MEMORANDUM OPINION

DAVID L. RUSSELL, District Judge.

Petitioner, a state prisoner currently facing execution of a sentence of death, appears with counsel and petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her convictions in the District Court of Oklahoma County, Case No. CF-2001-6189, of one count of first-degree malice aforethought murder and one count of conspiracy to commit first-degree malice aforethought murder. Respondent has responded to Petitioner's Petition for a Writ of Habeas Corpus (hereinafter "Petition"),1 and Petitioner has replied. The State court record has been supplied.2

PROCEDURAL HISTORY

Petitioner was convicted by a jury in the District Court of Oklahoma County of one count of first-degree murder and one count of conspiracy to commit first-degree murder for the death of her husband, Robert Andrew. For the crime of first-degree malice aforethought murder, the jury recommended the imposition of a sentence of death, finding the existence of two aggravating circumstances: (1) the murder was committed for remuneration or the promise of remuneration; and (2) the murder was especially heinous, atrocious, or cruel. She was also sentenced on the conspiracy count to ten years imprisonment and a $5000.00 fine.

Petitioner appealed her convictions and sentences to the Oklahoma Court of Criminal Appeals (hereinafter "OCCA"). The OCCA affirmed Petitioner's convictions and sentence of death in a published opinion dated June 21, 2007. Andrew v. State, 164 P.3d 176 (Okla. Crim. App. 2007). Petitioner's petition for rehearing was denied. At the same time the OCCA corrected its earlier opinion. Andrew v. State, 168 P.3d 1150 (Okla. Crim. App. 2007). Certiorari was denied on April 14, 2008. Andrew v. Oklahoma, 552 U.S. 1319, 128 S.Ct. 1889 (2008). Petitioner filed an Application for Post-Conviction Relief which was denied by the OCCA in an unpublished opinion. Andrew v. State, No. PCD-2005-176 (Okla. Crim. App. Jun. 17, 2008).

FACTUAL BACKGROUND

Under 28 U.S.C. § 2254(e), when a federal district court addresses "an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). For the purposes of consideration of the present Petition, the Court provides and relies upon the following synopsis from the OCCA's opinion summarizing the evidence presented at Petitioner's trial. Following review of the record, trial transcripts, and the admitted exhibits, the Court finds this summary by the OCCA to be adequate and accurate. The Court therefore adopts the following summary of the facts as its own:

After her apprehension, Appellant came into contact with Teresa Sullivan, who was a federal inmate at the Oklahoma County jail. Sullivan testified that Appellant told her that she and Pavatt killed her husband for the money, the kids, and each other. Appellant also told her that Pavatt shot her in the arm to make it look as if she was a victim.

Andrew, 164 P.3d at 184-87.

Additional facts and testimony were submitted to the jury at trial but are not contained in the OCCA's summary. Additional facts necessary for a determination of Petitioner's claims will be set forth in detail throughout this Opinion where applicable.

PETITIONER'S CLAIMS FOR RELIEF

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"), in order to obtain federal habeas relief once a State court has adjudicated a particular claim on the merits, Petitioner must demonstrate that the adjudication:

28 U.S.C. § 2254(d)(1-2).

The Supreme Court has defined "contrary to" as a State court decision that is "substantially different from the relevant precedent of this Court." Williams v. Taylor, 529 U.S. 362, 405 (2000) (O'Connor, J., concurring and delivering the opinion of the Court). A decision can be "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 405-06. The "unreasonable application" prong comes into play when "the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case" or "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. In ascertaining clearly established federal law, this Court must look to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decisions." Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (quoting Williams, 529 at 412.

The "AEDPA's purpose [is] to further the principles of comity, finality, and federalism. There is no doubt Congress intended AEDPA to advance these doctrines." Williams v. Taylor, 529 U.S. 420, 436 (2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). The deference embodied in Section 2254(d) "reflects the view that habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011)(citation omitted).

GROUNDS FOR RELIEF

Ground 1: Exclusion of Witnesses.

In the first stage of trial, the trial court excluded the testimony of six defense witnesses because it found that defense counsel had failed to provide adequate notice of their testimony prior to the discovery deadline as they had been previously instructed. Petitioner claims the trial court's actions deprived her of a right to present a defense in violation of the Sixth, Eighth and Fourteenth Amendments.

When considering Petitioner's claim on appeal, the OCCA noted that Oklahoma law permits exclusion of evidence for failure to comply with discovery rules, Andrew, 164 P.3d at 196 (citing 22 O.S. Supp. 2002, § 2002), and stated that such a sanction may be appropriate in the most severe cases, "where the violation is `willful and motivated by a desire to obtain a tactical advantage.'" The state court further stated that alternative sanctions are appropriate in other cases. Id. (citations omitted).

"`[C]riminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.'" Taylor v. Illinois, 484 U.S. 400, 408 (1988)(quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987)). "Few rights are more fundamental than that of an accused to present witnesses in his own defense." Id. (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). "In the exercise of [the right to present witnesses], the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." Chambers, 410 U.S. at 302.

"The accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory Process Clause provides him with an effective weapon, but it is a weapon that cannot be used irresponsibly." Taylor, 484 U.S. at 410. "The integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process must also weigh in the balance. Id. at 414-15.

On habeas review, this Court must determine whether the OCCA's rejection of Petitioner's claims was objectively unreasonable, not whether it was correct. See Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001). As a condition for obtaining relief in this Court, Petitioner must demonstrate that the state court's ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103.

Larry Northcutt and Roger Frost

Petitioner claims error in the exclusion of testimony from Larry Northcutt5 and Roger Frost. Both men were Oklahoma City police officers who also engaged in off-duty work as neighborhood patrols for Petitioner's homeowner's association. Both men were offered by the defense to show that Petitioner had requested additional police patrols in the neighborhood because she was afraid of Rob Andrew taking possessions from the house and that it was unlikely, knowing of the increased patrols, that she would have used her residence as the location to murder her husband.

On appeal, the OCCA rejected Petitioner's claims, reasoning:

Andrew, 164 P.3d at 196-97.

Petitioner argues the anticipated testimony was relevant and necessary to show that not only would she have not used her house as the site of the murder knowing of the extra patrols, but also would also have provided the jury with a reason for her to have kept the shotgun other than the State's theory she kept it to use it on her husband. The OCCA found the trial court did not abuse its discretion precluding the testimony and that the failure to give this information did not prejudice Petitioner as the jury was aware of the extra patrols. Habeas relief for constitutional error is appropriate only when the error "had substantial and injurious effect or influence in determining the jury's verdict" and the petitioner can establish that it resulted in "actual prejudice". Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)(citations omitted). The only information not presented was Petitioner's request to the officers. The OCCA's determination that Petitioner was not prejudiced is not unreasonable considering the other evidence presented throughout the trial. Should, as Petitioner claims, the OCCA's determination on the propriety of the trial court's rulings be error, Petitioner has not demonstrated the exclusion of this limited testimony had a substantial and injurious effect or influence on the jury's determination.

Lisa Gisler and Carol Shadid

Petitioner attempted to present testimony from two of her neighbors regarding what they heard at the time of the homicide in an effort to support her version of the events and to rebut the version presented by the State.

Id. at 197.

Petitioner has not demonstrated the OCCA's determination of harmlessness was unreasonable. Implicit in the state court's determination was that the testimony was cumulative of other evidence presented at trial — even evidence of Petitioner's statements that Rob Andrew was shot twice and Petitioner once. Further, reconstruction experts on behalf of the state and Petitioner testified the gunshot wound to Petitioner was staged. It is not unreasonable to conclude that neighbors hearing screams and shots fired in rapid succession would not sufficiently rebut the testimony of two expert witnesses. Considering all the evidence in its entirety, the exclusion of this limited testimony did not have a substantial and injurious effect or influence on the jury's determination and was harmless.

Officer Ronald Warren

Petitioner claims the exclusion of testimony of Officer Ronald Warren was also error. Officer Warren was one of the first officers on the scene. Petitioner contends Officer Warren's testimony was critical because he would have testified when he entered the garage Petitioner was kneeling at Rob Andrew's side, that she asked him to help her husband, and that she was ignoring or not drawing attention to her own wound. Petitioner claims Warren's testimony was necessary to show her great concern for her husband.

Id. at 197.

The OCCA's determination the exclusion of this evidence was harmless is reasonable. As the state court correctly recognized, the evidence was cumulative of other evidence admitted at trial. Officer James Ramsey was also one of the first responders to the scene and testified he observed Rob Andrew laying on the ground and Petitioner kneeling over him while on the phone talking to the police. Additionally, evidence was admitted regarding Petitioner's 911 calls and an ambulance report documented that Petitioner asked at the scene about the status of her husband. The evidence admitted at trial was available to show the jury Petitioner had concern over her husband's status after being shot. The exclusion of this cumulative evidence did not have a substantial and injurious effect or influence in determining the jury's verdict.

Donna Tyra

Discovery of this testimony was not presented to the State.

Id. at 197-98.

Angela Burk was housed in the protective unit with Petitioner and Sullivan and was called as a witness on behalf of the defense. Disregarding witness Burk's testimony that Sullivan was a known snitch and that inmates were able to communicate at times, Petitioner claims exclusion of Donna Tyra's testimony during the first stage of trial demands relief because her testimony that inmates could not communicate with each other would have provided evidence that Petitioner could not have confessed to Sullivan. Burk's testimony was supportive of Sullivan's reputation in the protective unit. It was, however, contradictory to the proposed testimony of Tyra regarding the ability of inmates to communicate with each other. Considered together with the defense's cross-examination of Sullivan and the evidence presented at trial, Petitioner has not demonstrated the trial court's exclusion of Tyra's testimony on this issue was so unfairly prejudicial that it had a substantial and injurious effect or influence on the jury or it's verdict.

The OCCA found some of the exclusions by the trial court to have been error, but determined any such errors to have been harmless. Petitioner has not demonstrated the OCCA's determination is unreasonable or that the trial errors rise to the level of requiring relief under Brecht and progeny. Accordingly, this ground for relief is denied.

