)), rehr’g granted on other grounds, 

(10th Cir. 2008). Operating on that assumption, we nonetheless hold that the OCCA’s

ruling was an erroneous and unreasonable application of the Supreme Court’s

Confrontation Clause precedents.

                                             -39-
       As the Court explained in Davis,

              Cross-examination is the principal means by which the believability of
              a witness and the truth of his testimony are tested. Subject always to
              the broad discretion of a trial judge to preclude repetitive and unduly
              harassing interrogation, the cross-examiner is not only permitted to
              delve into the witness’[s] story to test the witness’[s] perceptions and
              memory, but the cross-examiner has traditionally been allowed to
              impeach, i.e., discredit, the witness.

415 U.S. at 316 (emphases added). Mr. Hooks sought to impeach Ms. Dinh for this very

purpose—not to impugn the accuracy of her specific observations of his behavior, but to

discredit her generally and highlight her capacity for untruthfulness. The OCCA rejected

Mr. Hooks’s claim because his impeachment evidence did not counter the accuracy of

specific observations made by Ms. Dinh. That ruling, however, reflects an incomplete

understanding of the Confrontation Clause’s protective sweep. The Clause secures far

more than the right to challenge the accuracy of specific aspects of a witness’s testimony.

It entitles a defendant to “confront” the witness, “to expose to the jury the facts from

which jurors . . . could appropriately draw inferences relating to the reliability of the

witness.” Kentucky v. Stincer, 

, 738 (1987) (omission in original) (quoting

Davis, 415 U.S. at 318) (internal quotation marks omitted). The OCCA’s rationale for

rejecting Mr. Hooks’s Confrontation Clause claim was an unreasonable application of the

Supreme Court’s precedents.

       Because the OCCA unreasonably applied (what we have assumed to be) clearly

established federal law, AEDPA deference does not apply. See Spears v. Mullin, 

, 1248 (10th Cir. 2003). “That, however, is not the end of our inquiry. We

                                             -40-
must determine de novo if a violation of the Confrontation Clause occurred.” Brown v.

Uphoff, 

, 1225 (10th Cir. 2004). We conclude that Mr. Hooks’s

Confrontation Clause claim is without merit.

       First, Mr. Hooks’s contention that the trial court “prohibited all inquiry into Ms.

Dinh’s inconsistent statements,” Aplt. Opening Br. at 53, is simply inaccurate. On cross-

examination, counsel was permitted to ask Ms. Dinh how long she had lived in foster care

during the period of time she claimed to be living with Mr. Hooks. See 4 M.R. Tr. at

217–18, 220–21. Second, while the trial court did sustain several objections on grounds

of relevancy, exceeding the scope of direct, and hearsay, it permitted counsel to rephrase

her questions or ask questions more relevant to the jury’s assessment of Ms. Dinh’s

credibility. See id. at 215–24. Finally, although Ms. Dinh’s testimony at the Atkins trial

concerning how long she had lived with Mr. Hooks was indeed wildly inconsistent with

her testimony in 1989, counsel never actually attempted to cross-examine Ms. Dinh

concerning this precise issue, much less to drill down and explore it in detail.16 Based on

our independent review of the record, we find that the trial court’s control of the cross-

examination process—allowing for some impeachment and narrowing the scope of the

questioning—fell well within its broad discretion to “impose reasonable limits” on the


       16
               At one point, counsel asked Ms. Dinh to confirm her testimony suggesting
that she had lived with Mr. Hooks “90 percent of the time” between 1984 and 1987. 4
M.R. Tr. at 217. When Ms. Dinh confirmed, counsel followed up by asking, “[W]ere you
living with Mr. Hooks at the time you were in foster care?” Id. Ms. Dinh responded,
“No, I was in foster care.” Id. Counsel then proceeded to a question about whether Ms.
Dinh had gotten married in 1988. See id.

                                            -41-
process. Van Arsdall, 475 U.S. at 679. We therefore reject Mr. Hooks’s Confrontation

Clause claim.

                                 3. Alleged Brady Violation

      On June 14, 2004, after the Atkins trial began, state prosecutor Pattye High gave

counsel for Mr. Hooks, Vicki Werneke, a memorandum detailing a phone conversation

between Ms. High and Pat Prater. At the time, Ms. Prater was an employee of the

Oklahoma Department of Corrections and Mr. Hooks’s case manager and counselor. The

memorandum stated:

                When I asked [Ms. Prater] if she thought Victor Hooks was MR
                [mentally retarded], her response was, “I wouldn’t be surprised,
                because he talks like one”. “You know how they talk? He talks like
                that”. She could not give me any other detail, just that he “talks like
                one”. I just wanted to pass that along to you. She no longer works in
                H-Unit [where Mr. Hooks is housed], but I got her on the phone by
                calling [redacted phone number] and asking for her.

R., Vol. 1, pt. 2 at 418 (Memo. from Pattye High to Vicki Werneke, dated June 14, 2004).

      Mr. Hooks claims that a Brady violation occurred as a result of the circumstances

under which the prosecution disclosed this memo. See Brady v. Maryland, 

,

87 (1963). In support, he cites an affidavit from George Rawlings, an investigator for the

Federal Public Defender’s office, recounting a conversation between him and Ms. Prater.

See R., Vol. 1, pt. 2 at 416 (Aff. of George Rawlings, dated Jan. 4, 2005). According to

the affidavit, Ms. Prater recalled a “much more detailed” conversation than the one

suggested in Ms. High’s memo. Id. For example, Ms. Prater recalled telling Ms. High

that she often had to explain things to Mr. Hooks several times, that Mr. Hooks frequently

                                             -42-
gave her a “blank stare,” and that “even though she was not a doctor . . . , she believes

[Mr. Hooks] is mentally retarded” and “would not be surprised if testing would show he

is mentally retarded.” Id. (internal quotation marks omitted).

       Mr. Hooks’s Brady claim was not adjudicated on the merits by the OCCA. That

court ruled that it was procedurally defaulted and barred from consideration in collateral

proceedings because it was not timely presented. Hooks Atkins Collateral, slip op. at 4–5.

The State contends that we should not consider the merits of the claim. The district court,

noting the convoluted procedural history of this case, reached the merits, ultimately

rejecting the claim. See Hooks Habeas II, 693 F. Supp. 2d at 1310–12. We follow the

district court’s lead and “invoke our discretion to bypass complex issues of exhaustion

and procedural bar to reject the claim on the merits.” Revilla v. Gibson, 

,

1211 (10th Cir. 2002) (citing § 2254(b)) (other citations omitted). Our review of the

district court’s decision is de novo. Id.

       Under Brady, “the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at

87. “To establish a Brady violation, a defendant must demonstrate that ‘(1) the

prosecution suppressed evidence; (2) the evidence was favorable to the accused; and (3)

the evidence was material to the defense.’” United States v. Wooten, 

, 1142

(10th Cir. 2004) (quoting Scott v. Mullin, 

, 1230 (10th Cir. 2002)). This

test is conjunctive, and failure to satisfy any of the prongs is dispositive. See United

                                            -43-
States v. Smith, 

, 1223 (10th Cir. 2008). We reject Mr. Hooks’s claim on

the first prong because the State did not suppress evidence.

       “Evidence is not suppressed within the meaning of Brady if it is made known and

available to the defense prior to trial.” Wooten, 377 F.3d at 1142. Brady “does not

require the prosecution to divulge every possible shred of evidence that could conceivably

benefit the defendant.” Smith v. Sec’y of N.M. Dep’t of Corr., 

, 823 (10th Cir.

1995); see Moore v. Illinois, 408 US. 786, 795 (1972) (“We know of no constitutional

requirement that the prosecution make a complete and detailed accounting to the defense

of all police investigatory work on a case.”). Further, disclosure need not be “in a

specific form or manner.” United States v. Hernandez-Muniz, 

, 1011 (10th

Cir. 1999).

       We have no trouble concluding that the State fulfilled its Brady obligation here.

Ms. High disclosed to Ms. Werneke that she had spoken with Ms. Prater and that Ms.

Prater had opined that Mr. Hooks was mentally retarded. Evidence favorable to Mr.

Hooks was thus “made known and available” to his counsel. Wooten, 377 F.3d at 1142.

While Ms. High did not go into great detail about the conversation, she need not have.

Not “every possible shred of evidence” need be disclosed, Smith, 50 F.3d at 823, nor is a

“complete and detailed accounting” required, Moore, 408 U.S. at 795. The memo

disclosed enough of the conversation with Ms. Prater to put counsel for Mr. Hooks on

notice that favorable and possibly material evidence was available. Ms. High even left

instructions on how to contact Ms. Prater. Finally, while Ms. Prater apparently recalled a

                                            -44-
“much more detailed” conversation than the memo reveals, R., Vol. 1, pt. 2 at 416, her

recounting of that conversation is not substantially different from Ms. High’s. Ms. High’s

memo was an accurate, if abbreviated, summary of details concerning Ms. Prater’s

conversational interactions with Mr. Hooks and her lay opinion concerning his mental

retardation. We therefore reject Mr. Hooks’s Brady claim.

                             4. State-Law Evidentiary Errors

       Mr. Hooks grounds two of his claims on errors of state law. First, he asserts that

the trial court improperly prevented him from introducing evidence that Dr. Phillip

Murphy, whose testing of Mr. Hooks in 1988 produced an IQ score of 80, had been

subject to professional discipline. Second, he claims that the trial court admitted certain

prejudicial and irrelevant evidence in violation of the OCCA’s decision in Lambert, 71

P.3d at 31–32 (setting forth rules of procedure for postconviction mental-retardation

proceedings).

       Of course, “[f]ederal habeas review is not available to correct state law evidentiary

errors.” Ochoa, 669 F.3d at 1144 (quoting Smallwood v. Gibson, 

, 1275

(10th Cir. 1999)) (internal quotation marks omitted). As a habeas court, we sit only to

vindicate an applicant’s constitutional rights. Thus, Mr. Hooks is entitled to relief only if

an alleged state-law error was “was so grossly prejudicial that it fatally infected the trial

and denied the fundamental fairness that is the essence of due process.” Revilla, 283 F.3d

at 1212 (alteration omitted) (quoting Fox v. Ward, 

, 1296 (10th Cir. 2000))

(internal quotation marks omitted).

                                             -45-
       Reviewing Mr. Hooks’s claims of error, we conclude that he has failed to

demonstrate the existence of a state-law error, much less a “grossly prejudicial” one.

Revilla, 283 F.3d at 1212 (quoting Fox, 200 F.3d at 1296) (internal quotation marks

omitted). We begin with the first claim. Mr. Hooks sought to introduce evidence at the

Atkins trial concerning Dr. Murphy’s probationary status with the Oklahoma Board of

Examiners of Psychologists. The State objected, claiming a discovery violation; the trial

court agreed; and on appeal, the OCCA found no abuse of discretion. See Hooks Atkins

Appeal, 126 P.3d at 643. Mr. Hooks tells us, with almost no elaboration, that the

OCCA’s conclusion contravenes Atkins. We are nonplused by that assertion. Mr. Hooks

does not explain why the Oklahoma courts erred as a matter of state law, nor why any

alleged error abridged “the fundamental fairness that is the essence of due process.”

Revilla, 283 F.3d at 1212 (quoting Fox, 200 F.3d at 1296) (internal quotation marks

omitted). In light of the perfunctory treatment of this claim, we reject it.

       With respect to his second claim, Mr. Hooks objects to the admission of three

items of evidence: (1) testimony that he ran a prostitution ring, (2) a tape-recorded

interview of him that allowed the jury to infer that he had murdered Ms. Blaine, and (3)

testimony concerning his previous run-ins with law enforcement. He claims admitting

this evidence violated the OCCA’s Lambert decision. In his Atkins appeal, Mr. Hooks

articulated this claim only with respect to the first two items of evidence. We exercise

our discretion to consider all three items because the claim is without merit. See 18

U.S.C. § 2254(b); Revilla, 283 F.3d at 1211.

                                             -46-
       In Lambert, the OCCA held that the jury in an Atkins proceeding “should not hear

evidence of the crimes for which [a defendant] was convicted, unless particular facts of

the case are relevant to the issue of mental retardation.” 71 P.3d at 31. On appeal from

the Atkins jury’s verdict, the OCCA concluded that the admission of prostitution-ring

evidence and the tape-recorded interview did not violate Lambert. The court found that

the prostitution-ring evidence was “relevant to the issue of mental retardation” because it

showed “a level of abstract thought, coupled with the ability to carry out plans, which

might be beyond the capabilities of a mentally retarded person.” Hooks Atkins Appeal,

126 P.3d at 644. Furthermore, it concluded that the portions of the tape-recorded

interview that were read to the jury contained “no reference” to the murder of Ms. Blaine

and featured statements by Mr. Hooks concerning a number of daily activities, which

were relevant to his “ability to understand and process information, to communicate, to

function in society, and to care for himself and others.” Id. The OCCA also found that

“[t]he trial court scrupulously limited this evidence, focusing on those aspects which have

some bearing on Hooks’s mental abilities.” Id. Because the relevance of the evidence

was “not substantially outweighed by the danger of unfair prejudice,” the OCCA

concluded that the trial court had not abused its discretion in admitting it. Id. (citing

Okla. Stat. tit. 12, § 2403).

       The OCCA’s factual findings are presumed correct under 18 U.S.C. § 2254(e)(1).

Based on our independent review of the record, we conclude that the OCCA committed

no error. At best, Mr. Hooks’s arguments amount to disagreement with the OCCA

                                             -47-
concerning the relevance and prejudicial effect of the evidence, but we are not persuaded

that the OCCA was wrong.

       First, the prostitution-ring evidence was highly relevant to the question of mental

retardation and, in that light, not unfairly prejudicial. See 4 M.R. Tr. at 198–205 (Test. of

Ms. Dinh); 5 M.R. Tr. at 57 (Test. of Dr. Hall). Second, the interview evidence was both

relevant and not unfairly prejudicial. The portions of the interview presented to the jury

were limited to statements by Mr. Hooks describing his daily activities and answering

other questions about his life and relationships, and contained no reference to Ms.

Blaine’s murder. See 5 M.R. Tr. at 164–73 (reading of interview transcript by Messrs.

Mullenix and Siderias).17 Mr. Hooks says he was prejudiced because the jury was

apparently able to piece together the facts of the crime in light of other evidence

presented during the course of the Atkins trial. See Aplt. Opening Br. at 57. But the

jury’s ability to put two and two together does not make the interview evidence unfairly

prejudicial, or the trial court’s admission of it a violation of Lambert or the Oklahoma

rules of evidence. Moreover, the admission most certainly does not abridge principles of

fundamental fairness safeguarded by federal law.

       With respect to the third item, which the OCCA did not consider, Mr. Hooks

claims that the State was allowed to present testimony indicating that he had been



       17
             In fact, in the interview, Mr. Hooks refers to Ms. Blaine in the present
tense. See 5 M.R. Tr. at 166 (“She is 21 years of age.”); id. (answering “Yes, sir” to the
question “And is your wife pregnant now?”).

