Date: 04-23-2015

Case Style: Richard Fairchild v. Anito Trammell

Case Number: 13-6030

Judge: Hartz

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Western District of Oklahoma (Oklahoma County)

Plaintiff's Attorney: Randy A. Bauman, Assistant Federal Public Defender (Thomas Kenneth Lee, Assistant
Federal Public Defender, with him on the brief), Oklahoma City, Oklahoma, for
Petitioner - Appellant.

Defendant's Attorney: Robert L. Whittaker, Assistant Attorney General, Criminal Division (E. Scott Pruitt,
Attorney General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for
Respondent - Appellee, Anita Trammell.

Description: An Oklahoma jury found Defendant Richard Fairchild guilty of child-abuse
murder in the first degree and recommended the death penalty, which the trial court
imposed. The Oklahoma Court of Criminal Appeals (OCCA) denied relief on all claims
presented on direct appeal and in Defendant’s original application for postconviction
review. After the United States District Court for the Western District of Oklahoma
denied relief on all claims presented in his application for relief under 28 U.S.C. § 2254,
Defendant appealed to this court. In that appeal we addressed his claim that his counsel
had been ineffective in failing to investigate and present mitigation evidence at the
sentencing stage of his trial. We vacated the district court’s judgment and remanded to
give Defendant the opportunity to exhaust in state court the “far more specific and
powerful” ineffective-assistance claim he had raised in his § 2254 application but had not
previously presented to the OCCA. Fairchild v. Workman, 579 F.3d 1134, 1147 (10th
Cir. 2009). After the OCCA denied Defendant’s second application for state
postconviction relief on procedural grounds, the federal district court determined that the
OCCA’s procedural bars were valid and that Defendant had not overcome them by
demonstrating cause and prejudice or a fundamental miscarriage of justice. Defendant
now returns to this court, seeking relief on his § 2254 claims or, at least, an evidentiary
hearing on his ineffective-assistance claim. Exercising jurisdiction under 28 U.S.C.
§§ 1291 and 2253, we affirm.
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I. BACKGROUND
A. The Crime of Conviction and Sentence
Defendant was charged in November 1993 with child-abuse murder in the first
degree for the death of Adam Broomhall, his girlfriend’s three-year-old son. In his prior
appeal to this court, we summarized the OCCA’s description of the facts of the crime as
follows:
In November 1993, [Defendant] was living with Stacy Broomhall
and her three children in Midwest City, Oklahoma. On November 13,
1993, [Defendant] and Ms. Broomhall drank beer most of the afternoon and
evening. [Defendant] consumed approximately twelve beers between 2:00
p.m. and 9:00 p.m. That evening, they drove to Ms. Broomhall’s mother’s
house in north Oklahoma City and continued to drink. By the time they
were ready to leave, [Defendant] and Ms. Broomhall were too intoxicated
to drive, so Ms. Broomhall’s seventeen-year-old sister, Charity Wade[,]
drove them home. Ms. Wade had intended to spend the night at
Ms. Broomhall’s house. But she decided not to do so after [Defendant]
made a sexual advance toward her. Instead, Ms. Wade put
Ms. Broomhall’s three children to bed and called a taxi to take her home.
While Ms. Wade waited outside for the cab, [Defendant] retrieved a
baseball bat and told her that, “if someone other than a cab driver came to
pick her up, he was going to beat him to death.” When Ms. Wade left in
the cab, some time before 10:30 p.m., Ms. Broomhall’s three-year-old son
Adam was asleep in his own bed.
Roughly three hours later, Adam woke up crying and got out of bed.
His mother was asleep, and [Defendant] told Adam to “hush it up.” When
Adam persisted, [Defendant] hit him several times, rupturing the inside of
his upper lip and his left ear-drum, and he held Adam’s chest and then
buttocks against a hot wall heater causing severe second-degree gridpatterned
burns. [Defendant] told a detective several days later, “I think I
pushed him up against the heater and held him up there,” and, “The more
he screamed, the more I just kept on hitting him.” When [Defendant] threw
Adam against the drop-leaf dining table, he stopped breathing.
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[Defendant] woke Ms. Broomhall and called 911. Adam was rushed
to the hospital, but the head injury had caused severe hemorrhaging and
swelling, and he died later that morning, never having regained
consciousness. Examination indicated that Adam had sustained
approximately twenty-six blows to his body, including several to his head.
In a written statement to the police, [Defendant] claimed that Adam was
running in the house and “ran right into the table.”
Fairchild, 579 F.3d at 1137‒38 (citations omitted).
B. The Trial
Although Defendant argued (unsuccessfully) that he should be permitted to
present defenses based on his intoxication at the time of the crime, trial counsel indicated
outside the jury’s presence that he and Defendant agreed that nothing could be done to
avoid a guilty verdict and that his client-approved strategy was to save Defendant’s life.
At the sentencing phase, defense counsel presented mitigation testimony by Defendant
and three others—his ex-wife’s daughter, who spoke of him as her “daddy,” R., Vol. III
(Tr. of Jury Trial Proceedings (Tr.), Vol. VI at 1305, State v. Fairchild, No. CF-93-7103
(Okla. Cnty., Okla. Dist. Ct. Jan. 18, 1996)); his older half-brother, who spoke of
Defendant’s ill treatment as a child, the family history of alcoholism, and Defendant’s
own alcoholism; and a psychiatrist, Dr. John Smith, who conducted a psychiatric
interview of Defendant shortly before he testified, about two years after Adam’s death.
The mitigation evidence focused primarily on Defendant’s history of alcoholism
and “explosiveness” when drunk. Tr., Vol. V at 1226. We describe the evidence in some
detail because it was the principal disputed issue at trial and the source of Defendant’s
most troublesome issue in this court—his claim of ineffective assistance of counsel
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arising from counsel’s failure to investigate and present evidence of organic brain
damage.
Dr. Smith testified that Defendant’s difficulties began with unresolved grief over
the death of his mother, who was killed by an alcoholic in a car accident when Defendant
was 15; and he diagnosed Defendant as having dysthymia (persistent mild depression)
arising from that event. See id. at 1224. He also diagnosed Defendant with acute brain
syndrome secondary to alcohol addiction. See id. at 1226‒27. He expressed his opinion
that Defendant would not have killed Adam “had he not been chronically affected by and
acutely affected by the ingestion of alcohol,” id. at 1226, and that he did not intend to kill
the child, see id. at 1228. He explained that Defendant’s “brain was clearly damaged
from intoxication.” Id. at 1234. When, however, he was asked by the prosecutor whether
Defendant had any brain trauma, he did not answer directly but referenced a history of
unconsciousness1 from fighting. See id. at 1245. The prosecutor then elicited that
Dr. Smith had seen no evidence of seizure disorders, see id., and followed up by asking:
“[S]ince he doesn’t have any brain trauma which you can conf[i]rm and no seizure
disorder that you can confirm, basically you’re relying upon his history of using alcohol
and what he tells you happened in his past life?” Id. at 1246. Dr. Smith replied, “Yes.