Ground 2: Hearsay Statements of the Deceased.

Petitioner claims the trial court allowed inadmissable hearsay statements of the deceased before his death that improperly permeated the entire trial in violation of the Confrontation Clause, Due Process Clause, and in violation of Oklahoma's hearsay rules. The complained of testimony consists of the decedent's statements to law enforcement officers about the brake lines on his vehicle being intentionally cut, similar statements regarding his brake lines to non-law enforcement individuals, his statements regarding attempts to obtain his 16 guage shotgun from Petitioner, his statements pertaining to attempts to change the beneficiary of his life insurance policy, his statements regarding James Pavatt, other statements made by Rob Andrew to others regarding Petitioner's infidelity, allegations made about him by Petitioner, and their separation and divorce proceedings. Petitioner also complains of the admission of Rob Andrew's computer journal recovered by police in their investigation of his death.

The Confrontation Clause of the Sixth Amendment states: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Fourteenth Amendment renders the Clause binding on the States. Pointer v. Texas, 380 U.S. 400, 403 (1965). In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court examined the common-law history of the confrontation right, noting that in England, pretrial examinations of suspects and witnesses by governmental officials "were sometimes read in court in lieu of live testimony". Id. at 43. The Court cited the definition of "testimony" as "`[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)), and stated:

Id.

Only Rob Andrew's statements to law enforcement about his belief that Petitioner and James Pavatt were responsible for the brake lines being cut on his car are considered testimonial evidence under Crawford and protected by the Confrontation Clause.6 As explained in Giles v. California, 554 U.S. 353 (2008):

Id. at 376. The Confrontation Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U.S. 409, 414 (1985)(non-hearsay aspect of testimony raises no Confrontation Clause concerns).

The OCCA applied Crawford and denied this portion of Petitioner's claim on direct appeal:

Andrew, 164 P.3d at 189.

Petitioner has not demonstrated that the OCCA's determination the testimony was presented for a non-hearsay purpose was unreasonable. The evidence was important to show how the police investigation procedures into the incident differed and why there was a delay between Rob Andrew's report and the subsequent interview by law enforcement weeks later. It was also explanatory regarding his frame of mind and his actions in the weeks leading up to his murder.

Nor has Petitioner demonstrated the state court's determination of harmlessness was unreasonable. Habeas relief for constitutional error is appropriate only when the error "had substantial and injurious effect or influence in determining the jury's verdict" and the petitioner can establish that it resulted in "actual prejudice". Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)(citations omitted).

Of the remaining statements complained of by Petitioner, their primary purpose was not testimonial and, as such, their admissibility "is the concern of state and federal rules of evidence, not the Confrontation Clause." Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 2180 (2015)(citation omitted). The state court's determination that the evidence was properly admitted is a matter of state evidentiary law and not proper for habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Petitioner argues the admission of this evidence denied her due process and a fundamentally fair trial.

Testimony found to be properly admitted.

Each of Petitioner's claims of error found by the state court to have been properly admitted are set forth below, along with the OCCA's reasons for its determination. First, the OCCA determined that the statements made regarding the victim's shotgun were relevant to several different aspects of the state's case:

Andrew, 164 P.3d at 188.

Next, Petitioner does not specifically provide argument against the admission of Rob Andrew's statement to Ron Stump that he believed Petitioner finally found someone to kill him, other than it was inadmissible hearsay and rendered her trial fundamentally unfair. The OCCA determined the statement was evidence of Rob Andrew's state of mind and admissible:

Id. at 188-89.

Petitioner claims, citing to state law cases, that statements made by Rob Andrew of his belief that Pavatt and Petitioner tried to kill him by cutting the brake lines on his car were irrelevant, invaded the province of the jury and were inadmissible. The OCCA found the evidence to be proper as state of mind, motive and relevant to the actions of the insurance company:

Id. at 189.

The State introduced evidence of logs taken from Rob Andrew's work computer which contained descriptions of various incidents between he and Petitioner. Petitioner claims this evidence was both inadmissible hearsay and cumulative.7

Id. at 190.

Habeas relief is possible only if Petitioner can demonstrate such undue prejudice from the evidence that the entire trial is rendered fundamentally unfair:

Welch v. Sirmons, 451 F.3d 675, 688 (10th Cir. 2006).

In each sub-claim above, the OCCA thoroughly detailed the probative value of the testimony and evidence when determining the admissibility of the evidence. Although much of the evidence is not favorable to her, Petitioner has not demonstrated the probative value is greatly outweighed by any prejudice to her or, more importantly on habeas review, that it was so unduly prejudicial as to render her trial fundamentally unfair.

Evidence found to be inadmissible hearsay but harmless error.

The following instances involve statements admitted at trial that were determined by the OCCA to be in whole or in part inadmissible hearsay, but found to be harmless error. The first involves testimony of statements by Rob Andrew to his attorney and others expressing his belief that Petitioner had attempted to kill him and conveying the difficulty he was experiencing regarding attempting to change the beneficiary on his life insurance policies.

Andrews, 164 P.3d at 189.

The OCCA also determined various other statements were improper but harmless:

Id. at 190.

A trial error is harmless unless it is found to have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. Under this standard, habeas petitioners are not entitled to relief based on the trial error unless they can establish that it resulted in actual prejudice. Id. Petitioner has not demonstrated the OCCA's harmlessness determination was contrary to, or an unreasonable application of, Brecht and its progeny. As identified and described by the OCCA throughout its opinion, considerable evidence was properly admitted to support the state's case and the jury's verdict. After thorough review of the trial record, the Court finds Petitioner has not demonstrated these various isolated statements made over the course of a lengthy trial, even when considered together, resulted in actual prejudice that had a substantial and injurious effect or influence in determining the jury's verdict. Petitioners ground for relief is denied.

Ground 3: Other Crimes and Bad Acts.

Petitioner claims evidence was admitted at her trial of other crimes and bad acts that were not relevant to the crimes for which she was charged, denying her a fair trial in violation of due process. Petitioner identifies twelve (12) instances of testimony or evidence she claims the admission of which was error. The OCCA separately identified each one in its consideration on Petitioner's appeal. Although lengthy, the OCCA's consideration is included in its entirety here to both identify Petitioner's claims and to set out the rationale for the state court's determination:

Andrew, 164 P.3d at 190-93 (footnotes omitted).

Petitioner first contends the OCCA addressed her claims only under state law and that this Court owes no deference to the state court's determination. This Court's analysis, however, is whether the state court's determination was contrary to, or an unreasonable application of, clearly established Supreme Court law. It is the decision of the state court that is reviewed to determine whether this standard is met:

Bell v. Cone, 543 U.S. 447, 455 (2005).

The state court's determination that the evidence was properly admitted is a matter of state evidentiary law and not proper for habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Habeas relief is possible only if Petitioner can demonstrate such undue prejudice from the evidence that the entire trial is rendered fundamentally unfair:

Welch v. Sirmons, 451 F.3d 675, 688 (10th Cir. 2006)(overruled on other grounds). The Tenth Circuit has held that the Oklahoma cases and statutes applied by the OCCA are consistent with the constitutional principles set forth above as they acknowledge the prejudice associated with the admission of other crimes evidence and place strict limitations on the admission of such evidence. Id. Absent any clearly established Supreme Court precedent regarding the admission of other crimes and bad acts evidence, this Court is bound to apply deference to the OCCA's determination provided it was not unreasonable.

Petitioner has not demonstrated the state court's determination to be unreasonable. In almost every instance complained of by Petitioner, the OCCA determined the evidence was relevant to prove either motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or part of a claim or defense. Petitioner's arguments aside, it is not this Court's charge to determine on habeas review if it would rule differently. Rather, this Court must determine if the state court's determination was objectively unreasonable. "Thus, `only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254.'" House v. Hatch, 527 F.3d 1010, 1019 (10th Cir. 2008)(citations omitted). "[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". Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

The OCCA applied state law and statutes to make its determination of the correctness on the admissibility of the evidence at Petitioner's trial regarding other crimes and bad acts of the Petitioner. That consideration encompassed comparing that evidence to the evidence presented throughout the case to determine relevance and any resulting unfair prejudice — an analysis recognized by the Tenth Circuit to be consistent with a due process analysis. After review of Petitioner's trial and the OCCA's decision on this claim, the Court does not find the OCCA's determination to be unreasonable. Petitioner has not shown the determination to be contrary to, or an unreasonable application of, the general standard for a due process violation articulated by the Supreme Court.

The OCCA also noted that it struggled to find the relevance of the testimony that Petitioner had "come on to" witness Higgins' two adult sons, that she had once dressed provocatively and had been called a "hoochie", her inappropriate talk about a trip to Mexico, the changing of her hair color to apparently please a married man, and witness David Head's testimony about Petitioner's threat to kill him. Despite the irrelevance of this testimony, the OCCA found the error to be harmless due to the overwhelming evidence in the case. It bears repeating that a trial error is harmless unless it is found to have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. Under this standard, habeas petitioners are not entitled to relief based on the trial error unless they can establish that it resulted in actual prejudice. Id. Petitioner has not demonstrated the OCCA's harmlessness determination was contrary to, or an unreasonable application of, Brecht and its progeny. No actual prejudice has been demonstrated by the admission of the testimony regarding Petitioner's prior bad acts or that the state court's reasoning and determination is unreasonable. Accordingly, this ground for relief is denied.

Ground 4: Opinion Testimony.

Petitioner claims both lay witness and expert witness opinion testimony was improperly admitted at her trial which violated state law and her federal due process guarantee of a fundamentally fair trial. Petitioner's claim can be separated into two categories, expert opinion by law enforcement officers and opinion testimony by lay and law enforcement witnesses pertaining to Petitioner's guilt.

Expert opinion by law enforcement officers.