                                            -48-
convicted of armed robbery, arrested on a separate robbery charge, involved in many

domestic disputes, and gotten into numerous fights in prison, all of which was “irrelevant

to mental retardation.” Aplt. Opening Br. at 56. The testimony that Mr. Hooks has in

mind is that of Dr. Hall. See 5 M.R. Tr. at 26–29. As the district court found, this portion

of Dr. Hall’s testimony, which was never objected to, was

              focused on notations regarding Petitioner’s activities while being
              evaluated at Eastern State Hospital and while in the custody of the
              Department of Corrections, events leading the hospital officials to
              suspect malingering by Petitioner, and evaluations that he not only was
              not mentally retarded but very intelligent, aggressive and dangerous.
              Dr. Hall’s testimony of Petitioner’s past evaluations and actions was
              not only relevant to her expert opinion, but also to demonstrate
              evidence countering Petitioner’s claims of limitations in adaptive
              functioning.

Hooks Habeas II, 693 F. Supp. 2d at 1308 (citation omitted).

       Thus, finding this rationale to be persuasive, we have no trouble concluding that

Mr. Hooks has failed to demonstrate the existence of state-law error, much less a “grossly

prejudicial” one. Revilla, 283 F.3d at 1212 (quoting Fox, 200 F.3d at 1296) (internal

quotation marks omitted).

                       5. Ineffective Assistance of Atkins Counsel

       We come, then, to Mr. Hooks’s claim that counsel at his Atkins trial was

ineffective. Under this heading, he raises several arguments. He asserts that his counsel

was constitutionally deficient for failing to (1) obtain an additional IQ score, (2)

investigate his functioning in prison, (3) secure Pat Prater as a witness, (4) uncover

evidence to impeach Shanna Dinh, (5) comply with a discovery order related to evidence

                                             -49-
of Dr. Murphy’s probationary status, and (6) seek redaction of crime facts from the

State’s exhibits. Also, as a threshold matter, Mr. Hooks claims that the standard for

counsel’s performance here is United States v. Cronic, 

 (1984), rather than

Strickland v. Washington, 

 (1984). The State counters that there is no right

to counsel at all in an Atkins proceeding and also contests Mr. Hooks’s claim on the

merits.

          As we explain below, we reject the State’s threshold argument and hold that there

is indeed a right to counsel in Atkins proceedings. We also reject Mr. Hooks’s initial

argument regarding the appropriate analytical framework, and thus apply Strickland

rather than Cronic, because counsel was an active, zealous participant in the trial

proceedings. On the merits of Mr. Hooks’s claim, we ultimately conclude that counsel

was not ineffective and the OCCA’s decision so finding was not unreasonable.

                          a. Right to Counsel in Atkins Proceedings

          The State asserts at the outset that we need not review the merits of Mr. Hooks’s

ineffective-assistance claim because he has no right to counsel in an Atkins proceeding:

                [T]here is no clearly established federal law that guarantees Petitioner
                the right to counsel in a post-conviction mental retardation trial. The
                Sixth Amendment provides that “[i]n all criminal prosecutions, the
                accused shall enjoy the right . . . to have the assistance of counsel for
                his defence.” Post-conviction review “is not part of the criminal
                proceeding itself, and is in fact considered to be civil in nature.”
                Murray v. Giarratano, 

, 8 (1989). Therefore, the Supreme
                Court has held that “[t]here is no constitutional right to an attorney in
                state postconviction proceedings[,]” and, “[c]onsequently, a petitioner
                cannot claim constitutionally ineffective assistance of counsel in such
                proceedings.” Coleman v. Thompson, 

, 752 (1991).

                                              -50-
              Accordingly, Petitioner’s claim must fail.

Aplee. Br. at 50 (alterations in original). As far as we can tell, this is a question of first

impression in the federal courts. We reject the State’s argument.

       We have held that the Fourteenth Amendment’s Due Process Clause applies as

fully to an Atkins proceeding as to any other jury trial. See Ochoa, 669 F.3d at 1143.

Included, or “implicit,” within the “liberty” secured by the Due Process Clause is the

Sixth Amendment right to effective assistance of counsel. Gideon v. Wainwright, 

, 341–44 (1963). That right, “a bedrock principle in our justice system” and “the

foundation for our adversary system,” Martinez v. Ryan, 

, 1317 (2012), is

grounded in the “obvious truth” that a person “cannot be assured a fair trial” without the

effective advocacy of his attorney, id. (quoting Gideon, 372 U.S. at 344) (internal

quotation marks omitted). On this basis alone, we think we are justified in holding that

the right to effective assistance of counsel extends to jury-based Atkins proceedings of the

kind employed in Oklahoma.

        The State seeks to deflect this conclusion by analogizing an Atkins proceeding to

state postconviction proceedings where, it is true, “[t]here is no constitutional right to an

attorney.” Coleman v. Thompson, 

, 752 (1991). Whatever the value of that

analogy in other contexts, it is merely superficial here. Mr. Hooks’s Atkins trial was

“postconviction” only in the strict chronological sense: Atkins was handed down in 2002,

after Mr. Hooks had been convicted in 1989. Of far greater importance is that his 2004

Atkins trial was “the first designated proceeding” at which he could raise a claim of

                                              -51-
mental retardation. Martinez, 132 S. Ct. at 1317. No court had yet addressed his claim,

the Atkins jury was the first to consider its merit, and Mr. Hooks had no “brief from

counsel or an opinion of the court” on the issue. Id. In that situation, with Mr. Hooks

surely “ill equipped to represent [himself],” id. (quoting Halbert v. Michigan, 

, 617 (2005)) (internal quotation marks omitted), the usual rationale for denying a

right to counsel in postconviction proceedings is inapposite, cf. id.18

       In any event, we think the State’s analogy also fails for a different reason. It is

beyond cavil that “the Sixth Amendment guarantees a defendant the right to have counsel

present at all ‘critical’ stages of the criminal proceedings.” Montejo v. Louisiana, 

, 786 (2009). Under this rubric, whether Mr. Hooks has a right to counsel at his

Atkins trial depends on two things: Is such a trial part of the “criminal proceedings”? And

is it a “critical stage” of them? On the first question, contrary to the State’s contention,

we think an Atkins trial is “part of the criminal proceeding itself” and not “civil in

nature.” Giarratano, 492 U.S. at 8 (quoting Pennsylvania v. Finley, 

,

556–57 (1987)) (internal quotation marks omitted). In one sense, it is analogous to a

competency hearing. See United States v. Collins, 

, 1264 (10th Cir. 2005)

(holding that a competency hearing is a “critical stage” of the criminal proceedings such

that the Sixth Amendment right to counsel attaches, and citing other circuits that agree).


       18
               We wonder, too, whether the retroactive applicability of Atkins to cases on
collateral review under 28 U.S.C. § 2244(b)(2)(A)—“the only such new rule” since
AEDPA’s enactment in 1996, Ochoa, 669 F.3d at 1142 n.9—makes void, as a matter of
law, any “postconviction” character that an Atkins proceeding might have.

                                             -52-
More importantly, an Atkins trial is inextricably intertwined with sentencing. See Atkins,

536 U.S. at 321 (“[The Eighth Amendment] ‘places a substantive restriction on the

State’s power to take the life’ of a mentally retarded offender.” (quoting Ford, 477 U.S. at

405)). And there is no doubt that sentencing is part of the criminal proceedings. See

Mempa v. Rhay, 

, 137 (1967) (holding that sentencing is a “critical stage” of

the criminal proceedings such that the Sixth Amendment right to counsel attaches). As to

the second question, we harbor little doubt that an Atkins trial is a “critical stage,” that is,

“a step of a criminal proceeding” that holds “significant consequences for the accused.”

Cone, 535 U.S. at 696. We are hard-pressed to imagine a more “significant

consequence[] for the accused” than a determination of whether the State has the power to

take his life.

       We come, then, to the question of clearly established federal law. We have

concluded that defendants in Atkins proceedings have the right to effective counsel

secured by the Sixth and Fourteenth Amendments. But that does not perforce answer the

question of whether that right is clearly established. Based on our analysis below of the

nature of the right and its nexus to the proceedings allowable under Atkins, however, we

further conclude that the right to counsel flows directly from, and is a necessary corollary

to, the clearly established law of Atkins. Cf. Ochoa, 669 F.3d at 1143. Consequently, we

hold that the right to counsel in Atkins proceedings is “clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). To be

sure, as we must, we acknowledge that the Supreme Court has never said that defendants

                                              -53-
have a right to counsel in Atkins proceedings, nor has it ever identified such a proceeding

as one of the “critical stages” to which the right attaches. So it might be said that the

Court’s “cases provide no categorical answer” to our question, Van Patten, 552 U.S. at

125, or that the Court “has never addressed [this] claim,” Musladin, 549 U.S. at 76. But

we are deeply troubled by that prospect and find that reasoning to be ultimately untenable

under the law. The idea that a mentally retarded defendant has a right not to be executed

by the State, but not a right to counsel in proceedings where the question of mental

retardation will be determined, smacks of the absurd. Can a person with “diminished

capacities to understand and process information, to communicate, . . . [and] to engage in

logical reasoning,” Atkins, 536 U.S. at 318, be expected to argue his own condition to a

court or jury? On the contrary, the more persuasively he argued his case, the more he

would doom it, and if he could not help but perform poorly, he would be unable to carry

his burden of proof. Having no right to counsel in a mental-retardation proceeding—at

least where that proceeding is the first opportunity to raise a claim of mental

retardation—could render Atkins a nullity.

       We “should not be ignorant as judges of what we know as” human beings. Watts

v. Indiana, 

, 52 (1949) (plurality opinion). Guideposts erected long ago mark

out the proper path here. The right to counsel is “fundamental and essential to a fair

trial”—a necessity, not a luxury. Gideon, 372 U.S. at 342, 344 (quoting Betts v. Brady,

, 465 (1942)) (internal quotation marks omitted).

              [The defendant] requires the guiding hand of counsel at every step in

                                             -54-
              the proceedings against him. Without it, though he be not guilty, he
              faces the danger of conviction because he does not know how to
              establish his innocence. If that be true of men of intelligence, how
              much more true is it of the ignorant and illiterate, or those of feeble
              intellect.

Powell v. Alabama, 

, 69 (1932) (emphasis added). We think these concerns

are heightened still further when a defendant’s life, rather than liberty, is at stake. See

Gardner v. Florida, 

, 357 (1977) (plurality opinion) (“[D]eath is a different

kind of punishment from any other which may be imposed in this country.”).

       Therefore, we hold that defendants in Atkins proceedings have the right to

effective counsel secured by the Sixth and Fourteenth Amendments—a right that stems

directly from, and is a necessary corollary to, Atkins. For that reason, we further hold that

the right to counsel in Atkins proceedings is “clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

                           b. The relevant standard: Strickland

       Because there is a right to counsel in Atkins proceedings, we must next determine

which standard governs counsel’s performance. Generally, ineffective-assistance-of-

counsel claims are analyzed under the rubric of Strickland. See Byrd, 645 F.3d at 1167.

But Mr. Hooks argues that Cronic, rather than Strickland, applies in this case. In Cronic,

decided the same day as Strickland, the Supreme Court recognized that there are

“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. The Court in Cronic set forth

“three situations when Strickland does not apply” such that a court may “presume

                                             -55-
prejudice without inquiring into counsel’s performance.” Danny Hooks v. Workman, 

, 724 (10th Cir. 2010).19 Mr. Hooks asserts that his Atkins trial involved the

second of the three: “a breakdown in the adversarial process.” Cronic, 466 U.S. at 662.

According to Mr. Hooks, when Atkins was decided, it “created a log jam” of cases in the

Oklahoma criminal defense system, with insufficient resources and staff to handle them,

and his case was assigned to attorneys whose experience involved postconviction

proceedings, not criminal jury trials. Aplt. Opening Br. at 64.

       Standing alone, these circumstances do not warrant a presumption of prejudice.

When the Court in Cronic spoke of “a breakdown in the adversarial process,” it

envisioned a situation in which “counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing.” 466 U.S. at 659, 662 (emphasis added). This means that

“the attorney’s failure must be complete.” Cone, 535 U.S. at 697. It is not enough even

that defense counsel “failed to [oppose the prosecution] at specific points.” Id. Rather,

for Cronic’s presumption to apply, that failure must run “throughout the . . . proceeding

as a whole.” Id. Plainly, this kind of case will be an “unusual” one. Davis v. Exec. Dir.

of Dep’t of Corr., 

, 757 n.3 (10th Cir. 1996).

       This is simply not a case in which counsel “entirely fail[ed] to subject the

prosecution’s case to meaningful adversarial testing.” Cronic, 466 U.S. at 659. The



       19
               Our decision in Danny Hooks v. Workman, 

 (10th Cir. 2010),
involved a § 2254 petition by Oklahoma prisoner Danny Keith Hooks. That case is
unrelated to this one.

                                            -56-
record reveals a vigorous adversarial trial, with numerous objections by Mr. Hooks’s

counsel, poignant cross-examination of the State’s witnesses, several side bars with the

court to advance Mr. Hooks’s cause, and a competent closing argument. See Cooks v.

Ward, 

, 1296 (10th Cir. 1998) (holding that Cronic did not apply because

counsel “conducted limited cross-examination, made evidentiary objections, and gave a

closing argument”); Hooper v. Mullin, 

, 1175 (10th Cir. 2002) (holding that

Cronic did not apply because “[d]efense counsel cross-examined the State’s guilt-stage

witnesses, made objections to the State’s evidence, presented some evidence in

Petitioner’s defense, and made opening and closing arguments”). The fact that attorneys

assigned to Mr. Hooks’s case were responsible for a number of Atkins cases at the time,

or that they had no experience with criminal jury trials, may bear upon actual

performance but does not warrant application of Cronic. See Cronic, 466 U.S. at 665

(“The character of a particular lawyer’s experience may shed light in an evaluation of his

actual performance, but it does not justify a presumption of ineffectiveness in the absence

of such an evaluation.”).20

       Because we find that counsel for Mr. Hooks actively and zealously participated in

all phases of the trial proceedings, we will not presume prejudice under Cronic.

Strickland, therefore, remains the appropriate standard for evaluating counsel’s


       20
              We also take note of the OCCA’s finding that “the record reflects that
counsel is qualified and able to represent defendants in capital mental retardation
proceedings.” Hooks Atkins Collateral, slip op. at 8. That finding is presumed correct
under § 2254(e)(1), and Mr. Hooks has not rebutted it.

                                           -57-
performance. See Hooks, 606 F.3d at 725. Mr. Hooks “must show both that his counsel’s

performance ‘fell below an objective standard of reasonableness’ and that ‘the deficient

performance prejudiced the defense.’” Byrd, 645 F.3d at 1167 (emphasis omitted)

(quoting Strickland, 466 U.S. at 687–88). These two prongs may be addressed in any

order, and failure to satisfy either is dispositive. Id.

       “[O]ur review of counsel’s performance under the first prong of Strickland is a

‘highly deferential’ one.” Id. at 1168 (quoting Hooks, 606 F.3d at 723). “Every effort

must be made to evaluate the conduct from counsel’s perspective at the time . . . .”

United States v. Challoner, 

, 749 (10th Cir. 2009) (quoting Dever v. Kan.

State Penitentiary, 

, 1537 (10th Cir. 1994)) (internal quotation marks

omitted). Furthermore, “counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment.” Byrd, 645 F.3d at 1168 (alteration omitted) (quoting Dever, 36 F.3d at 1537)

(internal quotation marks omitted). Surmounting this “high bar” is not an “easy task.”