And the other things I’ve mentioned.” Id. When asked whether he had diagnosed
Defendant as having acute brain syndrome, Dr. Smith explained that, technically, the
1 The transcript says “consciousness,” Tr., Vol. V at 1245, but the context indicates that
Dr. Smith meant “unconsciousness.”
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diagnosis of acute brain syndrome secondary to alcohol ingestion would apply to anyone
who is drunk, but that, in contrast to a single episode of acute drunkenness, the chronic,
continuous use of alcohol “causes a wide degree of damage to the brain . . . only part of
which may go away when you stop using alcohol.” Id., Vol. VI at 1257. He said that he
had not asked Defendant whether he had fought or had an explosive temper when sober
because he assumed, in light of his history of continuous alcohol use, that Defendant
“always had some chronic evidence, if not acute evidence of chronic brain disorder,” and
that “his brain is never clear.” Id. at 1258‒59.
Dr. Smith also testified on cross-examination that he had not seen the medical
examiner’s report on Adam, but that “[i]t was the worst case I’ve ever heard described . .
. [a]nd I’ve seen some hideous things.” Id. at 1260. Asked whether he was saying that
Defendant did not know when drunk “that it’s inappropriate to hit a three-year-old child
in the head,” Dr. Smith replied:
What I am telling you is that there was such an outburst of rage that was the
lack of control is related to the alcohol and that in this outburst of rage he
truly had [] no control over what was happening. And that this outburst of
rage went on and for whatever period of time and that the core of why he
did not have control was because of this alcohol pois[]oned brain.
Id. at 1261. Dr. Smith believed that Defendant was aware of “the child’s screaming and
crying which is almost always what brings on these kinds of explosive outburst[s],” and
was aware that he was holding Adam against the wall heater, but that he had “some kind
of crazy idea in his head which again indicates how little control and sense he had at that
point [in] time, that somehow that would make this child stop crying.” Id. at 1263. In
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Dr. Smith’s opinion, Defendant had awareness but “no real control over or sense over
what he’s doing.” Id. “[T]he whole thing just went on and on until he realized that
Adam might be dead.” Id. at 1267‒68.
The jury found the aggravating circumstance that the murder was especially
heinous, atrocious, or cruel and recommended the death penalty. See Fairchild, 579 F.3d
at 1138. The trial court imposed the sentence on February 2, 1996. See id.
C. Posttrial Proceedings
The OCCA affirmed Defendant’s conviction and sentence in an opinion filed
August 20, 1998, see Aplt. Br. attach. E, which was withdrawn after the OCCA granted
Defendant’s petition for rehearing, see Fairchild v. State, 992 P.2d 349 (Okla. Crim. App.
1999). The OCCA’s superseding opinion, issued December 9, 1999, affirmed the
conviction and sentence with different reasoning. See Fairchild v. State, 998 P.2d 611
(Okla. Crim. App. 1999), on denial of reh’g (May 11, 2000). The OCCA denied
Defendant’s second petition for rehearing, see Aplt. Br. attach. K, and the United States
Supreme Court denied his petition for a writ of certiorari, see Fairchild v. State, 532 U.S.
1039 (2001).
On March 16, 1998, during the pendency of his direct appeal, Defendant filed an
application for state postconviction review, raising several claims of ineffective
assistance of trial and appellate counsel—including that counsel had been ineffective in
failing to investigate mitigation evidence arising from Defendant’s drug use, boxing
activities, and head injuries—and requesting an evidentiary hearing and discovery. The
8
OCCA denied the application and the requests on October 25, 2000. See Aplt. Br.
attach. G.
Defendant filed his § 2254 application on May 16, 2002. It alleged several
grounds for relief and requested an evidentiary hearing. See Fairchild, 579 F.3d at 1144.
One ground was that “trial and appellate counsel were ineffective for failing to discover,
present, and preserve issues relating to [Defendant’s] head trauma and resulting organic
deficits.” R., Vol. II (Pet. for Writ of Habeas Corpus, Doc. No. 15 (Habeas Appl.) at 69,
Fairchild v. Mullin, No. CIV-01-1550-T (W.D. Okla. May 16, 2002)). In support he
submitted (with the court’s permission) three affidavits, including two from experts
saying that he had organic brain damage. The district court denied relief on
September 26, 2006, without holding an evidentiary hearing.
Defendant timely filed a notice of appeal, and the district court granted a
certificate of appealability (COA) on five issues. See Fairchild, 579 F.3d at 1138‒39.
On appeal, however, we addressed only Defendant’s claim that his counsel had been
ineffective in failing to investigate and present mitigation evidence of organic brain
damage at the sentencing phase of his trial. We held that although Defendant had
exhausted a narrower claim of ineffective assistance, he had not exhausted this claim by
presenting it to the OCCA, and we remanded to allow him to try to exhaust the claim.
See id. at 1148‒55. Defendant presented the claim to the OCCA in a second application
for state postconviction relief, but the OCCA denied it on procedural grounds. R., Vol. I
at 230. The federal district court determined that the OCCA’s procedural bars were valid
9
and that Defendant had not overcome them by demonstrating cause and prejudice or a
fundamental miscarriage of justice. Aplt. Br. attach. C at 7.
D. The Present Appeal
Defendant timely filed a notice of appeal. We granted a COA on the following
issues:
[1] Whether Oklahoma’s mens rea requirement for child-abuse
murder violated [Defendant’s] Fourteenth Amendment rights;
[2] Whether Oklahoma’s mens rea requirement for child-abuse
murder violated [Defendant’s] Eighth Amendment rights;
[3] Whether [Defendant’s] constitutional rights were violated by
virtue of the fact that he did not receive lesser related or lesser included
offense instructions;
[4] Whether trial and appellate counsel were ineffective for failing to
discover, present, and preserve issues relating to [Defendant’s] head trauma
and resulting injuries . . . ;
[5] Whether [Defendant’s] constitutional rights were violated by
virtue of the failure of the jury instructions to adequately explain the
possible sentence of life without the possibility of parole;
[6] Whether there was cumulative error.
Order at 2, Fairchild v. Trammell, No. 13-6030 (10th Cir. Dec. 23, 2013). On the fourth
issue we clarified that both ineffective-assistance claims—one exhausted and one
unexhausted—were certified. See id.
II. STANDARDS OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires
that we apply a “highly deferential standard” in habeas proceedings under 28 U.S.C.
10
§ 2254, one that “demands that state-court decisions be given the benefit of the doubt.”
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal quotation marks omitted).
When a state court has adjudicated a claim on the merits, a federal court cannot grant
relief on that claim under § 2254 unless the state-court decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (2). The Supreme Court has emphasized that
“review under § 2254(d)(1) focuses on what a state court knew and did”; thus, “[s]tatecourt
decisions are measured against [Supreme Court] precedents as of the time the state
court renders its decision.” Cullen, 131 S. Ct. at 1399 (internal quotation marks omitted).
“[T]he phrase ‘clearly established Federal law, as determined by the Supreme
Court of the United States’ . . . refers to the holdings, as opposed to the dicta, of th[e]
Court’s decisions . . . .” Williams v. Taylor (Terry Williams), 529 U.S. 362, 412 (2000).
