FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  October 16, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 ROCKY EUGENE DODD,

               Petitioner - Appellant,
          v.                                             No. 11-6225
 ANITA TRAMMELL, Warden,
 Oklahoma State Penitentiary, *

               Respondent - Appellee.


                                         ORDER


Before BRISCOE, Chief Judge, KELLY and HARTZ, Circuit Judges.


      This matter is before us on Respondent-Appellee’s Petition for Rehearing

En Banc. Upon initial consideration, the judges assigned to hear this appeal

originally reviewed the petition as an implicit request for panel rehearing. Upon

that review, we GRANT the petition solely for the limited purpose of making a

revision to page 39 of our opinion. The original opinion filed on September 16,

2013, is therefore vacated, and the attached revised opinion is substituted in its

place. The Clerk is directed to issue the new decision nunc pro tunc to the

original filing date. Panel rehearing is otherwise denied.


      *
       Pursuant to Fed. R. App. 43(c)(2), Anita Trammell, who was appointed
Warden of the Oklahoma State Penitentiary on February 28, 2013, is
automatically substituted for Randall G. Workman as Respondent in this case.
      In addition, the en banc petition was also circulated to all of the judges of

the court who are in regular active service. As no judge on the panel nor on the en

banc court as a whole requested a poll, the petition for en banc rehearing is

denied.

                                       Entered for the Court,



                                       ELISABETH A. SHUMAKER
                                       Clerk of Court




                                        -2-
                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                           September 16, 2013
                                        PUBLISH            Elisabeth A. Shumaker
                                                               Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 ROCKY EUGENE DODD,

              Petitioner - Appellant,
       v.                                            No. 11-6225
 ANITA TRAMMELL, Warden,
 Oklahoma State Penitentiary, **

              Respondent - Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                      (D.C. NO. 5:06-CV-00140-D)


Randy A. Bauman, Assistant Federal Public Defender, Western District of
Oklahoma, Oklahoma City, Oklahoma, (Samuel J. Glover, Village, Oklahoma,
with him on the briefs), for Petitioner - Appellant.

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


Before BRISCOE, Chief Judge, KELLY and HARTZ, Circuit Judges.


HARTZ, Circuit Judge.



      **
        Pursuant to Fed. R. App. 43(c)(2), Anita Trammell, who was appointed
Warden of the Oklahoma State Penitentiary on February 28, 2013, is
automatically substituted for Randall G. Workman as Respondent in this case.
      Defendant Rocky Eugene Dodd was convicted on two counts of first-degree

murder in Oklahoma state court and received two death sentences. The two

victims were his next-door neighbors in an apartment complex in Edmond,

Oklahoma. They were found in their apartment with their throats cut. The

prosecution case was circumstantial; there were no eyewitnesses, no confession,

and no fingerprint, blood, or DNA evidence linking Defendant to the killings.

      Defendant applied for relief from his convictions and sentences under

28 U.S.C. § 2254 in the United States District Court for the Western District of

Oklahoma. All 15 claims in his application were denied. He appeals the denial

of four claims: (1) that the evidence of guilt was insufficient to sustain his

convictions; (2) that the trial court denied him the rights to present a complete

defense and confront witnesses when it excluded evidence that somebody else had

committed the murders; (3) that prosecutorial misconduct denied him a fair trial;

and (4) that testimony by the victims’ relatives recommending the death penalty

violated the Eighth Amendment’s ban on cruel and unusual punishment. We

affirm the denial of relief on the first three claims. But we reverse on the fourth.

Accordingly, we remand the case to the district court with instructions to grant

relief on Defendant’s sentences, subject to the State’s right to resentence him

within a reasonable time. We deny Defendant’s request for a certificate of

appealability on three additional claims.


                                         -2-
I.    BACKGROUND

      After his first convictions were set aside on appeal, Defendant was retried,

convicted, and sentenced to death in Oklahoma state court for the 1994 murders

of Keri Sloniker and Shane McInturff. See Dodd v. State, 

, 1024

(Okla. Crim. App. 2004). The opinion of the Oklahoma Court of Criminal

Appeals (OCCA) affirming the convictions and sentences described most of the

key facts surrounding the murders and second trial:

             On the afternoon of Monday, November 7, 1994, the bodies of
      Shane McInturff and his fiancé[e], Keri Sloniker, were found lying
      side by side, face-down in a pool of blood, in the bedroom of their
      Edmond apartment. [Defendant] lived in an apartment immediately
      next door to the victims with his wife, Shelly Dodd, and their infant
      daughter. [Defendant] and Shane McInturff were also co-workers at
      a local business. The bodies were found by Shane’s father, Robert
      McInturff, after [Defendant] reported that Shane had not shown up
      for work that day. [Defendant] accompanied Robert McInturff as he
      gained entry into the apartment. Upon seeing the bodies, Robert
      McInturff called for help; emergency personnel and police arrived
      within minutes.

             Detectives began processing the scene and interviewing
      witnesses. McInturff and Sloniker had not been seen by anyone
      since the early morning hours of Sunday, November 6, 1994. They
      had spent much of Saturday in the company of two friends, Brian
      Brown and Lisa Way. Brown testified that while at the victims’
      apartment on Saturday afternoon, he saw [Defendant] come over and
      hand McInturff a check for $70.00. McInturff later showed Brown
      another $70.00 check that [Defendant] had given him earlier in the
      day. Brown stated that the checks were payments for
      methamphetamine that McInturff had supplied to [Defendant].

             Later that evening, Brown, Lisa Way, and the two victims went
      to a local pool hall after smoking marijuana and methamphetamine at
      the victims’ apartment. Lisa Way testified that the victims kept a

                                        -3-
stash of drugs in a box under their living room couch, and that the
box was under the couch when the foursome left to play pool. They
arrived at the pool hall at approximately 10:30 p.m. and left at
approximately 1:30 a.m. Brown dropped off the rest of the group at
the victims’ apartment and went home; the victims invited Way to
come up and watch a movie and spend the night at their apartment,
and Way accepted. Upon entering the apartment, McInturff asked
Keri to roll a joint. According to Way’s testimony, when Keri pulled
the box from under the couch, she saw that the cache of drugs was
missing. McInturff became extremely angry and loud, kicking the
common wall between his and [Defendant’s] apartment, and loudly
accusing [Defendant] of stealing the drugs. McInturff then went next
door to [Defendant’s] apartment, where a heated exchange took
place. Soon after McInturff returned to his apartment, [Defendant]
followed and told McInturff to keep the noise down because his child
was trying to sleep.

      Part of the confrontation between [Defendant] and McInturff
was also witnessed by Dennis Kersh, who lived in an apartment
across the breezeway of the small complex. At approximately 2:00
a.m. Sunday morning, Kersh was awakened by a loud noise outside.
He then heard someone yell “fuck” from the direction of the victims’
apartment. From his window, Kersh saw [Defendant] run over to the
victims’ apartment. According to Kersh, as [Defendant] entered the
apartment he yelled, “what the fuck is going on.”

       According to Lisa Way, after [Defendant] left the apartment,
the victims began discussing a plan to cash the two checks
[Defendant] had given McInturff earlier that day, and tell
[Defendant’s] wife that he was still using drugs. They believed this
would cause problems for [Defendant], because [Defendant’s] wife
(who happened to be out of town at the time) had threatened to leave
[Defendant] if she ever found out he was using drugs again. Way
decided not to stay the night after all, and left the victims’ apartment
at about 3:00 a.m. on Sunday. This was the last time anyone saw
Shane McInturff and Keri Sloniker alive. Later that Sunday, Brown
found McInturff’s paycheck in his car. At approximately 5:00 p.m.,
Brown went by the victims’ apartment to return the paycheck, but no
one answered when he knocked on the door. [Defendant], who was
sitting outside his apartment, told Brown he had not seen Shane or
Keri that day.

                                   -4-
       [Defendant] told police that on the morning of Monday,
November 7th, he went by the victims’ apartment to give McInturff a
ride to work. No one responded to his knocks, and McInturff did not
report to work that day. Because the victims did not have a
telephone, [Defendant] left several messages throughout the day on
the answering machine of Shane McInturff’s parents, expressing
concern about Shane and Keri’s whereabouts. [Defendant] was off
work and at the apartment complex later that afternoon when Robert
McInturff arrived to check on his son. The front door was locked,
and Mr. McInturff first tried to enter the apartment through a front
window, which the victims were known to routinely leave unlocked;
however, the window was locked as well, so he obtained a key to the
apartment from the landlord.

       Upon entering the apartment, Mr. McInturff observed two
bodies face-down on the bedroom floor. Mr. McInturff testified that
he did not turn on the bedroom light and that [Defendant] remained
near the front door. McInturff yelled for [Defendant] to call 911.
Because of the location and position of the bodies, Mr. McInturff
stated that he was unable to determine the manner in which Shane
and Keri were killed. He noticed that Shane’s wallet was lying open
in the living room.

