FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         October 22, 2018
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
KENNETH WAYNE THOMPSON, III,

      Petitioner - Appellant,

v.                                                           No. 17-6127
                                                     (D.C. No. 5:15-CV-01078-W)
JOE M. ALLBAUGH,                                            (W.D. Okla.)

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT *
                        _________________________________

Before McHUGH, MORITZ, and EID, Circuit Judges.
                 _________________________________


       An Oklahoma jury found Kenneth Thompson guilty of second degree murder for

the death of John Ingersoll. Mr. Thompson appealed his conviction to the Oklahoma

Court of Criminal Appeals (OCCA), which affirmed. Mr. Thompson then filed a petition

for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for

the Western District of Oklahoma. The district court denied relief. We granted Mr.

Thompson a certificate of appealability (COA) on two claims: (1) whether there was

constitutionally sufficient evidence to sustain Mr. Thompson’s conviction and


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule Appellate Procedure 32.1 and
10th Circuit Rule 32.1.
(2) whether the admission of certain evidence violated Mr. Thompson’s Due Process

Clause or Confrontation Clause rights.

       We conclude the OCCA did not unreasonably apply federal law in concluding the

evidence was sufficient to sustain Mr. Thompson’s conviction. Mr. Thompson has also

failed to prove a violation of the Due Process Clause, or that the OCCA based its

Confrontation Clause decision on an unreasonable determination of fact. Accordingly, we

affirm the district court’s denial of habeas relief.

                                  I.      BACKGROUND

       On March 21, 2009, Mr. Ingersoll, Eric Thrower and Dontae Newton went to

Fritzi’s, a club located on 10th Avenue and MacArthur Boulevard in Oklahoma City.

Fritzi’s refused admission to Mr. Thrower and Mr. Newton because they were underage,

but Mr. Ingersoll entered the club. Around 2:00 a.m., Mr. Thrower and Mr. Newton

returned in a Buick automobile to pick up Mr. Ingersoll. When they arrived at Fritzi’s, the

parking lot was crowded; at least 100 people were outside. Mr. Thrower and Mr. Newton

found Mr. Ingersoll in the parking lot and he got into the Buick. Mr. Thrower was

driving, Mr. Ingersoll was in the front passenger seat, and Mr. Newton was in the back.

While the Buick was still in the parking lot, random gunshots rang out, causing people,

including Kendall Richardson and Mr. Thompson, to jump in their cars and leave.

       Earlier that night, Mr. Richardson and Mr. Thompson had gone to Club D’s with

Aleisha Banton, Destiny Dotson, and another friend. They left Club D’s in separate cars

and drove to Fritzi’s. After the gunshots in the Fritzi’s parking lot, Ms. Dotson observed

Mr. Thompson enter the driver’s seat of his white two-door car, while Mr. Richardson

                                               2
got into the passenger seat. At trial, Ms. Dotson testified that the white car she saw

Mr. Thompson in at Fritzi’s looked similar to the white Camaro in the State’s Trial

Exhibit 5.

       Due to the gunshots, security officers from Fritzi’s directed everyone out of the

parking lot through a single exit, forcing them to turn north on MacArthur Boulevard. As

Mr. Thrower was exiting Fritzi’s parking lot, the Buick almost collided with a white car.

Mr. Ingersoll reacted by hanging out the window of the Buick and throwing gang signs at

the white car.

       After turning onto MacArthur Boulevard, Mr. Thrower witnessed the same white

car driving behind him, slowing down and speeding up repeatedly. The Buick was in the

far right lane and the white car was in the next lane to the left. The white car sped up to

get close to Mr. Thrower’s Buick, at which point the passenger in the white car fired at

least one shot into the Buick. The bullet hit Mr. Ingersoll in the neck and killed him.

After firing, the shooter yelled about “G” something. 1

       Donald Fitzpatrick was in the parking lot of the OK Corral, around 23rd Avenue

and MacArthur Boulevard, when he heard a gunshot. He looked up, and within a few

seconds he saw Mr. Thrower drive the Buick very quickly into the parking lot from the

far right lane. He also witnessed a white Camaro or Firebird a little bit behind

Mr. Thrower’s car in the lane to the left speed past Mr. Thrower. That night, police

recovered a single shell casing on MacArthur Boulevard.

       1
         There was testimony that Mr. Thompson was a member of the “Gang Tight”
clique. App. at 725–26.


                                              3
       During the investigation, police received an anonymous tip that Equan England

might have been involved in the shooting. The police obtained a warrant to search

Mr. England’s car and found a shell casing in the back seat. Later testing revealed that the

shell casing in Mr. England’s car had been fired from the same gun as the shell casing

found on MacArthur Boulevard.

       After further police investigation, including Detective William Lord’s interview of

Ms. Banton, the State charged Mr. Thompson and Mr. Richardson with the first degree

murder of Mr. Ingersoll. The state trial court severed the cases and Mr. Richardson, the

alleged shooter, was tried first and acquitted.

       At Mr. Thompson’s trial, the State called Ms. Banton and asked her about her

interview with Detective Lord. During direct examination she denied making most of the

statements contained in Detective Lord’s interview notes. Importantly, she denied telling

Detective Lord she saw Mr. Thompson and Mr. Richardson get into a white Camaro and

leave Fritzi’s the night of the murder, and she further denied telling Detective Lord that

Mr. Richardson had come to her apartment later that night and confessed to having just

shot someone in the head. Ms. Banton claimed Detective Lord threatened her before and

during the interview, and that her statements were coerced. On cross-examination

Ms. Banton testified she made up the statements she reported to Detective Lord (1)

because Mr. Thompson impregnated her friend and she was angry at how he was treating

the friend and (2) to protect another friend, Mr. England, who was a potential suspect in

the murder.




                                              4
       After Ms. Banton’s testimony, the State called Detective Lord. He testified that

Ms. Banton stated during her interview that Mr. Richardson came to her apartment a few

hours after the shooting, appeared nervous, and confessed that Mr. Richardson had just

shot someone in the head and did not know if the guy was dead or alive. To refute

Ms. Banton’s description of the interview as coercive, the State asked to play a portion of

the video of Detective Lord’s interview of Ms. Banton. The trial court allowed the State

to play the video and specifically instructed the jury that the video was not to be

considered for the truth of the matter asserted.