Harrington v. Richter, 

, 788 (2011) (quoting Padilla v. Kentucky, 

, 1485 (2010)) (internal quotation marks omitted); see Fox, 200 F.3d at 1295

(“[Petitioner] bears a heavy burden in that he must overcome the presumption that his

counsel’s actions were sound trial strategy . . . .”).

       A state prisoner in the § 2254 context faces an even greater challenge. Byrd, 645

F.3d at 1168. “[W]hen assessing a state prisoner’s ineffective-assistance-of-counsel

claims on habeas review, ‘[w]e defer to the state court’s determination that counsel’s

                                              -58-
performance was not deficient and, further, defer to the attorney’s decision in how to best

represent a client.’” Id. (second alteration in original) (quoting Crawley v. Dinwiddie,

, 922 (10th Cir. 2009)). As the Supreme Court has explained, “because the

Strickland standard is a general standard, a state court has even more latitude to

reasonably determine that a defendant has not satisfied that standard.” Knowles v.

Mirzayance, 

, 123 (2009). Thus, our review of ineffective-assistance claims

in habeas applications under § 2254 is “doubly deferential.” Id. “[T]he question is not

whether counsel’s actions were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter,

131 S. Ct. at 788.

       The second prong of Strickland—prejudice—requires an applicant to show “that

there is a reasonable probability that, but for the counsel’s error, ‘the result of the

proceeding would have been different.’” Challoner, 583 F.3d at 749 (quoting Strickland,

466 U.S. at 688). Reasonable probability is more than mere speculation, and an applicant

must show more than “some conceivable effect on the outcome of the proceeding.”

Turrentine v. Mullin, 

, 1205 (10th Cir. 2004) (quoting Strickland, 466 U.S.

at 693) (internal quotation marks omitted). Rather, “‘reasonable probability is a

probability sufficient to undermine confidence in the outcome’ of the trial.” Byrd, 645

F.3d at 1168 (quoting Strickland, 466 U.S. at 694).

       With one exception, which relates to counsel’s failure to redact certain letters, the

OCCA denied relief on all of the instances of ineffective assistance alleged by Mr. Hooks

                                              -59-
under the second (prejudice) prong of Strickland. This was an entirely appropriate mode

of analysis. Indeed, the Supreme Court in Strickland intimated that resolving ineffective-

assistance claims on prejudice grounds may be preferable: “The object of an

ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will

often be so, that course should be followed.” 466 U.S. at 697. Of course, this is not a

hard and fast rule, and Strickland contemplates that relative ease in certain cases may

(though not “often”) counsel resolution under the performance rather than prejudice

prong. We believe this is such a case. We could, as the OCCA did, resolve each of Mr.

Hooks’s allegations of ineffective assistance on prejudice grounds. That, however, would

not be sufficient to dispose of the claim because a further analysis of “cumulative

prejudice” would be necessary. See Spears, 343 F.3d at 1251 (considering the cumulative

impact of prejudice “assuming that [petitioner’s] attorney was deficient” in two respects);

Cargle v. Mullin, 

, 1212 (10th Cir. 2003) (“[A] decision to grant relief on

ineffective assistance grounds is a function of the prejudice flowing from all of counsel’s

deficient performance . . . .” (emphasis added)). The cumulative-prejudice analysis is

sometimes difficult to conduct because, whether we assume or determine that counsel

performed unreasonably, we must assess the aggregate impact of these numerous errors

and decide whether they collectively “so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Wilson v. Sirmons, 

, 1122

(10th Cir. 2008) (quoting Thornburg v. Mullin, 

, 1137 (10th Cir. 2005))

                                            -60-
(internal quotation marks omitted).

       In this case, save for one instance—which relates to Mr. Hooks’s counsel’s failure

to comply with a discovery order—we believe the performance prong of Strickland

provides “a more certain basis” for resolving Mr. Hooks’s ineffective-assistance claim,

even though the state court rested its conclusions on lack of prejudice. Pondexter v.

Quarterman, 

, 521 (5th Cir. 2008). Accordingly, taking into account its

impact on the standard of review, we follow that course in our analysis below. Cf. Gilson

v. Sirmons, 

, 1248 (10th Cir. 2008) (finding it “unnecessary” to address the

first Strickland prong, even though the OCCA resolved the ineffective-assistance claim

on that ground, because “applying a de novo standard of review” the applicant could not

satisfy the second Strickland prong). More specifically, in those instances where the

OCCA did not address the performance prong of Strickland and we elect to do so, our

review is de novo. See id.; Pondexter, 537 F.3d at 524; see also Rompilla v. Beard, 

, 390 (2005) (“Because the state courts found the representation adequate, they

never reached the issue of prejudice, and so we examine [the prejudice] element of the

Strickland claim de novo . . . .” (citation omitted)).21

                        c. Failure to obtain an additional IQ score

       Mr. Hooks argues that his Atkins counsel was deficient for failing to obtain a more

recent IQ score. He points to testing done in 2006, two years after the Atkins proceeding,


       21
             We reiterate that there was nothing improper about the OCCA’s tackling
most of counsel’s alleged errors on prejudice, rather than performance, grounds.

                                              -61-
that pegged his IQ at 67. On collateral review, the OCCA found that Mr. Hooks was not

prejudiced by counsel’s failure to order additional testing. See Hooks Atkins Collateral,

slip op. at 9–10.

       Applying de novo review, we conclude that counsel did not act unreasonably in

failing to order an additional IQ test. A wide range of IQ scores was already available for

presentation at trial, some low and some high. Indeed, the jury was presented with nine

IQ scores ranging from 53 to 80. Mr. Hooks’s counsel was almost certainly aware that IQ

scores remain fairly stable over a person’s lifetime, see Ochoa, 669 F.3d at 1137 n.6

(citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders 40 (4th ed.1994)), and could reasonably think that an additional score would

not be significantly different than the scores already available. Further, counsel could not

know in advance what the results of the test would be. The 2006 post-trial test resulted in

a score of 67, but at the time of trial, counsel could equally have anticipated a higher

score—up to 80—if the existing range of scores was any guide. We evaluate conduct

from counsel’s perspective at the time, not in hindsight. Rompilla, 545 U.S. at 381 (“[I]n

applying Strickland . . . , hindsight is discounted by pegging adequacy to counsel’s

perspective at the time investigative decisions are made and by giving a heavy measure of

deference to counsel’s judgments.” (citation omitted) (quoting Strickland, 466 U.S. at

689, 691) (internal quotation marks omitted)); see also Challoner, 583 F.3d at 749. We

conclude that counsel made a reasonable decision not to order an additional IQ score and

that her performance was not unreasonable under Strickland.

                                            -62-
                     d. Failure to investigate functioning in prison

       Mr. Hooks asserts that counsel was deficient for failing to investigate his “adaptive

functioning during his fifteen year stay on death row,” which would have revealed that he

had help writing the letters on which the State relied to show his communicative abilities

and that he had not in fact participated in an allegedly improper scheme involving the use

of the mails to solicit and obtain money from women that supposedly he describes in one

of the letters. Aplt. Opening Br. at 67–68. With respect to letter-writing assistance, Mr.

Hooks points to post-trial affidavits from fellow prisoners Walanzo Robinson and Paris

Powell, both of whom state that they have assisted Mr. Hooks from time to time in

reading and writing letters. See R., Vol. 1, pt. 2 at 435–36 (Aff. of Walanzo Robinson,

dated Mar. 9, 2003); id. at 438–42 (Aff. of Paris Powell, dated Dec. 29, 2004). With

respect to the scheme, Mr. Hooks points to prison records tending to show that he was not

involved. See Aplt. Opening Br. at 67. The OCCA resolved this aspect of Mr. Hooks’s

claim by concluding that he was not prejudiced by counsel’s failure in light of “other

significant evidence bearing on Hooks’s intellectual and adaptive functioning.” Hooks

Atkins Collateral, slip op. 10–12. We resolve this issue de novo under the first prong of

Strickland.

       We “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance,” and that “the challenged action ‘might

be considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v.

Louisiana, 

, 101 (1955)). Mr. Hooks has not overcome that presumption

                                           -63-
here. First, the referenced affidavits allege only generally that Messrs. Robinson and

Powell assisted Mr. Hooks in writing letters from time to time. There is no evidence that

these individuals assisted Mr. Hooks in writing the specific letters admitted into evidence

at the Atkins trial. Second, while Mr. Hooks’s counsel has stated that she did not have

time to investigate “fully” whether “Mr. Hooks had assistance from other inmates writing

the letters,” R., Vol. 1, pt. 2 at 462 (Aff. of Vicki Werneke, dated Mar. 8, 2006), she did

attempt at several points to cast doubt on whether Mr. Hooks had written the letters on his

own, eliciting testimony from Dr. Cowardin that Mr. Hooks performed poorly on writing

tests, had to use a straightedge to write, and had to use a dictionary to spell correctly. See

4 M.R. Tr. at 178–79, 184, 187–88.

       Finally, there is at least a suggestion that relying on testimony of fellow prisoners

would have been not only fruitless, but also harmful. See Burger v. Kemp, 

,

794 (1987) (holding that a limited investigation by counsel was reasonable because

witnesses brought to counsel’s attention would have provided potentially damaging

information). In one of the letters, Mr. Hooks seemingly referred to the scheme of his

that was discovered. See State Ex. to M.R. 1 (Letter from Victor Hooks to Shalimar

Hooks, dated Aug. 18, 2002) (“[T]hese damn ‘Hillbillies’ sweatin me. They cut my

hustle off through the mail. . . . [C]ause this ‘one-stupid-white-bitch’, was sending me her

money . . . .” (emphases omitted)). The trial transcript suggests that Mr. Hooks’s counsel

was aware of the scheme and also suspected Mr. Hooks’s cell-mate of being involved.

See 5 M.R. Tr. at 102 (cross-examination of Dr. Hall). A reasonable attorney could have

                                             -64-
wanted to avoid drawing more attention to the letters than necessary and could have

surmised that allowing fellow prisoners to testify might open them up to cross-

examination about Mr. Hooks’s knowledge of their improper scheme. In that light,

relying on objective testing of writing skills, such as that administered by Dr. Cowardin,

would have been the sounder strategy. See 4 M.R. Tr. at 187–88. We therefore conclude

that counsel’s performance was not unreasonable under Strickland.

                         e. Failure to call Pat Prater as a witness

       Mr. Hooks alleges that counsel performed deficiently when she failed to secure Pat

Prater as a witness after seeing the memorandum from Ms. High. (As earlier discussed,

the memorandum summarized a conversation between Ms. High and Ms. Prater regarding

the latter’s observations of and interactions with Mr. Hooks.) Mr. Hooks believes that

“Ms. Prater would have provided objective evidence of Petitioner’s significant adaptive

deficits and an opinion he was mentally retarded.” Aplt. Opening Br. at 68. The OCCA

resolved this claim on prejudice grounds, concluding that “there is not a reasonable

probability that, with this evidence, jurors would have found Hooks was mentally

retarded.” Hooks Atkins Collateral, slip op. at 14. We resolve this issue de novo under

the first prong of Strickland.

       Trial counsel does not act unreasonably in failing to call every conceivable witness

that might testify on a defendant’s behalf. See Crittenden v. Ayers, 

, 967

(9th Cir. 2010) (“Trial counsel’s duty to investigate . . . does not necessarily require that

every conceivable witness be interviewed.” (omission in original) (quoting Douglas v.

                                             -65-
Woodford, 

, 1088 (9th Cir. 2003)) (internal quotation marks omitted)); see

also Rompilla, 545 U.S. at 383 (“[T]he duty to investigate does not force defense lawyers

to scour the globe on the off chance something will turn up.”). The information in the

memorandum received by Mr. Hooks’s counsel pointed to a lay witness, Ms. Prater, who

could testify that her observations of Mr. Hooks, particularly his conversational abilities,

indicate that he is mentally retarded. This was not novel information. Mr. Hooks called

two expert witnesses who related substantially the same information to the jury. See 3

M.R. at 191–94 (Test. of Dr. Gelbort); 4 M.R. at 74–78, 81–82, 101–02, 116 (Test. of Dr.

Cowardin). Counsel must be allowed leeway in prioritizing the evidence and witnesses

she puts on. See Rompilla, 545 U.S. at 383 (“[R]easonably diligent counsel may draw a

line when they have good reason to think further investigation would be a waste.”). In

light of the fact that the legal definition of mental retardation tracks the clinical definition,

we may fairly view counsel here as making a reasonable, strategic decision to focus on

expert rather than lay witnesses, and she reasonably could have believed that Ms. Prater’s

testimony would have been duplicative or unhelpful. See Matthews, 577 F.3d at 1192–93

(holding that trial counsel was not ineffective for failing to call witnesses whose

testimony “would have been largely cumulative of evidence the jury did hear”). We

therefore conclude that counsel’s performance was not unreasonable under Strickland.

                 f. Failure to uncover evidence to impeach Shanna Dinh

       Mr. Hooks claims that counsel was ineffective because she failed to contact

Shanna Dinh’s ex-husband, Cuc Van Dinh, who could have testified that he and Ms. Dinh

                                              -66-
lived together during the time that she claimed to have been living with Mr. Hooks. The

OCCA resolved the claim on prejudice grounds, concluding that “[w]hether Dinh lived

with Hooks for months or years, her testimony went to her observations of his behavior

and mental ability.” Hooks Atkins Collateral, slip op. at 15. We resolve this issue de

novo under the first prong of Strickland.

       It is worth noting that Ms. Dinh’s story appears to be so convoluted that unraveling

the truth is impossible on the record before us. Ms. Dinh claimed at the Atkins trial that

she lived with Mr. Hooks “90 percent of the time” between 1984 and 1987. 4 M.R. Tr. at

198. In 1989, during the murder trial, she claimed to have lived with him for “a couple of

months” during that period. 2 Trial Tr. at 413 (Test. of Ms. Dinh). Meanwhile, Mr.

Hooks’s counsel was aware of a presentence investigation report indicating that Ms. Dinh

was in foster care during that same time period. See 4 M.R. Tr. at 218 (statement of Ms.

Werneke to the court). To muddy the waters further, the affidavit of Cuc Van Dinh states

that Ms. Dinh was living with him during that time period and not “with anyone else.”

R., Vol. 1, pt. 2 at 477 (Aff. of Cuc Van Dinh, dated Jan. 19, 2005). Finally, on direct

appeal from Mr. Hooks’s Atkins trial, the OCCA stated that “[s]ubsequent investigation

indicates that [Ms.] Dinh’s husband had [later] filed for divorce, claiming abandonment.”

Hooks Atkins Appeal, 126 P.3d at 643 n.21. Abandonment would cast doubt on Mr.

Dinh’s claims that he and Ms. Dinh were living together during the period in question.

       No doubt, counsel for Mr. Hooks was as confused as we are. We note, however,

that she did not neglect to impeach Ms. Dinh. On cross-examination, she sought to

                                            -67-
highlight one of these discrepancies in Ms. Dinh’s story, asking twice whether Ms. Dinh

was in foster care at the time she claimed to have been living with Mr. Hooks. See 4

M.R. Tr. at 217, 220–21. Ms. Dinh denied the allegation both times.