      The earliest that any of the emergency personnel or police
were able to tell the manner in which the victims had been killed was
approximately 9:25 p.m. Monday evening, several hours after the
discovery, when the bodies were moved for the first time by the
medical examiner, who determined that the victims had their throats
cut with a very sharp bladed instrument. Before that, the assumption
had been that the victims were shot in the head. [Defendant] was
being questioned at the police station at the time the true cause of
death was revealed. In a key piece of evidence, [Defendant] spoke
with Dale Ketler, his supervisor at work, at 6:41 p.m. on Monday
evening—a half-hour after the bodies had been found—and informed
him that Shane and Keri had been murdered and that their throats had
been cut. In another key piece of evidence, at work earlier that day,
[Defendant] returned a large, fixed-blade hunting knife that he had
borrowed from a co-worker, Al Ames. He left the knife at Ames’
workstation, with a note of thanks for getting to borrow the knife and
adding that he never had a chance to use it. When news of the

                                  -5-
murders spread around the workplace on Tuesday, Ames turned the
knife and the note over to police.

       Investigation of the crime scene revealed trace evidence that
someone may have washed blood down the victims’ bathroom sink.
A missing hand towel from that bathroom was found in the apartment
complex dumpster, stained with blood. DNA analysis could not
exclude either victim as the source of that blood. Except for the fact
that Keri’s purse had been dumped out, the victims’ apartment was
intact, with nothing of known value taken; Keri’s engagement ring
was still on her finger. No sign of a weapon was found, and although
the victims were positioned as if they might have been bound by the
wrists, no ligatures or ligature marks were discovered. No traces of
blood were found on the knife [Defendant] had borrowed from Al
Ames. There was no sign of a struggle with the victims or any
defensive wounds on their bodies. There was no sign of forced entry,
and Robert McInturff had found the front door to the apartment
locked. Police found the front window to the apartment unlocked,
even though Robert McInturff stated that he had unsuccessfully tried
to open that window when he, accompanied by [Defendant], first
tried to gain access to the apartment late Monday afternoon.

       [Defendant], Brown, and Way were all questioned by police
the night the bodies were discovered. When questioned about the
two $70.00 checks that Brown had seen in McInturff’s possession,
[Defendant] first claimed he had loaned McInturff money to buy a
car from McInturff’s uncle, and that McInturff actually returned the
checks later Saturday afternoon because the uncle was selling the car
to someone else. [Defendant] claimed that he tore the checks into
several pieces and tossed them in the trash. [Defendant] was
apparently unaware that Lisa Way had returned to the victims’
apartment early Sunday morning after playing pool, and had seen the
two checks at that time. He was also unaware that before she was
murdered, Keri Sloniker had entered the two checks into her check
register and filled out a deposit slip for them. A search of the
apartment complex dumpster revealed trash from [Defendant’s]
apartment, but no evidence of the checks. Robert McInturff cast
further doubt on [Defendant’s] initial claim when he testified that he
had made arrangements to loan Shane money to buy a car from his
brother in Arkansas.


                                  -6-
       At trial, [Defendant] testified on his own behalf and modified
his version of events. First, he admitted that the two $70.00 checks
he had written to McInturff were payment for methamphetamine, and
not a car loan as he initially claimed. He claimed that when
McInturff’s father opened the apartment late Monday afternoon, he
([Defendant]) saw the checks by McInturff’s wallet and took them
then. To explain the fact that no evidence of the checks had been
found in the dumpster, [Defendant] again altered his version of
events, claiming that he had run back to his own apartment,
nauseated upon finding his friends were dead and, while vomiting in
the toilet, tore up the checks and tossed them in as well.

       At trial, [Defendant] admitted that he had borrowed a hunting
knife from his co-worker, Al Ames, a few weeks before the murders,
and returned it the day the bodies were discovered. However,
[Defendant] claimed he did not have access to the knife at the time of
the murders, because his wife had traveled out of town for the
weekend, and he had placed the knife in the trunk of their car on
Friday before she left. In rebuttal, [Defendant’s] wife, Shelly Dodd,
testified she was in and out of the car trunk several times that
weekend, and that she did not recall seeing Ames’s knife therein.

      [Defendant] also offered a new explanation at trial for why he
told Dale Ketler that the victims had their throats cut, even though
the cause of death was not determined until several hours later.
[Defendant] originally told police that he just assumed a knife had
been used because of all the blood surrounding the bodies. At trial,
however, [Defendant] claimed for the first time that he had observed
the emergency responders talking with each other at the scene, and
saw one of them make a gesture across his throat with his thumb. In
rebuttal, the State presented the testimony of the first responding
emergency personnel. None of them recalled making any such
gesture, and all testified that such a gesture would be highly
unprofessional conduct at a homicide scene. One of the first
emergency responders also testified that when he first came on the
scene and spoke with [Defendant], [Defendant] claimed that he had
been playing pool with the victims the previous Saturday night.

       During a search of [Defendant’s] apartment on Monday
evening, police seized a number of items, including a pair of wet
blue jeans and a copy of the “Anarchist Cookbook,” which Brian

                                  -7-
Brown had lent to [Defendant] and which describes, among other
things, how to kill a person efficiently with a knife by cutting their
throat. In his testimony, [Defendant] could give no explanation for
the wet jeans. Martin Mullins, [Defendant’s] father-in-law, testified
that [Defendant] had done laundry at his home on the afternoon of
Saturday, November 5; [Defendant’s] apartment did not have a
washer or dryer. Mullins did not recall [Defendant] returning to his
apartment with any wet clothing that afternoon, which was two full
days before the wet jeans were seized. Shelly Dodd testified that she
did not hand-wash any jeans after she returned from her weekend trip
on Sunday evening.

       According to Mullins, while [Defendant’s] laundry was
washing and drying, on Saturday afternoon, [Defendant] spent his
time shooting a crossbow pistol in Mullins’ backyard and sharpening
several hunting knives that Defendant had brought over with him.
Mullins recalled that [Defendant] had brought a folding-blade knife
and a fixed-blade knife to his home for sharpening. The knife
[Defendant] had borrowed from Ames was a fixed-blade knife, and
detectives found it to be very sharp when they obtained it.
According to police, the only fixed-blade knife found in
[Defendant’s] apartment had a dull blade, suggesting that he did not,
in fact, sharpen that knife at Mullins’ home on the Saturday before
the murders. At trial, [Defendant] claimed he only sharpened two
folding-blade knives at Mullins’ home.

       Mullins also testified that after [Defendant] was arrested and
charged with the murders, he helped his daughter move out of the
apartment. While packing, Mullins said, he found several magazines
devoted to photos and articles about how to kill people, including
one that, according to Mullins, had a cover story about “How to cut
your target’s throat and leave no evidence.” Shelly Dodd’s cousin,
Malinda Anderson, testified that she had seen similar magazines in
[Defendant’s] bedroom in mid–1993, when she and her husband
spent the night there.

       As noted, [Defendant] testified on his own behalf at trial, and
denied any participation in the murders. He also presented expert
testimony suggesting that it would have been unlikely that one
person could have subdued two victims without having to restrain
either of them with some sort of binding.

                                   -8-


(paragraph numbers omitted).

      After the jury returned a guilty verdict on each of the two first-degree

murder counts, the trial moved to the sentencing phase. For each count the jury

found two statutory aggravating factors beyond a reasonable doubt: (1) that

Defendant had previously been convicted of a violent felony, an armed robbery

committed at age 16, see 

1047; and (2) that he had knowingly created

a great risk of death to more than one person, see 

1047–48. The jury

fixed Defendant’s punishment at death for each count, and the court imposed two

death sentences. See 

      Defendant appealed directly to the OCCA, which denied relief. See 

He then filed two applications for postconviction relief in state court, both

of which the OCCA denied.

      In October 2006 Defendant filed his application for relief under 28 U.S.C.

§ 2254. He asserted 15 grounds for relief, seven of which are relevant to this

appeal: 1 (1) that the evidence of his guilt was insufficient to sustain a conviction

      1
        Defendant also raised the following eight claims not presented in this
appeal: (1) that he was denied his right to be present at all critical stages of the
proceedings; (2) that judicial bias violated his right to a fair and impartial
tribunal; (3) that the trial court inadequately instructed the jury on the option of
sentencing him to life without possibility of parole; (4) that the court failed to
instruct the jurors that before they could impose the death penalty, they must find
unanimously that one or more of the aggravating factors outweighed any
mitigating factors beyond a reasonable doubt; (5) that the aggravating factor for a
prior violent-felony conviction was unconstitutional as applied to him because he
                                                                         (continued...)