Federal courts may not “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), and Supreme Court holdings “must be construed narrowly and consist only of
something akin to on-point holdings,” id. at 1015; see id. at 1016‒17.
A state-court decision is “contrary to” the Supreme Court’s clearly established
precedent if it “applies a rule that contradicts the governing law set forth in [Supreme
Court] cases” or “confronts a set of facts that are materially indistinguishable from a
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decision of [the Supreme] Court and nevertheless arrives at a result different from [that]
precedent.” Terry Williams, 529 U.S. at 405‒06. It is not necessary that the state court
cite, or even be aware of, applicable Supreme Court decisions, “so long as neither the
reasoning nor the result of the state-court decision contradicts them.” Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam).
A state-court decision is an “unreasonable application” of Supreme Court
precedent if the decision “correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case.” Terry Williams, 529 U.S. at
407‒08. We assess “objective[] unreasonable[ness],” id. at 409, in light of the specificity
of the rule: “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). “[A]n unreasonable application of federal law is different from an incorrect
application of federal law.” Terry Williams, 529 U.S. at 410. “[A] federal habeas court
may not issue the writ simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established federal law erroneously
or incorrectly.” Id. at 411. When the state court does not explain its decision, the
applicant must still show that “there was no reasonable basis for the state court to deny
relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011); see Aycox v. Lytle, 196 F.3d 1174,
1177 (10th Cir. 1999) (“we owe deference to the state court’s result, even if its reasoning
is not expressly stated”). Under AEDPA, “a habeas court must determine what
arguments or theories supported or . . . could have supported[] the state court’s decision;
12
and then it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of [the
Supreme] Court.” Richter, 562 U.S. at 102.
Review of substantive rulings under § 2254(d)(1) “is limited to the record that was
before the state court that adjudicated the claim on the merits.” Cullen, 131 S. Ct. at
1398; see Black v. Workman, 682 F.3d 880, 895 (10th Cir. 2012) (discussing § 2254
review of state-court merits decisions after Cullen). And a federal court must accept a
fact found by the state court unless the defendant rebuts the finding “by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
The Supreme Court has emphasized in the strongest terms the obstacles to relief,
observing that § 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.” Richter, 562 U.S. at 102‒03 (internal quotation marks
omitted). To obtain relief, “a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 102. Thus, “even a strong case for relief does not mean
that the state court’s contrary conclusion was unreasonable.” Id. at 88.
Although federal-court deference to the state court’s decision is appropriate only
on claims “adjudicated on the merits,” 28 U.S.C. § 2254(d), the defendant has the burden
of showing that the claim was not so adjudicated. “When a federal claim has been
13
presented to a state court and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence of any indication or statelaw
procedural principles to the contrary.” Richter, 562 U.S. at 99; accord, Johnson v.
Williams, 133 S. Ct. 1088, 1094 (2013). “Where there is no indication suggesting that the
state court did not reach the merits of a claim, we have held that a state court reaches a
decision on the merits even when it fails either to mention the federal basis for the claim
or cite any state or federal law in support of its conclusion.” Dodd v. Trammell, 753 F.3d
971, 983 (10th Cir. 2013) (ellipsis and internal quotation marks omitted).
Federal courts do not defer under AEDPA when the state court did not determine
the issue on its merits. If the claim is not procedurally barred, the district court then
decides the issue in the first instance, and we review its conclusions of law de novo and
its findings of fact for clear error. See Thacker v. Workman, 678 F.3d 820, 829‒30 (10th
Cir. 2012).
III. CHALLENGES TO MENS REA
Three of Defendant’s claims relate to the mens rea for child-abuse murder. At
trial the court instructed the jury that an element of child-abuse murder was that the act be
“willful or malicious.” R., Vol. I at 55. It said that willful means “[p]urposeful” but
“does not require any intent to violate the law, or to injure another, or to acquire any
advantage.” Id. It defined malicious as “import[ing] a wish to vex, annoy, or injure
another person.” Id. Defendant did not object at trial to the instructions defining willful
and malicious. See Fairchild, 998 P.2d at 626. The court refused to give Defendant’s
14
requested instructions on the defense of intoxication, see R., Vol. III Criminal Appeal
Original R., Vol. IV at 766‒77, 769, 772‒73 (Fairchild, No. CF-93-7103 (Okla. Cnty.,
Okla. Dist. Ct. Aug. 5, 1996)), and the lesser offense of second-degree murder (based on
an alleged lesser mens rea caused by intoxication), see id. at 768, 770‒71. Defendant
argues that (1) the OCCA changed the mens rea requirement for the crime and violated
his rights to due process and equal protection by improperly applying it retroactively to
his offense; (2) the Eighth Amendment prohibits imposition of the death penalty for a
crime with this “minimal” mens rea absent an additional jury finding of culpability,
which was not made; and (3) the OCCA improperly rejected his request for a lesserincluded-
offense instruction based on voluntary intoxication. We address these claims in
turn.
A. Due Process and Equal Protection
While Defendant’s direct appeal was pending before the OCCA, that court issued
two opinions that, he argues, should have required reversal of his conviction because his
jury was incorrectly instructed on the mens rea requirement for child-abuse murder. In
Hockersmith v. State, 926 P.2d 793, 795 (Okla. Crim. App. 1996), the OCCA held that
the trial court had committed plain error in its jury instructions on child-abuse murder by
stating that the term willful did not require an intent to injure another. Bannister v. State,
930 P.2d 1176, 1178‒79 (Okla. Crim. App. 1996), followed suit. After the OCCA’s first
opinion affirming his conviction, Defendant petitioned for rehearing on the ground
(among others) that the OCCA’s failure to follow Hockersmith and Bannister would
15
violate the due-process prohibition against ex post facto laws. In an August 4, 1999 order
the OCCA granted Defendant’s rehearing petition and withdrew its opinion.
The OCCA’s superseding opinion, issued December 7, 1999, affirmed the
conviction and sentence with different reasoning. See Fairchild, 998 P.2d 611. The
OCCA held that the trial court’s instruction on mens rea correctly stated the law in effect
before and after Defendant’s trial and that in light of that mens rea requirement there was
no voluntary-intoxication defense to the charge. See Fairchild, 998 P.2d at 619‒23.
Therefore, the trial court had properly rejected a lesser-included-offense instruction on
second-degree murder due to voluntary intoxication. See id. at 627. The court said that
any language in Hockersmith, Bannister, or other precedents “inconsistent with our
holding herein is expressly overruled.” Id. at 626. Defendant again petitioned for
rehearing, contending, among other things, that the OCCA’s ruling deprived him of due
process and equal protection. The equal-protection argument was that Defendant,
Hockersmith, and Bannister were similarly situated defendants but had not been treated
the same. The OCCA denied the petition on May 11, 2000.
Defendant again argues here that the asserted change in the mens rea requirement
denied him due process and equal protection. We review these claims under AEDPA’s
deferential standard of review.