       Counsel was not unreasonable for choosing to focus on only one of the

discrepancies in Ms. Dinh’s story. Indeed, counsel could have reasonably believed that

bringing Cuc Van Dinh’s putative testimony to light would have undermined her own

strategy. Specifically, if counsel had suggested that Ms. Dinh was both in foster care and

living with her husband during the relevant period, the jury may have perceived the

conflict. Moreover, if counsel was aware that Cuc Van Dinh had claimed abandonment

in his divorce proceedings, she reasonably could have concluded that Mr. Dinh was likely

susceptible to strong impeachment by the State, which would have further weakened Mr.

Hooks’s case. Because there is good reason to believe that counsel made a reasonable,

strategic decision not to seek the testimony of Cuc Van Dinh, we conclude that her

performance was not unreasonable under Strickland.

                      g. Failure to comply with a discovery order

       Mr. Hooks alleges that counsel was constitutionally deficient because her failure to

comply with a discovery order disabled her from introducing evidence that Dr. Murphy

had been professionally disciplined, a fact bearing on the reliability of his IQ testing of

Mr. Hooks; his test resulted in a score of 80. The OCCA resolved the issue on prejudice

grounds, noting that the score obtained by Dr. Murphy “was one of a range of test scores,

that the information about this test was sparse, that no expert relied on it in forming their

                                             -68-
opinion of Hooks’s abilities, and that evidence discrediting Murphy could not have

affected the jury’s determination.” Hooks Atkins Collateral, slip op. at 16. We resolve

this issue, like the OCCA, on prejudice grounds, and we defer to the OCCA’s

determination under AEDPA.

       To show prejudice under the second prong of Strickland, Mr. Hooks must establish

“that there is a reasonable probability that, but for the counsel’s error, ‘the result of the

proceeding would have been different.’” Challoner, 583 F.3d at 749 (quoting Strickland,

466 U.S. at 688). “‘[R]easonable probability is a probability sufficient to undermine

confidence in the outcome’ of the trial.” Byrd, 645 F.3d at 1168 (quoting Strickland, 466

U.S. at 694). Mr. Hooks has not carried his burden here. As the OCCA found on direct

appeal and in collateral proceedings, no expert (for the State or Mr. Hooks) relied on Dr.

Murphy’s test score in forming an opinion regarding Mr. Hooks’s mental abilities. Hooks

Atkins Appeal, 126 P.3d at 643; Hooks Atkins Collateral, slip op. at 16. Moreover, the

OCCA found that “[t]he expert witnesses agreed that the most reliable scores were those

obtained by Dr. Gelbort and Dr. Cowardin, with results of 72 and 76.” Hooks Atkins

Appeal, 126 P.3d at 640. Mr. Hooks contends only that “there is no assurance” that the

jury did not rely on Dr. Murphy’s score. Aplt. Opening Br. at 70. That is simply not

enough to establish a “reasonable probability” of a different result, particularly when the

other evidence of Mr. Hooks’s intellectual and functional abilities is considered.

Consequently, Mr. Hooks has failed to show that the OCCA’s adjudication of this claim

resulted in an unreasonable application of Strickland.

                                              -69-
            h. Failure to seek redaction of crime facts from the State’s exhibits

       Mr. Hooks asserts ineffective assistance for counsel’s failure to redact “crime

facts” from letters written by Mr. Hooks and admitted at trial. Aplt. Opening Br. at 71.

Specifically, he claims that “[t]he letters contained references to Petitioner’s victim and

the fact she was no longer ‘out there’ to care for her daughter.” Id. The OCCA did not

review the letters because Mr. Hooks did not attach them as exhibits to his habeas

application. See Hooks Atkins Collateral, slip op. at 16. However, relying on a portion of

a letter that Mr. Hooks quoted in his postconviction application, the OCCA found that

there were “no references to the facts of murder of which Hooks was convicted.” Id.

Accordingly, the OCCA concluded that “[n]othing properly before this Court suggests

that the jury was informed of the facts of the crime,” and that it would “not find counsel

was ineffective for failing to . . . redact information in the letters.”22 Id. at 17.

       The letters are available in the record before us. Only two of the six letters

mention Ms. Blaine. Those letters were the focus of Mr. Hooks’s arguments before the

OCCA. Like the OCCA, we resolve this issue under the first prong of Strickland,

according AEDPA deference to the OCCA’s decision. In doing so, we recognize that

there is a significant question regarding whether we are authorized under AEDPA and,



       22
                Mr. Hooks asserts that “[t]rial counsel admitted she did not review the
letters prior to trial.” Aplt. Opening Br. at 71. Actually, counsel has stated that she did
review the letters prior to trial, just not immediately prior. See R., Vol. 1, pt. 2 at 462
(“At the time of the evidentiary hearing, I had read [the letters] thoroughly. However, I
failed to review them again before the trial.”).

                                               -70-
more specifically, the Supreme Court’s holding in Pinholster, to review the full text of the

two letters. We recall that, in Pinholster, the Court observed that § 2254 (d)(1) employs

“backward-looking language” indicating that “the record under review is limited to the

record in existence at th[e] same time [the state-court decision is made] i.e., the record

before the state court.” 131 S. Ct. at 1398. Although this clear and unequivocal language

would seemingly foreclose any review under § 2254(d)(1) of any materials that were not

before the state court rendering the adverse decision, the circumstances of this case are

somewhat unique: the two letters were presented to the state trial court and the jury in the

metal-retardation proceeding, were referred to by Mr. Hooks in his briefing before the

OCCA (although inexplicably omitted from the exhibits submitted to the OCCA), and

were addressed on the merits to a significant degree by the OCCA in ruling against Mr.

Hooks. It may be questionable (perhaps even doubtful) whether even these circumstances

would be enough for Mr. Hooks to escape Pinholster’s holding, but we need not

definitively determine the matter because, even if we review the full text of the two

letters, Mr. Hooks cannot prevail on this claim of error.23 Cf. id. at 1399 (“It would be

contrary to that purpose [of requiring state-court exhaustion of remedies] to allow a

petitioner to overcome an adverse state-court decision with new evidence introduced in a


       23
              In its pre-Pinholster decision, the district court did consider all of the
letters. However, it found that “the letter set out here and at the OCCA by Petitioner is
the only one with any allegedly questionable language referring to the murder,” Hooks
Habeas II, 693 F. Supp. 2d at 1322 (emphasis added), and concluded that the OCCA did
not unreasonably apply Strickland in ruling that Mr. Hooks’s counsel was not
constitutionally deficient for failing to redact that language.

                                            -71-
federal habeas court and reviewed by that court in the first instance effectively de novo.”

(emphasis added)).

       In the first letter, Mr. Hooks scolded his daughter for some trouble she had found

herself in, and he stated, “I know for a fact if Shalimein was out there she would of kick-

yo-ass all the way to the berry house. Cause she love you and don’t want nothing bad to

happen to you Shalimar. You already know if I was out there you wouldn’t be caught-up

in no shit like that none.” State’s Ex. 2 to M.R. In the second letter, Mr. Hooks states

that a particular look from his daughter

              would tear-at-my-heart cause your “mom” would look at me the same
              way. “LORD” know’s I done everything I could do to protect [and]
              “save her.” Shalimar if I had a choice she would be with you now. “I
              love you all that way.” I wish I hadn’t loved her. Maybe she would
              still be out there, I don’t know.

State’s Ex. 6 to M.R.

       The two letters contain no reference to the murder of Ms. Blaine. Both letters

referred to Ms. Blaine as not being “out there,” although in the first letter, Mr. Hooks also

referred to himself as not being “out there.” A juror could infer that Mr. Hooks was

talking about the death of Ms. Blaine in these references (as opposed to, for example,

talking about her being in prison like Mr. Hooks). Even so, it would require a further

inferential leap to conclude that Mr. Hooks was responsible for her death, especially since

he pledged that he had “done everything [he] could to protect [and] save” Ms. Blaine and

that “if [he] had a choice, she would be with [his daughter] now.” State’s Ex. 6 to M.R.

(internal quotation marks omitted). Counsel for Mr. Hooks has averred that she read the

                                            -72-
letters “thoroughly” prior to trial. R., Vol. 1, pt. 2 at 462. In light of the vague and

contradictory nature of the letters, counsel did not act unreasonably in failing to seek

redaction, nor did the OCCA unreasonably apply Strickland in reaching the same

conclusion.

                                    6. Cumulative Error

       Finally, Mr. Hooks asserts cumulative error arising out the numerous constitutional

errors that he alleges occurred during his Atkins trial. The parties dispute whether the

OCCA addressed cumulative error. Mr. Hooks asserts that it did not. See Aplt. Opening

Br. at 71–72. The State urges that the OCCA did address it, but the State’s argument

focuses only on cumulative error in the context of the ineffective-assistance claim. See

Aplee. Br. at 65–66. Even if the State is right that the OCCA assessed cumulative error

pursuant to the ineffective-assistance claim, Mr. Hooks’s cumulative-error claim is

clearly broader and encompasses all of the alleged errors arising out of the Atkins trial,

not just errors allegedly committed by counsel. See Cargle, 317 F.3d at 1207

(“Consistent with the unqualified reference to all errors, our cases reflect application of

cumulative-error review to legally diverse claims such as those here.”). The OCCA never

addressed this cumulative-error claim, so our review is de novo. See id. at 1206.24


       24
             We note that there is a split in the circuits on whether the need to conduct a
cumulative-error analysis is clearly established federal law under § 2254(d)(1). Compare
Williams v. Anderson, 

, 816 (6th Cir. 2006) (“[C]umulative error claims are
not cognizable on habeas because the Supreme Court has not spoken on this issue.”), with
Parle v. Runnels, 

, 928 (9th Cir. 2007) (“[T]he Supreme Court has clearly
                                                                               (continued...)

                                             -73-
       “A cumulative-error analysis aggregates all 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.” Id. (quoting United States

v. Toles, 

, 972 (10th Cir. 2002)) (internal quotation marks omitted).

However, as the term “cumulative” suggests, “[c]umulative-error analysis applies where

there are two or more actual errors. It does not apply . . . to the cumulative effect of

non-errors.” Moore v. Gibson, 

, 1175 (10th Cir. 1999) (quoting Castro v.

Ward, 

, 832 (10th Cir. 1998)) (internal quotation marks omitted). Thus, we

undertake a cumulative-error analysis only if there are at least two errors. See United


       24
         (...continued)
established that the combined effect of multiple trial errors may give rise to a due process
violation if it renders a trial fundamentally unfair, even where each error considered
individually would not require reversal.” (citing Donnelly v. DeChristoforo, 

, 643 (1974); Chambers v. Mississippi, 

, 290 n.3, 298, 302–03 (1973))),
and Morris v. Sec’y, Dep’t of Corr., 

, 1132 n.3 (11th Cir. 2012) (reserving
judgment on the issue). In the context of ineffective-assistance claims, we arguably have
indicated that, for AEDPA purposes, the cumulative-error inquiry is clearly established
federal law. See Cargle, 317 F.3d at 1212 (“[O]ur decision to grant relief on ineffective
assistance grounds is a function of the prejudice flowing from all of counsel’s deficient
performance—as Strickland directs it to be.”). Although we have never expressly held in
other contexts that cumulative-error analysis is clearly established federal law, we have
long conducted cumulative-error analyses in our review of federal habeas claims. See,
e.g., Ochoa, 669 F.3d at 1146; Wilson, 536 F.3d at 1123. We have described the doctrine
as “an extension of the harmless-error rule.” Cargle, 317 F.3d at 1220 (quoting United
States v. Rivera, 

, 1469, 1470 (10th Cir. 1990)) (internal quotation marks
omitted). This body of precedent may very well signal where our court has come down
on the issue—viz., that cumulative-error analysis is clearly established federal law.
However, to the extent that this remains an open issue in this circuit, we need not
definitively resolve it here. As noted infra, we have no occasion to employ cumulative-
analysis in this case because our review has detected, at most, one error in Mr. Hooks’s
Atkins trial.

                                             -74-
States v. Franklin-El, 

, 1128 (10th Cir. 2009). Assessing cumulative error

is not appropriate here because there was, at most, one error in Mr. Hooks’s Atkins trial:

counsel’s commission of a discovery violation, which we assumed to be unreasonable

performance and found did not result in a prejudice under Strickland. Because there are

not “at least two” errors here, a cumulative-error analysis is not warranted. Id.; see also

Ochoa, 669 F.3d at 1146 (“Because there are no additional constitutional errors to

aggregate, Ochoa’s cumulative error claim necessarily fails.”).

                             D. Fairness of the Original Trial

       Mr. Hooks’s third and final ground for habeas relief is that counsel was ineffective

during the guilt and sentencing phases of his original trial in 1989. This claim comes to

us in Appeal No. 03-6049 and was not adjudicated on the merits in state court.

Accordingly, we do not view the claim through the lens of AEDPA and instead exercise

our “independent judgment.” McCracken, 268 F.3d at 975. “[W]e review the district

court’s legal conclusions de novo and its factual findings, if any, for clear error.” Spears,

343 F.3d at 1225. “[I]f the district court based its factual findings entirely on the state

court record, we review that record independently.” Byrd, 645 F.3d at 1167 (quoting

Bland, 459 F.3d at 1010) (internal quotation marks omitted). Any state-court findings of

fact relevant to a federal habeas claim are presumed correct unless clearly and

convincingly rebutted. See Hooks v. Ward, 184 F.3d at 1223.

       The familiar two-prong standard of Strickland applies to Mr. Hooks’s ineffective

assistance claim. He “must show both that his counsel’s performance ‘fell below an

                                             -75-
objective standard of reasonableness’ and that ‘the deficient performance prejudiced the

defense.’” Byrd, 645 F.3d at 1167 (emphasis omitted) (quoting Strickland, 466 U.S. at

687–88). Because we are reviewing this ineffective-assistance claim de novo, we judge

the reasonableness of counsel’s performance without applying AEDPA’s double dose of

deference. To preview our analysis below, we reject Mr. Hooks’s claim that counsel was

ineffective during the guilt phase of his trial. However, we conditionally grant habeas

relief with respect to his death sentence because counsel rendered deficient, prejudicial

performance during the sentencing phase.

                   1. Counsel’s Performance During the Guilt Phase

       Mr. Hooks claims that counsel was ineffective during the guilt phase of his trial

because counsel failed (1) to pursue an insanity defense, and (2) to secure witness Carol

Hill. We conclude that counsel was not ineffective during the guilt phase.

                        a. Failure to pursue an insanity defense

       Mr. Hooks argues that counsel was deficient for failing to investigate and pursue

an insanity defense. In his view, such a defense, even if ultimately unsuccessful, would

have opened the door to expert testimony on his mental state, which in turn would have

helped establish that he had killed in the heat of passion rather than with malice

aforethought. In particular, according to Mr. Hooks, his counsel was ineffective because

he misunderstood the legal standard for insanity.

       Prior to trial, Mr. Hooks’s attorney, Ron Evans, requested a competency

evaluation for Mr. Hooks. Mr. Hooks was examined by Dr. Edith King and declared

                                            -76-
competent. Thereafter, Mr. Evans retained Dr. King and the aforementioned Dr. Murphy

to assist him at trial. In light of the fact that Mr. Hooks had unquestionably killed Ms.