                                         -9-
on either murder count; (2) that he was denied his constitutional rights to present

a complete defense and to confront witnesses against him when the trial court

refused to admit evidence that someone else had committed the crimes; (3) that

prosecutorial misconduct deprived him of a fair trial at both the guilt phase and

the sentencing phase; (4) that improper victim-impact testimony at the sentencing

phase violated his rights under the Eighth Amendment; (5) that the admission of

hearsay and bad-acts evidence at the guilt phase violated the Confrontation Clause

and his right to a fair trial; (6) that his trial counsel was ineffective; and (7)

cumulative error. He also requested discovery and an evidentiary hearing.

      The district court denied Defendant’s requests for discovery and an

evidentiary hearing, and denied relief on all claims. But it granted a certificate of

appealability (COA) with respect to claim (1), insufficiency of the evidence, and

claim (4), improper victim-impact testimony. See 28 U.S.C. § 2253(c)(1)(A)

(requiring a COA to appeal the denial of a § 2254 application). Defendant timely

filed a notice of appeal. We expanded the COA to cover claim (2), exclusion of

evidence of a third-party culprit, and claim (3), prosecutorial misconduct.

Defendant appeals the denial of relief on claims (1) through (4) and requests a

      1
          (...continued)
had committed the underlying offense before turning 18; (6) that certain forensic
testimony regarding Al Ames’s knife and the crime scene was unreliable and
misleading; (7) that the trial court improperly admitted evidence of his suicide
attempt while awaiting trial in prison, mishandled a note from the jury, and
denied the jury a helpful view of the crime scene; and (8) that his appellate
counsel was ineffective.

                                          -10-
COA on claims (5) through (7): improper hearsay and bad-acts evidence,

ineffective assistance of trial counsel, and cumulative error.

II.   STANDARD OF REVIEW

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), we must apply a “highly deferential standard” in § 2254 proceedings,

one that “demands that state-court decisions be given the benefit of the doubt.”

Cullen v. Pinholster, 

, 1398 (2011) (internal quotation marks

omitted). If a claim has been “adjudicated on the merits in State court

proceedings,” we may not grant relief under § 2254 unless the state-court decision

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

Federal law, as determined by the Supreme Court of the United States” 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). The phrase

“clearly established Federal law, as determined by the Supreme Court of the

United States,” 

“refers to the holdings, as opposed to the dicta,

of th[e] Court’s decisions as of the time of the relevant state-court decision,”

Williams v. Taylor, 

, 412 (2000).

      Under the “contrary to” clause of § 2254(d)(1), we may grant relief only “if

the state court arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law or if the state court decides a case differently than

th[e] Court has on a set of materially indistinguishable facts.” 

And

                                         -11-
under the “unreasonable application” clause, we may grant relief only “if the state

court identifies the correct governing legal principle from th[e] Court’s decisions

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

application of federal law is different from an incorrect

application of federal law. Indeed, a federal habeas court may not issue the writ

simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or

incorrectly.” Renico v. Lett, 

, 1862 (2010) (emphasis, citation and

internal quotation marks omitted). In evaluating whether the application of a rule

was unreasonable, we must consider the rule’s specificity. See Yarborough v.

Alvarado, 

, 664 (2004). “The more general the rule, the more

leeway courts have in reaching outcomes in case-by-case determinations.” 

a federal claim has been presented to a state court and the

state court has denied relief,” we may “presume[] that the state court adjudicated

the claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.” Harrington v. Richter, 

, 784–85 (2011).

“Where . . . there is no indication suggesting that the state court did not reach the

merits of a claim, we have held that a state court reaches a decision ‘on the

merits’ even when it fails either to mention the federal basis for the claim or cite

any state or federal law in support of its conclusion.” Gipson v. Jordan, 

, 1196 (10th Cir. 2004) (emphasis omitted).

                                         -12-
III.   ISSUES ON WHICH DEFENDANT HAS OBTAINED A COA

       A.    Sufficiency of the Evidence

       Defendant claims that the evidence against him was insufficient to sustain

his convictions. Evidence is sufficient to support a criminal conviction 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.” Jackson v. Virginia, 

, 319 (1979). On direct

appeal the OCCA rejected Defendant’s claim on the merits. See 

–43. It concluded: “Reviewing the evidence as a whole, including the

evidence presented by the defense, we believe a rational juror could have

determined that [Defendant’s] guilt was the only reasonable hypothesis presented,

and further, that the hypothesis was proven beyond a reasonable doubt.” 

       Given the OCCA’s merits adjudication of this claim, “our task is limited by

AEDPA to inquiring whether the OCCA’s application of Jackson was

unreasonable.” Matthews v. Workman, 

, 1183 (10th Cir. 2009). It

was not. The OCCA reasonably held that the evidence could have permitted a

rational trier of fact to find Defendant guilty on both counts of first-degree

murder beyond a reasonable doubt. We deny relief on this claim.

       B.    Exclusion of Evidence of a Third-Party Culprit




                                        -13-
      Defendant claims that he was denied his constitutional right to present a

complete defense when the trial court excluded evidence that somebody else had

committed the murders. The OCCA rejected this claim on the merits. See 

–34. We cannot say that this decision was contrary to or an

unreasonable application of law clearly established by the Supreme Court. 2

            1.     Background

      Before trial, Defendant filed a notice of intent to present evidence that a

person other than the accused had committed the murders. The motion listed

more than a dozen items of potential evidence; but we recite only the items that

Defendant emphasizes in this appeal. Robert McInturff, father of victim Shane

McInturff, made a statement to the police on November 7, 1994, the day the

bodies were discovered. In it he recounted Shane’s telling him the prior June that

Shane had run up a debt with a woman named Gidget, whom he had met at a pool

hall, and that Gidget and some Asians had forced him to sign over the title to his

1990 Grand Am under threat of death. Shane’s mother Anne McInturff made a

similar statement the same day. She repeated Shane’s story of Gidget, the Asians,

and the car, but she added that Shane had told her that Gidget had initially taken

his $350 pool cue in satisfaction of the debt. She also said that Shane was

      2
        Defendant also complains that the court improperly kept him from
introducing certain evidence at the sentencing phase. Because we grant relief
from his sentences in Part III.D of this opinion, we do not reach this claim. Our
discussion here addresses only the guilt-phase exclusion of Defendant’s proffered
evidence of a third-party culprit.

                                        -14-
“scared to death” after losing his car and “would look out the window before

answering the door.” Supp. Crim. App. Original R. at 16, State v. Dodd,

No. CF-94-7724 (D. Okla. May 9, 2003). Both parents told the police that the

victims had moved into their home while they were away on vacation in June

1994. In addition, Defendant cites the statement of another resident of the

victims’ apartment complex, who told the police that “on the night of the 6th

around 2:00 A.M. (Monday morning),” 3 she was awakened by the sound of a

gunshot and then heard people running next to the building “saying something in

another language.” 

This resident testified at Defendant’s first trial that

the language may have been Middle Eastern. Finally, Defendant cites the police

statement of a friend of Shane McInturff who said that roughly a week before the

murders, Shane had called her to say he had too large a quantity of drugs, needed

to get rid of it, and would cut the price on the pot he had. She said that Shane had

“sounded very nervous.” 

      The trial court excluded Defendant’s proffered evidence of a third-party

culprit, ruling that the evidence failed to comply with Oklahoma’s overt-act rule.


      3
        Defendant says that in a later affidavit this witness clarified that she had
been awakened in the early morning hours on Sunday morning. But because
Defendant never presented the affidavit to the OCCA, we may not consider it in
deciding whether the OCCA’s determination on this issue was contrary to or an
unreasonable application of clearly established federal law. See Cullen v.
Pinholster, 

, 1398 (2011) (“[R]eview under § 2254(d)(1) is limited
to the record that was before the state court that adjudicated the claim on the
merits.”).

                                        -15-
At the time of trial, Oklahoma courts had interpreted this rule to mean that

“evidence offered to show that some other person committed the crime charged

must connect such other person with the fact; that is[,] some overt act on the part

of another towards the commission of the crime itself.” Dennis v. State, 

, 1232 (Okla. Crim. App. 1994) (internal quotation marks omitted).

Evidence showing merely “a possible motive on the part of another,”

unaccompanied by “evidence of acts or circumstances that tend clearly to point to

another, rather than the accused,” would not satisfy this rule. 

marks omitted).

      On direct appeal the OCCA affirmed the trial court’s ruling. It said that

Defendant’s proffered evidence “not only failed to establish an overt act by a

third party, but more fundamentally, it failed to establish an identifiable third

party with a motive to harm either [victim].” 

. It further

observed regarding the various items of evidence that “the more specific one item

was, the more likely it was inconsistent with the others.” 

concluded:

“Because the proffered evidence was ambiguous and entirely speculative as to a

potential alternative suspect, the trial court did not abuse its discretion in

excluding it from the guilt stage of trial to avoid confusion of the issues.” 

then “reject[ed] [Defendant’s] claim that barring this evidence

violated his constitutional right to a fair trial, because it prevented him from

mounting a defense.” 