Petitioner claims testimony of law enforcement officers were improper personal opinion and not proper subjects of expert testimony. Officer Roger Frost testified regarding Petitioner's demeanor and inability to remember statements allegedly made by the perpetrators, characterizing them as "strange". Officer Teresa Bunn testified to similar opinions regarding Petitioner's demeanor and her inability to relate the distance between herself and the shooter. Officer Klinka testified Petitioner was involved in the brake cutting incident on Rob Andrew's vehicle.

Andrew, 164 F.3d at 195-96.

In United States v. Garza, 566 F.3d 1194 (10th Cir. 2009), the Tenth Circuit held that a police officer can acquire specialized knowledge in criminal practices and, thus, the expertise to opine on such matters, and the reliability criteria for gate-keeping purposes enumerated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), need not be applied "woodenly" in all circumstances. Garza, 566 U.S. at 1199. Frost testified he had served almost eighteen years as a police officer, had specialized training and experience in dealing with victims of violent crimes, and had worked on several hundred cases in which he had come into contact with victims of violent crimes. Bunn testified she had processed several hundred crime scenes and had also received specialized training through the Army every year on dealing with people who are in shock. The testimony of these officers was found to be proper under state evidentiary law. Petitioner has not demonstrated the OCCA's determination to be contrary to, or an unreasonable application of, clearly established federal law.

Officer Klinka's testimony regarding Petitioner's involvement in the incident regarding the cutting of her husband's brake line was reviewed for plain error and found to have been rebuttal testimony to defense counsel's questions pertaining to the connection between Petitioner and the brake line incident. Petitioner has not demonstrated this determination to be error, or to be contrary to clearly established Supreme Court law.

Petitioner also claims improper the testimony of Detective Garrett that he believed on the day of the murder Pavatt was moving into Petitioner's home. It is difficult to ascertain whether Petitioner claims this to be improper expert opinion or law enforcement's opinion of her guilt.

Andrew, 164 F.3d at 196.

Citing only to state law, Petitioner asserts opinions such as this invade the province of the jury and are improper. Whether the statement was improper, or the trial court's failure to admonish the jury trial error, Petitioner has not demonstrated the state court's determination is contrary to clearly established federal law or that the "error" had a substantial and injurious effect and influence on the jury's verdict.

Lay and law enforcement opinion as to guilt.

Petitioner next claims testimony from various witnesses expressing opinion as to Petitioner's guilt invaded the province of the jury and was improper.

Id. at 195.

Rod Lott's testimony was in response on re-direct examination to defense counsel's cross-examination questioning as to whether he liked Petitioner. The testimony of Mike Klinka, Michael Fetters and Mike Sinor was found to have been admitted to show Rob Andrew's state of mind. The instances were not found to have been error and Petitioner has provided nothing to the contrary. Ron Stump's testimony was not objected to. It was reviewed for plain error by the OCCA and found that none existed.8 Whether or not it was trial error to admit this testimony, Petitioner presents no clearly established federal law to demonstrate the state court's determination to be unreasonable, nor has she demonstrated the "errors" had a substantial and injurious effect or influence on the jury's verdict warranting relief. Petitioner's ground for relief is denied.

Ground 5: Co-conspirator Testimony.

At trial, and over defense counsel's objections, the State presented through Jana Larson (James Pavatt's daughter) statements made to her by Mr. Pavatt regarding Petitioner's request to help murder her husband. The testimony was allowed under the co-conspirator exception to the rule against hearsay. Petitioner claims the testimony regarding the statements was inadmissable hearsay because the requirements for the co-conspirator exception were not met, depriving her of her rights of confrontation and cross-examination in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

Petitioner raised this claim on direct appeal and it was denied by the OCCA:

Andrew, 164 P.3d at 190.

Petitioner provides considerable argument and authority to convince the Court that the state court improperly and erroneously determined the testimony was a statement by a coconspirator and excepted from the state rules of hearsay. She argues the state court determined without factual support the date of the initiation of the conspiracy between Petitioner and Mr. Pavatt, allowing the prosecutors leeway to ensure the statement was made during the period of the conspiracy. She further argues there was no evidence to prove the existence of any agreement to commit a crime. Her purpose for these arguments is to demonstrate the State "has gotten away with introducing this highly incriminating statement but highly unreliable hearsay evidence by dressing it up as a co-conspirator statement" (Pet. at 117), depriving her of her confrontation rights.

It is the Confrontation Clause, however, that is the basis of Petitioner's constitutional challenge in this Court. As addressed earlier in Ground 2, only testimonial statements are excluded by the Confrontation Clause. Crawford v. Washington, 541 U.S. 36 (2004). Later Supreme Court cases attempted to flesh out the definition of "testimonial", developing what was to become known as the primary purpose test. "In the end, the question is whether, 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." Michigan v. Bryant, 562 U.S. 344, 358 (2011). "Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. `Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.'" Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 2180, (2015)(quoting Bryant, 562 U.S. at 359 (2011)). "We have never suggested, however, that the Confrontation Clause bars the introduction of all out-of-court statements that support the prosecution's case. Instead, we ask whether a statement was given with the "primary purpose of creating an out-of-court substitute for trial testimony." Clark, 135 S.Ct. at 2183 (quoting Bryant, 562 U.S. at 358).

Crawford and progeny apply to Petitioner's claim. There is no valid argument, as indeed there cannot be, that the primary purpose of Pavatt's statement was to create an out-ofcourt substitute for trial testimony. As such, the statement and conversation were nontestimonial and state law evidentiary rules apply. As expressed throughout this opinion, habeas relief does not lie for errors of state law. Estelle, 502 U.S. at 67. Petitioner has not demonstrated the OCCA's determination to be contrary to, or an unreasonable application of, clearly established Supreme Court precedent, nor when compared to the evidence presented at trial has she demonstrated any possible state evidentiary error to have risen to such a level as to be considered a denial of her due process rights. Accordingly, Petitioner's fifth ground for relief is denied.

Ground 6: Ineffective Assistance of Counsel.

In her sixth ground for relief, Petitioner raises a plethora of claims that she was denied effective assistance of counsel at trial and on appeal. The claims made here encompass claims previously raised on direct appeal, in her application for post-conviction relief, and in motions for an evidentiary hearing.

To prevail on a claim of ineffective assistance of counsel under the Sixth Amendment, Petitioner must first show that her counsel "committed serious errors in light of `prevailing professional norms'" in that the representation fell below an objective standard of reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984). In so doing, Petitioner must overcome the "strong presumption" that her counsel's conduct fell within the "wide range of reasonable professional assistance" that "`might be considered sound trial strategy,'" Strickland, 466 U.S. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). She must, in other words, overcome the presumption that her counsel's conduct was constitutionally effective. United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993). A claim of ineffective assistance "must be reviewed from the perspective of counsel at the time," Porter v. Singletary, 14 F.3d 554, 558 (11th Cir.), cert. denied, 513 U.S. 1009 (1994), and, therefore, may not be predicated on "`the distorting effects of hindsight.'" Parks v. Brown, 840 F.2d 1496, 1510 (10th Cir. 1987), quoting Strickland, 466 U.S. at 689.

If constitutionally deficient performance is shown, Petitioner must then demonstrate that "there is a `reasonable probability' the outcome would have been different had those errors not occurred." Haddock, 12 F.3d at 955; citing Strickland, 466 U.S. at 688, 694; Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993).

In the specific context of a challenge to a death sentence, the prejudice component of Strickland focuses on whether "the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695; quoted in Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir. 1992), cert. denied, 507 U.S. 929 (1993). Petitioner carries the burden of establishing both that the alleged deficiencies unreasonably fell beneath prevailing norms of professional conduct and that such deficient performance prejudiced her defense. Strickland, 466 U.S. at 686; Yarrington v. Davies, 992 F.2d 1077, 1079 (10th Cir. 1993). In essence, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. "Counsel's performance must be `completely unreasonable' to be constitutionally ineffective, `not merely wrong.'" Welch v. Workman, 639 F.3d 980, 1011 (10th Cir. 2011)(quoting Hoxsie v.Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997)). "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 1485 (2010).

Harrington v. Richter, 562 U.S. 86, 105 (2011).

Claims raised on direct appeal.

Petitioner first claims trial counsel were ineffective in failing to provide pre-trial summaries of various witnesses' testimony, resulting in those witnesses being precluded by the trial court from testifying. These witnesses are the individuals identified in Petitioner's first ground for relief. On appeal, the OCCA applied Strickland and determined that any error that arose from the exclusion of the witnesses was harmless, that Petitioner had not been prejudiced by the inactions of trial counsel and, therefore, counsel were not ineffective. Andrew, 164 P.3d at 198. Petitioner has not demonstrated the OCCA's determination to be contrary to, or an unreasonable application of, Strickland and its progeny. For the reasons set forth in Ground 1, supra, the Court finds the OCCA's determination of lack of prejudice to be reasonable.

Petitioner next claims trial counsel's failure to make contemporaneous objections to "many damaging hearsay statements and opinion testimony" constitutes ineffective assistance of counsel. The instances complained of are the subject of Petitioner's second and fourth grounds for relief.9 The OCCA found the majority of the evidence was properly admitted and determined no resulting prejudice from counsels' failure to contemporaneously object. Id. To demonstrate prejudice, Petitioner merely re-urges her claims that the testimony and statements were improper and incorporates her arguments from Grounds 2 and 4. As discussed above, almost all of the complained of statements were non-testimonial. If found to have been improper, the testimony was determined to have been harmless and the state court's determination to have been reasonable. Petitioner has, therefore, failed to demonstrate resulting prejudice from trial counsel's failure to contemporaneously object as she has not shown a "reasonable probability" the outcome would have been different.

