Robert Allen Brecheen | Murderpedia, the encyclopedia of murderers

Robert Allen BRECHEEN

Classification: Murderer

Characteristics:

Robbery

Number of victims: 1

Date of murder: March 23, 1983

Date of arrest:

Same day

Date of birth: 1955

Victim profile: Marie Stubbs (female, 59)

Method of murder: Shooting

Location: Carter County, Oklahoma, USA

Status: Executed by lethal injection in Oklahoma on August 11, 1995

Marie Stubbs was a prominent local resident, and the crime, investigation and trial received substantial publicity. According to a affidavit from his trial attorney, there was "general hostility in Ardmore [the town where the crime and the trial took place] to Robert Brecheen", as well as towards himself.

During his time on death row, Robert Brecheen has been a model prisoner, taking care of his elderly, disabled cell mate - feeding him, dressing him, and assisting him in daily living.

His attorney stated: "I firmly believe that Robert Brecheen should not have received the death penalty. A number of factors unfairly hurt Robert's case... perhaps, my unfamiliarity with second stage proceedings in a capital case... This case has troubled me deeply for many years because I know Robert did not receive a fair trial. I have great faith in our system of justice, but here there was a breakdown. A man was unfairly sentenced to die. I wish more than anything that I could try Robert's case again, for I am virtually certain a different result would be obtained."

A Doomed Inmate Drugs Himself, Is Revived and Then Executed

The New York Times

August 12, 1995

The authorities at the state penitentiary here had to rouse a condemned man from a self-induced drug stupor today so that they could execute him with state-approved drugs.

"Certainly, there's irony," said Larry Fields, director of Oklahoma's Corrections Department, after the execution by injection of Robert Brecheen, who was convicted of murder. "But we're bound by the law, the same law that he violated."

Under a 1986 United States Supreme Court ruling, said Sandy Howard, an Assistant State Attorney General, a condemned person "has to be aware of his execution and he has to know why he is being executed."

Hilton Stubbs, the 71-year-old husband of Mr. Brecheen's victim, was at the prison for the execution and said the authorities did the right thing. "It wasn't his job to take his life," Mr. Stubbs said.

A protester outside, the Rev. Bryan Brooks, thought otherwise. "This shows the absurdity of the situation," Mr. Brooks said. "The idea that they're going to stabilize him and bring him back to be executed is plainly outrageous."

Mr. Brecheen was supposed to have been put to death at midnight. But guards had trouble waking him in his holding cell at 9 P.M. on Thursday and he was taken to McAlester Regional Hospital, where his stomach was pumped. On the way to the hospital, he was breathing heavily, his pupils were dilated and he drifted in and out of consciousness, officials said, but his condition was never life-threatening.

The execution was delayed about two hours.

The warden at the penitentiary, Ron Ward, refused to speculate on how an inmate on death row could get enough sedatives to cause an overdose, or whether the 40-year-old killer was attempting suicide or just trying to delay his execution.

Before three drugs were pumped into his arm, Mr. Brecheen made a brief statement from the gurney on which he lay strapped, but his words were inaudible because of microphone problems. Guards later said he thanked his parents and did not mention the overdose.

Mr. Brecheen, convicted of shooting to death Marie Stubbs, 59, in a 1983 dispute over money, was strip-searched early Thursday before he was put in the cell next to the execution chamber. The only people to come in contact with him after that, officials said, were two defense lawyers and prison guards. All will be questioned, the officials said.

BRECHEEN v. STATE
1987 OK CR 17
732 P.2d 889
Case Number: F-83-710
Decided: 01/27/1987
Oklahoma Court of Criminal Appeals

An Appeal from the District Court of Carter County; Woodrow George, District Judge.

Robert Allen Brecheen, appellant, was convicted in Carter County District Court, Case No. CRF-83-127, of Burglary in the First Degree and Murder in the First Degree. He received sentences of twenty years' imprisonment and the death penalty, respectively. On his appeal, this Court AFFIRMS all judgments and sentences.

Thomas Purcell, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Jean M. LeBlanc, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

[732 P.2d 892]

¶1 Robert A. Brecheen was convicted by a jury of Murder in the First Degree and Burglary in the First Degree. Punishment was assessed as the death penalty for the homicide and twenty years' imprisonment for the burglary.