                                          -16-
      [Defendant] has not demonstrated that the general rules of relevancy,
      codified in our Evidence Code, worked to deny him this right.
      [Defendant] was simply barred from presenting what, in the trial
      court’s discretionary determination, did not tend to be probative of
      any fact in issue.

also emphasized that Defendant had been permitted to put on

substantial evidence that someone else must have committed the murders:

      [Defendant] was able to present evidence and argument on many of
      the subjects he lists as alternative-suspect evidence. For example,
      the jury was made aware that the victims possessed paraphernalia not
      only for ingesting drugs, but for distributing them as well. Expert
      testimony showed that some DNA recovered from the bloody hand
      towel did not match either victim or [Defendant], and that numerous
      latent fingerprints lifted from the crime scene did not match either
      the victims or [Defendant.] In addition, [Defendant] presented expert
      testimony as to the unlikelihood that a lone assailant could have held
      two victims in submission without restraining them in some manner,
      and testimony was presented that the manner of killing was
      reminiscent of gang violence.

concluded:

      Thus, [Defendant] was permitted, within the parameters of the
      Evidence Code, to advance and attempt to support his claim that a
      reasonable doubt existed that he was the perpetrator.

to Present a Complete Defense

      Defendant argues that the denial of his constitutional claim was contrary to

or an unreasonable application of clearly established law set forth in a number of

Supreme Court precedents. Two statements by the Court are probably the most

helpful to his position. The first is: “Whether rooted directly in the Due Process


                                       -17-
Clause of the Fourteenth Amendment, or in the Compulsory Process or

Confrontation clauses of the Sixth Amendment, the Constitution guarantees

criminal defendants a meaningful opportunity to present a complete defense.”

Crane v. Kentucky, 

, 690 (1986) (even after trial court had decided

that confession was admissible, defendant was constitutionally entitled to put on

evidence of circumstances of confession to show that it was unreliable) (citations

and internal quotation marks omitted). The second is: “Restrictions on a criminal

defendant’s rights to confront adverse witnesses and to present evidence ‘may not

be arbitrary or disproportionate to the purposes they are designed to serve.’”

Michigan v. Lucas, 

, 151 (1991) (Constitution did not necessarily

require admission of evidence of prior sexual relationship between rape victim

and defendant when defense did not comply with requirement of notice to

prosecution) (quoting Rock v. Arkansas, 

, 56 (1987) (rejecting per se

rule excluding hypnotically refreshed testimony when applied to defendant’s own

testimony)).

      At the same time, however, the Supreme Court has never questioned the

traditional reasons for excluding evidence that may have some relevance. The

formulation in Federal Rule of Evidence 403 sets them forth as follows: “The

court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

                                        -18-
needlessly presenting cumulative evidence.” Fed. R. Evid. 403. Thus, Crane

said:

        We acknowledge . . . our traditional reluctance to impose
        constitutional constraints on ordinary evidentiary rulings by state
        trial courts. In any given criminal case the trial judge is called upon
        to make dozens, sometimes hundreds, of decisions concerning the
        admissibility of evidence. As we reaffirmed earlier this Term, the
        Constitution leaves to the judges who must make these decisions
        “wide latitude” to exclude evidence that is “repetitive . . . , only
        marginally relevant” or poses an undue risk of “harassment,
        prejudice, [or] confusion of the issues.” Delaware v. Van Arsdall,
        

, 679 (1986). Moreover, we have never questioned the
        power of States to exclude evidence through the application of
        evidentiary rules that themselves serve the interests of fairness and
        reliability—even if the defendant would prefer to see that evidence
        

–90.

        As the Court recently observed, “[o]nly rarely” has it “held that the right to

present a complete defense was violated by the exclusion of defense evidence

under a state rule of evidence.” Nevada v. Jackson, 

, 1992 (2013)

(per curiam). Of the four cases cited by Jackson for this proposition, three

predated the OCCA’s decision in this case. All are readily distinguishable.

        In the first, Washington v. Texas, 

, 16 (1967), the defendant

wished to call as a witness his previously convicted accomplice, who would

testify that the defendant had tried to persuade the accomplice to leave and then

fled before the accomplice fired the fatal shot. “It [was] undisputed that [the

accomplice’s] testimony would have been relevant and material, and that it was


                                          -19-
vital to the defense.” 

a state rule of evidence, testimony by

accomplices was generally excluded. See 

The Court held that the

rule was absurd, particularly since it had exceptions if the accomplice had been

acquitted or was testifying for the prosecution, when the danger of perjury would

be enhanced. See 

As Jackson summarized, the state evidentiary rule

in Washington “could not be rationally 

.

      The next cited decision was Chambers v. Mississippi, 

(1973).

The defendant was charged with murder. See 

Another person

(McDonald) had made a written confession and had orally confessed to three

different friends. See 

The defendant called McDonald as a

witness, and the written confession was admitted into evidence. See 

On cross-examination the state elicited that McDonald had repudiated the

confession, and McDonald explained why he had falsely confessed. See 

then sought to cross-examine McDonald as an adverse witness

but, because of a state voucher rule forbidding a party to impeach his own

witness, he could not cross-examine McDonald about his confessions. See 

295–96. Also, because of the state hearsay rule the defendant was not

permitted to call the three friends to testify about McDonald’s confessions. See

The Court noted that the state had not sought to defend its voucher

rule “or explain its underlying rationale,” 

and it held that there were

strong indicia of reliability of the oral confessions, see 

To

                                         -20-
exclude all this evidence, it ruled, violated the defendant’s constitutional right to

a fair trial. See 

      The third decision was Rock. In that case the defendant himself was

prevented from testifying to the extent that his memory had been hypnotically

refreshed. 

–48. The Court held that the state’s per se rule

excluding hypnotically refreshed memories must yield to an individualized

examination of the reliability of the testimony in the particular case. See 

      In each of these cases the excluded evidence could not have been more

relevant. If believed, the evidence in itself would have established the

defendant’s innocence. Yet the state court either had provided no rationale for

the exclusion, see 

, could not defend an absurd rule,

see 

–23, or had failed to examine the reliability of the

specific evidence in that case, see 

–62; 

–303. Not so in this case. The excluded evidence merely suggested the

possibility of other culprits. The OCCA examined the evidence and found it

“ambiguous and entirely speculative as to a potential alternative suspect.” 

. And, it said, exclusion would eliminate what “amounted only

to evidence of the victim’s bad character” and would “avoid confusion of the

issues.” 

the court rely on a rigid rule to require exclusion. The

OCCA noted that “the defense . . . failed to establish an overt act by a third

                                         -21-
party,” but its analysis of the admissibility of the evidence and Defendant’s fair-

trial claim addressed traditional factors in evidentiary rulings. 

well

have ruled differently on the admissibility of the evidence, but the OCCA’s

assessment of the evidence was not irrational and it did not contradict or

unreasonably apply clear Supreme Court precedent. 4

      We briefly address three other decisions on which Defendant relies. He

cites Crane as supporting his complete-defense argument. The opinion is relevant

but unhelpful to Defendant. In Crane the state court, after ruling that the

defendant’s confession was voluntary and therefore admissible, excluded

testimony about the circumstances of his confession. 

–86.

The Supreme Court held that the exclusion violated the defendant’s constitutional

right to present a complete defense. See 

The evidence was certainly

relevant; the defendant could be acquitted only if he could convince the jury that

his confession was unreliable. Yet neither the state courts nor the prosecution

briefs “advanced any rational justification for the wholesale exclusion of this

      4
         Defendant argues that in addressing his constitutional claim, the OCCA
improperly reviewed the trial court’s actions for abuse of discretion. He contends
that application of the abuse-of-discretion standard to a constitutional claim is
improper, citing Richie v. Workman, 

, 1137–38 (10th Cir. 2010).
But Richie was considering only the sufficiency of the evidence to support a
lesser-included instruction, an issue we have described as one of law. See Gilson
v. Sirmons, 

, 1234 (10th Cir. 2008). Evidentiary rulings, in
contrast, are generally reviewed for abuse of discretion because of the trial
judge’s superior vantage point in assessing probative value and the considerations
favoring exclusion. In any event, a fair reading of the OCCA decision indicates
that it was making an independent determination of the relevant factors.

                                         -22-
body of potentially exculpatory evidence.” 

Again, the evidence here

was not as relevant and there were rational grounds for exclusion.

      The other Supreme Court case cited by Defendant, Holmes v. South

Carolina, 

(2006), concerns a relevant legal issue, but because it

postdated the OCCA decision in this case it could not establish law benefitting

Defendant under § 2254(d)(1). See 

. We describe it,

however, because it actually weakens Defendant’s argument. In Holmes a state

rule barred evidence that the crime was committed by a third party if there was

“‘strong forensic evidence’” of the defendant’s 

. The Court

unanimously held that the evidence could not be excluded because of the strength

of the state’s case, as opposed to the weakness of the proffered evidence or the

risk of undue confusion or the like. See 

At the same time,

however, it noted the wide acceptance of rules limiting “the admission of

evidence proffered by criminal defendants to show that someone else committed

the crime with which they are charged.” 