Blaine, Mr. Evans’s strategy was to attempt to negate the intent-to-kill element of the

first-degree murder charge. See Fed. Evid. Hr’g Tr. at 206. To that end, he put on three

witnesses at trial: Scott Cannon, a police officer, to testify about a statement by Mr.

Hooks six days after the murder that he “didn’t mean to kill her [i.e., Ms. Blaine],” 3 Trial

Tr. at 440 (internal quotation marks omitted); and Drs. King and Murphy, to establish

through expert testimony that Mr. Hooks had committed the murder in the heat of passion

or with a depraved mind, rather than with malice aforethought.

       All such testimony was ultimately excluded, however. The State objected to

Officer Cannon’s testimony on the ground that Mr. Hooks’s statement (“I didn’t mean to

kill her”) was self-serving hearsay, and the trial court sustained the objection. See id. at

442–43. When Mr. Evans began direct examination of Dr. Murphy, the State objected to

his testimony, as well as to the proposed testimony of Dr. King, on the ground that it

would invade the province of the jury. See id. at 447–56, 473–74. The trial court

sustained those objections, too. See id. at 456, 474. The court recognized that psychiatric

testimony was permissible to help establish a defendant’s insanity, but because an

insanity defense was not being pursued, Mr. Hooks’s state of mind was “a question of

fact peculiarly left within the exclusive province of the jury.” Id. at 455.

       Mr. Hooks vigorously argues that the information available to Mr. Evans should

have prompted a reasonable attorney to pursue an insanity defense and that he was

                                             -77-
prejudiced by Mr. Evans’s failure to do so because, even if he did not prevail on his

insanity defense, “[t]here is a reasonable probability the insanity evidence would have

eliminated an intent finding, the essential requisite for a first degree murder conviction.”

Aplt. Opening Br. at 81. Indeed, there was no dispute that Mr. Hooks killed Ms. Blaine;

the salient question was whether he acted with the requisite intent to constitute first-

degree murder. See Hooks v. Ward, 184 F.3d at 1231 (separate opinion of Ebel, J.)

(“From the outset of trial Hooks admitted that he caused Shalimein’s death, and sought

only to challenge the state’s assertion that he did so intentionally.”).

       We conclude, however, that Mr. Hooks cannot prevail on this claim of error. Mr.

Evans had considered presenting an insanity defense but opted not to because, as he

would later explain at the federal evidentiary hearing, he “didn’t think that there was a

factual basis for it.” Fed. Evid. Hr’g Tr. at 173 (Test. of Mr. Evans). Oklahoma follows

the M’Naghten rule, under which “[t]he defendant must demonstrate at trial that during

the commission of the crime he was suffering from a mental disease or defect rendering

him unable to differentiate between right and wrong, or unable to understand the nature

and consequences of his acts.” Jones v. State, 

, 1254 (Okla. Crim. App.

1982) (emphases added). As a leading commentator helpfully observes:

              The M’Naghten test consists of two elements which logically can be
              separated. The first portion [concerning an inability to understand the
              nature and consequences of one’s actions] relates to an accused who is
              psychotic to an extreme degree. It assumes an accused who, because
              of mental disease, did not know the nature and quality of his act; he
              simply did not know what he was doing. For example, in crushing the
              skull of a human being with an iron bar, he believed that he was

                                                 -78-
              smashing a glass jar. The latter portion of M’Naghten [involving an
              inability to differentiate between right or wrong] relates to an accused
              who knew the nature and quality of his act. He knew what he was
              doing; he knew that he was crushing the skull of a human being with an
              iron bar. However, because of mental disease, he did not know that
              what he was doing was wrong. He believed, for example, that he was
              carrying out a command from God.

2 Charles E. Torcia, Wharton’s Criminal Law § 101, at 12–17 (15th ed. 1994) (footnotes

omitted); see also 22 C.J.S. Criminal Law § 99, at 128 (1989) (noting that under the

M’Naghten test “there exist two distinct and independent bases upon which a verdict of

not guilty by reason of insanity might be returned”).25 Under Oklahoma law, “a

defendant is presumed to be sane and the burden is upon him to produce sufficient

evidence to raise a reasonable doubt as to his sanity.” Wooldridge v. State, 

,

733 (Okla. Crim. App. 1990); accord Garrett v. State, 

, 755 (Okla. Crim.

App. 1978).

       Ordinarily, we indulge a “‘a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance,’ and that ‘the challenged action

might be considered sound trial strategy.’” Fairchild, 579 F.3d at 1140 (quoting

Strickland, 466 U.S. at 689). As it relates to the portion of the M’Naghten rule involving

an alleged inability to know right from wrong, we conclude on this record that Mr. Evans


       25
              The first portion of the M’Naghten rule discussed in the quoted passage
above customarily is stated using the phrase “nature and quality,” when referring to a
defendant’s understanding of his actions, whereas Oklahoma uses the phrase “nature and
consequences.” However, the term “quality” and “consequences” are apparently
intended to embrace the same concept, focusing on a defendant’s comprehension of the
“harmfulness” of his actions. 22 C.J.S. Criminal Law § 103, at 134.

                                            -79-
reasonably could have concluded that he did not have the evidence to satisfy his burden.

       First, Mr. Hooks’s initial lies to cover up the murder, his attempt to hide evidence,

and his seeking medical attention for Ms. Blaine indicate that he knew right from

wrong.26 Cf. Garrett, 586 P.2d at 756 (“The evidence that the defendant looked ‘wild’ or

‘berserk’ or her own testimony of loss of memory is not evidence that brings the

defendant within the above rule to show that she did not know right from wrong.”).

Second, Mr. Evans unquestionably would have been aware that there would be evidence

introduced in the trial that, prior to the murder of Ms. Blaine, Mr. Hooks had not

infrequently beaten her (sometimes viciously). See 2 Trial Tr. at 417, 420 (Test. of Ms.

Dinh). Such evidence could have cast doubt on an assertion that, at the time that he killed

Ms. Blaine, Mr. Hooks did not know right from wrong. See Kobyluk v. State, 

, 393 (Okla. Crim. App. 1951) (“We think that evidence of the actions, conduct, and

general demeanor of defendant toward his wife, showing a continuous course of abuse

from 1945 until the date of the alleged assault in 1948, was competent as tending to show

the state of mind of defendant at the time of the assault. It should be borne in mind that

the only issue in this case was the question as to whether defendant knew right from

wrong at the time of the shooting . . . .” (citations omitted)). Third, nothing in Mr.


       26
               Mr. Hooks disputes this, pointing out that insanity is judged at the time that
one commits an offense, not afterwards. However, the actions one takes immediately
after committing a crime are surely probative of one’s legal sanity at the time of the act.
See Frederick v. State, 

, 945 (Okla. Crim. App. 2001) (relying in part on the
fact that the defendant had attempted to conceal his crime to conclude that the defense of
insanity was unsupported by the evidence).

                                            -80-
Evans’s interaction with Mr. Hooks or in the experts’ reports gave him any other reason

to believe that an insanity defense (on the right-from-wrong ground) would be successful.

See Fed. Evid. Hr’g Tr. at 208–09 (Test. of Mr. Evans). Finally, an insanity defense

would have allowed the State to put on its own experts, and as Mr. Evans was aware, the

mental-state evidence was not a slam-dunk for Mr. Hooks. See id. (discussing Dr.

King’s report, which detailed Mr. Hooks’s ability to understand and communicate, and

admitting that it was “not good evidence for an insanity defense”); see also Hooks

Habeas I, slip op. at 6–8. For these reasons, we cannot conclude that Mr. Evans rendered

constitutionally deficient representation in electing not to pursue such a defense.

       However, with respect to M’Naghten’s second theory, the picture is more

complicated. Mr. Evans was apparently unaware of this theory. At the federal

evidentiary hearing, he described the M’Naghten rule as “basically not knowing the

difference between right and wrong.” Fed. Evid. Hr’g Tr. at 173 (Test. of Mr. Evans). It

was pointed out to him that the definition is disjunctive and also includes an inability to

understand the nature and consequences of one’s actions, to which he responded, “I think

that goes hand-in-hand with not knowing right from wrong.” Id. When his understanding

was corrected, he admitted, “I guess I was wrong.” Id. at 174.

       The ordinary presumption discussed above—that an attorney’s conduct falls within

the wide range of reasonable professional assistance and that his conduct might be

deemed sound trial strategy—dissipates when an attorney has a “demonstrated ignorance

of law directly relevant to a decision.” Bullock v. Carver, 

, 1049 (10th Cir.

                                            -81-
2002). Counsel’s mistake of law will often, though not always, mean that “counsel

performed in an objectively deficient manner.” Id. at 1050.

       Nonetheless, we need not opine on Mr. Evans’s performance with regard to his

failure to advance M’Naghten’s nature-and-consequences insanity theory. Even if we

were to conclude that, because of his apparent lack of knowledge of this M’Naghten

theory, Mr. Evans could not have made a reasonable decision not to pursue it, and thus

his representation in this regard was constitutionally deficient, we would determine under

Strickland’s second prong that Mr. Hooks did not suffer any prejudice from this deficient

representation.

       Giving appropriate consideration to the OCCA’s findings, the record would not

have supported a jury verdict of insanity under the M’Naghten’s nature-and-consequences

theory (which was apparently beyond Mr. Evans’s ken). In support of his claim, Mr.

Hooks relies heavily on the testimony of Dr. Murphy. Among other things, Dr. Murphy

apparently was prepared to testify that Mr. Hooks was “suffering from a severe chronic

psychosis, which has a recurrent and episodic nature,” 3 Trial Tr. at 459, and that when he

killed Ms. Blaine, “[h]e acted in the heat of passion in a delusional state,” id. at 463.

However, in upholding the trial court’s exclusion of the guilt-stage testimony of Dr.

Murphy, as well as Dr. King, the OCCA found:

              Both doctors’ testimony significantly omitted an assessment of Hooks’
              sanity, i.e., whether, at the time of the murder, he had the mental
              capacity to distinguish right from wrong or to understand the nature and
              consequences of his acts. Dr. Murphy testified Hooks was probably not
              in touch with reality when he murdered Ms. Blaine, but did not say

                                                 -82-
              whether Hooks could have distinguished right from wrong or
              appreciated the nature and consequences of his acts. Dr. King testified
              Hooks has a “tendency not to pay attention to consequences but just
              impulsively to act.” Choosing to ignore consequences is clearly
              different from being incapable of understanding those consequences.


Hooks v. State, 862 P.2d at 1278 (citation omitted).

       These factual findings of the OCCA are entitled to a presumption of correctness,

rebuttable only by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Hooks v.

Ward, 184 F.3d at 1223. Mr. Hooks has failed to rebut that presumption. Consequently,

we cannot conclude that a rational factfinder could have determined that Mr. Hooks

suffered from such an extreme form of psychosis that he was unaware of the nature and

consequences of his actions, as contemplated by the M’Naghten rule. Indeed, although

opining that Mr. Hooks was delusional when he beat Ms. Blaine to death, Dr. Murphy

never asserted that, because of mental illness, Mr. Hooks actually thought he was

inflicting his lethal blows on anyone—or anything—other than Ms. Blaine.

       With an insufficient factual foundation under M’Naghten’s nature-and-

consequences theory, Mr. Hooks would not have been allowed to place “insanity

evidence,” Aplt. Opening Br. at 81, supportive of this theory before the jury. Nor could a

rational trier of fact possibly have concluded under this theory that Mr. Hooks was insane.

Thus, even if Mr. Evans’s ignorance of the second half of the M’Naghten rule rendered

his representation objectively unreasonable, Mr. Hooks has failed to establish that he was

prejudiced.


                                           -83-
                       b. Failure to secure Carol Hill as a witness

       Mr. Hooks also alleges that his attorney was deficient for failing to secure Carol

Hill as a witness. According to Mr. Hooks, Ms. Hill was a friend of his who would have

testified favorably for him and undermined the damaging testimony of Shanna Dinh, one

of the witnesses for the prosecution. Mr. Evans spoke with Ms. Hill on several occasions

prior to trial and took detailed notes of their conversations. See Fed. Evid. Hr’g Tr. at

180–87 (Test. of Mr. Evans). Mr. Evans thought Ms. Hill was “very interested in his

case,” and he expected her to testify. Id. at 187 (“She never expressed an unwillingness

to come to court, to my memory.”). But when the time came, Ms. Hill did not appear.

Mr. Evans “was surprised when she didn’t show up” and concedes he “should have

subpoenaed her.” Id.

       The district court found that Mr. Evans’s failure to subpoena Ms. Hill “was not

professionally unreasonable” because “[t]here is no evidence that Evans knew, or should

have known, that Hill would not be available to testify at the trial.” Hooks Habeas I, slip

op. at 9. However, we plant our conclusion on different ground and hold that Mr. Hooks

was not prejudiced by Ms. Hill’s absence.

       When counsel’s failure to call or subpoena a witness can be traced to a reasoned

strategic judgment, we generally find counsel’s performance reasonable under the first

prong of Strickland. See, e.g., Bunton v. Atherton, 

, 982–83 (10th Cir.

2010); Parker v. Scott, 

, 1323 (10th Cir. 2005). On the other hand, when


                                            -84-
neglect or an incomplete investigation accounts for the failure to secure a witness,

counsel’s performance is more likely unreasonable, and the inquiry often turns to

prejudice. That analysis is inherently fact-dependent and must take in the totality of

evidence adduced at trial. See Welch, 639 F.3d at 1015.

       In Snow v. Sirmons, for example, we held that it was unreasonable for counsel to

fail to call three witness, all of whom would have testified that a certain Mr. Allen, rather

than the defendant, committed the murder in question. 

, 729 (10th Cir.

2007). But the failure was not prejudicial because the witnesses’ testimony could have

been admitted only to impeach Mr. Allen’s own testimony, not as substantive evidence,

and in light of other evidence at trial—particularly the defendant’s “own confused and

wavering testimony”—a different outcome was not reasonably probable. Id. at 730. In a

similar vein, in Lucero v. Kerby, 

, 1323 (10th Cir. 1998), while not

reaching the question of counsel’s performance, we held that the failure to subpoena a

witness for trial was not prejudicial. There was no showing that the witness was a key

witness “based on some meaningful connection between [the witness] and the crimes for

which [the defendant] was convicted,” and the witness’s putative testimony would not

have “significantly furthered” the defense’s theory. Id.

       When a witness is “crucial” to the defense, failure to secure that witness is often

both unreasonable and prejudicial. This is especially true when the witness is an alibi

witness or a disinterested bystander with exculpatory information, or when the



                                            -85-
government’s case rests primarily on eyewitness testimony that would have been directly

refuted by the witness’s own testimony. See Hodgson v. Warren, 

, 600–01

(6th Cir. 2010); Adams v. Bertrand, 

, 437–38 (7th Cir. 2006); Goodman v.

Bertrand, 

, 1030–31 (7th Cir. 2006); United States v. Andrews, 

, 1327 (11th Cir. 1992); Coleman v. Brown, 

, 1233–34 (10th Cir.

1986).