Claims raised on direct appeal and State's Rule 3.11

On appeal, Petitioner raised ineffective assistance of counsel claims in conjunction with an application for an evidentiary hearing. She claims the OCCA did not adjudicate these claims on the merits, but rather under the state rule for evidentiary hearing on appeal, Rule 3.11, Okla. Stat. Tit. 22, Ch. 18 App. Considerable argument is presented that the OCCA's determination is not entitled to deference because the state court utilized Rule 3.11's standard for an evidentiary hearing rather than the standard for determining counsel ineffectiveness under Strickland. In Glossip v. Trammell, 530 Fed. Appx. 708 (10th Cir. 2013), the Tenth Circuit discussed the lengthy history of this issue and held "Lott makes clear, then, that even assuming the OCCA resolved Glossip's claim of ineffective assistance pursuant to Rule 3.11, that resolution is nonetheless an `adjudicat[ion] on the merits' subject to the heightened AEDPA standards set out in 28 U.S.C. § 2254(d)(1)". Id. at 736.

Petitioner contends trial counsel was ineffective for failing to adequately investigate and present evidence regarding blood on the jeans worn by her at the time of the shooting. She claims trial counsel should have followed the advice of his own expert witness to have the blood tested to determine its source in order to contradict the prosecution's argument that she fired the second shot into Rob Andrew. On appeal, the OCCA determined the prosecutor could have made the same argument knowing the source of the blood:

Andrew, 164 F.3d at 198-99.

Multiple blood stains patterns were on the front of Petitioner's jeans. Prior to trial, DNA testing was done on one of the patterns — a spot labeled by the experts as pattern #3. That testing determined it was not the blood of Rob Andrew. At the time the DNA profile of Petitioner was not available and the identification of the donor could not be established. At trial, defense expert Garner testified in order to explain through crime scene reconstruction Petitioner's version of the event. During his testimony, he opined that two spots he believed to be blood spatter, patterns #2 and #5, could not have resulted from Petitioner's gun shot wound. Petitioner claims that testimony was damaging to her in both stages of trial as it opened the door for the prosecutor to argue that the blood must have been spatter from Rob Andrew when Petitioner shot him, and that it characterized her as a cold blooded murderer. She argues that had the blood been tested beforehand as it was post trial, the prosecutor could not have made the argument because it would have been known that the blood belonged to her.

To demonstrate ineffective assistance of counsel, both deficient performance and prejudice must be shown. On habeas review, Petitioner must demonstrate the state court's determination to have been unreasonable. Petitioner's reliance on Hooper v. Mullin, 314 F.3d 1162 (10th Cir. 2002), and Fisher v. Gibson, 282 F.3d 1283 (10th Cir. 2002), for comparison to support her claims of ineffective assistance for failure to investigate is misplaced. Petitioner's claim does not rise to the level of the facts in Hooper or Fisher. In Hooper, defense counsel made the strategic decision to present as mitigating evidence the possibility that the petitioner might have brain damage and other psychological problems, but then presented evidence without any further investigation in an unprepared and ill-informed manner. Counsel presented experts without ever speaking to them prior to their testimony and was totally unaware what they would say on the witness stand. Hooper, 314 F.3d at 1171. In Fisher, the Tenth Circuit found that defense counsel had failed to view the crime scene, filed no discovery motions, failed prior to trial to discover witnesses the state was to present, was unfamiliar with his client's version of the events, and failed to review prior transcripts of his client's extradition hearing containing potentially exculpatory evidence. The Tenth Circuit stated the nature of the trial indicated a singular lack of preparation and that through most of counsel's examination of witnesses, including his own, he had no idea what answers he would receive to his questions. Fisher, 282 F.3d at 1293-94.

Here, Petitioner does not claim counsel was ineffective for hiring a crime scene reconstruction expert to assist with her trial, only that counsel was ineffective for failing to have additional blood testing on her jeans. She claims that without the additional testing as that done post-trial, counsel's presentation of her expert provided the state with an argument that she was the shooter of the second shotgun blast into her husband. The OCCA's determination of Petitioner's claim was contained in the section of its opinion addressing ineffective assistance of counsel claims. By finding the prosecutor could have made the same argument by stating the blood spatter came from the victim, the OCCA implicitly determined the prejudice component of Strickland was not met.

In addition to the state court's reasoning, it is also not unreasonable to not find prejudice considering the evidence presented at trial to support that the murder was staged (with Petitioner's involvement), that the murder was for remuneration, and the evidence supporting the especially heinous, atrocious and cruel aggravating circumstance. Petitioner has failed to demonstrate the determination of the OCCA is unreasonable.

Next, Petitioner claims counsel was ineffective for failing to present three neighbors, her sister, and her brother-in-law as witnesses who could have corroborated her version of the events on the night of the murder. The OCCA denied Petitioner's request for an evidentiary hearing and her claim of inefffective assistance of counsel on appeal:

Andrew, 164 P.3d at 199.

Petitioner claims the three neighbors collectively would have testified they heard two shots10, screaming, and one neighbor would testify he saw someone bending up and down and heard them saying "Oh, oh". It is not unreasonable for the OCCA to find this evidence insufficient to demonstrate counsel's ineffectiveness. Although Petitioner contends this testimony would have bolstered her version of the events, it is reasonable to find it insufficient to overcome the testimony of both experts that the crime scene was staged.

Nor was it unreasonable for the state court to have denied Petitioner's claim of ineffectiveness as to witnesses James and Kimberly Bowlin (Petitioner's sister and brother-inlaw). Mr. Bowlin would have testified Pavatt told him in Mexico the same version of the events as set out in Pavatt's confession letter. Ms. Bowlin would have testified it was her, and not Petitioner, at the area of the family farm where shotguns were being discharged days prior to the murder. The confession letter was presented to the jury and Mr. Bowlin's testimony would have been cumulative to the information contained in it. In addition to potentially opening up further issues regarding Petitioner's flight to Mexico and of witness bias, the Bowlin's testimony would not have exonerated Petitioner on the conspiracy and murder counts, lessened the impression of Petitioner's control over Pavatt, or contradicted the expert testimony of the murder as a staged event.

Petitioner's last claim of ineffective assistance of counsel presented on appeal and in a motion for evidentiary hearing concerns trial counsel's failure to present testimony from her handwriting expert regarding the change of beneficiary document to Rob Andrew's $800,00.00 life insurance policy. Petitioner claims counsel was ineffective for failing to present testimony that all the signatures — both Rob Andrew's and Petitoner's — found on the change of beneficiary form were "cut and pasted" from two forms of annuity applications with the insurance company. Petitioner claims this evidence would have undermined the state's theory that she forged her husband's signature on the change of beneficiary form.

Id. at 199.

As the OCCA recognized, this evidence was in direct conflict to Petitioner's earlier representations to the judge handling her divorce, to her friend Rick Nunley, and to her statements and arguments to Prudential Insurance employees made while attempting to force the change of ownership of the policy into her name. It further would have bolstered the state's theory that the document was a forgery and undermined her position of its authenticity. Petitioner has not demonstrated the OCCA's determination that counsel's actions were a sound trial strategy is contrary to, or an unreasonable application of, clearly established Supreme Court precedent.

Claims contained in post-conviction proceedings.

In her application for post-conviction relief, Petitioner claimed trial counsel was ineffective for failing to advise her while she was in Mexico to surrender to the Mexican authorities in order to avoid, pursuant to a treaty between the United States and Mexico, the death penalty and a sentence of life without the possibility of parole. The treaty contains a provision regarding Mexico's policy that it may not extradite a person to a country if that person will be subjected to those sentences. Petitioner claims that in her many conversations with Greg McCracken he never advised her of the treaty and for her to surrender herself to the Mexican authorities.11 Petitioner further claims appellate counsel was ineffective for failing to raise this issue on direct appeal.

The OCCA determined that the language of the treaty regarding extradition was not mandatory and that Mexico was under no obligation to refuse extradition. Without a specific statement from the Mexican authorities that they would have refused extradition in her case, the OCCA determined Petitioner had not shown a prejudicial result as required by Strickland. Andrew v. State, No. PCD-2005-176, slip op at 3-4 (Okla. Crim. App. Jun. 17, 2008).

Petitioner argues the OCCA did not make an adjudication on the merits of her Strickland claim and that this court must review her claim de novo. The Court disagrees with this argument. The OCCA began its analysis with a citation to Strickland and set forth the Supreme Court's requirements necessary to demonstrate counsel was ineffective. Id. at 2-3. The OCCA's determination is entitled to a deferential review from this Court. Of primary importance is that the state court's determination — that Petitioner did not demonstrate counsel's failure to advise constituted ineffective assistance — is entitled to deference. Regardless whether this claim is reviewed deferentially or de novo, the Court finds the OCCA's determination both reasonable and correct.

Ordinarily, to establish a claim of ineffective assistance of counsel, Petitioner must demonstrate that counsel's performance was deficient, and that counsel's deficient performance prejudiced Petitioner's defense. See Strickland, 466 U.S. at 687. However, where there is no constitutional right to counsel, there can be no deprivation of effective assistance. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982); Coleman v. Thompson, 501 U.S. 722, 752 (1991); see also McMann v. Richardon, 397 U.S. 759, 771, n. 14 (1970)("[T]he right to counsel is the right to the effective assistance of counsel."). The Sixth Amendment right to counsel attaches "only at or after the time that adversary judicial proceedings have been initiated against him." Kirby v. Illinois, 405 U.S. 682, 688 (1972). "[A] criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008). The Sixth Amendment right to counsel is meant to ensure "fairness in the adversary criminal process." United States v. Morrison, 449 U.S. 361, 364 (1981).

Petitioner is not entitled to relief even if she were able to establish Mr. McCraken failed to properly advise her to surrender to Mexican authorities as she asserts, because her Sixth Amendment right to effective counsel had not yet attached as no adversarial judicial proceedings had begun. Petitioner fled for Mexico on November 26, 2001. The State filed charges on November 29, 2001 and Petitioner was arrested upon her return to the United States on February 28, 2002. At the time of the alleged telephone conversations, sometime between her flight to Mexico and return to the United States, Petitioner was actively evading the very judicial proceedings necessary for the Sixth Amendment right to counsel to attach. Petitioner has cited no authority which supports a constitutional right to counsel for actively fleeing fugitives avoiding criminal prosecution.

As there was no right to counsel, counsel's "failure" to advise Petitioner to surrender to the Mexican authorities cannot constitute ineffective assistance. Nor can appellate counsel be deemed ineffective for failing to raise this non-claim on appeal.