Even by the time of Holmes

it was not clearly established that all such evidence must be admitted.

      Defendant’s third case is our decision in Paxton v. Ward, 

(10th Cir. 1999). He relies on the statement in that case that Supreme Court

precedents like Rock and Chambers “make[] clear that a state court may not apply

a state rule of evidence in a per se or mechanistic manner so as to infringe upon a

defendant’s constitutional right to a fundamentally fair trial.” 

But as

                                        -23-
we have just explained, that is not what the OCCA did in Defendant’s case.

Rather than applying the overt-act rule mechanistically or inflexibly, it analyzed

Defendant’s evidence on the merits and found it “ambiguous and entirely

speculative as to a potential alternative suspect.” 

.

      Finally, Defendant argues that regardless of whether the initial evidentiary

exclusion was constitutional, during guilt-phase closing arguments the

prosecution improperly commented on the absence of evidence of a third-party

perpetrator by challenging defense counsel to “cut to the chase” and asking,

“What is the reasonable theory of innocence . . . ?” Tr. of Proceedings, Vol. 16 at

105–06, Dodd, No. CF-94-7724 (D. Okla. May 30, 2002) (Tr.). These remarks,

Defendant suggests, infringed on his constitutional right to present a complete

defense because they “double[d] down by highlighting the defense failure to

present the very evidence prosecutors succeeded in excluding.” Aplt. Br. at 21.

He relies on our decision in Paxton. We are not persuaded.

      After the defendant in Paxton had been found guilty of murdering a friend,

the prosecution presented evidence during the sentencing stage that he had been

charged in the shooting death of his wife years earlier. 

–03.

The circumstances of the wife’s death occupied “the bulk of the state’s evidence”

during this stage. 

The defendant offered into evidence a court order

stating that the charge against him had been dismissed because he had been

cleared by a polygraph examination. See 

But the trial court excluded

                                        -24-
the evidence under a state rule that polygraph results could not be admitted for

any purpose. See 

argument the prosecutor told the jury that the

defendant had failed to introduce any evidence countering the state’s version of

events and that nobody knew why the charges had been dismissed. See 

We ruled that the evidentiary exclusion had violated the defendant’s

Eighth Amendment right to present mitigating evidence at the sentencing phase,

and that the defendant had been denied his due-process right to explain or deny

the evidence against him. See 

      Two key distinctions set Paxton apart from this case. First, in Paxton the

problematic closing argument occurred during the sentencing phase. We

substantially relied on Supreme Court cases relating to a defendant’s opportunity

to present mitigating evidence not admissible under ordinary evidentiary rules.

See 

      Second, the prosecutor in Paxton outright lied to the jury. He knew the

reason why the charges against the defendant had been dismissed; but knowing

that evidence of that reason was excluded, he falsely asserted that the reason was

unknown. That is not what happened here. Defendant’s principal challenge is to

the following remarks in the State’s closing argument (we emphasize the portions

specifically referred to in Defendant’s opening brief):

            I know that as you all listen to the argument of Defense
      Counsel that you’re going to be thinking about the evidence in this
      case. And you could pick this case apart, but I know that the thing

                                        -25-
      you’re going to want Ms. Hammarsten [defense counsel] or whoever
      argues over there on their side, is to take a look at that circumstantial
      evidence case and say, Ms. Hammarsten, from the evidence in the
      case taken together, what is the reasonable theory of innocence
      consistent with all of the evidence taken together, inconsistent with
      guilt and consistent with innocence, not picking it apart, not just this
      or that, Ms. Hammarsten, I think what you all want to know—

             [Defense counsel raises objection, which court overrules.]

             What you all want Ms. Hammarsten to know when she gets up
      here, is let’s cut to the chase, Ms. Hammarsten. What is the
      reasonable theory of innocence, not consistent with one item or two,
      but consistent with all of the evidence showing that [Defendant], the
      guy right here, is the one who had the motive, the opportunity, the
      capacity, and he’s the one who did the killer stuff. What is the
      reasonable theory of innocence? That’s, I believe, what you want
      Ms. Hammarsten to tell you right now.

Tr., Vol. 16 at 105–06 (emphasis added). In rebuttal closing argument the State

continued this attack, asserting, “[Y]ou still have no reasonable theories of

innocence.” 

      Fairly understood, the State’s argument was simply that there was no

reasonable view of the evidence other than Defendant’s guilt. This was a

permissible comment on the evidence at trial. And there was no assertion of a

fact known by the prosecutor to be untrue. In particular, the State did not assert

that there was no piece of evidence that supported innocence. On the contrary,

the closing argument appeared to concede that point. And we cannot say, as was

true in Paxton, that the prosecution knew that excluded evidence contradicted

what was said in closing. Indeed, the prosecutors here could have made the same


                                         -26-
argument even if the excluded evidence had been admitted. It would not be

unreasonable, as we have already said, to view that evidence as speculative.

      Under AEDPA deference we cannot sustain this claim.

             3.      Confrontation Clause

      At oral argument before this court, defense counsel’s first contention was

that the trial court had violated Defendant’s rights under the Confrontation Clause

by restricting the cross-examination of Anne McInturff, whose son was one of the

victims. On direct examination she testified that her son would have told her if

he had been in any trouble or needed help and that at the time of his death she had

no information suggesting that he was in trouble or danger of any kind. Counsel

argued to us that the court should not have forbidden trial counsel from

cross-examining her about her statement to the police that her son had been

scared to death after the loss of his car. This argument has substantial merit. But

it comes too late.

      Although one might be able to extract the Confrontation Clause argument

from Defendant’s opening brief in this court, it was never raised before that. At

trial, in responding to the testimony of Anne McInturff, defense counsel re-urged

her prior motion to permit evidence of a third-party perpetrator, but she did not

distinguish Ms. McInturff’s prior inconsistent statement in particular and say that

the Confrontation Clause guaranteed Defendant the right to elicit it on cross-

examination. And after the motion was denied, defense counsel did not conduct

                                        -27-
any cross-examination of Ms. McInturff. The trial court would not have been

alerted to the special reason to allow cross-examination about the prior

inconsistent statement. Likewise, Defendant’s brief on direct appeal to the OCCA

mentioned Ms. McInturff’s testimony, but the only constitutional claim in that

discussion was that the exclusion of substantive evidence had denied Defendant’s

right to present a complete defense. Nowhere did Defendant argue that he had

also been denied the right to cross-examine Ms. McInturff under the

Confrontation Clause. His applications for state postconviction relief contained

no Confrontation Clause argument, either. Nor was the argument raised in federal

district court. We know of no precedent authorizing us to review an issue not

exhausted in state court and not presented to the federal district court.

      C.     Prosecutorial Misconduct

      Defendant alleges that the prosecution engaged in misconduct at several

points in his trial. The OCCA denied this claim on the merits. See 

–41.

      “Ordinarily, a prosecutor’s misconduct will require reversal of a state court

conviction only where the remark sufficiently infected the trial . . . to make it

fundamentally unfair, and, therefore, a denial of due process.” Duckett v. Mullin,

, 988 (10th Cir. 2002). “Nonetheless, when the impropriety

complained of effectively deprived the defendant of a specific constitutional

right, a habeas claim may be established without requiring proof that the entire

                                         -28-
trial was thereby rendered fundamentally unfair.” 

marks

omitted). Only one of Defendant’s claims of misconduct arguably fits the second

category. We begin by addressing that claim.

             1.    Statements Relating to the Burden of Proof

      Defendant says that at voir dire the prosecutor used certain tactics “to

psychologically condition” jurors into thinking that the State need not prove its

case beyond a reasonable doubt. Aplt. Br. at 39. The parties agree that the

OCCA rejected this claim on the merits, finding no error. It explained that “[t]he

prosecutor had a right to find out if any prospective jurors were unable, either as

a matter of principle or simple misunderstanding, to give circumstantial evidence

the same weight accorded to direct evidence, as the law would require them to

do.” 

. Defendant suggests that this analysis was contrary

to or an unreasonable application of clearly established federal law. We disagree.

      The only Supreme Court opinions that Defendant cites in support of this

claim are In re Winship, 

(1970), and Taylor v. Kentucky, 

(1978). Neither case governs the issue here. In Winship the Court held that a

juvenile was denied due process when the state adjudicated him a delinquent

under a statute requiring proof by only a preponderance of the evidence, rather

than beyond a reasonable doubt. 

–61, 368. And in Taylor the

Court held that the refusal of a trial court to instruct the jury on the presumption

of innocence was a violation of due process when the court’s instructions on the

                                         -29-
burden of proof were minimal, the prosecutor made remarks suggesting that the

defendant’s status as a defendant meant that he was guilty, and the jury was

permitted to draw inferences of guilt from the fact of defendant’s arrest and

indictment. 