         Based on our review of the record, we do not believe that Ms. Hill was a crucial

witness or that there is a reasonable probability that her testimony would have altered the

outcome of the trial. Although Mr. Hooks argues that her testimony would have

“completely undermined” the testimony of Shanna Dinh, Aplt. Opening Br. at 83, we

disagree. Admittedly, Ms. Dinh’s testimony on behalf of the prosecution was damaging

to Mr. Hooks. She testified that she had a child with him, prostituted for him, turned over

her welfare checks to him, and received beatings from him (one of which caused her to

have a miscarriage). See 2 Trial Tr. at 410–15 (Test. of Ms. Dinh). She also testified that

Mr. Hooks beat Ms. Blaine and did not want her to have his child. See id. at 416–20. In

the main, this testimony concerned Ms. Dinh’s personal interactions with Mr. Hooks and

her personal observations of his relationship with Ms. Blaine.

         Ms. Dinh mentioned Ms. Hill a few times in her testimony. According to Ms.

Dinh, Ms. Hill was one of Mr. Hooks’s girlfriends and prostituted for him, id. at 416–17,

and also received beatings from him, id. at 417. By contrast, Ms. Hill apparently would



                                             -86-
have testified that she had a good relationship with Mr. Hooks, was not one of his

girlfriends, did not receive beatings from him, and never saw him act violently toward

Ms. Blaine. See Fed. Evid. Hr’g Tr. at 182, 184–85 (Test. of Mr. Evans). She also would

have told the jury that Ms. Dinh was “a dirty little girl” and “want[ed] revenge on

Victor.” Id. at 181–82 (internal quotation marks omitted).

       Based upon this evidence, we would be hard-pressed to conclude that Ms. Hill

would have undermined Ms. Dinh’s testimony and credibility in anything but minor

ways. The controverted points of Ms. Dinh’s testimony were isolated ones. Nothing

about Ms. Hill’s putative testimony would have undercut the most damaging information

that Ms. Dinh relayed to the jury: her own violent and twisted relationship with Mr.

Hooks. And, although Ms. Hill would have told the jury that she never saw Mr. Hooks

beat his wife, the potency of that testimony would have been diminished by the

circumstances of the crime in this case. Because Ms. Hill’s testimony would have been

of limited utility, Mr. Evans’s failure to subpoena her to testify, even if professionally

unreasonable, was not prejudicial.

       We therefore affirm the district court’s denial of habeas relief as to Mr. Hooks’s

conviction.27



       27
               Mr. Hooks does not articulate a separate cumulative-prejudice claim with
respect to the alleged errors of trial counsel during the guilt phase. Cumulative error is a
substantive claim just like any other and must be affirmatively raised by a party. See
Smith, 534 F.3d at 1217. We therefore do not consider cumulative prejudice here. Even
if we did, it would not change our conclusion.

                                             -87-
                2. Counsel’s Performance During the Sentencing Phase

       While we entertain “a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance,” Matthews, 577 F.3d at 1190 (quoting

Strickland, 466 U.S. at 689), we nevertheless apply “closer scrutiny when reviewing

attorney performance during the sentencing phase of a capital case,” Cooks, 165 F.3d at

1294; see also Osborn v. Shillinger, 

, 626 n.12 (10th Cir. 1988) (“[T]he

minimized state interest in finality when resentencing alone is the remedy, combined with

the acute interest of a defendant facing death, justify a court’s closer scrutiny of attorney

performance at the sentencing phase.”). We judge counsel’s performance by reference to

“prevailing professional norms,” which in capital cases include the ABA Guidelines for

the Appointment and Performance of Counsel in Death Penalty Cases (“ABA

Guidelines”). Young v. Sirmons, 

, 957 (10th Cir. 2008) (citing Wiggins, 539

U.S. at 523). “Among the topics defense counsel should investigate and consider

presenting include medical history, educational history, employment and training history,

family and social history, prior adult and juvenile correctional experiences, and religious

and cultural influences.” Id.

       Counsel has a duty to conduct a “thorough investigation—in particular, of mental

health evidence—in preparation for the sentencing phase of a capital trial.” Wilson, 536

F.3d at 1083. We recently had occasion to expound on this principle, drawing on a

trilogy of Supreme Court cases—Williams v. Taylor, 

 (2000), Wiggins v.



                                             -88-
Smith, 

 (2003), and Rompilla v. Beard, 

 (2005)—involving

ineffective assistance at capital-sentencing proceedings. Surveying those cases, we

divined “three important principles”:

              First, the question is not whether counsel did something; counsel must
              conduct a full investigation and pursue reasonable leads when they
              become evident. Second, to determine what is reasonable investigation,
              courts must look first to the ABA guidelines, which serve as reference
              points for what is acceptable preparation for the mitigation phase of a
              capital case. Finally, because of the crucial mitigating role that
              evidence of a poor upbringing or mental health problems can have in
              the sentencing phase, defense counsel must pursue this avenue of
              investigation with due diligence. Our own Circuit has emphasized this
              guiding principle. In Smith v. Mullin, 

, 942 (10th Cir.
              2004), we held that it was “patently unreasonable” for trial counsel to
              fail to present evidence of Smith’s borderline mental retardation, brain
              damage, and troubled childhood, and stated that this type of mitigating
              evidence “is exactly the sort of evidence that garners the most
              sympathy from jurors.”


Wilson, 536 F.3d at 1084–85 (citations omitted).

       If we find that counsel’s performance at sentencing was deficient, we must then

analyze the prejudicial effect on Mr. Hooks’s defense. Prejudice means “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. To assess prejudice arising out

of counsel’s errors at a capital-sentencing proceeding, we must “reweigh the evidence in

aggravation against the totality of available mitigating evidence.” Young, 551 F.3d at 960

(quoting Wiggins, 539 U.S. at 534) (internal quotation marks omitted). If “there is a

reasonable probability that at least one juror would have struck a different balance,”


                                            -89-
Wiggins, 539 U.S. at 537—viz., that “at least one juror would have refused to impose the

death penalty,” Wilson, 536 F.3d at 1124 (Hartz, J., concurring)—prejudice is shown.

       Based on these principles, we find that counsel’s performance during the

sentencing phase was woefully inadequate. Not only did he mount “an extraordinarily

limited case in mitigation,” Anderson v. Sirmons, 

, 1146 (10th Cir. 2007),

but his own statements and the statements of his testifying expert served to villify Mr.

Hooks in the eyes of the jury. These failures raise a reasonable probability “that at least

one juror would have empathized with Mr. [Hooks]” and chosen life over death. Wilson,

536 F.3d at 1095.

                               a. Counsel’s mitigation case

       The sentencing phase was brief. It began shortly after the guilt phase had

concluded. The State sought the death penalty, positing three aggravating circumstances:

(1) Mr. Hooks’s previous conviction for a felony involving the use or threat of violence,

(2) the “especially heinous, atrocious or cruel” nature of the murder, and (3) the

probability that Mr. Hooks constituted a continuing threat to society. 3 Trial Tr. at

501–02. The State successfully moved to incorporate all evidence presented during the

guilt phase. Id. at 509. In addition, it called a single witness, Idabel, Oklahoma police

officer Buck Ray, who testified that Mr. Hooks had been convicted on a charge of armed

robbery of a liquor store in 1982. Id. at 507 (Test. of Mr. Ray). His testimony suggested

that in the course of the robbery, Mr. Hooks had cut the store clerk’s hand with a knife.


                                            -90-
See id. at 508. The State then rested. Id. at 509.

       Mr. Evans then called three witnesses: Mr. Hooks’s sister, Vargus Hooks; his

mother, Clara Hooks; and Dr. Murphy. Vargus Hooks’s testimony fills little more than a

page of the trial transcript. See id. at 511–12 (Test. of Vargus Hooks). After

preliminaries, Mr. Evans asked Vargus just four questions: whether she would stay in

contact with Mr. Hooks if the jury spared his life, whether she would visit him in prison,

whether she and Mr. Hooks were close growing up, and whether she had stayed in touch

with Victor over the past few years. Id. She answered affirmatively to all four questions

then stepped down. Id.

       Clara Hooks’s testimony was only slightly less brief. See id. at 512–14 (Test. of

Clara Hooks). Mr. Evans asked her about a car accident in which Mr. Hooks was

involved when he was younger. Id. at 512. Clara stated that an eighteen-wheeler had hit

her son and “caused quite a bit of damage to” him. Id. He had nightmares, trouble

sleeping, and headaches as a result. Id. at 513. Mr. Evans then asked a few questions

about the relationship between Mr. Hooks and Ms. Blaine. Id. Clara testified that her son

and Ms. Blaine loved each other, that they frequently came to visit her, and that she

(Clara) desired a relationship with their infant daughter. Id. Finally, Mr. Evans asked

whether Clara would stay in touch with Mr. Hooks if the jury spared his life. Id. at 514.

She said she would do so “constantly,” then stepped down. Id.

       Finally, Mr. Evans called Dr. Murphy, who testified about psychological


                                            -91-
examinations of Mr. Hooks that he had administered. Dr. Murphy opined that Mr. Hooks

suffered “from a chronic form of psychosis, where he’s going to have recurrent repeated

episodic breaks with his ability to tell reality from fantasy.” Id. at 518 (Test. of Dr.

Murphy). He described Mr. Hooks as “violent,” id. at 522, and “crazy,” id. at 519, 530,

and said he occasionally exhibited a “crazy grin” or “smirk” characteristic of psychotic

patients, id. at 523. Dr. Murphy also detailed a number of psychotic and delusional

symptoms that Mr. Hooks exhibited while spending time at a mental health facility in

1981 and 1982. Id. at 522–26. Dr. Murphy noted that these past mental-health problems

were consistent with his own evaluation. Id. at 526–29. At the end of his testimony, Dr.

Murphy opined that, given his diagnosis of chronic psychosis and Mr. Hooks’s

detachment from reality, it was “difficult to imagine” that Mr. Hooks could, “in a fully

rational, cold-blooded, premeditated fashion, . . . have a plan to murder.” Id. at 529. On

cross-examination, Dr. Murphy admitted that he had not read the police reports pertaining

to Ms. Blaine’s murder, had not listened to Mr. Hooks’s tape-recorded confession, and

had not seen any of the photographs in the case that depicted Ms. Blaine after her death.

Id. at 531. He stated only that the photographs had been orally described to him by Mr.

Evans. Id.

          Following Dr. Murphy’s testimony, the defense rested its mitigation case. See id.

at 536.




                                             -92-
                                  b. Counsel’s failures

       Mr. Evans’s mitigation case failed to meet the standards we have set out for

counsel in capital-sentencing proceedings. Indeed, the presentation was sub-par in almost

every relevant respect. Evidence of family and social history was sorely lacking; the

mental-health evidence presented was inadequate and quite unsympathetic; and Mr.

Evans not only failed to rebut the prosecution’s case in aggravation but actually bolstered

it by his own statements.

       Family and social history. The testimony by Mr. Hooks’s family members was

perfunctory, to put it mildly. Mr. Evans made no attempt to educate the jury, through the

testimony of Clara and Vargus Hooks, on Mr. Hooks’s life circumstances and his tragic,

chaotic upbringing. Even the most minimal investigation would have uncovered a life

story worth telling: a premature birth, an openly abusive father, frequent moves,

educational handicaps, and personal family tragedies.28 We have previously recognized

       28
               Mr. Hooks was born premature and spent his first three months in a
hospital. Fed. Evid. Hr’g at 10 (Test. of Clara Hooks). His childhood was traumatic and
chaotic. His father was physically abusive toward both him and his mother, prone to
binge-drinking, and often hauled away by police after abusive episodes. Id. at 11–15; id.
at 45–46 (Test. of Victor Hooks). As a result of the abuse, Clara left her husband a
number of times and moved to California, only to return home later. See id. at 16. She
would take the children with her on these often unplanned moves, forcing Mr. Hooks and
his siblings to withdraw from school. See id. at 16, 21.

       Mr. Hooks’s life was also shaped by personal tragedy. When he was a young
teenager, his brother Michael, with whom he was close, was killed in a motorcycle
accident. Id. at 9, 47–48. A few years later, Mr. Hooks and his father were in a severe
car accident with an eighteen-wheeler. Id. at 28, 50–51. Mr. Hooks almost went through
                                                                             (continued...)

                                           -93-
that “this type of evidence ‘is exactly the sort of evidence that garners the most sympathy

from jurors.’” Anderson, 476 F.3d at 1147 (quoting Smith, 379 F.3d at 942). The

information was readily available from Clara and Vargus, but Mr. Evans neglected even

to ask. See id. at 1145 (finding counsel deficient for failing to investigate and present

defendant’s family background at a capital sentencing proceeding).

       Mental-health evidence. While Dr. Murphy’s testimony may have helped the jury

see that Mr. Hooks suffered from mental problems, it was troubling in a number of

respects. First, throughout the testimony, Mr. Evans made little effort to connect Dr.

Murphy’s diagnosis to the circumstances of the crime. The importance of counsel’s role

in this regard cannot be overstated, as we have repeatedly recognized. Counsel in capital

cases must explain to the jury why a defendant may have acted as he did—must connect

the dots between, on the one hand, a defendant’s mental problems, life circumstances, and

personal history and, on the other, his commission of the crime in question. See

Fairchild, 579 F.3d at 1150–51; Anderson, 476 F.3d at 1148; Smith, 379 F.3d at 943.



       28
         (...continued)
the front window and suffered a head injury. Id. Thereafter, he was unable to play sports
and began to experience headaches, nightmares, and trouble sleeping. Id. Tragedy struck
again in 1978 when his father died in a car accident. Id. at 16–17. A year later, Mr.
Hooks saw his brother Evan come home, covered in blood, and pass out. Id. at 18–20.
He had been shot, and both Mr. Hooks and his mother (mistakenly) thought Evan was
dead. Id. at 19. At the federal evidentiary hearing, Clara described Mr. Hooks’s fear and
panic as he pleaded with a comatose Evan to “please wake up.” Id. at 19 (internal
quotation marks omitted). Thereafter, Mr. Hooks’s mental and emotional problems
continued, and he suffered from depression. Id. at 21–22. Clara took him to see a
psychiatrist, and he was later hospitalized. Id.

                                            -94-
Here, in listening to Dr. Murphy, the jury was left with almost no explanation of how Mr.

Hooks’s mental problems played into the murder of Ms. Blaine (both the fatal beating he

administered, and his apparent remorse and attempt to secure help immediately

thereafter).

       Absent this explanation, Dr. Murphy’s testimony at several points actually worked

in the State’s favor. See Anderson, 476 F.3d at 1146–47 (noting that “the case in

mitigation presented by trial counsel played into the prosecution’s theory”). He

repeatedly referred to Mr. Hooks as “violent,” see 3 Trial Tr. at 522 (Test. of Dr.

Murphy)—even once as “very, very violent,” id.—and “crazy,” id. at 519, 523, 530.

True, Dr. Murphy did opine at one point that Mr. Hooks could not have committed “cold-

blooded, premeditated” murder. See Williams, 529 U.S. at 398 (emphasizing the

importance of mental-health evidence showing that “violent behavior was a compulsive

reaction rather than the product of cold-blooded premeditation”). But that aspect of his

testimony was significantly undermined when the jury learned, on cross-examination, that

Dr. Murphy knew almost nothing about Mr. Hooks’s case—that he had not read the

police reports, had not listened to Mr. Hooks’s confession, and had not seen the

photographs. See 3 Trial Tr. at 531. Mr. Evans totally failed to prepare his witness, thus

strongly diminishing the potential mitigating impact of the testimony.