       At the conclusion of Mr. Thompson’s trial, the court again instructed the jury that

impeachment evidence could be considered only for credibility purposes. The trial court

further instructed the jury on the lesser included offense of second degree murder, and the

jury found Mr. Thompson guilty of that lesser included charge.

       Mr. Thompson appealed his conviction to the OCCA on seven separate grounds.

The OCCA denied relief on each of Mr. Thompson’s claims. 2 Mr. Thompson then


       2
           The seven issues considered by the OCCA were:

       (1) whether the trial court erred by refusing to grant his demurrer to the first
       degree murder charge at the close of the State’s evidence; (2) whether the
       evidence was sufficient to support his conviction for second degree murder;
       (3) whether he was denied a fair trial as a result of the trial court’s error in
       permitting the State to present unconfronted admissions by his
       co-defendant through a third party under the guise of impeachment
       evidence; (4) whether the trial court erred in refusing to grant a mistrial or
       by allowing the State’s witness Eric Thrower’s continued testimony after it
       was established that [Mr.] Thrower had used marijuana during the trial and
       allegedly had been influenced by the victim’s father to change his
       testimony regarding whether he could identify Mr. Thompson; (5) whether
       the jury was properly instructed on aiding and abetting; (6) whether he

                                              5
brought a habeas petition in the Western District of Oklahoma, realleging all but the first

ground for relief. The district court referred the matter to a magistrate judge, who issued a

report and recommendation suggesting that the court deny Mr. Thompson’s habeas

petition in its entirety. The district court adopted the report and recommendation in full

and denied Mr. Thompson a COA.

       Mr. Thompson next filed a request for a COA from this court, which we granted in

part and denied in part. Specifically, we granted a COA on two issues:

       (1) Whether the evidence presented at [Mr. Thompson’s] trial was
       constitutionally sufficient to support his conviction (Ground One of his
       petition); and (2) whether the admission of witness Banton’s recanted
       statements, including in particular a purported confession from
       [Mr.] Richardson, rendered [Mr.] Thompson’s trial fundamentally unfair
       and/or violated his rights under the Confrontation Clause (Ground Two of
       his petition).

Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(c), we affirm the district

court’s order denying Mr. Thompson habeas relief.

                                    II.    ANALYSIS

                    A. General Standard of Review Under § 2254

       Mr. Thompson’s claims are governed by 28 U.S.C. § 2254. If a state court decided

a claim on the merits, a federal court cannot grant a writ of habeas corpus unless the

applicant can show that the state court’s adjudication of the claim

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the
       Supreme Court of the United States; or

       received ineffective assistance of counsel; and (7) whether cumulative error
       deprived him of a fair trial.


                                             6
       (2) 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.

       A state court decision is contrary to clearly established federal law (1) “if the state

court applies a rule that contradicts the governing law set forth in [Supreme Court] cases”

or (2) “if the state court confronts a set of facts that are materially indistinguishable from

a decision of [the Supreme] Court and nevertheless arrives at a result different from [its]

precedent.” Williams v. Taylor, 

, 405–06 (2000). A state court’s decision is

an unreasonable application of federal law if it is “objectively unreasonable.” 

A state court’s decision is not unreasonable merely because it is incorrect. Harrington v.

Richter, 

, 101 (2011). Nor is it unreasonable “so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.” 

v. Alvarado, 

, 664 (2004)). “[E]valuating whether a rule application was

unreasonable requires considering the rule’s specificity. The more general the rule, the

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

original) (quoting 

).

       “[A] state-court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in the first instance.”

Wood v. Allen, 

, 301 (2010). “[E]ven if ‘[r]easonable minds reviewing the

record might disagree’ about the finding in question, ‘on habeas review that does not

suffice to supersede the [state] court’s . . . determination.’” 

fourth

alterations in original) (quoting 

–42). “[A]n imperfect or even

                                              7
an incorrect determination of the facts isn’t enough for purposes of § 2254(d)(2).” Grant

v. Trammell, 

, 1024 (10th Cir. 2013).

       If the state court reached the merits of a claim, “[w]e review the district court’s

legal analysis of the state court decision de novo.” Littlejohn v. Trammell, 

,

825 (10th Cir. 2013) (quotation marks omitted). If the state court did not reach the merits

of a claim, we must “review the district court’s legal conclusions de novo and factual

findings for clear error.” Allen v. Mullin, 

, 1234 (10th Cir. 2004).

                             B. Sufficiency of the Evidence

   Standard of Review

        “Sufficiency of the evidence on a habeas petition is a mixed question of law and

fact. 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) . . . .” Brown v.

Sirmons, 

, 1089 (10th Cir. 2008) (citation omitted) (internal quotation

marks omitted). Sufficiency of evidence claims on habeas review receive a

“twice-deferential standard” of review. Parker v. Matthews, 

, 43 (2012). First,

“[a] reviewing court may set aside the jury’s verdict on the ground of insufficient

evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v.

Smith, 

, 2 (2011) (per curiam). Second, “a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge . . . [unless] the state

court decision was ‘objectively unreasonable.’” 

v. Lett, 

,

773 (2010)).




                                               8
   Analysis

       The ultimate inquiry for a reviewing court considering a sufficiency of the

evidence challenge is “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 

, 319 (1979). This

requires “a reviewing court ‘faced with a record of historical facts that supports

conflicting inferences [to] presume—even if it does not affirmatively appear in the

record—that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.’” McDaniel v. Brown, 

, 133 (2010) (quoting

). Additionally, “[t]he standard must be applied with explicit

reference to the substantive elements of the criminal offense as defined by state law.”

n.16.

       In Oklahoma, second degree murder requires proof that the defendant caused the

death of another: (1) “by an act imminently dangerous to another person,” (2) “evincing a

depraved mind, regardless of human life,” and (3) “without any premeditated design to

effect the death of any particular individual.” Okla. Stat. tit. 21, § 701.8(1) (1976). The

state charged Mr. Thompson under a theory of aiding and abetting, which occurs when

the defendant “procured [the crime] to be done, or aids, assists, abets, advises or

encourages the commission of the crime.” Powell v. State, 

, 524 (Okla.