–90. Here, the jury was instructed on the

presumption of innocence and that it must find guilt beyond a reasonable doubt.

The OCCA’s denial of this claim was not contrary to or an unreasonable

application of federal law clearly established by the Supreme Court. 5

             2.    Other Alleged Misconduct

      Because Defendant’s remaining claims of prosecutorial misconduct do not

allege the invasion of a specific constitutional right, he must show that the alleged

misconduct “sufficiently infected the trial . . . to make it fundamentally unfair,

and, therefore, a denial of due process.” 

. “[T]his is a

high hurdle.” Banks v. Workman, 

, 1148 (10th Cir. 2012). And it

is even higher here because Defendant must show that the OCCA’s rejection of

his claim was unreasonable under § 2254(d). See 

failed to do so.

      Defendant complains that during the guilt phase the prosecutor improperly

introduced, and commented on, what he characterizes as “victim impact

testimony” from the victims’ family members. Aplt. Br. at 42, 44. He cites


      5
         In this court Defendant also argues that the prosecutor’s closing argument
in the trial’s guilt phase lowered the burden of proof. The OCCA did not address
this claim. That is probably because the claim was not raised in Defendant’s brief
to the OCCA. In any event, the claim is wholly without merit.

                                        -30-
statements by Shane McInturff’s parents and Keri Sloniker’s mother alluding to

their close relationships with the victims; and he cites the following statement by

the prosecutor about Keri Sloniker in his guilt-phase closing argument: “On her

left-hand was a small little diamond that Shane McInturff had given her that

expressed his commitment of his intention to marry her and spend the rest of his

life with her. He did, it was just a lot shorter life than any of us thought.” Tr.,

Vol. 16 at 61.

      We see no prosecutorial misconduct in the questioning of the witnesses; the

questions inquired about matters relevant to establish the witnesses’ familiarity

with the victims’ activities, and the questioning was relatively brief. The

prosecutor’s comment in closing, however, cannot be defended. He made no

effort to tie it to a material fact in the case. Nevertheless, it was brief and

isolated, and Defendant did not object. See Trice v. Ward, 

, 1167

(10th Cir. 1999) (failure to object, although “not dispositive, is relevant to our

assessment of fundamental unfairness”). The OCCA was not unreasonable in

refusing to say that the statement rendered the trial fundamentally unfair.

      Defendant further complains that while cross-examining him, the

prosecutor mentioned that he had been a death-row inmate. But, as the OCCA

observed, Defendant himself had already volunteered, while being cross-examined

on whether he endorsed statements made on a website supporting him, that a

second website was not just for him but “for all the prisoners on death row.” Tr.,

                                          -31-
Vol. 14 at 160; see 

. The prosecutor’s statement did not

tell jurors anything they did not already know.

      As for the prosecution’s comments that Al Ames’s knife perfectly matched

a swipe of blood found on Keri Sloniker’s foot, the OCCA recognized that such

comments “were at times overstated,” 

, but it noted that

the jury had been “instructed that these comments were not evidence,” 

defense had highlighted the limitations of the evidence on cross-examination,

see 

the strength of the evidence had been “clarified by considerable

forensic expert testimony on the subject,” 

The OCCA reasonably

determined that the jury was not misled.

      Next, Defendant claims that the prosecution improperly vouched for

witnesses by (1) eliciting testimony from investigator Rockie Yardley describing

previous cases on which he had worked; (2) eliciting testimony from crime-scene

reconstructionist Tom Bevel that one of the prosecutors had met him at the crime

scene; and (3) using the phrase “we know” when summarizing the evidence

during guilt-phase closing arguments. “It is clearly impermissible to bolster a

State witness by suggesting that information available to the prosecution but not

presented to the jury supports the witness’s testimony.” Cargle v. Mullin, 

, 1219 (10th Cir. 2003) (citing United States v. Young, 

, 18

(1985)). Additionally, prosecutors have a “duty to refrain from overzealous

conduct by commenting on the defendant’s guilt and offering unsolicited personal

                                        -32-
views on the evidence.” 

. Any failure to observe these

principles here, however, did not result in a fundamentally unfair trial. Yardley’s

testimony about past cases was relevant to establish his expertise. As for Bevel’s

mention of meeting the prosecutor at the crime scene, even if it could be

characterized as improper, it occupied a mere snippet of otherwise appropriate

testimony, and defense counsel never objected. Moreover, Defendant has not

suggested that the expertise or integrity of Yardley or Bevel was at issue in the

case. And as for the prosecutor’s use of “we know” in closing, “[s]uch

arguments, like all closing arguments of counsel, are seldom carefully constructed

in toto before the event; improvisation frequently results in syntax left imperfect

and meaning less than crystal clear.” Donnelly v. DeChristoforo, 

,

646–47 (1974). “[A] court should not lightly infer that a prosecutor intends an

ambiguous remark to have its most damaging meaning or that a jury, sitting

through lengthy exhortation, will draw that meaning from the plethora of less

damaging interpretations.” 

      Defendant also complains of assorted instances of what he describes as

“melodramatic, badgering[] conduct” by the prosecutor. Aplt. Br. at 57. Some of

this conduct, such as the closing-argument statement that Defendant was a

“‘brutal amateur’” at killing, the OCCA held to be proper commentary on the

evidence presented. 

. Defendant has offered no Supreme

Court authority to the contrary. As for the rest, the OCCA ruled:

                                         -33-
        The prosecutor’s conduct was at times melodramatic, and his sidebar
        comments about the defendant’s demeanor would have been better
        reserved for closing argument. The trial in this case was long and
        sometimes emotional. Counsel for both parties were experienced,
        prepared, and zealous advocates. That zeal may have overtaken them
        briefly at times. [Defendant] concedes in his brief that neither side
        was beyond reproach. We have considered the instances [Defendant]
        complains of carefully, in light of the entire record, and cannot say
        that this conduct, alone or in accumulation, affected the outcome of
        the trial.

of the record assures us that this determination was reasonable.

        Finally, Defendant claims that during closing argument the prosecutor

attempted to mislead jurors regarding a window in the victims’ apartment. The

apartment’s living room had two adjacent windows on the south side of the front

door; we will refer to the window closer to the door as the north window and the

other as the south window. The victims would sometimes leave one of these

windows (presumably, the north window) unlocked so that a person who did not

have a door key could open the window, reach in, and unlock the front door.

Robert McInturff testified that before entering the apartment with Defendant and

discovering the victims, he tried to open the window but found it locked. When

police arrived on the scene a short time later, they discovered that the south

window was unlocked and ajar by about a millimeter. Defendant claims that the

prosecutor improperly argued that while Mr. McInturff was examining the bodies,

Defendant unlocked and opened the window that Mr. McInturff had just tried to

open.


                                         -34-
      There are two problems with Defendant’s argument. First, the prosecutor

did not misstate the evidence. He indeed referred to a window in his closing

argument, saying: “There’s only one person on the planet who had access and a

reason to monkey with that window. It’s that guy right there, the killer.” Tr.,

Vol. 16 at 46. But he did not say that “that window” was the one that

Mr. McInturff had tried. Although Defendant contends that the prosecutor was

deliberately vague, allowing jurors to think that the “access window” had gone

from locked to unlocked when, in fact, it had remained locked, Aplt. Br. at 49, we

cannot tell from the record whether he indicated nonverbally what window he was

referring to or whether any ambiguity in his statement was motivated by a desire

to deceive the jury. We think it significant that the argument made by Defendant

on direct appeal about the prosecutor’s reference to the open window was not that

the prosecutor misidentified which window was open but that there was

insufficient evidence to support the inference that Defendant unlocked and opened

a window. 6 The alleged misdirection by the prosecutor was apparently too subtle

to be picked up on by appellate counsel.




      6
        All that Defendant’s direct-appeal brief said on the matter was: “[The
prosecutor’s] argument that [Defendant] unlocked the window and pulled it ajar
was not a reasonable inference from the evidence . . . .” Original Br. at 92, Dodd
v. State, No. CF-94-7724 (Okla. Crim. App. Oct. 6, 2003) (Direct-Appeal Br.).
The issue was developed further in Defendant’s second state postconviction
proceeding.

                                        -35-
      Second, even if the prosecutor misidentified which window was ajar,

Defendant cannot explain why the issue mattered very much. As the State

pointed out in federal district court, the distance from the south side of the south

window to the north side of the north window was less than four feet, so if the

south window was unlocked, a person could easily reach in and unlock the north

window. Nor is it clear what Defendant would think he had to gain by unlocking

a window when McInturff knew, and so testified, that it had been locked. The

incriminating accusation is simply that Defendant tried to make it seem that

someone could have entered the apartment when the door was locked, suggesting

that the culprit may not have been let in by the victims. Moreover, defense

counsel called this point into doubt in cross-examining investigator Rockie

Yardley and during closing argument. She clarified which windows were

involved, elicited that no fingerprints were found on the open window, and

pointed out that the heavy draperies on the opened window would have made it

hard for Defendant to open the window without being noticed by Robert

McInturff.