We rejected the same due-process claim in Evans v. Ray, 390 F.3d 1247, 1252‒54
(10th Cir. 2004). There we held that application of the OCCA’s decision in Fairchild,
998 P.2d 611, to Evans (who committed his offense in November 1996, the month after
16
the Hockersmith opinion) did not violate ex post facto principles incorporated in the Due
Process Clause of the Fourteenth Amendment, and that the OCCA’s application of
controlling Supreme Court precedent was not unreasonable. See Evans, 390 F.3d at
1252‒54. Defendant argues that Evans was wrongly decided because it did not take into
account language in OCCA opinions showing that the OCCA had reversed course on the
mens rea element. We are not persuaded. But even if we were, a panel of this court may
not overturn a decision of a prior panel on what is purely a legal issue. See, e.g., United
States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000).
Defendant’s equal-protection argument is that if Hockersmith and Bannister
represented a new rule of law, that rule must be applied to him because those cases were
pending on direct appeal when his case was. The argument fails. Indeed, he cites to us
no relevant authority under the Equal Protection Clause. (That he chose to cite Bush v.
Gore, 531 U.S. 98 (2000), is a good indicator of the absence of decisions in point.) His
best case is Griffith v. Kentucky, 479 U.S. 314, 328 (1987), which held that “a new rule
for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or
federal, pending on direct review or not yet final, with no exception for cases in which
the new rule constitutes a ‘clear break’ with the past.” But that decision, although
certainly founded on notions of equal justice, did not rely on the Equal Protection Clause
and could not create clearly established law regarding the Clause.
B. Eighth Amendment
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Defendant argues that “[t]he attenuated mens rea requirement for first-degree child
abuse murder moves it out of the category of crimes for which a death sentence may be
imposed Constitutionally.” Aplt. Br. at 68. He contends that the Supreme Court’s
decisions in Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481 U.S. 137
(1987), prohibit the death penalty absent an additional finding of culpability, and that no
such finding was made in his case. See Aplt. Br. at 68‒77. Again, however, Defendant
cannot overcome circuit precedent to the contrary.
In Workman v. Mullin, 342 F.3d 1100, 1103‒04 (10th Cir. 2003), we applied
Enmund and Tison to the identical issue, holding that “an additional culpability finding as
might be required by Enmund or Tison in order to apply the death penalty for a felony
murder conviction does not apply when the defendant actually killed his victim, as was
the case here.” See also Malicoat v. Mullin, 426 F.3d 1241, 1254‒55 (10th Cir. 2005).
That language governs this appeal. Defendant attempts to distinguish Workman, arguing:
In the Workman case there was apparently no evidence Mr. Workman was
operating under a disability or that anything other than the force applied
directly by Mr. Workman to the victim was responsible for the death. That
appears to be true in Malicoat as well. In the instant case, however, the
evidence is that Mr. Fairchild was heavily intoxicated and that the victim
may have died not from a blow struck directly by Mr. Fairchild but from a
fall and head injury precipitated by Mr. Fairchild’s actions. The evidence
could and should have been that Mr. Fairchild is brain damaged.
Moreover, Mr. Fairchild’s brain damage was potentiated by alcohol and
had both judgment and perception impairing effects.
Aplt. Br. at 70. But our reasoning in Workman does not allow for the distinctions
Defendant advances. We simply read Supreme Court precedent to require an additional
18
culpability finding only when the defendant did not kill the victim. Here, there can be no
question that the jury found that Defendant killed the child.
C. Failure to Give Lesser-Offense Instructions
In Beck v. Alabama, 447 U.S. 625, 627 (1980), the Supreme Court held as a matter
of due process that a death sentence may not be imposed “when the jury was not
permitted to consider a verdict of guilt of a lesser included non-capital offense, and when
the evidence would have supported such a verdict” (internal quotation marks omitted).
Thus, to succeed on this issue, Defendant must show that second-degree murder is a
lesser offense of child-abuse murder in the context of this case. But his sole argument on
that score is that voluntary intoxication would negate the mens rea required for childabuse
murder and render his offense second-degree murder. As we have already
explained, however, the OCCA has ruled contrary to Defendant on the mens rea
requirement, and we cannot set aside that ruling. And as Defendant concedes, whether an
offense is a lesser-included-offense of the charged offense is a matter of state law. See
Malicoat, 426 F.3d at 1252. Defendant’s mens rea challenge having failed, Beck cannot
assist him.
IV. INSTRUCTION ON LIFE-WITHOUT-PAROLE OPTION
During the sentencing phase of Defendant’s trial, the court instructed the jury that
it could impose one of three possible sentences—life, life without parole, or (upon
appropriate findings) death. The defense requested, and the trial court declined to give,
an instruction on the meanings of a life sentence and a sentence of life without the
19
possibility of parole. See Fairchild, 998 P.2d at 629. The jury was unsure about the
meaning of life without parole and sent the judge a note asking whether it meant that
Defendant would never be released. The court advised the jury, “You have all of the
evidence you need to decide this case.” Tr., Vol. VI at 1484 (internal quotation marks
omitted).
Defendant contends that the jury note demonstrates confusion about the lifewithout-
parole option and that the trial court’s instructions and response to the note do
not comport with Supreme Court precedent. The OCCA rejected this claim on direct
appeal, stating that the trial court had no duty to explain the Oklahoma parole process and
citing previous decisions on the point. See Fairchild, 998 P.2d at 629. That decision is
entitled to AEDPA deference. We have so held in an indistinguishable case, Littlejohn v.
Trammell, 704 F.3d 817 (10th Cir. 2013). In Littlejohn the jury, having been instructed
on the three available sentencing options under Oklahoma law, submitted a note asking
the trial court whether it was “possible to change the verdict of life without parole to with
parole” after the verdict and without another jury verdict. 704 F.3d at 826 (internal
quotation marks omitted). There, as here, the trial court conveyed to the jurors that they
“have all the law and evidence necessary to reach a verdict,” and rejected counsel’s
request to elaborate on the meaning of the three alternatives. Id. (internal quotation
marks omitted). In both cases the jury’s concern was whether life without parole really
meant that the defendant would never be released. We denied relief in Littlejohn, see id.
at 831, and are bound by precedent to do so here.
20
V. INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim that trial counsel was ineffective, a defendant must establish
(1) that “counsel’s representation fell below an objective standard of reasonableness,”
Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different,” id. at 694. In the context of a capital-sentencing proceeding,
“the question is whether there is reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695. Our review is “highly deferential” and
we “must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689 (internal quotation marks omitted). To prevail on a claim
of ineffective assistance of appellate counsel, a defendant must establish that counsel was
objectively unreasonable in failing to raise or properly present a claim on direct appeal,
and that there is a reasonable probability that, but for this unreasonable failure, the claim
would have resulted in relief on direct appeal. See Cargle v. Mullin, 317 F.3d 1196, 1202
(10th Cir. 2003).
Defendant claims that “[t]rial and appellate counsel were ineffective for failing to
discover, present and preserve issues relating to [his] head trauma and resulting organic
deficits,” and that the district court erred in failing to grant an evidentiary hearing on this
21
claim. Aplt. Br. at 2. He argues that “[c]ounsel’s failure to investigate and develop for
the jury the defense that [he] was impaired not only by alcohol but by organic brain
damage with synergistic effect eliminated an effective defense to the death penalty as
well as additional support for lesser included offense instructions,” and that “[t]his failure
was nonstrategic as counsel did put on a form of diminished capacity defense, just a very
poor one.” Id. at 14. Before addressing Defendant’s claim, we provide additional
background.