Crim. App. 2000) (quoting Conover v. State, 

, 910–11 (Okla. Crim. App.

1997), abrogated on other grounds by Bosse v. Oklahoma, 

(2016)).




                                              9
       Applying the standard from Jackson, the OCCA reviewed all of the evidence

before the jury and, after “accepting all reasons, inferences, and credibility choices

tending to support the verdict,” concluded there was sufficient evidence “for a rational

jury to conclude beyond a reasonable doubt that [Mr.] Thompson drove the car from

which the fatal gunshot was fired and that he had knowledge of his co-defendant’s intent

to use a firearm in extreme disregard for human life.” App. at 450. Mr. Thompson

challenges the sufficiency of the evidence supporting either of those determinations.

       Although Mr. Thompson presents his challenge under both § 2254(d)(1) and

(d)(2), only an analysis under § 2254(d)(1) is necessary because the OCCA did not make

any findings of historical fact with regard to its discussion of the sufficiency of evidence.

See Gilson v. Sirmons, 

, 1233–34 (10th Cir. 2008) (noting that

§ 2254(d)(2) only applies to historical facts). Instead, the OCCA decided the ultimate

mixed question that the evidence was sufficient for a jury to find Mr. Thompson guilty

beyond a reasonable doubt. Cf. Saiz v. Burnett, 

, 1012 n.2 (10th Cir. 2002)

(noting the ultimate harmless error conclusion should be reviewed under § 2254(d)(1)

rather than (d)(2) because it is a mixed question).

       In reviewing Mr. Thompson’s sufficiency of the evidence claim, we address his

contentions in turn. First, we consider whether the evidence supported a finding, beyond

a reasonable doubt, that Mr. Thompson drove the white car from which the fatal shot was

fired. In light of the record evidence, viewed in the light most favorable to the jury’s

verdict, we conclude the OCCA’s determination that the evidence is sufficient is not

contrary to, or an unreasonable application of, federal law. Next, we consider the record

                                             10
evidence concerning whether Mr. Thompson knew of Mr. Richardson’s intent to use a

firearm in extreme disregard for human life. Taking that evidence and the reasonable

inferences the jury could draw from it, we again conclude the OCCA’s decision that the

evidence is sufficient is not contrary to, or an unreasonable application of, federal law.

Accordingly, we affirm the district court’s denial of relief on the sufficiency of the

evidence claim.

       a. Mr. Thompson drove the car

       Mr. Thompson makes two separate attacks on the sufficiency of the evidence

offered to show he drove the white car on the night of the murder. First, he challenges the

credibility of the witnesses who provided the testimony that implicated him. Second, he

contends the evidence is insufficient because there is no physical evidence connecting

him to the crime. We consider each of these arguments in turn, beginning with his claim

that Mr. Thrower’s and Ms. Banton’s testimony is inherently incredible.

       Mr. Thompson notes, “only [Mr.] Thrower could identify Mr. Thompson as

driving the vehicle that fired the fatal shot,” but Mr. Thrower’s identification occurred

under highly suspicious circumstances. Petitioner’s Br. at 20. Mr. Thrower testified on

direct examination that he could not identify the driver of the white car from which the

fatal shot was fired. During redirect the following day, however, Mr. Thrower identified

Mr. Thompson as the driver of the white car. According to Mr. Thompson, Mr.

Thrower’s identification testimony should be afforded no evidentiary weight because

Mr. Thrower spoke with the victim’s father and smoked marijuana between his direct and




                                             11
redirect testimony. Although we agree that Mr. Thrower’s change in testimony was

dramatic, we are not convinced it must be discounted entirely.

       In analyzing the sufficiency of the evidence we must “view[] the evidence in the

light most favorable to the prosecution,” 

, and “presume—even

if it does not affirmatively appear in the record—that the trier of fact resolved any . . .

conflict[ing] [inferences] in favor of the prosecution, and [] defer to that resolution,”

(quoting 

); see also Matthews v.

Workman, 

, 1184 (10th Cir. 2009) (“As an appellate court on collateral

review, we are not allowed to weigh conflicting evidence or consider the credibility of

witnesses.” (internal quotation marks omitted)). The credibility question is within the sole

province of the jury and we must presume it resolved that question in favor of the

prosecution. See 

(highlighting inconsistencies with prior

testimony “proves . . . that a rational juror might not accept” the new testimony but

“doesn’t show that a rational juror could not accept it, which is the question on which a

sufficiency challenge necessarily must focus”); see also United States v. Cardinas

Garcia, 

, 794 (10th Cir. 2010) (recognizing, on direct appeal, that “we will

overturn a jury’s credibility determination and disregard a witness’s testimony only if the

testimony is inherently incredible—that is, only if the events recounted by the witness

were impossible under the laws of nature or the witness physically could not have

possibly observed the events at issue” (internal quotation marks omitted)).

       The defense cross-examined Mr. Thrower on the dramatic change in his

testimony, highlighting his conversation with Mr. Ingersoll’s father and his drug use.

                                              12
Thus, the jury had before it two versions of Mr. Thrower’s testimony, both offered for the

truth of the matter asserted. At that point, the jury had sole responsibility for assessing

Mr. Thrower’s credibility—specifically whether he was telling the truth when he

identified Mr. Thompson as the driver of the white car from which the fatal bullet was

fired. Based on the verdict, we must assume the jury found his identification credible.

Accordingly we reject Mr. Thompson’s invitation to exclude Mr. Thrower’s

identification from our analysis. 3

       Next, Mr. Thompson attacks Ms. Banton’s testimony, noting that she initially gave

statements to police that implicated him, but later retracted those statements and admitted

she had lied to police. Mr. Thompson highlights that Ms. Banton denied making almost

every statement Detective Lord attributed to her in his police report, including the

statement that Mr. Richardson had implicated himself in the shooting when he visited her

on the night of the murder. He also points to Ms. Banton’s claim that Detective Lord and

another detective threatened Ms. Banton with jail time and with losing her kids, told her

to implicate Mr. Thompson and Mr. Richardson, and intimidated her by “hitting the table

and everything else.” App. at 676-77. Under these circumstances, Mr. Thompson

contends Ms. Banton’s testimony is inherently incredible.