¶2 During the evening of March 27, 1983, Hilton Stubbs was awakened by the scream of his wife, Marie Stubbs, and then he immediately heard a gunshot. He saw his wife, who was in the livingroom, fall to the floor. He reached for his gun and rolled off of his bed to the floor. The intruder came to the bedroom door and fired three shots into the empty bed. As the intruder turned to leave, Mr. Stubbs fired at him. The man reached the porch and fired two more shots through the storm door at Mr. Stubbs. Mr. Stubbs again fired at him. He later saw the intruder exit the front gate and walk north.

¶3 Though Mr. Stubbs was unable to identify the intruder, he could describe him as wearing a light or tan shirt. When the police arrived, they found appellant severely wounded lying by his truck approximately two hundred yards north of the Stubbs' residence.

¶4 Appellant's defense was that some black man had entered his truck as he left a bar. This man made him go to the Stubbs' residence and carry the rifle to the door. When Mrs. Stubbs opened the door, the black man pushed him inside and the gun accidentally went off and killed her. Mr. Stubbs did not see but one person at his home the evening of the killing, but did testify that he was acquainted with appellant who had recently approached him for a loan.

¶5 Appellant first assigns as error the trial court's refusal to grant him a change of venue for trial. The motion was primarily based upon the fact that the Stubbs owned a local clothing store and practically all veniremen knew who the Stubbs were. The State did not present evidence in opposition to the motion.

¶6 Practically all those who were acquainted with the Stubbs were so because they had traded in their store. Some knew policemen and prosecutors. Practically all had read newspaper accounts of the incident.

¶7 The fact that jurors know the victims of a crime does not in itself demonstrate the need for a change of venue, just [732 P.2d 893] as the mere existence of pretrial publicity is insufficient. It is only when a criminal defendant establishes by clear and convincing evidence that a fair trial is a virtual impossibility that such a motion should be granted. Thomsen v. State, 582 P.2d 829 (Okl.Cr. 1978). A defendant is not entitled to a jury which is unacquainted with the victims or facts of his or her case.

¶8 An exhaustive voir dire was conducted at trial. Those who served on the jury stated they could fairly and impartially judge the case on the evidence presented. Those who formed opinions concerning appellant's guilt or doubted their ability to serve impartially were excused. We find there was adequate safeguard of the jury process, Frye v. State, 606 P.2d 599 (Okl.Cr. 1980), and the need for a change of venue was not established.

¶9 A venireman named Price was voir dired concerning his views of the death penalty. Initially he stated he was against the death penalty but would "go along with the rest of them" if appellant was convicted. Upon more penetrating examination, he stated he could not imagine a case in which he would vote for a sentence of death, regardless of the facts or the law. Appellant contends that since Price never retracted his statement that he would go along with the other jurors, his position concerning the death penalty was not clear and he should not have been excused for cause.

¶10 A juror's prejudice against the death penalty need not be demonstrated with "unmistakable clarity" before excusal for bias is proper. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). If a prospective juror's view of the death penalty would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath," he may properly be excused from capital sentencing juries. Id. Appellant was not denied a trial by an impartial jury because Price was excused.

III

¶11 Appellant contends there was insufficient evidence of a "breaking" to sustain the burglary conviction. But we disagree. It was his testimony at trial that Mrs. Stubbs came to the front door of her home and with rifle in hand, he and the black man pushed their way into the house. Photographs introduced at trial show that there was a glass and screen door as well as a wooden door at the front of the house on this March evening. Appellant testified that Mrs. Stubbs just backed away from them and then screamed. He admitted that they were not invited to come in by the victim.

¶12 The statute defining Burglary in the First Degree provides that the offense is committed by:

Every person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:

1) By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such window or shutter; or

2) By breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present. . . . (Emphasis added).

21 O.S. 1981 § 1431 [21-1431]. Appellant's own testimony provided sufficient circumstantial evidence of a "breaking" under the statute. Where there is evidence from which the jury can rationally conclude that a defendant is guilty of the charged offense, this Court will not interfere with their verdict. Spuehler v. State, 709 P.2d 202 (Okl.Cr. 1985).

¶13 He further argues that the jury was improperly instructed concerning the element of "breaking." In this regard, the court advised the jury that:

[T]he word `breaking' means any act of physical force, however slight, by which obstructions to entering are removed. [732 P.2d 894] Breaking may also occur when entry is obtained by any other manner, such as fraud, trick, or threats being armed with a dangerous weapon. (Emphasis added.)