For the foregoing reasons, Petitioner has failed to demonstrate the determinations of the OCCA to be contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Accordingly, Petitioner's sixth ground for relief is denied in its entirety.

Ground 7: Evidentiary Rulings.

Petitioner claims evidence was introduced at trial that cast a veil of suspicion over her, served no purpose other than to arouse sympathy for the victim, and was cumulative to evidence of the relationship between her and James Pavatt — all irrelevant and highly prejudicial in violation of her due process rights. Each of the evidentiary errors complained of here by Petitioner was raised on appeal to the OCCA and individually addressed and found to have been properly admitted under the State's evidentiary rules:

Andrew, 164 P.3d at 193-94.

Petitioner directs this Court to one Supreme Court case in support of her contention that her due process rights were violated by the admission of evidence she claims was irrelevant, cumulative and prejudicial. Petitioner's reliance on that case is misplaced. In Lisenba v. California, 314 U.S. 219 (1941), two snakes were brought into the trial court to be identified by a witness to further the charge of a conspiracy involving the defendant. The petitioner claimed the sole purpose of the snakes was to prejudice the jury against him and that those in the courtroom — including the jury — were in a panic as a result. In consideration of this claim, the Supreme Court held:

Lisenba, 314 U.S. 219, 228-29 (1941).

As has been often stated by the Supreme Court, "federal habeas corpus relief does not lie for errors of state law." Estelle, supra. The Supreme Court in Estelle held that the admission of prior injury evidence admitted in the case did not violate the petitioner's due process rights. In so holding, the Court referenced Spencer v. Texas, 385 U.S. 554, 563-564 (1967), and included a parenthetical quotation from that case in support of the Court's decision: "Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. . . . But it has never been thought that such cases establish this Court as a rulemaking organ for the promulgation of state rules of criminal procedure". Estelle, 502 U.S. at 70.

Here, Petitioner does not cite to any Supreme Court law directly on point, but relies instead on the general principle that the Due Process Clause of the Fourteenth Amendment provides an avenue for relief when evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair. The Tenth Circuit, in Welch v. Sirmons, 451 F.3d 675 (10th Cir. 2006), held that the cases and statutes applied by the OCCA in determining evidentiary issues are consistent with the constitutional principle of due process and a fundamental fairness evaluation. Id. at 688. The OCCA thoroughly reviewed and considered each of Petitioner's claims and found the evidence complained of to have been relevant to some aspect of the case and its probative value not outweighed by any dangers of unfair prejudice. As no clearly established federal law supports Petitioner's claims, habeas relief on this ground is denied.

Ground 8: Admission into Evidence of Audio Tape Recordings.

Petitioner claims the trial court failed to properly authenticate audio tape recordings of her, James Pavatt and Robert Andrew's telephone calls to the customer service department of Prudential Insurance Company prior to admitting the recordings into evidence. The recordings were of conversations with various employees of Prudential regarding the ownership of a life insurance policy taken out on behalf of Robert Andrew. The exhibits were sponsored by the manager of Prudential's financial corporate and investigative division as the custodian of the recordings. He testified that recording phone calls regarding insurance policies was the policy of Prudential, that the recordings were kept in the ordinary course of business, and that he had previously heard them at the trial of James Pavatt.

On appeal, the OCCA found the audio tapes sufficiently authenticated and properly admitted:

Andrew, 164 P.3d at 194.

Here, Petitioner relies on state law to argue improper authentication and admission, save for a cursory claim that she was denied due process of law and the error had a substantial and injurious effect or influence in determining the jury's verdict. Habeas corpus relief does not lie for errors of state law: "Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle, 502 U.S. at 67-68.

Petitioner also does not present clearly established federal law as determined by the Supreme Court regarding her due process claim. Petitioner's reliance on Hicks v. Oklahoma, 447 U.S. 343 (1980), is misplaced. In Hicks, the Oklahoma Court of Criminal Appeals affirmed the appellant's conviction under a habitual offender statute previously declared unconstitutional by that court, holding that the appellant was not prejudiced by the impact of the invalid statute setting a minimum sentence of years because his sentence was within the range of punishment that a jury could have imposed under the proper statute. The Supreme Court held:

Id. at 346.

Hicks is not clearly established federal law regarding federal review of state court evidentiary rulings. The due process rights infringed upon in Hicks involved an arbitrary disregard of the petitioner's right to liberty by the state appellate court. Such is not the case here. It is not this Court's province to engage in supervisory review of a state court's evidentiary rulings. Relief is only available if Petitioner can demonstrate the state court determination was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. This Petitioner has not done and this ground for relief is denied.

Ground 9: Petitioner's Statements to Law Enforcement.

After her husband was shot, Petitioner was taken by law enforcement to the hospital to treat her wound. At the hospital, forensic evidence was gathered from her and her clothing. Afterwards, Petitioner was taken to the police station where she was questioned regarding both her and husband being shot, as she was the only witness to the event. Petitioner claims the trial court erred in admitting a videotape of her statement to the police, arguing she was in custody when she was interrogated without being advised of, or waiving, her constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 368 (1964).

Petitioner raised this claim on direct appeal.

Andrew, 164 P.3d 194-95 (footnotes omitted).

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that a person questioned by law enforcement after being taken into custody or deprived of his freedom of action in any significant way must first be warned that he has a right to remain silent, that any statement made may be used against him as evidence, and that he has the right to the presence of either a retained or appointed attorney. Id. at 444. Statements made not in compliance with this rule may not be admitted at trial. "An officer's obligation to administer Miranda warnings attaches, however, `only where there has been such a restriction on a person's freedom as to render him "in custody."'" Stansbury v. California, 511 U.S. 318, 322 (1994)(quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam)).

Id.

The determination of whether a person is in custody depends on the objective circumstances of the interrogation, not the subjective views of either the interrogating officers or the person being questioned. Id. at 323. Miranda warnings are required only when there has been such a restriction on a person's freedom as to render him in custody, Mathiason, 429 at 495, and the fact an investigation has focused on a suspect does not trigger the need for Miranda warnings in noncustodial settings. Minnesota v. Murphy, 465 U.S. 420, 431 (1984).

Petitioner claims the fact she was watched by police at the hospital, that the police checked her out of the hospital and took her to the police station in a police car, that she was wearing only hospital gowns13, and that she was taken to a closed room with no windows to be questioned shows that any reasonable person would have considered herself to be in custody. Respondent responds that additional evidence was presented at the pre-trial hearing on the issue that objectively demonstrates Petitioner was not in custody. Such evidence consisted of the collection of her clothing at the hospital for evidence, Petitioner freely signing search waivers because "she was trying to help", Petitioner never stating she did not want to go to the police station for an interview, never being handcuffed or placed under arrest that night, never being told she was a suspect, and at the conclusion of the interview, being transported by police to a friend's house where her children were located. Most importantly, Petitioner testified at the pre-trial hearing that she spoke with the officers because she wanted to tell them what happened and because she wanted to help the police catch the people who shot her husband.

Based upon the review of the pre-trial hearing testimony, Petitioner has not demonstrated the OCCA's objective determination that a reasonable person in the same situation would understand she was not in custody is contrary to, or an unreasonable application of, clearly established federal law.

Ground 10: Trial Venue.

Petitioner claims pervasive publicity before and during trial entitled her to a change of venue, and that the trial court's denial of her pre-trial motion and the OCCA's determination upholding the trial court's decision to retain venue denied her Sixth, Eighth, and Fourteenth Amendment rights.

Prior to trial, the trial court held a hearing on Petitioner's motion for change of venue. Petitioner's counsel presented extensive material in the form of affidavits from local citizens and lists of material and local media accounts of the murder and subsequent events. The trial court stated the issue was whether jurors summoned could set aside any exposure to the media coverage and base a verdict on the evidence presented at trial. Denying Petitioner's motion, the trial court noted that the only way to know whether pre-trial publicity was prejudicial was through voir dire. Thereafter, the trial court and counsel conducted extensive individual voir dire of each potential juror to determine the extent of pre-trial knowledge about the case and any potential bias or predetermination of responsibility.

On appeal, the OCCA upheld the trial court's decision to deny the change of venue motion:

Andrew, 164 P.3d at 187.

It is axiomatic that the constitutional right to a jury includes the empanelment of impartial jurors. However, as the Supreme Court acknowledged in Irvin v. Dowd, 366 U.S. 717, 722 (1961), impartiality does not require a juror to be "totally ignorant of the facts and issues involved."

Id. at 722-23 (citations omitted).

Supreme Court precedent establishes two avenues of relief for pretrial publicity. The first is presumed prejudice. Presumed prejudice cases are rare, found in only three Supreme Court cases dating back to the 1960s. Goss v. Nelson, 439 F.3d 621, 628 (10th Cir. 2006). In those cases, prejudice was presumed because "the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings." Murphy v. Florida, 421 U.S. 794, 799 (1975). In Rideau v. Louisiana, 373 U.S. 723, 726 (1963), prejudice was presumed because the pretrial publicity created such a "spectacle" that Rideau's subsequent trial was all "but a hollow formality." In Estes v. Texas, 381 U.S. 532, 550-52 (1965), the Court applied Rideau to find a due process violation in the televising and broadcasting of a defendant's trial. In Estes, the press overran the courtroom imposing "a circus atmosphere." Murphy, 421 U.S. at 799; Estes, 381 U.S. at 535-38. Finally, in Sheppard v. Maxwell, 384 U.S. 333, 353-54 (1966), the "massive and pervasive" media attention greatly exceeded the circumstances in Estes. In addition to "extremely inflammatory publicity," the "courthouse was given over to accommodate the public appetite for carnival." Murphy, 421 U.S. at 799. "The fact is that bedlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom, hounding most of the participants in the trial, especially Sheppard." Sheppard, 384 U.S. at 355. The Supreme Court found that these circumstances deprived Sheppard "of that `judicial serenity and calm to which [he] was entitled.'" Id. (quoting Estes, 381 U.S. at 536).