       3
         To the extent that Mr. Thompson raises similar credibility challenges with
respect to Ms. Dotson’s testimony, we reject them for the same reasons as the objections
to Mr. Thrower’s testimony—the assessment of witness credibility was within the
province of the jury.


                                              13
       The State claims it called Ms. Banton with hope that she would testify under oath

consistent with her initial statements to Detective Lord. 4 When she did not, the State

offered Detective Lord’s testimony for purposes of impeachment. Ms. Banton then

claimed the interview with Detective Lord had been coercive and she had been forced to

make the statements implicating Mr. Thompson and Mr. Richardson. In response and

again for impeachment purposes, the State offered a portion of the video to refute

Ms. Banton’s characterization of the interview as coercive. Importantly, the trial court

instructed the jury that evidence offered for impeachment purposes could not be

considered for the truth of the matters asserted. Because that evidence was admitted only

for impeachment purposes, we do not consider it in assessing the sufficiency of the

evidence.

       In summary, the jury is charged with making credibility determinations. Here, the

jury was aware of the two versions of Mr. Thrower’s testimony. And because the defense

was permitted to cross examine Mr. Thrower, the jury also knew Mr. Thrower discussed

his testimony with Mr. Ingersoll’s father before he identified Mr. Thompson as the driver

of the white car. Indeed, defense counsel also briefly explored Mr. Thrower’s drug use on

the day of his direct examination. The jury could have believed Mr. Thrower lied on

direct examination because he was frightened of retaliation but then told the truth on

redirect when he identified Mr. Thompson. Taken in the light most favorable to the


       4
        We address Mr. Thompson’s argument that the State, in fact, knew Ms. Banton
would testify as she did and offered her testimony solely for the purposes of putting the
impeachment evidence before the jury in Section II.C.1.a.


                                             14
prosecution, Mr. Thrower’s affirmative identification of Mr. Thompson as the driver of

the white car is itself sufficient to conclude the OCCA did not unreasonably apply federal

law when concluding the evidence is sufficient to support the jury’s finding that

Mr. Thompson drove the car from which the fatal shot was fired. But because

Detective Lord’s testimony was offered only for the purpose of impeaching Ms. Banton,

we do not consider any of the statements he attributed to Ms. Banton in analyzing the

sufficiency of the evidence.

       The second argument Mr. Thompson makes with respect to the sufficiency of the

evidence is that there is no physical evidence tying him to the white car or the fatal bullet.

Instead, he contends the only physical evidence suggested Mr. England was the shooter.

Recall that the shell casing found on MacArthur Boulevard was fired from the same gun

as a shell casing found in Mr. England’s car. But physical evidence is not required to

sustain a conviction—the Supreme Court “ha[s] never questioned the sufficiency of

circumstantial evidence in support of a criminal conviction, even though proof beyond a

reasonable doubt is required.” Desert Palace, Inc. v. Costa, 

, 100 (2003).

Again Mr. Thompson fails to view the evidence in the light most favorable to the

prosecution. There was inconsistent testimony at trial regarding whether the shooter fired

one or two shots on the night of the murder. The jury could have found the shooter fired

only one shot, explaining the single shell casing found on MacArthur Boulevard. The

jury was also free to believe the testimony accounting for the shell casing found in

Mr. England’s car—that Mr. England sold guns to gang members and likely possessed

and fired the gun prior to selling it to Mr. Richardson.

                                             15
        In conclusion, the evidence is sufficient to support the jury’s finding, beyond a

reasonable doubt, that Mr. Thompson drove the white car from which the shot was fired.

As discussed, Ms. Dotson described seeing Mr. Thompson in the Fritzi’s parking lot

getting into the driver’s seat of a white car, and Mr. Richardson getting into the passenger

seat. Around the same time, Mr. Thrower, Mr. Newton, and Mr. Ingersoll were in the

Buick trying to exit from the Fritzi’s parking lot. Mr. Thrower testified that after the near

collision between the white car and the Buick, the same white car followed the Buick

and, upon drawing abreast to it, someone in the white car fired the shot that killed

Mr. Ingersoll. And Mr. Thrower identified Mr. Thompson as the driver of that white car.

        b. Mr. Thompson had knowledge of Mr. Richardson’s intent to use the gun

        Mr. Thompson next argues that even if there is sufficient evidence to prove he was

driving the white car, the evidence does not support a finding that he knew

Mr. Richardson possessed a gun and was planning to use it in extreme disregard for

human life. Mr. Thompson acknowledges, “the firing of a weapon into an occupied

vehicle constitutes imminently dangerous conduct.” Petitioner’s Br. at 18. He claims,

however, that Mr. Richardson could have concealed the handgun and fired the single shot

without Mr. Thompson having any knowledge of Mr. Richardson’s plan or having the

ability to stop it.

        Again Mr. Thompson fails to view the evidence in the light most favorable to the

verdict. The testimony at trial established that the white car almost hit the Buick,

resulting in Mr. Ingersoll leaning out the Buick window, while yelling and flashing gang

signs at the white car. According to Mr. Thrower, Mr. Thompson, the driver of that white

                                             16
car, then started following the Buick and driving suspiciously, speeding up and slowing

down. Mr. Thrower found this behavior to be strange enough that he warned his friends

about the car before the shooting occurred. Mr. Thrower saw the car then speed up

alongside the Buick, and he observed the passenger fire the shot that killed Mr. Ingersoll.