      Viewing Defendant’s allegations of prosecutorial misconduct as a whole,

we cannot say that the OCCA was unreasonable in refusing to hold that the




                                         -36-
challenged conduct deprived Defendant of a fundamentally fair trial. Relief on

this claim is denied. 7

       D.     Victim-Impact Testimony

       During the sentencing phase the trial court admitted testimony from seven

relatives of the victims recommending that Defendant receive the death penalty.

Defendant argues that the admission of these sentence recommendations violated

the Eighth Amendment’s prohibition on cruel and unusual punishment. The

OCCA found no constitutional error. See 

. The federal

district court ruled that allowing the witnesses to recommend the death penalty

was error under the Eighth Amendment but that the error was harmless. We agree

with the district court that the admission of the sentence recommendations

violated the Eighth Amendment; but we cannot agree that the constitutional error

was harmless.

              1.     The Sentencing Phase

       For each murder count the prosecution alleged the same four aggravating

factors: (1) that Defendant had previously been convicted of a felony involving

the use or threat of violence to a person; (2) that Defendant had knowingly


       7
        Defendant alleges two additional examples of prosecutorial misconduct:
(1) guilt-phase arguments that the defense had failed to advance a reasonable
theory of innocence and (2) sentencing-phase arguments about his personal
history. Because we grant relief from Defendant’s sentences in Part III.D, we
need not address the second issue. And we have dealt with the first in our
discussion of the exclusion of evidence of third-party motives to kill the victims.

                                        -37-
created a great risk of death to more than one person; (3) that the murder was

committed for the purpose of avoiding or preventing a lawful arrest or

prosecution; and (4) that a probability existed that Defendant would commit

criminal acts of violence that would constitute a continuing threat to society.

      After moving successfully to incorporate all evidence and testimony

admitted during the guilt phase, the prosecution called eight sentencing-phase

witnesses. The first was an officer from the Norman, Oklahoma, police

department who recounted Defendant’s assault and robbery of a 77-year-old

woman 11 years before the murders. His account was consistent with

Defendant’s guilt-phase testimony that when he was 16 he had participated in an

assault and robbery of an elderly woman. The court later admitted a certified

copy of the judgment and sentence showing that Defendant had pleaded nolo

contendere to robbery with a dangerous weapon and had been sentenced to 10

years’ incarceration, nine of which were suspended.

      The remaining prosecution witnesses were family members of the murder

victims. All witnesses read statements describing the pain, terror, and sadness

that the murders had caused them. The statement of the first witness ended with a

recommendation of the death penalty. For the other six witnesses, after they had

concluded their statements the prosecutor asked if they had recommendations for

punishment. Each said that Defendant should be put to death. Shane McInturff’s

aunt ended her statement by saying: “[Defendant] has been found guilty. His

                                        -38-
eternal consequences are out of your hands but his earthly consequences are in

yours. I believe the appropriate sentence for [Defendant] is death.” Tr., Vol. 17

at 39. His brother testified: “I ask that you would give the death penalty to

[Defendant].” 

His sister testified: “I believe that death is an

appropriate sentence for this man.” 

His mother testified: “The only

appropriate punishment I can think of is that he should be put to death.” 

His father testified: “I believe the appropriate punishment should be death.” 

Keri Sloniker’s sister testified: “He needs to die.” 

And her

mother testified: “I think the death penalty would be appropriate for this case.”

       In mitigation the defense offered testimony from Defendant's grandmother,

his parents, and two of his sisters that they loved Defendant and would continue

to keep in touch with him if he were sentenced to life in prison, and each urged

the jury to spare his life. It also offered the testimony of an official from the

Oklahoma Department of Corrections that Defendant had been disciplined only

three times while in prison. And an Oklahoma inmate testified about the

circumstances of the most serious disciplinary infraction, a fight.

       During its first closing argument the prosecution maintained that three of

the alleged aggravators—prior violent felony; knowingly creating a great risk of

death to more than one person; and murder for the purpose of avoiding or

preventing a lawful arrest or prosecution—were easily proved because Defendant

                                          -39-
had admitted to the essential elements during his guilt-phase cross-examination.

Addressing the fourth alleged aggravator, the probability that Defendant would

commit criminal acts of violence that would constitute a continuing threat to

society, the prosecution developed the theme that Defendant was a dangerous man

who had consistently sought to escape responsibility for his actions. It cited

Defendant’s past criminal behavior, his dishonesty in police interviews after the

murders, and his conduct in prison, including the fight with the inmate and an

attempt at suicide with a razor blade.

      The defense expounded several points in closing. It reminded the jurors

that they need not find mitigating circumstances unanimously or beyond a

reasonable doubt. It stressed the limited number and nonegregious nature of

Defendant’s disciplinary infractions in prison, arguing that Defendant had shown

that he could behave and contribute to prison society. It recounted the testimony

of Defendant’s family. And it invoked Defendant’s two daughters, maintaining

that Defendant cared for them and that they deserved to have a father.

      The prosecution delivered a second closing argument, rehashing many of its

earlier points and returning to the theme that Defendant had continually sought to

escape responsibility for a violent lifestyle. It also appealed to the victim-impact

evidence, although not mentioning the sentencing recommendations of family

members.




                                         -40-
      The jury found two aggravators—Defendant’s prior violent-felony

conviction and his knowingly creating a great risk of death to more than one

person—and recommended the death penalty.

             2.    The Constitutional Violation

      In Booth v. Maryland, 

, 509 (1987), the Supreme Court held

“that the introduction of a [victim-impact statement] at the sentencing phase of a

capital murder trial violates the Eighth Amendment.” The victim-impact

statement in Booth “provided the jury with two types of information. First, it

described the personal characteristics of the victims and the emotional impact of

the crimes on the family. Second, it set forth the family members’ opinions and

characterizations of the crimes and the defendant.” 

Four years later

the Court overruled Booth in part, holding “that if the State chooses to permit the

admission of victim impact evidence and prosecutorial argument on that subject,

the Eighth Amendment erects no per se bar.” Payne v. Tennessee, 

,

827 (1991). Payne made clear in a footnote, however, that it was not overruling

the portion of Booth that held unconstitutional “the admission of a victim’s family

members’ characterizations and opinions about the crime, the defendant, and the

appropriate sentence.” 

n.2. “The Supreme Court’s decision in Payne

and our own post-Payne cases clearly establish that it is a violation of the Eighth

Amendment to allow a victim or a victim’s family member to comment, during




                                        -41-
second-stage proceedings, on the appropriate sentence for a capital defendant.”

Selsor v. Workman, 

, 1026–27 (10th Cir. 2011).

      Oklahoma law, however, is to the contrary. It “expressly authorizes the

admission of victim impact testimony, including victims’ characterization of the

crime and opinions as to what sentence a defendant should receive.” Lockett v.

Trammel, 

, 1236 (10th Cir. 2013); see Okla. Stat. tit. 21,

§ 142A–8(A) (2010) (providing that “Each victim . . . may present a written

victim impact statement” and “[t]he court shall allow the victim impact statement

to be read into the record”); 

(defining victim to include, in cases

of homicide, “a surviving family member”); 

(defining victim

impact statements to include “the opinion of the victim of a recommended

sentence”). On direct appeal in this case the OCCA rejected Defendant’s

argument that “the victim impact witnesses should not have been allowed to

recommend the death penalty as an appropriate punishment.” 

. It found no error, noting that Oklahoma law “specifically permits such

recommendations, and we have cautioned that they should be limited to a

straight-forward, concise response to a question asking what the recommendation

is or a short statement of recommendation in a written statement, without

amplification.” 

marks omitted). It concluded: “Those

admonitions were observed here. We decline to reconsider our position.” 

admission of sentencing-phase victim-impact testimony recommending

the death penalty violated Defendant’s Eighth Amendment rights. By holding

otherwise, the OCCA reached “a decision that was contrary to . . . clearly

established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1); see, e.g., Hooper v. Mullin, 

, 1174

(10th Cir. 2002).

             3.     Harmless Error

      The OCCA alternatively conducted a harmless-error analysis, stating that if

“there [was] any question as to the propriety of the victim impact evidence,”

, “any minor impropriety in the victim impact testimony

was harmless beyond a reasonable doubt,” 

The federal district court,

after holding that the admission of the sentence recommendations had violated

clearly established law, likewise ruled the error to be harmless. We disagree.

      In reviewing whether the admission of the sentence recommendations was

harmless, we apply the standard announced in Brecht v. Abrahamson, 

, 637 (1993), under which “an error is harmless unless it had substantial and

injurious effect or influence in determining the jury’s verdict.” Fry v. Pliler, 

, 116 (2007) (internal quotation marks omitted). We apply this test

regardless of whether the state court conducted its own harmless-error review.