Defendant raised no claim on direct appeal of ineffective assistance of trial
counsel. He first raised ineffectiveness claims in his original application for
postconviction relief, filed March 16, 1998—nine months after he submitted his opening
brief in his direct appeal but before the OCCA had issued its first opinion in the direct
appeal. The claim alleged that “[t]rial counsel’s failure to conduct reasonable
investigation and presentation of relevant mitigating evidence denied [Defendant]
effective assistance of counsel and rendered his death sentence unreliable.” R., Vol. III
Capital Post Conviction Proceeding, Appl. for Post-Conviction Relief – Death Penalty
4th issue at 5, Fairchild, No. PC-98-31 (Okla. Crim. App. Mar. 17, 1998)). It also
alleged that appellate counsel had been ineffective for failing to raise the issue. It
asserted that “[p]ost-conviction investigation has revealed that [Defendant] suffered from
significant psychiatric impairment and brain damage which affected his judgment and
reduced his culpability” for Adam’s death, and it noted his history of drug use, amateur
22
boxing, and serious head injuries. Id. at 17. In support, Defendant submitted medical
records and some articles about the risk of brain injuries from boxing and other sports.
The OCCA held that the claim of ineffective assistance of trial counsel was
waived because it could have been raised on direct appeal. See Aplt. Br. attach. G.
Nevertheless, the OCCA addressed the merits of the claim and rejected it on the ground
that trial counsel had not been deficient, see id.; Fairchild, 579 F.3d at 1140, 1147‒48,
thereby effectively disposing of the claim of ineffective assistance of appellate counsel,
see Cargle, 317 F.3d at 1202 (appellate counsel’s omission of meritless issue does not
constitute deficient performance). The OCCA also denied Defendant’s requests for
discovery and an evidentiary hearing.
In his § 2254 application, filed May 16, 2002, Defendant argued that “[t]rial and
appellate counsel were ineffective for failing to discover, present, and preserve issues
relating to [Defendant]’s head trauma and resulting organic deficits.” R., Vol. II, Habeas
Appl. at 69 (full capitalization omitted). The claim did not mirror his state-court claim
because it referred to evidence not presented to the OCCA. Defendant submitted a
May 2, 2002 affidavit from psychiatrist Dr. Smith, his trial expert, and an April 24, 2002
affidavit from Dr. Barry Crown, a neuropsychologist, both of which said that Defendant
had organic brain damage. Dr. Smith’s affidavit described a report he had prepared for
trial as indicating that Defendant “suffered from a severe organic brain syndrome of an
acute and chronic nature,” and as reflecting that he had “uncovered evidence of organic
brain damage during [his] clinical interview.” Id. Ex. J ¶ 9. The affidavit also said that at
23
the time of trial Dr. Smith had been “concerned that there was to be no
neuropsychological testing,” id. ¶ 6, and that “[t]here was little or no discussion” of his
findings during the brief conversation he had with defense counsel shortly before he
testified, id. ¶ 10. Dr. Crown’s affidavit said that Defendant’s medical records and
neuropsychological tests (conducted in April 2002) showed that Defendant had organic
brain damage. It noted “[m]ajor neurological markers” for Defendant, including his
history of amateur boxing, bar fights, head injuries with periods of unconsciousness, and
abuse of alcohol and other substances, as well as Dr. Smith’s finding of chronic organic
brain damage. Id., Ex. I at 4. In particular, the affidavit said that the brain damage was
“primarily associated with the fronto-temporal portions of the brain,” which would
reduce Defendant’s capacities in “[r]easoning, judgment, and problem solving” and
would likely impair his ability to control impulses. Id. at ¶¶ 10‒11. These impairments,
the affidavit asserted, “would be markedly potentiated or increased by alcohol
intoxication.” Id. ¶ 12.
The application contended that trial counsel’s performance was deficient because
counsel had not investigated Defendant’s history of head injuries and its impact on brain
function before settling on a defense based on alcoholism and voluntary intoxication at
the time of the crime, and because counsel spent little time with Dr. Smith and did not
discuss Smith’s finding of chronic organic brain damage. It also argued that the
ineffectiveness of Defendant’s direct-appeal counsel (who had not raised a claim of
ineffective assistance of trial counsel) constituted cause for his failure to present the trial24
counsel claim on direct appeal, thereby overcoming any state procedural bar. The district
court denied relief, but granted a COA on the ineffectiveness claim (as well as other
claims). See Fairchild, 579 F.3d at 1138‒39.
On appeal we reversed and remanded on the ineffective-assistance claim.
Although the ineffectiveness claim in the § 2254 application bore a resemblance to the
ineffectiveness claim presented to the OCCA in Defendant’s state postconviction
application, it was “of a substantially different nature, based on evidence and arguments
that were not previously considered by the OCCA.” Id. at 1148. The Smith and Crown
affidavits, presented for the first time in the § 2254 proceeding, “establish[ed] the link
between [Defendant’]s prior history of drug abuse and head injuries and possible
physical, organic brain injury; and furnish[ed] evidence that he in fact had such an
injury.” Id. at 1149. Together, the affidavits “suggest more than alcohol-induced
explosiveness (i.e., that [Defendant] was a mean drunk)—they point to the possibility of
separate physical brain damage, which could be aggravated in a pathologically severe
way by the ingestion of alcohol.” Id. at 1150.
We concluded that this new evidence “significantly altered” Defendant’s
ineffective-assistance claim, “placing it in a much stronger legal posture than in the state
court proceedings.” Id. at 1150‒51 (internal quotation marks omitted). While
recognizing that Defendant had not argued that the claim presented in the § 2254
application was a “new” claim, see id. at 1148 & n.7, we explained that “at a certain
point, when new evidence so changes the legal landscape that the state court’s prior
25
analysis no longer addresses the substance of the petitioner’s claim, we must necessarily
say that the new evidence effectively makes a new claim—one that the state court has not
adjudicated on the merits,” id. at 1149. Given our conclusion and the prohibition on
granting relief on the merits before the claim has been exhausted in state court, see id. at
1151; 28 U.S.C. § 2254(b)(1)(A), we vacated the district court’s judgment and remanded
for it to determine whether Defendant was entitled to have his § 2254 proceedings abated
to permit him to exhaust his claim in state court, see Fairchild, 579 F.3d at 1147,
1152‒56; Rhines v. Weber, 544 U.S. 269, 275‒78 (2005) (authorizing stay-and-abeyance
procedure). (Our prior decision predated Cullen, which held that review under § 2254 is
generally limited to the evidence presented in state court. See 131 S. Ct. at 1398. In light
of Cullen, we may have reframed our remand as providing Defendant an opportunity to
present the new evidence to the OCCA. As a practical matter, however, the proceedings
would have been the same on remand.)
Following our suggestion, Defendant filed a second postconviction application in
state court on October 9, 2009. It presented claims of ineffective assistance of trial and
appellate counsel that referred to the 2002 affidavits offered with the § 2254 application.