       Viewing this evidence in the light most favorable to the prosecution, the district

court identified the reasonable inferences a jury could draw from this testimony:

“(1) [Mr. Thompson] and [Mr. Richardson] had an altercation with Mr. Thrower and

Mr. Ingersoll while leaving the parking lot at Fritzi’s nightclub; (2) [Mr. Thompson]

followed Mr. Thrower and Mr. Ingersoll, speeding up and slowing down; and

(3) [Mr. Thompson] had pulled his car up to Mr. Thrower and Mr. Ingersoll’s car when

[Mr. Richardson] fired.” App. at 180–81. The jury could also infer that if Mr. Thrower

found the vehicle’s behavior suspicious enough to warn his friends, then the driver

(Mr. Thompson) also must have been aware of what was about to happen.

       Taking the evidence and the inferences therefrom in the light most favorable to the

verdict, the OCCA’s determination that a rational trier of fact could find beyond a

reasonable doubt that Mr. Thompson knew Mr. Richardson had a gun and was planning

to use it in extreme disregard for human life is not objectively unreasonable. We

therefore affirm the district court’s denial of Mr. Thompson’s habeas petition based on

the sufficiency of the evidence.

                 C. Admission of Ms. Banton’s Recanted Statements

       Mr. Thompson raises two general challenges to Detective Lord’s testimony

reporting Ms. Banton’s interview statements. First, he alleges the admission of Detective

                                            17
Lord’s testimony violated his due process rights. Second, he claims the admission of

Mr. Richardson’s inculpatory statement to Ms. Banton, both through Detective Lord’s

testimony and the video, violated Mr. Thompson’s Confrontation Clause rights. We

affirm the district court’s denial of habeas relief on both claims.

   Due Process Violations

       Mr. Thompson makes two due process arguments on appeal: (1) the prosecution

called Ms. Banton for the sole purpose of impeaching her with unsworn statements that

would be sufficient to convict him, thereby violating his due process rights (unsworn

statement claim) and (2) the prejudicial nature of the impeachment evidence was so high

that it rendered his trial fundamentally unfair (fundamental fairness claim).

       We are not convinced Mr. Thompson’s due process arguments are actually

separate. In the sole case on which Mr. Thompson relies for his first due process

argument, United States v. Shoupe, the Sixth Circuit was tasked with determining

whether the prosecutor’s use of prior unsworn, inconsistent statements “went beyond the

permissible limits of fairness.” 

, 643 (6th Cir. 1977). Specifically, the issue

in Shoupe was whether statements in an otherwise inadmissible report, used ostensibly to

refresh the witness’s recollection, could serve as the only evidence of guilt. The Sixth

Circuit held it could not because to do so would “abridge[] defendants’ right to a fair trial

in violation of the Due Process Clause of the 5th Amendment.” 

Thus, despite

Mr. Thompson’s insistence that his unsworn statement and fundamental fairness

arguments are distinct claims, a fair reading of Shoupe indicates that the ultimate question

there was whether the trial court’s evidentiary error rendered the trial so fundamentally

                                             18
unfair as to violate due process. 

result, Shoupe merely illustrates one way in

which a trial can be deemed fundamentally unfair and a due process violation can be

established.

       We nonetheless consider Mr. Thompson’s due process arguments separately,

because he has conceded review under AEDPA deference for only part of the analysis.

Mr. Thompson argues that his unsworn statements claim was not decided on the merits

by the OCCA and, therefore, AEDPA deference should not apply. If Mr. Thompson is

correct, we review his first due process claim de novo. See Johnson v. Williams, 

, 301–02 (2013). Conversely, Mr. Thompson concedes that his fundamental fairness

claim was decided by the OCCA and is thereby entitled to AEDPA deference.

Petitioner’s Br. at 42. He has therefore waived any argument that AEDPA deference does

not apply to that second question. Cf. Knowles v. Mirzayance, 

, 121 n.2

(2009). As a result, we must review Mr. Thompson’s fundamental fairness claim under

the deferential standards set forth in § 2254(d).

       We limit our analysis of the first due process claim to the arguments as set out by

Mr. Thompson—that he was convicted solely on the basis of unsworn testimony admitted

under the guise of impeachment. And we reserve for our consideration of his second due

process claim whether the impeachment evidence was so prejudicial as to have rendered

the trial fundamentally unfair.

       a. Unsworn statement claim

       We begin with Mr. Thompson’s claim that the State called Ms. Banton for the sole

purposes of impeaching her with otherwise inadmissible unsworn statements. The district

                                             19
court rejected this claim as one not raising a constitutional error. The parties dispute

whether the OCCA decided this issue on the merits, and therefore whether we must

review the OCCA’s decision under the deference provided in § 2254(d). According to

Mr. Thompson, the OCCA never reached this issue and we must review it de novo. The

State disagrees and contends we must defer to the OCCA’s merits decision resolving this

claim against Mr. Thompson. We need not and do not resolve this dispute because even

affording Mr. Thompson the more favorable de novo standard of review, his claim fails.

See Ellis v. Raemisch, 

, 1089 (10th Cir. 2017) (declining to resolve

disagreement between the parties over whether de novo or AEDPA deference review

should govern because the petitioner failed under de novo review). We undertake that de

novo analysis now.

       Mr. Thompson claims the State had nothing to gain from Ms. Banton’s testimony

because she had previously recanted her statements to police and had denied ever making

them during her sworn testimony in Mr. Richardson’s trial. Mr. Thompson argues it was

impermissible for the State to call Ms. Banton under these circumstances, and he spends a

significant portion of his brief explaining that doing so was a violation of state and

federal rules of evidence.

       Mr. Thompson is correct that “[e]very circuit has said evidence that is

inadmissible for substantive purposes may not be purposely introduced under the

pretense of impeachment.” United States v. Peterman, 

, 1479 n.3 (10th Cir.

1988). But we cannot grant habeas relief based merely on an alleged violation of state

evidentiary rules. Under § 2254(a), habeas relief is available only if an applicant can

                                             20
show “he is in custody in violation of the Constitution or laws or treaties of the United

States.” As we have previously recognized, “the admission or exclusion of impeachment

evidence” is “[a] non-constitutional error” and we generally refuse to treat challenges to

the admission of substantive evidence under the guise of impeachment as a due process

issue. United States v. Clifton, 

, 1179 & n.3 (10th Cir. 2005) (quotation

marks omitted). When “no particular constitutional guarantees are implicated, . . .

evidentiary objections merely raise questions of state law and, therefore, are cognizable

on habeas only if the alleged error was so grossly prejudicial [that it] fatally infected the

trial and denied the fundamental fairness that is the essence of due process.” Revilla v.