As the Supreme Court in Murphy explicitly acknowledged, Rideau, Estes, and Sheppard do not "stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process." Murphy, 421 U.S. at 799. Prejudice was presumed in Rideau, Estes, and Sheppard because "[t]he proceedings in [those] cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob." Murphy, 421 U.S. at 799. Accordingly, the Tenth Circuit, in applying this precedent, has "held that prejudice will only be presumed where publicity `created either a circus atmosphere in the court room or a lynch mob mentality such that it would be impossible to receive a fair trial.'" Goss, 439 F.3d at 628 (quoting Hale v. Gibson, 227 F.3d 1298, 1332 (10th Cir. 2000)).

Hale, 227 F.3d at 1332 (quoting Stafford v. Saffle, 34 F.3d 1557, 1567 (10th Cir. 1994)).

While Petitioner has shown that the pretrial publicity in her case was significant, she has not shown that her case is one of the rare and extreme cases where the media attention fostered "an irrepressibly hostile attitude." Stafford, 343 F.3d at 1567. Petitioner argues that prejudice should be presumed because of the frequency and nature of the publicity, and the demonstrated impact this publicity had upon the pool from which the jury was drawn. However, just as she failed to do on direct appeal, Petitioner has not made a connection between the publicity and the fairness of her trial. Supreme Court precedent requires a showing of more than mere exposure, even if that exposure is substantial. To find a presumption of prejudice, the media must have overwhelmingly influenced the community to the point where it was simply impossible to receive a fair trial. Petitioner details the media content and then based on its "frequency and nature," argues for a presumption of prejudice; however, her argument amounts to no more than an assumption of prejudice.

In denying Petitioner's claim, the OCCA acknowledged that a change of venue is warranted when "[t]he influence of the news media must be shown to have actually pervaded the trial proceedings." Andrew, 164 P.3d at 187. The OCCA denied relief, however, because Petitioner did not claim or demonstrate "that any juror actually seated was biased against her due to adverse pretrial publicity." Id. For the reasons set forth above, the Court finds that the OCCA's decision is in accord with Supreme Court precedent on presumed prejudice. Petitioner is therefore not entitled to relief on this portion of her claim because she has failed to show that the OCCA's decision is contrary to, or an unreasonable application of, Supreme Court law.

Beyond presumed prejudice, the Supreme Court has held that a defendant may obtain relief when pretrial publicity causes actual prejudice. Irvin is an actual prejudice case. In Irvin, voir dire spanned four weeks. Irvin, 366 U.S. at 720. From the panel consisting of 430 potential jurors, 370 expressed an opinion about Irvin's guilt, and 268 of the 370 were excused for cause because their opinions were fixed. Of the twelve jurors who actually sat on the jury, eight believed Irvin was guilty before trial even began. Id. at 727. In these circumstances, the Supreme Court held as follows:

Id. at 727-28 (citation omitted). The Court continued:

Id. at 728 (citations omitted).

Petitioner's case is far removed from the circumstances found in Irvin. Of the twelve jurors ultimately selected to serve, ten had heard something about the case in varying degrees through the media but none had formed an opinion as to guilt. All affirmed they could be impartial. Although Petitioner presents selected passages expressing varying knowledge of the pre-trial media coverage by her jurors related in voir dire, a complete review of the voir dire does not demonstrate any juror had predisposed beliefs regarding her guilt or an appropriate sentence. Most importantly, Petitioner has not demonstrated any juror was biased against her due to pre-trial publicity.

In conclusion, the Court finds that Petitioner is not entitled to relief on this ground. Because Petitioner has not demonstrated that the OCCA's ruling on the issue of pretrial publicity is contrary to or an unreasonable application of Supreme Court law, Petitioner's claim is denied.

Ground 11: Challenges to Instructions.

Petitioner claims her due process rights to a properly instructed jury were denied when the trial court erroneously denied requested instructions regarding jailhouse informant testimony, improperly instructed the jury on "flight", and failed to instruct the jury on the lesser offense of accessory after the fact and the proper use of "other crimes" evidence.

Jailhouse informant instruction.

Petitioner claims the trial court was required under Oklahoma law to give an instruction requested by the defense when the State relied in part on the testimony of Theresa Sullivan involving statements made to her by Petitioner while they were both in custody in the county jail. The OCCA rejected this claim on appeal:

Andrew, 164 P.3d at 200 (footnotes ommitted).

A petitioner seeking collaterally to attack a state court conviction based on an erroneous set of jury instructions "bears a heavy burden of proof." Shafer v. Stratton, 906 F.2d 506, 508 (10th Cir.1990). "Habeas proceedings may not be used to set aside a state conviction on the basis of erroneous jury instructions unless the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial in the constitutional sense," Shafer, 906 F.2d at 508 (quotation omitted), or "so infected the entire trial that the resulting conviction violates due process," Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Moreover, the burden on a petitioner attacking a state court judgment based on a failure to give a requested jury instruction is especially great because "`[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.'" Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir.1999)(quoting Maes v. Thomas, 46 F.3d 979, 984 (10th Cir.1995))(additional citations omitted).

Although Ms. Sullivan was at the Oklahoma County jail along with Petitioner, she was in federal custody and testified that no promises had been made to her by state prosecutors for her testimony. She denied accusations by defense counsel on cross-examination that she was a "known snitch" and that she was testifying in exchange for favors of any kind. For these and other reasons, the OCCA determined she was not a "professional jailhouse informant" as required by state law in order to require the jailhouse informant jury instruction. Petitioner does nothing more that cite to general Supreme Court law to assert she was denied due process and a fair trial.14 Without clearly established federal law to the contrary, or an unreasonable application of the same by the state court, Petitioner's claim lacks merit and must be denied.

"Flight" instruction.

Petitioner next claims giving the flight instruction burdened the presumption of innocence and denied her a fair trial. She further asserts that the instruction should be discontinued by the state court as it relates to consciousness of guilt. Both of these claims were considered and denied by the OCCA:

Andrew, 164 P.3d at 200.

Again, Petitioner does not direct this Court to any Supreme Court law demonstrating the OCCA's determination to be unreasonable. Instructive on these claims is the Tenth Circuit's decision in Robinson v. Gibson, 35 Fed. App'x. 715 (10th Cir. 2002). In Robinson, the Tenth Circuit considered whether the instruction on flight impermissibly infringed on the presumption of innocence and unconstitutionally shifted the State's burden of proof to the defendant. Citing Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997), the Court found the burden was not shifted by the instruction as the trial court also instructed the jury on the presumption and on the State's burden of proving each element of the offense beyond a reasonable doubt. Robinson, 35 Fed App'x. at 721. The Court further found the instuction did not deprive the defendant of due process or a fair trial. Id. at 722. In the instant case, the OCCA found no error in the trial court giving the instruction regarding flight. Petitioner has not demonstrated the challenged instruction was so fundamentally unfair as to deprive her of a fair trial and due process of law. Nor has she demonstrated the OCCA's determination to be contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.

Accessory after the fact.

Although not requested by the defense at trial, Petitioner claims the trial court should have sua sponte instructed on a lesser-related offense of accessory after the fact, and that failure to do so denied her a fair trial and due process of law.

Andrew, 164 P.3d at 200 (footnote omitted).

In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment sometimes requires a state charging a defendant with a capital offense to permit the jury to consider alternative, lesser included offenses that do not carry with them the prospect of a death sentence. Id. at 627; see also Schad v. Arizona, 501 U.S. 624, 647 (1991). Two problems with Petitioner's claim readily appear. First, Petitioner never requested the instruction regarding accessory after the fact. Petitioner may not prevail on a Beck claim on a lesser included offense instruction that she failed to request at trial. Grant v. Trammell, 727 F.3d 1006, 1011 (10th Cir. 2013) (citing Hooks v. Ward, 184 F.3d 1206, 1234 (10th Cir. 1999)). The second obstacle for Petitioner is that the due process clause "does not require a lesser included offense instruction to be given unless `the evidence would . . . support[ ] . . . a verdict' on that lesser included offense." Id. at 1013 (quoting Beck, 447 U.S. at 627).

As the OCCA determined, there was no evidence presented to support that Petitioner was an accessory after the fact — that she knew Pavatt killed her husband yet helped him flee to Mexico — and the State's evidence did not support such an instruction on the offense. Petitioner has failed to demonstrate the decision of the OCCA to be contrary to, or an unreasonable application of, clearly established federal law, or to be an unreasonable determination of the facts in light of the evidence presented at trial.

Instruction on other crimes evidence.

Petitioner lastly claims the trial court's failure to give the uniform instruction regarding evidence of other crimes and bad acts, when coupled with the circumstantial nature of the State's case, prejudiced her and denied her a fair trial. The OCCA found any error did not rise to a level requiring reversal:

Andrew, 164 P.3d at 201.

Petitioner again fails to direct this Court to any federal law to demonstrate the unreasonableness of the state court's determination. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle, 502 U.S. at 63 (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Although the OCCA found the requested instruction was warranted, it determined the error did not require reversal. When compared with the evidence the State presented against Petitioner, the trial court's failure to give the requested instruction was harmless. Petitioner has not shown the failure to give the limiting instruction had a substantial and injurious effect or influence on the jury's verdict, Brecht, 507 U.S. at 631, or that the OCCA's determination was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Accordingly, Petitioner's ground for relief is denied in its entirety.

Ground 12: Challenges to Penalty Phase Instructions.

Petitioner claims she was denied her right to a fair trial when the trial court failed to give proper and pertinent second stage jury instructions stating the applicable law. Specifically, Petitioner challenges: (1) the Oklahoma uniform jury instruction on the murder for remuneration aggravator; (2) the trial court's supplemental instruction in response to a jury question regarding the meaning of the life without possibility of parole sentencing option; and (3) the Oklahoma uniform instruction defining mitigating circumstances.

Murder for remuneration instruction.