The OCCA denied the application. The court held that the application was procedurally
barred on two grounds. First, it was untimely under Rule 9.7(G)(3) of the Rules of the
Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18., App., which provides
that “[n]o subsequent application for post-conviction relief shall be considered by this
Court unless it is filed within sixty (60) days from the date the previously unavailable
26
legal or factual basis serving as the basis for a new issue is announced or discovered.”
See R., Vol. I at 231‒33. And it was also barred under Okla. Stat. tit. 22, § 1089, which
requires (among other things) that a successive postconviction application must contain
(1) “claims and issues that have not been and could not have been presented previously in
a timely [application] because the legal basis for the claim was unavailable,” or
(2) “sufficient specific facts establishing that” the claim’s factual basis was not
ascertainable through the exercise of reasonable diligence on or before the date of the
prior application. See id. at 231.
The OCCA concluded that the claims did not qualify for consideration because
(1) the supporting facts were available to both trial and appellate counsel; (2) the claims
had been the subject of the ineffective-assistance claim in Defendant’s first
postconviction application; and (3) there could be no relief based on “newly discovered
evidence” because the affidavits containing facts alleged to warrant relief were dated
seven years before the second application was filed and so were not presented within 60
days of discovery of the facts. See id. at 232‒33. The OCCA added that § 1089 also
barred consideration because the claims merely expanded on the theories of the first
postconviction application; the evidence “merely builds upon evidence previously
presented”; and “this same issue was raised under an ineffective assistance of counsel
claim in [Defendant’s first postconviction application].” Id. at 233, Dec. 1, 1999 Op.
Den. Subsequent Appl. at 4. Also, the OCCA stated that it “fail[ed] to find that
[Defendant] has suffered or will suffer a miscarriage of justice based on these claims,”
27
and therefore it “decline[d] to exercise [its] inherent power to grant relief when other
avenues are barred or waived.” Id. at 233‒34; see id. at 232 (“The law favors the legal
principle of finality of judgment and [Defendant] has not shown that failure of this Court
to review his claims would create a miscarriage of justice.”). The OCCA concluded that
an evidentiary hearing would not be necessary “because [Defendant’s] claims are both
waived and barred and do not otherwise merit relief.” Id. at 234.
The federal district court then denied relief on the § 2254 application, ruling that
the remanded claim was procedurally barred and incorporating its prior decision denying
the remaining claims in the application. Aplt. Br. attach. C at 7‒10.
We now turn to the ineffective-assistance issues on this appeal. We first address
the claim we described as the “new” claim in the initial appeal, which we remanded to
the district court for further proceedings. We then turn to the claim that we previously
said had been properly exhausted.
A. The Remanded Claim
Because the OCCA refused on procedural grounds to consider Defendant’s
ineffective-assistance claims insofar as they were based on the 2002 affidavits, we would
ordinarily be foreclosed from granting relief on that basis. See Coleman v. Thompson,
501 U.S. 722, 750 (1991) (“In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of federal law, or
28
demonstrate that failure to consider the claims will result in a fundamental miscarriage of
justice.”). But Defendant raises several arguments why we are not foreclosed.
First, Defendant argues that it was not necessary for him to return to the OCCA for
his second postconviction application because the state had previously waived any
contention that his claims based on the 2002 affidavits were not exhausted. But as we
stated in the prior appeal in this case, AEDPA provides that a state can waive exhaustion
only through an express waiver by its counsel. See 28 U.S.C. § 2254(b)(3); Fairchild,
579 F.3d at 1148 n.7. There was no express waiver here.
Second, Defendant argues that the state procedural bar does not preclude merits
review because the state bar is not independent of federal law. See Black, 682 F.3d at
918 (federal habeas review not precluded if state procedural bar depends on federal
constitutional ruling). He relies on Valdez v. State, 46 P.3d 703 (Okla. Crim. App. 2002),
which said that even when a prisoner has failed to comply with procedural requirements,
the OCCA has the “power to grant relief when an error complained of has resulted in a
miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory
right,” id. at 710. He argues that the OCCA considered the merits of his federal
ineffective-assistance claims “before, or in the course of, imposing a state default”
because the court’s decision cited Valdez. Aplt. Br. at 25. In essence, Defendant is
asserting that the OCCA will not impose a procedural bar unless it first determines that
any federal claims lack merit. But the OCCA explicitly informed this court in Black, in
response to our certified question, that it had not considered the merits of the federal
29
claims in applying § 1089 to bar the defendant’s postconviction application. See Black v.
Tram[m]ell, 485 F. App’x 335, 336 (10th Cir. 2012). And we held in Banks v. Workman,
692 F.3d 1133, 1146 (10th Cir. 2012), that a procedural bar under § 1089 is not
dependent on federal law, noting that the OCCA has permitted review under Valdez only
in extraordinary circumstances and that the merit of the federal claim was neither a
necessary nor sufficient condition for such review. Defendant attempts to distinguish our
precedents on the ground that the OCCA’s denials of review in those cases did not cite
Valdez, whereas here the OCCA opinion reported that Defendant had invoked Valdez.
We are not persuaded. Yes, one can infer from the citation to Valdez that the
OCCA considered Valdez in denying review to Defendant. But surely the OCCA in
every case, whether or not it mentions Valdez explicitly, is well aware of the discretion
afforded it by that decision. The issue is not whether the OCCA considered Valdez but
whether it considered the merits of the federal claims in doing so. And there is nothing to
suggest it did. Therefore, we follow Banks in holding that the OCCA’s invocation of the
procedural bars of § 1089 and Rule 9.7(3)(G) was independent of a determination of
federal law.
Third, Defendant argues that even if there would otherwise be an effective state
procedural bar, he can establish cause for his failure to comply with state requirements—
namely, that in his initial postconviction proceeding he was provided ineffective
assistance by his counsel, who failed to uncover and present in support of his claims of
ineffective trial and appellate counsel the evidence later presented in the 2002 affidavits.
30
The Supreme Court held in Coleman that ineffective assistance of counsel in
postconviction proceedings does not establish cause for the procedural default of a claim.
See 501 U.S. at 756‒57. But the Supreme Court’s recent decisions in Martinez v. Ryan,
132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013), revised that rule
with respect to cause for claims of ineffective assistance of counsel.
The Court’s concern in both cases was “initial-review collateral proceeding[s],”
which it defined as “collateral proceedings which provide the first occasion to raise a
claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315. It held in Martinez
that “[i]nadequate assistance of counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at
trial.” Id. The context was Arizona law, which prohibited claims of ineffective
assistance of trial counsel on direct appeal and required that such claims be raised in state
postconviction proceedings. See id. at 1314. The Court observed that in Arizona, “the
collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to
the ineffective-assistance claim,” id. at 1317, and that “if counsel’s errors in an initialreview
collateral proceeding do not establish cause to excuse the procedural default in a
federal habeas proceeding, no court will review the prisoner’s claims,” id. at 1316.
Martinez held that “a procedural default will not bar a federal habeas court from hearing
a substantial claim of ineffective assistance at trial” when state law provides that “claims
of ineffective assistance of trial counsel must be raised in an initial-review collateral
31
proceeding” and “in the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” Id. at 1320.