See Lott v. Trammell, 

, 1218 (10th Cir. 2013). “A substantial and

injurious effect exists if a court finds itself in grave doubt about the effect of the

                                         -43-
error on the jury’s sentencing decision.” 

(brackets and

internal quotation mark omitted). We recognize that “an error that may justify

reversal on direct appeal will not necessarily support a collateral attack on a final

judgment.” 

(internal quotation marks omitted).

Nevertheless, “when a court is in virtual equipoise as to the harmlessness of the

error under the Brecht standard, the court should treat the error as if it affected

the verdict.” 

n.3 (ellipses and internal quotation marks

omitted).

      We are at least in equipoise. Our doubts begin with the peculiarity

(“chutzpah” may be a better word) of the State’s argument in this appeal. It

contends that the victims’ sentencing recommendations did not have a substantial

effect on the sentence even though it went to the extraordinary length of eliciting

that recommendation from six, and perhaps seven, of the eight witnesses it called

at the sentencing phase of the trial. One family member included her

recommendation of the death sentence in the statement she read to the jury. The

other six completed their statements and then were asked only one further

question by the prosecutor, “Do you have a specific recommendation that you

would like to offer the jury on punishment,” Tr., Vol. 17 at 41, or the equivalent.

This presentation of victim requests for the death penalty was not a one-off or a

mere aside. It was a drumbeat. For this court to decide that such testimony did

not have a substantial effect on the jury would be to impugn the expertise of a

                                         -44-
very experienced and highly successful prosecutor, whose firsthand knowledge of

Oklahoma capital juries far exceeded what we could possibly acquire. Cf. Napue

v. Illinois, 

, 270–71 (1959) (fact that prosecutor “thought it

important to establish before the jury that no official source had promised

[leniency to witness]” supported determination that failure to disclose promise of

leniency caused trial to be unfair).

      This panel is well aware that no prior panel of this court has ruled that

victim recommendations of the death penalty required reversal. We have found

ten decisions in which we decided that such testimony was harmless. See Grant

v. Trammell, No. 11-5001, 

, at *6–7 (10th Cir. Aug. 15, 2013);

, 1238–40; 

, 1214, 1218–19;

DeRosa v. Workman, 

, 1236–37, 1240 (10th Cir. 2012); 

, 1027; Welch v. Workman (Gary Welch), 

, 996–1000,

1002–04 (10th Cir. 2011); Welch v. Sirmons (Frank Welch), 

,

703–04 (10th Cir. 2006); 

; Willingham v. Mullin, 

, 930–32 (10th Cir. 2002); Hain v. Gibson, 

, 1234–36,

1239–40 (10th Cir. 2002). In nine of them a member of this panel either wrote or

joined the decision on harmlessness. This case is different.

      It is not just the sheer volume of such testimony. This was also a

significantly weaker case for the death penalty. Unlike seven of our precedents,

the jury did not find the aggravating circumstance that the murder was “especially

                                        -45-
heinous, atrocious, or cruel.” 

(internal quotation marks

omitted); see 

see 

; 

;

Gary 

–90; Frank 

–82; 

; 

–40 (listing the jury’s finding of this

aggravator as the first factor convincing the court of harmlessness). Nor did it

find that Defendant was a continuing threat to society, as in two of the remaining

three precedents. See Grant, 

, at *7 (emphasizing the strength

of the evidence that the defendant posed a continuing threat); 

. In the only case in which the jury did not find either the especially-heinous

or continuing-threat aggravator, the two victim statements “did not expressly refer

to [the defendant] being put to death; instead, they both simply stated without

embellishment [that] they agreed with the prosecution’s ‘recommended

sentence.’” 

. Indeed, without denigrating the importance

of any aggravating circumstances, we think it worth noting that the two factors

found by the jury in this case added little beyond the findings of guilt. The prior-

felony aggravator was based on a felony committed 11 years before the murders

(and 18 years before the trial), when Defendant was 16. And Defendant

“knowingly created a great risk of death to more than one person,” 

, because the jury found that he had murdered the two victims.

      Moreover, the guilt of Defendant was not as clear cut as in cases in which

we have ruled that victim recommendations were harmless. See Lott, 705 F.3d at

                                         -46-
1219 (noting “the overwhelming evidence of [the defendant’s] guilt of the two

rapes/murders, as well as his admitted guilt of the two subsequent rapes”); Gary

(describing evidence of guilt as “overwhelming”). As the

prosecutor explained to the jury, this was a circumstantial case. There was no

confession, no eyewitness; and no physical evidence—no fingerprints or DNA or

blood evidence—marked Defendant as the culprit. Fingerprints were found on

Keri Sloniker’s purse and Shane McInturff’s wallet, both of which apparently had

been rifled through, but they matched neither of the victims nor Defendant and

were unidentified. And there was no blood or object used in the murders found in

Defendant’s apartment, which was next to the victims’. The manner of the

murders could also cast doubt on Defendant’s guilt. The two victims had their

throats slashed yet there were no signs of a struggle, such as defensive wounds or

marks on their bodies. Their positions may have suggested that they had been

bound, but no binding materials were found and no marks on their bodies showed

binding. A defense expert witness provided the common-sense opinion that one

person could not have committed such murders by himself. Perhaps Defendant

had been extremely careful in making sure he left no physical evidence of his

crime; but is such care consistent with the State’s theory that Defendant

sharpened the murder weapon in the presence of his father-in-law a day or two

before the murder and returned it to the owner the day that the bodies were

discovered?

                                        -47-
      The State suggests that the sentencing determination was easy for the jury

since it took less than four hours of deliberation. But it does not explain why we

should consider this time span to be short; and it does not explain why the

deliberations could not have been speeded up by the family members’ sentence

recommendations.

      In sum, we find ourselves “in grave doubt about the effect of the error on

the jury’s sentencing decision.” 

(brackets and internal

quotation marks omitted). We hold that the admission of the sentence

recommendations in this case was not harmless.

IV.   ISSUES ON WHICH DEFENDANT REQUESTS A COA

      Defendant requests that his COA be modified to cover three additional

claims: (1) admission of improper hearsay and bad-acts evidence; (2) ineffective

assistance of trial counsel; and (3) cumulative error.

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 

,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

                                        -48-
“debatable or wrong.” 

of Defendant’s claims that the OCCA

adjudicated on the merits, “AEDPA’s deferential treatment of state court

decisions must be incorporated into our consideration of [his] request for [a]

COA.” Dockins v. Hines, 

, 938 (10th Cir. 2004). We deny the

request to modify the COA.

      A.     Hearsay and Bad-Acts Evidence

      Defendant claims that the trial court violated his constitutional rights when

it admitted guilt-phase testimony from Shane McInturff’s friend Brian Brown that

(1) McInturff had once said that Defendant owed McInturff $800 for drugs and

(2) McInturff had once told Brown that Defendant had fired a gun in the direction

of a Ferris wheel. The OCCA held that this testimony was improperly admitted

under state law but was harmless. See 

–36. Although it

did not address Defendant’s constitutional arguments, its analysis of harmlessness

is cogent and persuasive. No reasonable jurist could say that admission of the

evidence “had substantial and injurious effect or influence in determining the

jury’s verdict.” 

(internal quotation marks omitted).

      B.     Ineffective Assistance of Trial Counsel

      Defendant claims that his trial counsel was ineffective for (1) failing to

counter the prosecutor’s sentencing-phase arguments that Defendant had been

given the chance to lead a good life; (2) failing to respond effectively to the

testimony and argument regarding the windows; and (3) failing to challenge the

                                        -49-
State’s evidence of his postarrest suicide attempt, then proffering an ineffective

jury instruction on the suicide evidence. We deny a COA on all three claims.

Because we grant relief from Defendant’s death sentences, the first claim is

mooted. The district court held that the second claim was procedurally barred by

an adequate and independent state-law rule, and Defendant’s motion to modify

the COA does not explain why that decision was debatable. See 

–47 (Oklahoma procedural bar was adequate and independent). As for the

third claim, the district court held that it was procedurally barred in part and that

the remainder failed on the merits. Defendant has not shown how the district

court’s ruling could be debated by a reasonable jurist.

      C.     Cumulative Error

      Finally, Defendant raises a claim of cumulative error. Because we grant

relief from his sentences, we need not review this claim as it pertains to the

sentencing phase of his trial. And no reasonable jurist could debate whether

guilt-phase errors cumulatively deprived Defendant of a fair trial.

V.    CONCLUSION

      We AFFIRM the denial of relief on all claims addressed in Parts III.A–C of

this opinion. We REVERSE the denial of relief on the victim-impact evidence

addressed in Part III.D and REMAND with instructions to grant relief on

Defendant’s sentences, subject to the State’s right to resentence Defendant within




                                         -50-
a reasonable time. We DENY Defendant’s request for a COA on the issues

addressed in Part IV.




                                     -51-