Gibson, 

, 1212 (10th Cir. 2002) (alteration in original) (internal quotation

marks omitted).

       Mr. Thompson argues that Shoupe, 

, bridges the gap between an

evidentiary error and a constitutional violation cognizable on habeas review. 5 It is true

the Sixth Circuit held in Shoupe, “that the recitation by the prosecutor of the entire

substance of a witness’s disavowed, unsworn prior statements, which, if credited by the

jury, would be sufficient to sustain a conviction, abridged defendants’ right to a fair trial

in violation of the Due Process Clause of the 5th 

. But

Shoupe is readily distinguishable from the present facts.


       5
        Mr. Thompson spends most of his briefing on this issue discussing the
admissibility of the impeachment evidence under state law. However, we consider a due
process challenge to the admission of evidence “without regard to whether the evidence
was properly admitted pursuant to state law.” Ochoa v. Workman, 

, 1144
(10th Cir. 2012) (citing Estelle v. McGuire, 

, 67–68 (1991)).


                                              21
       In Shoupe, the prosecution called a co-defendant, who had pleaded guilty, to

provide testimony that the defendants then on trial had participated in the bank robbery.

witness had previously implicated the defendants in unsworn statements

to an FBI agent, he claimed not to remember who else had participated in the crime when

on the stand. 

The prosecutor then asked a series of leading questions that

recounted the entire contents of the FBI agent’s report of his interview with the witness,

including the witness’s identification of the defendants as participants in the bank

robbery. 

The recanted statements in the report were introduced solely

through the prosecutor’s questions. 

agent testified only during voir dire and

admitted that the statements recorded in his report were unsworn, had not been recorded

by audio or video, were not recorded in his report until six days after the interview, and

had never been reviewed or adopted by the witness. See 

The Sixth Circuit

reversed the convictions, holding that the Due Process Clause prevented the defendants

from being convicted solely on the basis of unsworn testimony. 

       Since Shoupe, the Sixth Circuit has explained the narrowness of its holding. In

United States v. LaVictor, it stated:

       Initially, we note that under Federal Rule of Evidence 607, any party,
       including the party that called the witness, may attack a witness’ credibility.
       In Shoupe, we recognized a limited exception to this general rule. The
       government called a co-defendant to testify concerning his role in the
       criminal enterprise. During testimony, the prosecutor asked the co-
       defendant whether anyone accompanied him into the bank. When the
       witness failed to answer, the prosecutor sought to impeach him through an
       inconsistent statement by producing a memorandum prepared by a federal
       agent, never seen by the witness, which the government read from to
       allegedly refresh the witness’s memory. At no point did the witness
       acknowledge making the statements contained in the memorandum.

                                             22
       No other evidence tied the defendant to the crime. Consequently, this
       Court held that the district court should have been alerted to the possibility
       that the memorandum ‘lacked sufficient indicia of reliability to justify its
       blanket disclosure to the jury, even for a limited purpose.

, 452 (6th Cir. 2017) (emphasis added) (quoting 

).

The court in LaVictor concluded there was no need to depart from the general rule in that

case because the witness there “testified under oath,” “acknowledged making the written

statement and affirmed the veracity of its content.” 

And unlike in Shoupe, the

trial court gave a limiting instruction to the jury. 

Banton did not claim she had no memory of the interview. Although she

first denied she made the statements to Detective Lord, she later stated she had been

coerced and threatened and that she had a motive to lie to Detective Lord. Although she

never expressly admitted she made the initial statements, her response strongly suggested

as much. Both Ms. Banton and Detective Lord also testified under oath and were

subjected to cross examination. See 

(“Physical availability at

trial of the out-of-court declarant, who is not otherwise insulated from cross-

examination . . . may suffice to satisfy Sixth Amendment constraints.”). And unlike in

Shoupe, the reliability of Detective Lord’s testimony was supported by a video of the

interview with Ms. Banton, which presumably provided the district court sufficient

indicia of the reliability of Detective Lord’s testimony. 6 The trial court here also properly


       6
         Only a portion of the video was played for the jury and the video is not part of
the record on appeal. The burden to provide a record sufficient to facilitate appellate
review falls on the appellant. See United States v. Brody, 

, 1280 (10th Cir.
2013); see also 10th Cir. R. 10.1(A)(1) (“The appellant must provide all portions of the
transcript necessary to give the court a complete and accurate record of the proceedings

                                               23
instructed the jury, both before the video was played and before the jury began its

deliberations, that impeachment evidence could be considered only for purposes of

assessing credibility. Further, although “[n]o other evidence tied the defendant to the

crime,” in Shoupe, see 

, Ms. Banton’s testimony was not the

only evidence that tied Mr. Thompson to the shooting of Mr. Ingersoll. As discussed,

Mr. Thrower identified Mr. Thompson as the driver of the car from which the fatal shot

was fired and Ms. Dotson saw Mr. Thompson and Mr. Richardson enter a white car that

met the description of that vehicle in the Fritzi’s parking lot.

       Unlike in Shoupe, the unsworn statements from Ms. Banton are not sufficient,

standing alone, to find Mr. Thompson guilty. Mr. Thompson focuses on the following

statements admitted as impeachment evidence: (1) Ms. Banton saw Mr. Thompson and

Mr. Richardson in a white Camaro, (2) Mr. Richardson was acting nervously during a

conversation with Ms. Banton soon after the shooting, and (3) Mr. Richardson told

Ms. Banton, “he just shot a dude in the head but wasn’t sure or certain if he was dead or

alive.” Petitioner’s Br. at 27 (quoting App. at 876). As discussed above, the State was

required to prove Mr. Thompson drove the car from which the fatal shot was fired and

that Mr. Thompson knew of Mr. Richardson’s intent to use a gun in extreme disregard for



related to the issues on appeal.”). Where the record is incomplete, we may assume the
regularity of the proceedings below. See United States v. Arevalo-Tavares, 

, 1200 (10th Cir. 2000) (citing Parke v. Raley, 

, 30-31 (1992)). Here, this
presumption is warranted. If the video had discredited Detective Lord’s testimony, it is
highly unlikely the district court would have permitted him to testify as to Ms. Banton’s
prior statements, and it is highly likely the defense would not have objected to the video
being played to the jury.