Petitioner complains the trial court erred by not giving adequate instructions when it refused to give her requested instruction defining "remuneration". The OCCA determined Petitoner's requested instruction did not adequately define the murder for remuneration aggravating circumstance and that the uniform instruction given by the trial court adequately stated the law:

Andrew, 164 P.3d at 201-02.

The Tenth Circuit has previously considered an almost identical claim and described the parameters on habeas review:

Parker v. Scott, 394 F.3d 1302, 1319 (10th Cir. 2005).

Petitioner's reliance on Woodson v. North Carolina, 428 U.S. 280 (1976), is misplaced. Woodson involved the application of a statute making the death penalty mandatory in cases of first degree murder and that afforded no consideration of the offender's character, record, or the circumstance of the offense. Petitioner is arguing that an additional instruction of her choosing should have been given to the jury and not that her death sentence was statutorily mandated. Here, as in Parker, Oklahoma law, as interpreted by its state courts, does not include the additional element that Petitioner seeks. Parker, 394 at 1319. Petitioner has not demonstrated the OCCA's determination to be unreasonable.

Response to jury inquiry.

Petitioner claims the trial judge's response to a jury question about the life without the possibility of parole sentencing option was inadequate and that she is, therefore, entitled to a new sentencing proceeding.

Andrew, 164 P.3d at 202.

Petitioner offers only general Supreme Court law regarding cases involving erroneous jury instructions and the heightened standards of reliability in capital cases. An almost identical argument to Petitioner's claim was considered and rejected by the Tenth Circuit in Littlejohn v. Trammell, 704 F.3d 817 (10th Cir. 2013). In Littlejohn, the Tenth Circuit restated that Oklahoma's three-option sentencing scheme fulfills the Supreme Court's requirements that a jury be notified regarding the defendant's parole ineligibility. Id. at 827. Further, the Court found that the trial judge's response to the jury's questions regarding the life without possibility of parole sentencing option did not create a false choice, negate, or contradict the three sentencing choices. Id. at 831. Circuit precedent and Petitioner's failure to demonstrate the OCCA's determination to be contrary to federal law as determined by the Supreme Court dictate the denial of this claim.

Instruction regarding mitigating circumstances.

Oklahoma Uniform Jury Instruction (OUJI) CR2d 4-78 defines mitigating circumstances as factors which "in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame". Petitioner argues this definition impermissibly narrows application of mitigation evidence to exclude evidence warranting a sentence less than death simply because such evidence does not lessen her moral culpability or blame for the crime of which she has been convicted." (Pet. at 273)

Andrew, 164 P.3d at 202.

Welch v. Workman, 639 F.3d 980, 1008-09 (10th Cir. 2011).

Here, as in Welch, the jury was instructed on the meaning of mitigation, that it must unanimously find the existence of the aggravating factors beyond a reasonable doubt, and that it was authorized to consider the death penalty only if the aggravating circumstances outweighed the evidence of mitigating circumstances. Id. at 1009-10. Petitioner has failed to demonstrate the OCCA's determination was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. According, this claim is denied.

Ground 13: Prosecutorial Misconduct.

Petitioner claims various comments by the prosecutor were improper and deprived her of her due process rights under the Fourteenth Amendment to the Constitution, rendering her death sentence unreliable. The OCCA reviewed each of Petitioner's individual instances of claimed prosecutorial misconduct and determined there to be no due process violations15:

Andrew, 164 P.3d at 202-04.

The deferential standard of review under 28 U.S.C. § 2254(d) is required since the OCCA adjudicated Petitioner's prosecutorial misconduct claim on the merits. See Walker v. Gibson, 228 F.3d 1217, 1241 (10th Cir. 2000), abrogated on other grounds by Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001). Petitioner does not demonstrate that the prosecutor's misconduct denied her a specific constitutional right. The appropriate standard for a prosecutorial misconduct habeas claim, therefore, is "`the narrow one of due process, and not the broad exercise of supervisory power.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). Accordingly, "it is not enough that the prosecutor's remarks were undesirable or even universally condemned." Darden, 477 U.S. at 181 (citation omitted). A prosecutor's improper remarks require reversal of a conviction or sentence only if the remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643, 645 (1974). The fundamental fairness inquiry requires an examination of the entire proceedings and the strength of the evidence against the petitioner, both as to the guilt stage and the sentencing phase. Id. at 643. "Any cautionary steps — such as instructions to the jury — offered by the court to counteract improper remarks may also be considered. Counsel's failure to object to the comments, while not dispositive, is also relevant to a fundamental fairness assessment." Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citations omitted).

Petitioner has not demonstrated her due process rights were violated by any or all of the prosecutor's statements. See Thornburg v. Mullin, 422 F.3d 1113, 1124-25 (10th Cir. 2005) (holding that the OCCA had adjudicated the merits of a due process claim because the OCCA's analysis of plain error involved the same test used to determine whether there was a denial of due process). Upon review of the entire proceedings, rather than parsing out individual statements, the Court determines that considered alone or together the prosecutor's remarks did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. Many of the prosecutor's statements were not objected to by defense counsel. As identified by the OCCA, many of the statements were proper argument and/or reasonable comments on the evidence and law. A few others, if improper, were cured with admonishments by the trial court. Petitioner has not demonstrated that the OCCA's determination is contrary to, or an unreasonable application of, clearly established federal law. Accordingly, this claim is denied.

Ground 14: The Especially Heinous, Atrocious, or Cruel Aggravating Circumstance.

Petitioner claims the evidence presented to show that the murder was especially heinous, atrocious or cruel was insufficient to prove the existence of the aggravating circumstance beyond a reasonable doubt, resulting in a death sentence lacking the reliability required by the Eighth Amendment.

To find a murder heinous, atrocious or cruel, the State must prove the victim suffered torture or serious physical abuse. Serious physical abuse requires a showing the victim was subjected to "great physical anguish" or "extreme mental cruelty." Neill v. State, 896 P.2d 537, 555 (Okla. Crim. App. 1994). "Evidence that a victim was conscious and aware of the attack supports a finding of torture." Davis v. State, 103 P.3d 70, 81 (Okla. Crim. App. 2004). "Torture includes the infliction of either great physical anguish or extreme mental cruelty, while physical abuse requires evidence of conscious physical suffering." Hooker v. Mullin, 293 F.3d 1232 (10th Cir. 2002)(quoting Romano v. Gibson, 239 F.3d 1156, 1176 (10th Cir. 2001)).

"When reviewing the sufficiency of the evidence on a habeas corpus petition, the relevant question is `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004)(quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

Wilson v. Sirmons, 536 F.3d 1064, 1105 (10th Cir. 2008).

The OCCA concluded the following facts supported the heinous, atrocious or cruel aggravating factor:

Andrew, 164 P.3d at 201.

Petitioner has offered little more to support her claim than a general statement that "the record does not reflect the intentional, drawn out, mental cruelty present in cases where this aspect of the aggravator has been found." (Pet. at 287) The OCCA detailed several facts developed at trial demonstrating that Rob Andrew was conscious and aware of the attack that took his life and that would have caused him great physical anguish and suffering. Petitioner has failed to demonstrate the OCCA's conclusion is contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, or is an unreasonable determination of the facts in light of the evidence presented at trial. Ground 15: Cumulative Errors.

Petitioner claims in the event that any individual error in her case is deemed insufficient to warrant relief, the accumulation of errors so infected the trial and sentencing proceedings with unfairness that she was denied due process of law and a reliable sentencing proceeding. The OCCA considered this claim on direct appeal:

Andrew, 164 P.3d at 205.

It is true as a general principle of law that "[t]he cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error." United States v. Oberle, 136 F.3d 1414, 1423 (10th Cir. 1998)(quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)). However, "`[a] cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.' The analysis, however, `should evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors.'" Id. (quoting Rivera, 900 F.2d at 1470-71); See also Newsted v. Gibson, 158 F.3d 1085, 1097 (10th Cir. 1998); Castro v. Ward, 138 F.3d 810, 832-33 (10th Cir. 1998); United States v. Trujillo, 136 F.3d 1388, 1398 (10th Cir. 1998).

Upon review of the entire trial transcript and the evidence and testimony presented, the Court does not find the cumulation of those errors determined to be harmless had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637. Because this Court has concluded that no additional error occurred during either stage of trial, the only matters considered here are the errors found by the OCCA. Each of the errors identified had minor significance. See Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000)("[c]ourts must be careful not to magnify the significance of errors which had little importance"). As expressed by the OCCA, the errors were not so egregious or numerous as to prejudice Petitioner to the same extent as a single reversible error. Although this was a circumstantial evidence case, the cumulative effect of the errors, when compared with the evidence and testimony presented at trial, did not significantly strengthen the State's case or diminish Petitioner's case. No reasonable probability exists the jury would have acquitted Petitioner absent the errors. Additionally, the cumulative effect of the errors was insufficient to undermine the aggravating circumstances found by the jury. Accordingly, Petitioner's fifteenth ground for relief is denied.

Ground 16: Constitutionality of Sentence.

In Anderson v. State, 130 P.3d 273 (Okla. Crim. App. 2006), the OCCA determined that juries should be instructed that a person convicted of certain crimes is subject to Oklahoma's eighty-five percent (85%) rule — that is, the person would actually serve 85% of their sentence before becoming eligible for parole or good time credits. Petitioner claims that failure to instruct her jury on the rule violated her Eighth Amendment rights pursuant to Simmons v. South Carolina, 512 U.S. 154 (1994), and progeny, and the failure of the OCCA to apply Anderson's rule to her case violates her due process rights.

Petitioner filed her appeal brief the day before the OCCA handed down the Anderson opinion. While the direct appeal was pending, Petitioner filed her application for postconviction relief, raising the above issue in a claim of ineffective assistance of appellate counsel. The OCCA considered Petitioner's claim in determining the prejudice prong of an ineffective assistance of counsel claim:

Andrew v. State, No. PCD-2005-176, slip op. at 5-6 (Okla. Crim. App. Jun. 17, 2008)(footnote omitted).