Trevino took the Supreme Court one step further, holding that the rule in Martinez
applied even when the state provided a theoretical opportunity to raise on direct appeal a
claim of ineffective assistance of trial counsel, but the design and operation of the state’s
procedural requirements for doing so often made that theoretical possibility a practical
impossibility. See 133 S. Ct. at 1915, 1921. In Trevino a Texas state-court jury
convicted Trevino of capital murder and the trial court imposed the death penalty based
on the jury’s findings after a sentencing hearing. See id. at 1915. Trevino’s new
appointed counsel did not raise on direct appeal a claim of ineffective assistance of trial
counsel during the sentencing hearing. Id. A different attorney appointed to represent
Trevino on state postconviction review raised a claim that trial counsel was
constitutionally ineffective during the sentencing phase of Trevino’s trial, but the attorney
did not claim that trial counsel’s ineffectiveness included inadequately investigating and
presenting mitigation evidence. See id. After relief was denied on state postconviction
review, Trevino sought habeas relief in federal court, where he was represented by
another new appointed counsel. See id. That attorney uncovered mitigation evidence
that had not been presented at trial and raised for the first time a claim that Trevino’s trial
counsel was ineffective during the sentencing phase by failing to adequately investigate
and present this other mitigation evidence. See id. at 1916. The federal court stayed
proceedings to permit Trevino to raise this claim in state court, but the state court held
32
that the claim was procedurally defaulted because it had not been raised on initial state
postconviction review. See id. The federal district court denied the claim of ineffective
assistance of counsel on the ground that an independent and adequate state ground
(failure to raise the claim on initial state postconviction review) barred federal habeas
review. See id. The Fifth Circuit affirmed. See id.
The Supreme Court reversed. It noted that “the inherent nature of most ineffective
assistance of trial counsel claims means that the trial court record will often fail to
contain the information necessary to substantiate the claim.” Id. at 1918 (brackets and
internal quotation marks omitted). But in Texas the only way for a defendant to
supplement the record on appeal is by filing in the trial court a motion for a new trial
within 30 days of sentencing. See id. The trial court then has to decide the motion within
75 days of sentencing. See id. The trial transcript, however, is not due until 120 days
after sentencing, and the time may be extended. See id. The Supreme Court concluded
that this mechanism “is often inadequate because of time constraints and because the trial
record has generally not been transcribed at this point.” Id. (internal quotation marks
omitted). Trevino’s appellate counsel was appointed eight days after sentencing, which
meant that she had 22 days to move for a new trial. See id. at 1919. Counsel may have
had 45 more days to gather evidence in support of the motion (before the trial court had
to issue a decision), but she would not have had access to the trial transcript, which did
not become available until seven months after trial. See id. As the Court said, “It would
have been difficult, perhaps impossible, within that time frame to investigate Trevino’s
33
background, determine whether trial counsel had adequately done so, and then develop
evidence about additional mitigating background circumstances.” Id. The Court
concluded that “where, as here, state procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct
appeal, our holding in Martinez applies.” Id. at 1921.
The question before us is whether Trevino applies to Oklahoma’s procedures. We
think not, because Oklahoma provides a reasonable time to investigate a claim of
ineffective assistance before raising it on direct appeal. A claim of ineffective assistance
can be raised with the opening brief on appeal. And the brief can be accompanied by a
request to supplement the record. OCCA Rule 3.11 specifically contemplates such
supplementation for claims like the one before us. It provides:
A request to supplement the record on appeal with matters not presented to
and included as a part of the trial court record is only available under the
following two circumstances:
. . . .
(b) When an allegation of the ineffective assistance of trial counsel is
predicated upon an allegation of failure of trial counsel to properly utilize
available evidence or adequately investigate to identify evidence which
could have been made available during the course of the trial, and a
proposition of error alleging ineffective assistance of trial counsel is raised
in the brief-in-chief of Appellant.
Rule 3.11(B). The time to investigate such a possible claim is much longer than under
Texas procedure, and the trial transcript is available for much of that time. The opening
brief is not due until 120 days from the date the OCCA receives the trial record and
34
transcripts, see Okla. Stat. tit. 21, § 701.13(D); Rule 9.3(A), and that deadline may be
extended up to an additional 60 days by a single OCCA judge (the Presiding or Vice-
Presiding Judge), see Rule 3.4(D)(2)(a), and possibly even further upon the approval by
the full court, see id. The record and transcripts are not required to be filed in the trial
court until six months after sentencing, see § 701.13(A); Rule 9.2(C)(1); id. 9.2(E), and
the court reporter’s deadline to file transcripts may be extended upon a showing of just
cause, see Rule 9.2(C)(2).
In this case, the Oklahoma Indigent Defense System (OIDS) was appointed on
February 2, 1996, the day Defendant was sentenced, to represent Defendant on direct
appeal. Counsel received the record and transcripts ten months later, and Defendant’s
brief was due (after two 30-day extensions) six months later, on Monday, June 2, 1997.
Thus, Oklahoma procedure allowed appellate counsel to file the brief, along with a Rule
3.11 motion to supplement the trial record, 16 months after Defendant was sentenced,
with access to the transcript and record for nearly six months.
Numerous appeals during the years preceding and following the filing of
Defendant’s appellate brief with the OCCA show that counsel could raise claims of
ineffective assistance of trial counsel on direct appeal, including claims related to the
failure to investigate and present mitigation evidence. See, e.g., Washington v. State,
989 P.2d 960, 976 (Okla. Crim. App. 1999) (OIDS Capital Direct Appeals Division
asserted numerous claims of ineffective assistance of trial counsel, including claim that
“counsel failed to adequately prepare, investigate and use available evidence during both
35
stages of trial”; relief granted); Young v. State, 992 P.2d 332, 347 (Okla. Crim. App.
1998) (public defender asserted failure to investigate mitigating evidence); Wilson v.
State, 983 P.2d 448, 471‒72 (Okla. Crim. App.1998) (OIDS Capital Direct Appeals
Division asserted failure “to fully investigate [defendant’s] mental health background or
effectively assist [mental-health expert prepare] for his second stage testimony”); Patton
v. State, 973 P.2d 270, 303‒04 (Okla. Crim. App. 1998) (public defender asserted failure
to request continuance to investigate additional mitigation evidence); Taylor v. State, 972
P.2d 864, 864‒66 (Okla. Crim. App. 1998) (Rule 3.11 motion granted on ineffectiveassistance
claims based on failure to hire psychologist earlier in trial preparation and to
use him effectively in developing trial strategy, failure to prepare adequately for trial, and
failure to call second-stage mitigation witnesses); Douglas v. State, 951 P.2d 651, 680
(Okla. Crim. App. 1997) (OIDS asserted failure to present available mitigating evidence
from mental-health expert); Bryan v. State, 935 P.2d 338, 361‒63 (Okla. Crim. App.