                                              24
human life. Although the impeachment evidence would help a jury reach those

conclusions, they are insufficient on their own to sustain the verdict. Testimony that

Mr. Thompson was seen driving a white Camaro does not prove he was driving the car

from which the fatal shot was fired, without the testimony from Mr. Thrower that the shot

was fired from a white car similar to a Camaro. And testimony that Mr. Richardson fired

the shot is not sufficient to prove Mr. Thompson was driving the car at the time, or that

he knew Mr. Richardson intended to shoot at the Buick. That inference is supported by

testimony from Mr. Thrower about the near collision, Mr. Ingersoll’s taunting reaction,

the subsequent pursuit of the Buick by the white car, the erratic operation of the white

car, and the shot from that car once it drew abreast of the Buick. The impeachment

evidence, on its own, would not be sufficient to sustain Mr. Thompson’s conviction, even

if the jury had ignored the court’s instructions and considered that evidence substantively.

       This is not a case that violates “the principle that [a] man should not be allowed to

be convicted on the basis of unsworn testimony,” 

–44. Therefore,

Mr. Thompson’s due process argument under Shoupe fails under de novo review.

       b. Fundamental fairness claim

       In his second due process challenge, Mr. Thompson contends that, even if not

dictated by Shoupe, the impeachment evidence was so prejudicial that its admission

rendered his trial fundamentally unfair. 7 He therefore claims the OCCA’s determination


       7
       Citing Hicks v. Oklahoma, 

, 346 (1980), and Vitek v. Jones,

, 488 (1980), Mr. Thompson also argues a due process violation because
the OCCA’s failure to correctly apply title 12, section 2403 of the Oklahoma Statutes,
was contrary to federal law. But these cases stand for the narrow proposition that when

                                             25
that the impeachment evidence was not unduly prejudicial was an unreasonable

application of, or contrary to, Romano v. Oklahoma, 

(1994). Under Romano,

when the case is “not one in which the State ha[s] denied a defendant the benefit of a

specific constitutional right,” the appropriate question is whether the evidence “so

infected the trial with unfairness as to make the resulting conviction a denial of due

(quoting Donnelly v. DeChristoforo, 

, 643 (1974)).

“[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal

elements, when engaged in such an endeavor a federal court must tread gingerly and

exercise considerable self-restraint.” Duckett v. Mullin, 

, 999 (10th Cir.

2002) (alteration in original) (internal quotation marks omitted).

       The OCCA concluded the evidence was offered for its impeachment value and not

as substantive proof. Without any analysis, Mr. Thompson argues this is an unreasonable

factual determination. Even if we were willing to ignore that this argument was not raised

or decided below, and were also willing to apply his Confrontation Clause arguments to

his due process challenge, Mr. Thompson could not meet his burden to show the OCCA’s

finding was unreasonable. First, with regard to the video interview, the OCCA

determined it was offered for impeachment purposes because it was offered during



state statutes create liberty interests those interests are entitled to due process protections.

(“We have repeatedly held that state statutes may create liberty
interests that are entitled to the procedural protections of the Due Process Clause of the
Fourteenth Amendment.”); 

(concluding when a state statute
creates a liberty interest “that liberty interest is one that the Fourteenth Amendment
preserves against arbitrary deprivation by the State”). Because Mr. Thompson has not
argued § 2403 creates a liberty interest, he cannot succeed on this argument.


                                               26
Detective Lord’s testimony to rebut Ms. Banton’s claim of threats and coercion during

the interview. Immediately before playing the video, the court instructed the jury that

       [t]his tape is not going to be played in its entirety and it’s not for the truth
       of the matter asserted, it’s just to show the atmosphere under which [it] was
       created at that date and for you to make a determination as to the
       voluntariness of the statement, that's all, that's the only reason.

App. at 890–91. Against this backdrop, the OCCA’s factual determination was not

unreasonable.

       Second, we reject Mr. Thompson’s argument that the OCCA made an

unreasonable determination of fact when it found that Mr. Richardson’s purported

confession to Ms. Banton was offered for impeachment purposes. The OCCA found

Detective Lord’s testimony about what Ms. Banton told him Mr. Richardson said to her

on the night of the shooting “obviously was offered for its impeachment value” because it

was “elicited during a series of questions [posed to Detective Lord] designed to rebut

many portions of [Ms.] Banton’s testimony.” App. at 451. Mr. Thompson points to an

ambiguous statement in a sidebar colloquy and comments made during the prosecution’s

closing argument that appear to use the impeachment evidence substantively to argue this

determination was unreasonable. To the extent Mr. Thompson is challenging improper

closing argument, he cannot use his due process claim to bootstrap in an unpreserved

prosecutorial misconduct claim. And the sidebar comments are too vague to advance

either side of the argument. “[A]n imperfect or even an incorrect determination of the

facts isn’t enough for purposes of § 2254(d)(2).” 

.




                                             27
       Our review of the record supports the OCCA finding. During Ms. Banton’s

testimony she was asked a series of questions about the statements she made to Detective

Lord. Each time she denied having made a statement, she was asked whether Detective

Lord’s report would be inaccurate if it attributed the statement to her. And on every

occasion, she replied it would be inaccurate. In turn, the State questioned Detective Lord

about the statements Ms. Banton denied having made, allowing him to contradict her

testimony. This is classic impeachment. Mr. Thompson has thus not met his weighty

burden of proving the OCCA made an unreasonable determination of fact.

       Nor is the OCCA’s decision an unreasonable application of federal law. Given the

discrepancies between Ms. Banton’s testimony and Detective Lord’s testimony about

what was said and whether Ms. Banton was threatened during the interview, the OCCA

found the probative value of the impeachment evidence relatively high. In his briefing

before the OCCA, Mr. Thompson admitted the impeachment evidence had probative

value. And as the OCCA noted, the trial court properly instructed the jury to consider the

impeachment evidence only for credibility purposes, reducing the danger of unfair

prejudice. Generally, “[a] jury is presumed to follow its instructions.” United States v.