       Further investigation into readily available evidence also would have revealed that

the mental-health problems were enduring. Since childhood, Mr. Hooks had struggled in



                                            -95-
school, was frequently evaluated for mental retardation, and was placed in special-

education classes. Fed. Evid. Hr’g Tr. at 20–21 (Test. of Clara Hooks), 49 (Test. of

Victor Hooks). While he may not meet the legal definition of mentally retarded under

Oklahoma law, no one disputes that by the time of trial he had been clinically diagnosed

with mild or borderline mental retardation. See Hooks Atkins Appeal, 126 P.3d at

640–41. Evidence of Mr. Hooks’s educational handicaps was surely relevant to the jury’s

appraisal. It was readily available and should have been part of Mr. Evans’s mitigation

case. See Anderson, 476 F.3d at 1143.

       Even more importantly, Mr. Hooks’s premature birth, the head injury he suffered

in an eighteen-wheeler accident, and the problems he experienced thereafter were clear

markers for organic brain damage. See Alverson, 595 F.3d at 1162 (noting that “severe

head trauma and/or sudden changes in behavior after such trauma” may point to the

existence of organic brain damage). Five years after conviction and sentencing, Dr.

Gelbort diagnosed Mr. Hooks with diffuse organic brain damage and testified at the 1997

federal evidentiary hearing that Mr. Hooks has damage to his frontal lobes, the “gas pedal

and the brake pedal of behavior.” Fed. Evid. Hr’g Tr. at 101 (Test. of Dr. Gelbort).

Evidence of organic brain damage is something that we and other courts, including the

Supreme Court, have found to have a powerful mitigating effect. See Rompilla, 545 U.S.

at 392; Wilson, 536 F.3d at 1094; Smith, 379 F.3d at 942–43. “Diagnoses of specific

mental illnesses . . . , which are associated with abnormalities of the brain and can be

treated with appropriate medication, are likely to [be] regarded by a jury as more

                                            -96-
mitigating than generalized personality disorders . . . .” Wilson, 536 F.3d at 1094. And

for good reason—the involuntary physical alteration of brain structures, with its attendant

effects on behavior, tends to diminish moral culpability, altering the causal relationship

between impulse and action. See Bryan v. Mullin, 335 F.3d at 1244 (Henry, J.,

concurring in part and dissenting in part) (“[Counsel’s] performance left the jury no

reason even to consider as a possibility that [the defendant] might not be morally culpable

enough, as the result of his involuntarily adduced organic brain disorder, for the death

penalty.”); see also Caro v. Woodford, 

, 1258 (9th Cir. 2002) (“By

explaining that [defendant’s] behavior was physically compelled, not premeditated, or

even due to a lack of emotional control, his moral culpability would have been

reduced.”); cf. Wilson, 536 F.3d at 1093 (“[D]efendants who commit criminal acts that

are attributable to . . . emotional or mental problems, may be less culpable than

defendants who have no such excuse.” (quoting Penry v. Lynaugh, 

, 319

(1989)) (internal quotation marks omitted)). Neither Mr. Evans nor Dr. Murphy looked

into the possibility of organic brain damage. Had they done so, as Dr. Gelbort did, Mr.

Evans could have sketched a more sympathetic figure of Mr. Hooks, one less deserving of

death.

         Responding to the prosecution’s case in aggravation. The State called Officer

Ray to testify as to Mr. Hooks’s prior armed-robbery conviction, one of three aggravating

circumstances presented by the prosecution. Even a cursory investigation into the

circumstances surrounding this crime would have revealed a much less sordid tale than

                                            -97-
the one suggested in Officer Ray’s testimony. At a liquor store in 1982, Mr. Hooks took

$35 from a cash drawer and returned home with it, along with a sack containing a

handgun. Fed. Evid. Hr’g Tr. at 32–33 (Test. of Clara Hooks).29 He immediately told his

mother what he had done. Id. at 33. Clara Hooks took the gun and marched her son

straight to the police station to speak with the chief of police about what happened. Id.

This information would have been important to a jury. Although it would not have

entirely negated the violent-felony aggravator, it certainly would have softened its edge.

Mr. Evans did not cross-examine Officer Ray on these surrounding circumstances

(indeed, did not cross-examine him at all), nor did he ask Clara to explain them when she

was on the witness stand. “[I]t is difficult to see how counsel could have failed to realize

that without examining th[is] readily available [information, he was] seriously

compromising [his] opportunity to respond to a case for aggravation.” Rompilla, 545

U.S. at 385.30

       29
               On the record before us, it is not clear where the handgun came from. Clara
Hooks testified that the handgun was under the cashier’s counter and that Mr. Hooks
grabbed it when he swiped the $35. Fed. Evid. Hr’g Tr. at 32 (Test. of Clara Hooks).
The State calls this “not credible,” although it offers no alternative explanation. Aplee.
Br. at 80. This dispute has no bearing on our analysis. There is also a dispute about the
source of the cut on the cashier’s hand in connection with the robbery. At trial, Officer
Ray offered an elliptical account of the events, saying only that he saw the cashier’s cut
and the knife blade lying on the floor. 3 Trial Tr. at 508 (Test. of Mr. Ray). Mr. Hooks
suggests that the knife was “laying on the counter” and the cut was an accident. Aplt.
Opening Br. at 94. The State calls this “highly improbable.” Aplee. Br. at 80. Again,
this dispute has no bearing on our analysis.
       30
             The State suggests that Mr. Hooks’s confession to his mother would have
been inadmissible hearsay at the sentencing proceeding under Okla. Stat. tit. 12,
                                                                              (continued...)

                                            -98-
       For his part, Mr. Evans bolstered the prosecution’s case in aggravation by

effectively conceding the continuing-threat aggravator in his opening statement. As he

prepared the jury to hear from Dr. Murphy, Mr. Evans noted:

              Some of the things that Dr. Murphy will tell you will scare you about
              Victor, in all honesty. Some of the things that Victor will tell you will
              indicate to you that he’s a continuing threat to society. . . . Some of the
              things that Dr. Murphy will tell you will indicate that Victor is a
              continuing threat to society, which is one of the allegations against him.


3 Trial Tr. at 504–05. Subsequently, not only would the jury hear of Mr. Hooks’s armed-

robbery conviction, unaccompanied by any description of its mitigating context; it would

also hear from Dr. Murphy that Mr. Hooks was both “crazy” and “very, very violent.” Id.

at 522, 530 (Test. of Dr. Murphy). We recognize that conceding a continuing-threat

aggravator is not necessarily deficient performance and may even help build credibility

with the jury. See Hooker v. Mullin, 

, 1246–47 (10th Cir. 2002). But it is

particularly unreasonable when, as here, counsel presents a beggarly mitigation case and,

worse, reinforces the conceded aggravator both by failing to challenge the government’s


       30
         (...continued)
§§ 2801–2802. Section 2802 makes hearsay—an out-of-court statement “offered in
evidence to prove the truth of the matter asserted,” id. § 2801(A)(3)—generally
inadmissible, id. § 2802. We think Clara Hooks’s testimony as to her son’s confession
would have been admissible non-hearsay on at least two bases. First, it would have been
admissible for the fact of confession, regardless of the truth or falsity of its constituent
statements, in order to show Mr. Hooks’s remorse and to humanize him to the jury.
Second, it would have been admissible to explain Clara’s reaction to the events,
specifically her marching her son up to the Idabel police station to tell the chief of police
what happened. See Dodd v. State, 

, 1034–35 (Okla. Crim. App. 2004);
Smallwood v. State, 

, 226–27 (Okla. Crim. App. 1995).

                                             -99-
case in aggravation (impeachable though it was) and by characterizing the mitigation

evidence, as well as his client, as “scar[y].”

       Conclusion. With so much mitigating evidence available and so little of it

unearthed by counsel, we are compelled to conclude that Mr. Hooks was denied

constitutionally effective assistance of counsel and, thus, a fair sentencing. Counsel did

not undertake the reasonable investigation that our decisions require. See Wilson, 536

F.3d at 1084. He presented almost no family-history evidence, and the mental-health

evidence that was presented was inadequate, unsympathetic, and even counterproductive

at times. This evidence was reasonably available to Mr. Evans and “highly relevant to the

question of moral culpability,” Anderson, 476 F.3d at 1147, and its absence “left the jury

with a ‘pitifully incomplete’ picture” of Mr. Hooks, id. at 1148 (quoting Smith, 379 F.3d

at 944). As the Supreme Court and we have repeatedly found, the failure to investigate

and develop this kind of evidence at sentencing constitutes deficient performance.31

       These deficiencies were only punctuated by counsel’s failure to respond to the

State’s case in aggravation. The State was able to present Mr. Hooks’s armed-robbery



       31
              We recently reached a contrary conclusion in DeRosa v. Workman, 

, 1211–21 (10th Cir. 2012), where the defense put on a much more extensive
mitigation case, including evidence of petitioner’s alleged organic brain damage and his
troubled and dysfunctional upbringing and family dynamics. We held that additional
mitigating evidence that petitioner alleged should have been introduced by trial counsel
was, “in large part, duplicative of the evidence actually presented by [petitioner’s] trial
counsel.” Id. at 1218. Even a cursory survey of the mitigation case in DeRosa
underscores the woeful inadequacy of the mitigation case put on here by Mr. Hooks’s
counsel.

                                             -100-
conviction as evidence of his dangerousness and tendency toward violence, but the jury

never heard the rest of the story from Clara Hooks. Further, counsel’s effective

concession that Mr. Hooks was a “continuing threat to society” was not grounded in any

strategic calculus and was particularly damaging in light of the otherwise paltry

mitigation case.

       We conclude, moreover, that counsel’s unreasonable performance prejudiced Mr.

Hooks within the meaning of Strickland. “There is no doubt that the . . . murder[] in this

case w[as] callous and brutal.” Id. at 1146. But in his painfully brief case for mitigation,

Mr. Evans missed the opportunity to “humanize and explain,” to “individualize,” Mr.

Hooks to the jury. Romano v. Gibson, 

, 1180 (10th Cir. 2001) (quoting

Mayes v. Gibson, 

, 1288 (10th Cir. 2000)) (internal quotation marks

omitted). The jury “never received an explanation for [Mr. Hooks’s] behavior.” Smith,

379 F.3d at 943. It heard precious little about his family and educational background, and

the mental-health evidence that was presented was either counterproductive or of little

mitigating value. As a result, jurors faced with an especially brutal crime were left with

almost nothing to weigh in the balance. A proper presentation of the family-history and

mental-health evidence, not to mention the circumstances surrounding Mr. Hooks’s

armed-robbery conviction, would have been “powerful mitigation.” Wilson, 536 F.3d at

1093. “Had the jury been able to place” this evidence “on the mitigating side of the scale,

there is a reasonable probability that at least one juror would have struck a different

balance.” Wiggins, 539 U.S. at 537. Accordingly, we find that counsel rendered

                                            -101-
deficient, prejudicial performance and denied Mr. Hooks the “fundamental right to a fair

trial” that the Sixth Amendment assures. Strickland, 466 U.S. at 684.

                                       III. Conclusion

        The statutory basis for the federal courts’ authority to grant the writ of habeas

corpus authorizes us to “dispose of the matter as law and justice require.” 28 U.S.C.

§ 2243; accord Paxton v. Ward, 

, 1219 (10th Cir. 1999). The statute vests

us “with the largest power to control and direct the form of judgment to be entered in

cases brought on habeas corpus.” Douglas v. Workman, 

, 1176 (10th Cir.

2009) (alteration omitted) (quoting Capps v. Sullivan, 

, 352 (10th Cir. 1993))

(internal quotation marks omitted).

        In Appeal No. 10-6076, we AFFIRM the judgment of the district court denying

habeas relief as to claims arising out of Mr. Hooks’s Atkins trial. In Appeal No. 03-6049,

we AFFIRM the judgment of the district court denying habeas relief as to Mr. Hooks’s

1989 conviction, but REVERSE the judgment of the district court denying habeas relief

as to his sentence. We therefore grant the writ with respect to Mr. Hooks’s sentence,

subject to the condition that the State of Oklahoma resentence him within a reasonable

time.




                                            -102-
03-6049, 10-6076, Hooks v. Workman

GORSUCH, J., concurring in part and dissenting in part:




       I agree with much more of the court’s very fine opinion than not, and I join all but

its discussion whether Mr. Hooks enjoyed a constitutional right to counsel at his post-

conviction Atkins proceeding, see Maj. Op. § II.C.5.a, and its holding that Mr. Hooks’s

counsel was constitutionally ineffective at the sentencing phase of his original trial, see

Maj. Op. § II.D.2.

                                              I

       On the first score, Mr. Hooks argues that he did not receive effective assistance

from his appointed counsel at the post-conviction Atkins proceeding convened to

determine whether he is mentally retarded. See Atkins v. Virginia, 

, 321

(2002). In reply, and after a careful examination of counsel’s performance, my

colleagues hold that any plausibly applicable constitutional standard for effective

representation was satisfied. See Maj. Op. § II.C.5. With this holding I agree.

       But because I agree with this much, I would decline Mr. Hooks’s invitation to

address the novel constitutional question whether a right to counsel exists in post-

conviction Atkins proceedings, a question my colleagues take up in § II.C.5.a. I would

decline to offer an opinion on this question because there is no need to do so and many

reasons to hesitate.
       Caution is always warranted when venturing down the road of deciding a weighty

question of first impression and recognizing a previously unrecognized constitutional

right. And surely caution must be doubly warranted when nothing turns on it. After all,

“[a] fundamental and longstanding principle of judicial restraint requires that courts avoid

reaching constitutional questions in advance of the necessity of deciding them.” Lyng v.

Nw. Indian Cemetery Protective Assn., 

, 445 (1988); see also Burton v.

United States, 

, 295 (1905) (“It is not the habit of the court to decide

questions of a constitutional nature unless absolutely necessary to a decision of the

case.”); NLRB v. Int’l Bhd. of Elec. Workers, 

, 591 n.15 (1987) (separately

noting that a statement “unnecessary to the disposition” is “dictum”); United States v.

Villarreal-Ortiz, 

, 1328 n.3 (10th Cir. 2009) (same). And given all

members of the panel agree with certainty and comparative ease that Mr. Hooks’s claim

fails even assuming a constitutional right to counsel exists in a post-conviction Atkins

proceeding, offering any view on whether such a new constitutional right should be

recognized is simply unnecessary in this case.

       Adding caution to caution to my mind is the fact it’s not obvious an opinion on the

question Mr. Hooks poses will ever be necessary. Today, Atkins challenges are routinely

handled before or at trial with the constitutionally assured aid of counsel. Mr. Hooks’s

Atkins claim was presented on collateral review only because Atkins issued after his

conviction became final and Atkins represents what this court has called one of the “rare

instances in which the Supreme Court has announced a new rule of constitutional law that

                                             -2-
it has also expressly made retroactively applicable to cases on collateral review.” Ochoa

v. Sirmons, 

, 540 & n.2 (10th Cir. 2007). So it is that the number of cases

like Mr. Hooks’s — applying Atkins in collateral proceedings and still working their way

through the federal courts a decade later — surely isn’t overwhelming. And for that

vestigial lot it isn’t clear whether we will ever have to decide whether the right to

effective assistance of counsel attaches. As in this case, counsel in these other lingering

cases very well may have been provided and themselves provided effective assistance.