1997) (OIDS Capital Direct Appeals Division asserted failure to present available
evidence of mental illness); Fields v. State, 923 P.2d 624, 635 (Okla. Crim. App. 1996)
(public defender asserted failure to present more mitigating evidence); Allen v. State, 923
P.2d 613, 617 (Okla. Crim. App. 1996) (public defender asserted failure to present
mental-health mitigation evidence, including diagnoses of inadequate personality
disorder and organic brain damage), vacated on other grounds, Allen v. Oklahoma, 520
U.S. 1195 (1997); Cargle v. State, 909 P.2d 806, 832‒33 (Okla. Crim. App. 1995) (OIDS
Capital Direct Appeals Division asserted failure to prepare and present adequate
36
mitigating evidence), superseded by statute on other grounds, as stated in Coddington v.
State, 142 P.3d 437, 452 (Okla. Crim. App. 2006); Mayes v. State, 887 P.2d 1288,
1314‒16 (Okla. Crim. App. 1994) (public defender asserted failure to present mitigation
evidence); Malone v. State, 876 P.2d 707, 712‒13 (Okla. Crim. App. 1994) (failure to
investigate and present mitigation evidence).
In view of the foregoing, Defendant has not shown that the “design and operation”
of Oklahoma’s procedural framework “make[] it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of ineffective assistance of
trial counsel on direct appeal.” Trevino, 133 S. Ct. at 1921.
Nevertheless, Defendant argues that Trevino applies to the specific circumstances
of his case. He relies on a disclaimer filed in the OCCA by his direct-appeal counsel on
June 6, 1997, four days after filing Defendant’s direct-appeal brief. The disclaimer
announced that appellate counsel “has not conducted and cannot conduct a full
investigation of [Defendant’s] case,” R., Vol. II, Habeas Appl. app. K., Disclaimer by
Direct Appeal Counsel at 2, and that “the investigation into any claims outside the trial
record in [Defendant’s] case, including Sixth Amendment ineffective assistance of trial
counsel claims, has been limited to those that are apparent from the trial record or from
interviews with trial counsel and the client,” id. at 7. The disclaimer also advised that
counsel had not filed a motion to supplement the record under Rule 3.11. See id. at 2 n.3.
As we understand the disclaimer, it asserts that until Walker v. State, 933 P.2d 327
(Okla. Crim. App. 1997), overruled by statute on other grounds, as recognized in Davis
37
v. State, 123 P.3d 243, 245 (Okla. Crim. App. 2005), decided four months before the
disclaimer was filed, the OCCA had not required that claims of ineffective assistance of
trial counsel based on facts outside the trial record be raised on direct appeal, and the
Capital Direct Appeals Division of the state public defender (which was distinct from the
Capital Post-Conviction Division) did not have the resources to take on this new
responsibility. But the disclaimer does not call into question that Oklahoma law did not
preclude raising on direct appeal a claim of ineffective assistance of trial counsel—either
as prohibited by state law, as in Martinez, or as a practical consequence of that law, as in
Trevino—and that the OIDS had regularly done so in the past. Defendant’s state
postconviction application was therefore not an initial-review collateral proceeding under
the Martinez/Trevino definition of the term, see Martinez, 132 S. Ct. at 1315 (“initialreview
collateral proceedings” are “collateral proceedings which provide the first
occasion to raise a claim of ineffective assistance at trial”), so ineffective assistance of
counsel in the postconviction proceeding cannot establish cause to overcome the
procedural bar. Of course, the disclaimer could establish the predicate for a claim of
ineffective assistance of direct-appeal counsel, and Defendant indeed raised such a claim
in his initial postconviction application to the OCCA—a claim rejected on the merits.
However sympathetic we may be to Defendant’s direct-appeal counsel, the OCCA
cases previously cited confirm that the appellate defender had been raising similar
ineffective-assistance claims on direct appeal for some time. And if direct-appeal
38
counsel performed poorly, Defendant had the opportunity to raise that problem with the
OCCA in postconviction proceedings.
B. The Exhausted Claim
There remains the more-limited ineffectiveness claim raised in Defendant’s
original state postconviction application—the claim without reliance on the 2002
affidavits first presented with Defendant’s § 2254 application. But in this court
Defendant makes no argument about the merits of the exhausted claim. Although his
opening brief cites two exhibits that were presented with the original application, it does
not discuss the evidence presented to the OCCA in support of that claim. His merits
argument is based solely on the theory of organic brain damage and evidence presented
for the first time in his § 2254 application; there is no argument that he is entitled to relief
on the exhausted claim if the remanded claim is procedurally barred. “Even a capital
defendant can waive an argument by inadequately briefing an issue.” Grant v. Trammell,
727 F.3d 1006, 1025 (10th Cir. 2013). Defendant has done so here, waiving any
argument that he is entitled to relief on the exhausted claim. See also id. (“perfunctory
assertion falls well short of what’s needed to overturn a judgment”); Bronson v. Swensen,
500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s opening
brief.”).
Waiver aside, Defendant has provided no basis upon which we could conclude
that the OCCA’s ruling on the exhausted claim is contrary to or an unreasonable
39
application of Strickland, 466 U.S. 668. The OCCA explained that the proffered
evidence—medical records indicating a history of substance abuse and head injuries, and
articles concerning boxing and other sports-related brain injuries—was insufficient to
demonstrate a causal connection between Defendant’s prior boxing activities or head
injuries and his brain function at the time of the crime. Aplt. Br. attach. G at 9. Also,
there was no evidence that trial counsel had not investigated the matter raised in the
postconviction application. Id. at 8; see Fairchild, 579 F.3d at 1147‒48. And the court
observed that jurors may have considered evidence of Defendant’s drug use and boxing
to be aggravating rather than mitigating factors. Aplt. Br. attach. G at 8. The OCCA’s
conclusions, based on the evidence before it, that “[a]n experienced trial attorney may
very well have chosen as reasonable trial strategy to hide these factors rather than
emphasize them,” id. at 9, and that failure to present this evidence at trial did not
establish deficient performance of counsel, see id. at 10, are not contrary to or an
unreasonable application of Strickland. Absent a showing of ineffective assistance of
trial counsel, the claim that appellate counsel was ineffective in not raising the trialcounsel
ineffectiveness claim was doomed to fail as well. See Cargle, 317 F.3d at 1202
(appellate counsel’s omission of meritless issue does not constitute deficient
performance). There can be no relief on the exhausted claim.
In light of our disposition of Defendant’s ineffectiveness claims, an evidentiary
hearing would serve no purpose.
VI. CUMULATIVE ERROR
40
Defendant contends that the cumulative effect of all of the constitutional errors in
his case warrants federal habeas relief. The OCCA denied this claim on direct appeal,
Fairchild, 998 P.2d at 632, as did the district court below. In the federal habeas context,
cumulative-error analysis “aggregates all constitutional errors found to be harmless and
analyzes whether their cumulative effect on the outcome of the trial is such that
collectively they can no longer be determined to be harmless,” an analysis we undertake
only if there are at least two errors. Lott v. Trammell, 705 F.3d 1167, 1223 (10th Cir.
2013) (internal quotation marks omitted). Because we have not identified any preserved
errors, we must reject the claim of cumulative error.

Outcome: We AFFIRM the district court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

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