Berry, 

, 832 (10th Cir. 2013). The OCCA also indicated why the

impeachment evidence was probative, highlighting the dispute between Detective Lord

and Ms. Banton about the tenor of the interview. Cf. 

(emphasizing that the OCCA had identified several ways in which the challenged

evidence was probative).




                                             28
       Having reviewed the record as a whole, we agree with the district court that it was

not objectively unreasonable for the OCCA to conclude the impeachment evidence did

not “so infect[] the trial with unfairness as to make the resulting conviction a denial of

due process.” 

(quoting 

). We therefore

affirm the district court’s denial of habeas relief on this ground.

   Confrontation Clause Violation

       Mr. Thompson alleges his Confrontation Clause rights were violated when

Detective Lord was permitted to testify that Ms. Banton reported in her interview that

Mr. Richardson visited her apartment the night of the murder and told her he had just shot

someone in the head. The OCCA concluded there was no Confrontation Clause violation

because (1) the testimony was offered only for impeachment purposes and (2) the

Confrontation Clause does not bar the use of testimonial statements for purposes other

than the truth of the matter asserted. The district court agreed with the OCCA and also

concluded that Mr. Richardson’s statement to Ms. Banton was nontestimonial.

       Mr. Thompson challenges the OCCA’s determination under § 2254(d)(2), arguing

the OCCA made an unreasonable factual determination when it concluded the testimony

was offered only for impeachment purposes. Mr. Thompson also challenges the district

court’s conclusion that the statement was nontestimonial, but he does not argue the

OCCA incorrectly applied the law in holding that the Confrontation Clause bars only the

use of testimonial statements offered for the truth of the matter asserted. We can easily

dispose of Mr. Thompson’s Confrontation Clause argument because, as the district court

concluded, Mr. Richardson’s statement to Ms. Banton was nontestimonial. See Byrd v.

                                              29
Workman, 

, 1172 (10th Cir. 2011) (If we conclude the state court’s

decision was based on an unreasonable determination of fact, “we would still be left to

review [the constitutional claim] de novo.”).

       The Confrontation Clause applies only to testimonial hearsay. Davis v.

Washington, 

, 823–24 (2006). A statement is testimonial if “in light of all

the circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to

‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v. Clark, 

,

2180 (2015) (alteration in original) (quoting Michigan v. Bryant, 

, 358

(2011)). In this regard, “[a]n accuser who makes a formal statement to government

officers bears testimony in a sense that a person who makes a casual remark to an

acquaintance does not.” 

(quoting Crawford v. Washington, 

, 51 (2004)). Therefore, “statements made unwittingly to a Government

informant” or “statements from one prisoner to another” are “clearly nontestimonial.” Id.;

see also United States v. Smalls, 

, 779–80 (10th Cir. 2010) (holding

statements made to confidential informant posing as a fellow inmate and “apparent

friend” were “undoubtedly nontestimonial under any legitimate view of the law”).

       Mr. Richardson’s statement to Ms. Banton was undoubtedly nontestimonial. The

primary purpose of Mr. Richardson’s conversation with Ms. Banton was not to create an

out-of-court substitute for trial testimony. Mr. Thompson recognizes as much, conceding

that “[Mr.] Richardson’s statements to [Ms.] Banton could be classed by the Court as

nontestimonial.” Petitioner’s Br. at 42. Instead, he argues that we must focus on the

“peculiar scenario” at issue here involving “[Ms.] Banton’s testimonial statements to

                                             30
police and [Mr.] Richardson’s arguably nontestimonial statements to [Ms.] Banton.” 

         There is a fatal flaw in Mr. Thompson’s argument—the testimonial nature of

Ms. Banton’s statement to Detective Lord does not change the nontestimonial nature of

Mr. Richardson’s statement to Ms. Banton. Moreover, Mr. Thompson has argued a

violation of his right to confront Mr. Richardson, not a violation of his right to confront

Ms. Banton. 8 Because Mr. Richardson’s statement to Ms. Banton was nontestimonial, the

admission of that statement did not violate Mr. Thompson’s right to confront

Mr. Richardson. As a result, even under a de novo standard of review, Mr. Thompson is

not entitled to relief on his Confrontation Clause claim. 9



         8
         To the extent Mr. Thompson is arguing the violation of his right to confront Ms.
Banton, the Confrontation Clause provides him no protection. In Crawford v.
Washington, the Supreme Court “reiterate[d] that, when the declarant appears for
cross-examination at trial, the Confrontation Clause places no constraints at all on the use
of his prior testimonial statements.” 

, 59 n.9 (2004). Ms. Banton was subject
to cross-examination at trial and was specifically asked on direct examination about
whether she told Detective Lord that Mr. Richardson said he had shot someone in the
head.
         9
         Mr. Thompson also challenges the admission of an unspecified statement
contained in a video of Detective Lord’s interview with Ms. Banton into evidence on
Confrontation Clause grounds. Mr. Thompson admits “the record fails to bear out what
portions of the interrogation were actually played for the jury.” Petitioner’s Br. at 46.
Instead, he surmises that “the record is clear that objectionable portions were played,”
and “[w]hatever these objectionable statements were, Mr. Thompson had no means to
confront [Ms.] Banton, or whomever the declarant may have been, about them.” 

(emphasis added).
       The OCCA concluded the video was offered for impeachment and it thus did not
violate Mr. Thompson’s confrontation rights. The district court also rejected
Mr. Thompson’s claim because he could not show how the portions of the tape that were
played actually implicated him.

                                             31
                                III.   CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of

Mr. Thompson’s petition for habeas relief.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




      We agree with the district court—Mr. Thompson cannot show a Confrontation
Clause violation at all, let alone meet his burden of showing the OCCA made an
unreasonable determination of fact or unreasonably applied federal law by pointing to an
unidentified statement made by an unidentified declarant.


                                             32