To obtain relief under the AEDPA, Petitioner must show the OCCA's decision is contrary to, or an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). "That statutory phrase refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). "[F]ederal courts may no longer extract clearly established law from the general legal principles developed in factually distinct contexts." House v. Hatch, 527 F.3d 1010, 1017 n. 5 (10th Cir.2008). Petitioner's ability to obtain relief hinges on his ability to point to "Supreme Court precedent clearly establishing the legal right on which [his] claim is premised." Lambert v. Workman, 594 F.3d 1260, 1263 (10th Cir.2010).

Petitioner seeks relief from the OCCA's decision by asserting it is in conflict with several Supreme Court decisions. In support of her due process claim, Petitioner cites Simmons v. South Carolina, 512 U.S. 154 (1994), as well as related cases, Shafer v. South Carolina, 532 U.S. 36 (2001), and Caldwell v. Mississippi, 472 U.S. 320 (1985). In Simmons, a plurality opinion, the Supreme Court held "where the defendant's future dangerousness is at issue, and state law prohibits the defendant's release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible." Simmons, 512 U.S. at 156. Because the jury in Simmons may have reasonably believed that Simmons could be paroled if given a life sentence, the Court found that an unacceptable "misunderstanding pervaded the jury's deliberations" — one which "had the effect of creating a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration." Id. at 161.

Simmons and its progeny are inapplicable to Petitioner's claim. As discussed above, Simmons protects against the "false choice." Its holding requires jury notification of a capital defendant's parole ineligibility when the State has alleged that he is a continuing threat. This notification prevents "a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration." Simmons, 512 U.S. at 161. See Ramdass v. Angelone, 530 U.S. 156, 166 (2000) (noting that "Simmons created a workable [and limited] rule."). In Petitioner's case, the jury was not faced with this false choice, but was given three sentencing options: life, life without the possibility of parole, and death (O.R.VI, 1039). This in and of itself is Simmons compliant

Beyond the limited circumstances of Simmons, the Supreme Court has not mandated a jury be told about a defendant's parole eligibility. In fact, the Supreme Court has specifically acknowledged that the States have discretion in this area. Simmons, 512 U.S. at 168 (citing California v. Ramos, 463 U.S. 992, 1014 (1983), "for the broad proposition that [the Supreme Court] generally will defer to a State's determination as to what a jury should and should not be told about sentencing."); see also Ramdass, 530 U.S. at 165 (acknowledging that O'Dell v. Netherland, 521 U.S. 151, 166 (1997), "reaffirmed that the States have some discretion in determining the extent to which a sentencing jury should be advised of probable future custody and parole status in a future dangerousness case, subject to the rule of Simmons."); O'Dell, 521 U.S. at 166 (noting that Simmons "carved out an exception to the general rule described in Ramos . . . for the first time ever"). Under these circumstances, Petitioner's claim is nothing more than a state law claim and outside the province of a federal court to reexamine. Estelle, 502 U.S. at 67-68. See also Parker v. Sirmons, 384 F. App'x 750, 752 (10th Cir. 2010) (unpublished) (finding no due process violation for Anderson error); Gardner v. Jones, 315 F. App'x 87, 91-92 (10th Cir. 2009) (unpublished) (acknowledging the limited holding of Simmons and finding that a petitioner was not denied a fundamentally fair trial "in a constitutional sense" by the trial court's failure to instruct the jury on the 85% Rule); Taylor v. Parker, 276 F. App'x 772, 775-76 (10th Cir. 2008) (unpublished) (failure to instruct on the 85% Rule did not result in a fundamentally unfair trial).

The Eighth Amendment aspect of Petitioner's claim does not enhance her ability to obtain relief. For this portion of his claim, Petitioner cites the Supreme Court's decision in Hicks v. Oklahoma, 447 U.S. 343 (1990), asserting the failure of the OCCA to apply the rule to Petitioner's case violates her right to due process as guaranteed by the Fourteenth Amendment. This argument fails at the threshold because it is premised not on clearly established federal law, but on "general legal principles developed in factually distinct contexts." House, 527 F.3d at 1017 n. 5; see Littlejohn v. Trammell, 704 F.3d 817, 830 n. 5 (10th Cir. 2013) (rejecting a similar argument based on general principles drawn from several Supreme Court cases interpreting the Eighth Amendment).

The trial court's instructions were compliant with Simmons and before the OCCA's announcement regarding the 85% rule in Anderson. The OCCA's consideration on postconviction of Petitioner's claim, included as a ground for ineffective assistance of counsel, reasonably recognized that the failure to give the instruction did not create any false choices, and as such, did not satisfy the necessary prejudice prong of an ineffective assistance of counsel claim. For the foregoing reasons, the Court finds that Petitioner has failed to show the OCCA's decision is contrary to, or an unreasonable application of, Supreme Court law. Petitioner's ground for relief is, therefore, denied.

Ground 17: Claim of Non-disclosed Evidence by Prosecution.

Petitioner claims the prosecutor in her case withheld material and exculpatory evidence regarding the testimony of Teresa Sullivan. Ms. Sullivan was housed with Petitioner in the Oklahoma County jail prior to trial and testified Petitioner told her she and Pavatt killed her husband for money, the kids and each other; that Pavatt shot her in the arm to make her appear to be a victim; and that they fled to Mexico because they believed they would be caught. Petitioner claims that contrary to the testimony of Ms. Sullivan and the closing arguments of the prosecutor, Ms. Sullivan's defense attorney had a conversation with the prosecutor prior to trial and stated he might ask her to write a letter to federal prosecutors regarding Sullivan's testimony. He stated he planned to file a motion in her federal case for a reduction of her sentence if Ms. Sullivan indeed testified in Petitioner's case.

Petitioner presented this and other newly discovered evidence to the OCCA in her motion for a new trial. The OCCA's determination detailed, along with its reasoning, the new evidence and Petitioner's arguments. It is included here in its entirety and incorporated by the Court to further describe the substance of Petitioner's claim:

Andrew, 164 P.3d at 204-05 (footnote omitted).

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that suppression of favorable evidence by the prosecution after request by the accused violates due process, irrespective of the good faith or bad faith of the prosecution, where the evidence is material to either guilt or to punishment. Id. at 87. That duty of disclosure was extended even when the accused had not made a request, United States v. Agurs, 427 U.S. 97, 107 (1976), and encompasses impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985). The evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682.

In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court explained that "favorable evidence is material, and constitutional error results from its suppression by the government, `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Id. at 433 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). The Supreme Court emphasized four aspects of materiality under Bagley. First, the touchstone of materiality is a "reasonable probability" of a different result. The question is "whether in its absence [the defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence. Id. at 434. Second, it is not a sufficiency of evidence test, but a showing "that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 434-45. Third, "once a reviewing court applying Bagley has found constitutional error there is no need for further harmless-error review." Id. at 435. The fourth and final aspect of Bagley materiality "is its definition in terms of suppressed evidence considered collectively, not item by item." Id. at 436.

In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court explained the standards and components of a Brady violation:

Id. at 280-82.

"[W]hen `the reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within [the] general rule [of Brady]." Scott v. Mullin, 303 F.3d 1222, 1231-32 (10th Cir. 2002), quoting Giglio v. United States, 405 U.S. 150, 154 (1972). "[I]mpeachment Brady material will only require a new trial `if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury.'" Id. at 1232 (quotation omitted). "As we stressed in Kyles: `[T]he adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.'" Strickler at 289-90 (quoting Kyles).

By determining the results of her trial would have been the same with the additional evidence that Teresa Sullivan may have testified with expectations of benefits in her federal case, the OCCA determined Petitioner received a fair trial resulting in a verdict worthy of confidence. The issue here is whether that determination was unreasonable.16 The State presented evidence of a conspiracy between Petitioner and Pavatt to kill her husband starting prior to the incident of the cut brake lines and continuing through their flight to Mexico. Evidence was also received that Petitioner hated her husband, of her attempt to remain the beneficiary of his life insurance policy, that she loaned Pavatt money to pay for his wife to return overseas, and expert testimony that the shooting of Petitioner in the arm was staged. The new evidence of possible assistance with Sullivan's federal sentence in exchange for her testimony is minimal in its prejudicial impact when compared to the above evidence and a plethora of other circumstantial evidence presented throughout a lengthy trial. This is especially true in light of defense counsel's stringent cross-examination and questioning Sullivan regarding her motives to testify and about a bogus check crime for which she had been previously convicted. Further, evidence was presented to cast doubt on Ms. Sullivan's testimony and her motive for testifying. Angela Burk was presented by defense counsel to rebut Ms. Sullivan's testimony. She testified Sullivan was a "known snitch", that she had access to television and newspapers reporting on Petitioner's case, that Petitioner was shy, quiet, and never talked to anyone about her case, and that Sullivan was testifying in order to get some benefit.

The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable. The state court determined that even with the inclusion of this information the outcome of the trial would have been the same — that is, that even in its absence Petitioner received a fair trial, understood as one resulting in a verdict worthy of confidence. Petitioner has not demonstrated the OCCA's determination to be unreasonable. Petitioner's seventeenth ground for relief is denied.

Ground 18: Evidentiary Hearing.

Throughout her Petition and more generally in this ground for relief, Petitioner claims she is entitled to an evidentiary hearing on various claims. Petitioner filed a Motion for Evidentiary Hearing specifically setting forth the grounds for relief on which she believes she is entitled to present additional evidence. For the reasons set forth throughout this Memorandum Opinion and in the Order on her Motion for Evidentiary Hearing, Petitioner's request for an evidentiary hearing is denied.

CONCLUSION

After a complete review of the transcripts, trial record, appellate record, record on postconviction proceedings, briefs filed by Petitioner and Respondent, and the applicable law, the Court finds Petitioner's request for relief in her Petition For Writ of Habeas Corpus (Dkt. No. 26) should be denied. ACCORDINGLY, habeas relief is DENIED on all grounds. An appropriate judgment will be entered.

IT IS SO ORDERED.