Of course, if and when the constitutional question actually makes a difference in one of

these cases, I have no doubt this court will stand open to argument and ready to judge.

But it’s unclear we will ever have to do so and it is clear we do not have to do so today.

       Finally, my reluctance to reach the novel constitutional question is informed by the

fact that it is pitted with problems. Those problems begin with the fact our approach to

the question in this particular case comes by way of AEDPA, as my colleagues

acknowledge. So the question before us isn’t “just” whether to recognize an entirely new

constitutional right to counsel in post-conviction Atkins proceedings. It’s whether such a

right is already “clearly established” by the holdings of the United States Supreme Court.

28 U.S.C. § 2254(d)(1).

       And for his part, Mr. Hooks fails to explain how we might confidently say so

much. After all, when it comes to post-conviction habeas proceedings, the Supreme

Court’s teachings have been consistent, clear, and categorical — holding that a



                                             -3-
constitutional right to counsel does not exist. Murray v. Giarrantano, 

, 10

(1989) (plurality); Pennsylvania v. Finley, 

, 555 (1987). Time and again, the

Supreme Court has told us that “the right to appointed counsel extends to the first appeal

of right, and no further.” Finley, 481 U.S. at 555. Post-conviction review, the Court has

explained, simply “is not part of the criminal proceeding itself, [but] is . . . civil in

nature,” id. at 557, and the Sixth Amendment’s right to counsel simply “does not govern

civil cases,” Turner v. Rogers, 

, 2516 (2011). So, far from contradicting

Supreme Court holdings, the idea that Mr. Hooks lacked a Sixth Amendment right to

counsel in the course of a post-conviction Atkins proceeding seems, at least on first blush,

entirely consistent with (maybe even compelled by) Supreme Court precedent.1

       To be sure, Mr. Hooks seeks to avoid the force of all this adverse precedent by

asking us to recharacterize his post-conviction proceeding as a part of his original

criminal prosecution. He begins by noting that he couldn’t have brought his Atkins claim

until after conviction. And because of this — because his habeas petition represented the

first place he could’ve brought his Atkins claim — he suggests his Atkins proceeding

should not be treated as a post-conviction proceeding at all. Instead, he says, we should




       1
          In Martinez v. Ryan, 

 (2012), the Court recently held that the lack
of counsel in post-conviction proceedings can, in certain circumstances, constitute cause
to excuse a procedural default. But Martinez did not displace Murray and Finley’s rule
that appointment of counsel is not constitutionally compelled in collateral proceedings.
Id. at 1315.

                                               -4-
recharacterize it as a pre-conviction criminal proceeding where the Sixth Amendment and

its right to counsel automatically attaches.

       The difficulty here is Mr. Hooks doesn’t explain how this recharacterization

process is clearly compelled by Supreme Court precedent. In deciding whether to apply a

new constitutional rule retroactively, the Supreme Court has always spoken of the

question as whether the new rule should apply “to cases on collateral review.” See, e.g.,

Teague v. Lane, 

, 300-10 (1989); see also Ochoa, 485 F.3d at 540 (“Atkins . .

[is] retroactively applicable to cases on collateral review.” (emphasis added)). Neither is

the fact an important and potentially winning federal claim can be brought only in habeas

ordinarily enough to undo a conviction and transmogrify a habeas proceeding back into a

pre-conviction criminal proceeding. If the rule were otherwise — if the world were as

Mr. Hooks suggests it should be — habeas petitioners would have a constitutional right to

post-conviction counsel not just for Atkins claims but also for Strickland claims aimed at

appellate counsel or for Brady claims based on newly discovered evidence. And that, of

course, is not the law. See Finley, 481 U.S. at 555. All this suggests that the retroactivity

of a new rule applied on collateral review doesn’t strip a case of its finality and post-

conviction status unless and until the new rule or its application requires that the

petitioner’s conviction or sentence be set aside. Certainly and at the least, Mr. Hooks

identifies no clearly established law of the Supreme Court holding otherwise.

       This leaves Mr. Hooks to reply only that, if the Sixth Amendment doesn’t clearly

compel counsel, the Due Process Clause might. But here again unexplained

                                               -5-
complications soon emerge. The Due Process Clause applies to all kinds of proceedings

— including other post-conviction proceedings, see, e.g., Dist. Attorney’s Office for the

Third Judicial Dist. v. Osborne, 

, 69 (2009) — without compelling a right to

counsel. To be sure, Mr. Hooks suggests his case is different because an intellectually

disabled death row inmate won’t as a practical matter be able to press an Atkins claim

without the benefit of counsel. But the Supreme Court in Murray expressly rejected the

notion that death row prisoners have a due process right to post-conviction counsel, and

the Court did so well aware that appointed counsel is not infrequently the practical

difference between success and failure in securing post-conviction relief. See 492 U.S. at

14-15 (Kennedy, J., concurring in the judgment). Take, for example, the winning

ineffective assistance of counsel claim in Mr. Hooks’s own case. Today, the court sets

aside Mr. Hooks’s death sentence after concluding he was denied effective assistance of

counsel at the sentencing phase of his original trial. It is difficult, maybe impossible, to

imagine how Mr. Hooks would have been able to bring such a highly complex claim

without the assistance of post-conviction counsel. Yet, no one suggests due process

guaranteed Mr. Hooks the right to post-conviction counsel to bring that claim. Now,

maybe there’s some way to distinguish away all other complex post-conviction claims

and treat Atkins claims uniquely. But Mr. Hooks never explains to us how a contrary

view, one consistent with the Court’s existing direction in Murray, might be overturned

under AEDPA as an unreasonable application of existing Supreme Court precedent.




                                             -6-
       In raising these concerns, I hardly mean to suggest that competent counsel

shouldn’t be provided in the lingering cases where Atkins is enforced through collateral

proceedings. Indeed, counsel in these circumstances clearly serve a critical function, and

the State of Oklahoma recognized as much by providing Mr. Hooks with a lawyer in his

Atkins proceeding. A lawyer who, this court acknowledges, met every standard the

Constitution might conceivably command even in a pre-conviction setting. See Murray,

492 U.S. at 14-15 (Kennedy, J., concurring in the judgment) (observing that “[t]he

requirement of meaningful access can be satisfied in various ways,” including through

state initiatives like Oklahoma’s, and that “judicial imposition of a categorical remedy . . .

might pretermit [similarly] responsible solutions being considered in Congress and state

legislatures.”). Neither in raising these concerns do I mean to indicate how this court

should rule if and when the question of constitutional right actually matters. I simply and

respectfully mean to explain only the many and varied reasons that cause me to hesitate

about venturing an opinion today on a constitutional question when its answer does not

matter.

                                              II

       My other point of departure from the court’s thorough opinion is its conclusion

that Mr. Hooks’s trial counsel was constitutionally ineffective at the sentencing phase of

his original trial. See Maj. Op. § II.D.2. As my colleagues observe, our review on this

question is de novo because the state courts never passed on its merits. Even so, I agree

with the district court’s assessment that counsel’s alleged deficiencies did not prejudice

                                             -7-
Mr. Hooks. Like the district court, I would hold that there is no “reasonable probability”

that, had counsel acted just as Mr. Hooks now wishes, the jury “would have concluded

that the balance of aggravating and mitigating circumstances did not warrant death.”

Strickland v. Washington, 

, 695 (1984).

       Mr. Hooks first complains that counsel failed to produce certain evidence about his

family history. But that history is a mixed bag for him. Mr. Hooks says, for example,

that the jury should have learned his father abused him. But the evidence of abuse is

based on testimony that Mr. Hooks’s father disciplined him by spanking him with a belt

and, on one occasion, when Mr. Hooks was talking while his father was attempting to say

grace before a meal, his father smacked him very hard in the mouth. Fed. Evid. Hr’g at

14-15. According to Mr. Hooks himself, for the most part he had a “great” relationship

with his father and “liked to be around him.” Id. at 44, 47. And Mr. Hooks’s mother

remembered her husband generally as a “wonderful person” and “excellent provider.” Id.

at 11. Mr. Hooks separately but relatedly complains that the jury didn’t hear about his

premature birth, his father’s death in a car crash and his half-brother’s death in a

motorcycle accident, his father’s abuse of his mother, or his family’s frequent moves and

the difficulty he had in school. But these difficulties, too, while no doubt very real, are a

far cry from the sort of “nightmarish” personal histories that courts have faulted counsel

for failing to illuminate at trial. Williams v. Taylor, 

, 395 & n.19 (2000); see

also Wiggins v. Smith, 

, 516-17, 534-35 (2003) (discussing unproduced

evidence of “physical torment, sexual molestation, and repeated rape” as well as the fact

                                             -8-
that the defendant’s “mother, a chronic alcoholic, frequently left [the defendant] and his

siblings home alone for days, forcing them to beg for food and to eat paint chips and

garbage”); Rompilla v. Beard, 

, 391-92 (2005) (discussing unproduced

evidence the defendant suffered fetal alcohol syndrome, was mentally retarded and

repeatedly beaten, and suffered an extraordinarily deprived childhood).

       Given the comparatively equivocal nature of the unproduced evidence in this case,

it is hard to see how it would have mitigated for anyone on the jury the fact Mr. Hooks

brutally beat his pregnant wife to death over the course of approximately two hours,

leaving her body barely recognizable and his unborn child dead. Or how it would have

offset the other aggravating evidence that Mr. Hooks previously robbed a liquor store and

routinely beat his wife and two other girlfriends, causing (another) one of them to have a

miscarriage. Much more likely, any attempt to blame Mr. Hooks’s crimes on his surely

imperfect but not particularly unusual childhood would have done him more harm than

good with the jury.

       The same sort of problem recurs with all the other facts Mr. Hooks now says his

lawyer should have presented.

       After the prosecution presented aggravating evidence about his liquor store

robbery, Mr. Hooks says his trial counsel should have introduced evidence that he (Mr.

Hooks) confessed the crime to his mother, who then forced him to turn himself in. But

none of this undermines the fact that Mr. Hooks committed the robbery, or suggests he



                                            -9-
would have confessed without his mother’s influence. And much of the other testimony

that Mr. Hooks claims his mother could have provided about the robbery — that Mr.

Hooks didn’t bring any gun to the robbery but found one in the store and took it home,

and that the clerk cut her hand “accidentally” when Mr. Hooks knocked a knife lying on

the counter onto the floor — would have been inadmissible hearsay, and some of it of

questionable credibility at that.

       When it comes to the mitigating evidence about his mental health, Mr. Hooks

faults his counsel for calling Dr. Murphy to testify that he suffered from severe mental

illnesses instead of another psychologist who would have diagnosed organic brain

damage. It’s doubtful, however, if this amounted even to deficient performance, given

that it appears Dr. Murphy was virtually the only available psychiatrist willing to testify.

Fed. Evid. Hr’g at 175. But even assuming the performance here was deficient, it’s still

hard to see how a diagnosis of organic brain damage would have been materially more

helpful than the mental health evidence Dr. Murphy offered. Dr. Murphy testified, after

all, that Mr. Hooks was “borderline mentally retarded” and that he suffers from a chronic

psychotic disorder. 3 Trial Tr. at 518-22, 528. The doctor explained that this disorder

causes Mr. Hooks to have “recurrent repeated episodic breaks with his ability to tell

reality from fantasy.” Id. at 518, 521-22. Dr. Murphy then expressly proceeded to

“connect the dots” between this mental illness and Mr. Hooks’s murder. He testified that,

given Mr. Hooks’s chronic psychotic disorder, it was very unlikely Mr. Hooks could have

murdered Ms. Blaine “in a fully rational, cold-blooded, premeditated fashion.” Id. at 529.

                                            -10-
And he suggested that, at the time of the murder, Mr. Hooks must have been in a

“catatonic” and “extremely regressive state” which caused him to have poor impulse

control and left him less than competent. Id. In light of all this, it’s hard to see how Mr.

Hooks might have been aided significantly by a diagnosis of organic brain damage. In

fact, testimony along those lines would have been seriously suspect (and so potentially

harmful to Mr. Hooks) given that medical records from a 1982 hospitalization — long

after the car accident which, along with Mr. Hooks’s premature birth, allegedly caused

organic brain damage — disclose that the doctors found no evidence of organic brain

injury. Id. at 532-34.

       Mr. Hooks separately asserts that Dr. Murphy’s testimony was ineffectual because

the doctor “knew almost nothing about Mr. Hooks’s case.” Maj. Op. at 95. But while Dr.

Murphy admitted that he had not read the police reports or viewed Mr. Hooks’s

videotaped confession, these are hardly the only ways of learning about Mr. Hooks’s

crime. In fact, Dr. Murphy’s testimony reflects that he discussed the crime both with Mr.

Hooks and with trial counsel and knew all the pertinent details. 3 Trial Tr. at 458-59,

527, 531. Similarly, Mr. Hooks complains that Dr. Murphy’s testimony was undercut by

his statements that Mr. Hooks would, at times, become “crazy” and “violent.” But Mr.

Hooks was undeniably “very, very violent” when he beat his wife to death, and it was a

perfectly reasonable — even a wise — mitigation strategy to have Dr. Murphy admit this

fact and argue the behavior was attributable to Mr. Hooks’s mental illness and

incompetence rather than a product of deliberation.

                                            -11-
       Much the same holds true with his counsel’s acknowledgment during the

sentencing phase that Mr. Hooks was a dangerous person. Mr. Hooks complains that his

counsel shouldn’t have admitted as much. But counsel has explained that it was his

strategy to make this admission in an attempt “to build some credibility with the jury,”

Fed. Evid. Hr’g at 194, and Mr. Hooks has failed to overcome the “strong presumption”

that this strategy was reasonable. See Strickland v. Washington, 

, 689

(1984). By this point in the trial, after all, counsel faced a mountain of evidence (a

murder conviction and much evidence of other violence) suggesting Mr. Hooks often

resorted to brutal force. It wasn’t unreasonable for counsel to acknowledge the

unavoidable and then seek to defuse it by explaining how and why it didn’t warrant the

death penalty. And that’s exactly what counsel did. Immediately after acknowledging

his client’s violent tendencies, counsel argued they were the product not of malicious

deliberation but mental illness. 3 Trial Tr. at 505. And counsel then proceeded to remind

the jury that if they remained concerned, they had the option of life without parole,

arguing that Mr. Hooks wouldn’t be a threat in prison because he had no problems with

fellow prisoners or guards during a previous incarceration. Id. This strategy —

acknowledging the facts and seeking to work faithfully within their parameters to suggest

reasons why the death penalty isn’t warranted — surely amounts to reasonable

professional conduct. It would do a great deal more to undermine than advance the Sixth

Amendment’s right to effective assistance to require lawyers to become ostriches and

feign ignorance of the facts before the jury or risk being held incompetent. All of us


                                            -12-
lawyers and judges, after all, have to work with the hard facts as well as the easy ones.

See Hooker v. Mullin, 

, 1246-47 (10th Cir. 2002) (counsel not deficient in

stipulating to two aggravating circumstances that the jury would have found anyway

when this concession was a strategic decision to preserve credibility).

       These are all the alleged deficiencies of trial counsel Mr. Hooks cites in his effort

to overturn his death sentence. There are no more. Respectfully, I agree with the district

court that they are not sufficient to warrant displacing the jury’s considered sentence and I

would affirm the district court’s decision in full.




                                             -13-