The definition given is that set forth in the statute except for the italicized portion. The words "such as fraud, trick, or threats," were evidently added by the trial judge as an explanation of the statutory language "in any other manner." This is commonly referred to as "constructive breaking" and we hold that 21 O.S. 1981 § 1431 [21-1431] encompasses this definition of breaking.

¶14 In Tice v. State, 283 P.2d 872 (Okl.Cr. 1955), this Court stated in its syllabus that breaking may be either actual or constructive. This definition of breaking is also consistent with the common law. 4 Blackstone Commentaries, p. 226 (Christian's 15th Ed. 1809). Therefore, the instruction correctly stated the applicable law. Johnson v. State, 621 P.2d 1162 (Okl.Cr. 1980).

¶15 Appellant further contends in regard to the "breaking" instruction that the prosecutor misstated the law by arguing to the jury constructive breaking. Because of our disposition of the previous assignment, we hold this to be without merit.

¶16 Next, appellant assigns as error the refusal of the trial judge to grant a new trial based upon juror misconduct. Appellant for the first time suggested at the hearing on his Motion for New Trial that one of the jurors selected acted improperly at trial by telling a member of the victim's family that the case was in the bag since she got on the jury panel. The issue was not raised in the original or an amended motion for new trial. Defense counsel never divulged to the trial court the name of the witness or of the juror involved. Due to the surprise of the assignment and of the proffered evidence, the trial court refused to hear it because the assignment was not properly preserved.¹

¶17 This Court remanded this cause to the trial court to conduct an evidentiary hearing. At this hearing, the district court took the testimony of the juror alleged to have made the statement, the person to whom it was allegedly made, the person who overheard it, and that of five other jurors of the panel. The trial judge made a finding against juror misconduct. All the testimony except that of the person who allegedly overheard the statement indicated that it had not taken place. The individual who made the allegation of misconduct had a son who was married to appellant's sister. The trial judge noted that her sympathy toward the appellant may have led her to believe she heard something which she had not actually heard.

¶18 A criminal defendant has a right to an impartial jury. Okla. Const. art. 2, § 20 [2-20]. Juror misconduct is an appropriate ground for granting a new trial. 22 O.S. 1981 § 952 [22-952]. To be entitled to a new trial, a defendant must affirmatively show that the juror was actually prejudiced against him and that he suffered an injustice as a result. Parks v. State, 457 P.2d 818 (Okl.Cr. 1969); Odell v. State, 89 Okl.Cr. 184, 206 P.2d 229 (1949). The evidence of misconduct submitted in support of appellant's motion for new trial was insufficient to prove actual prejudice. The trial court allowed five of the jurors to be called and questioned concerning the attitude and behavior of the allegedly errant juror. They unanimously indicated she did not appear prejudiced against the appellant or for the victim. The trial court did not abuse its discretion in denying the motion.

VII

¶19 Appellant next contends that the trial court erred in not granting defense counsel [732 P.2d 895] access to the victim's husband's home where the homicide had occurred. He alleges that this denied him due process of law.

¶20 The hearing transcript reveals that the trial judge did not believe he had the authority to grant defense counsel the right to enter the private residence. He therefore declined to do so. The judge suggested, and appellant's counsel agreed, that Mr. Stubbs should just be requested to allow a viewing. The record does not indicate the results.

¶21 Appellant failed at the hearing, and now on appeal, to provide authority in support of his request. He concedes that there are no cases on point with his position. He analogizes a case in which this Court held a trial court erred in not ordering exhumation of the bodies of two murder victims to allow ballistic tests to be made. Quinn v. State, 54 Okl.Cr. 179, 16 P.2d 591 (1932). That case is clearly distinguishable since it concerned the gathering of important evidence not otherwise obtainable. Here there were photographs and a diagram introduced which portrayed the crime scene.

¶22 The record does not disclose whether trial counsel, who is not appellate counsel, was denied access to the property. He did not object to the course of action suggested by the trial court. Appellant has failed to establish preserved error which injured him. Smith v. State, 656 P.2d 277 (Okl.Cr. 1982).

VIII

¶23 The trial court allowed the prosecutor on rebuttal to show a film to the jury from a pretrial news broadcast which showed appellant moving up and down the arm which was shot by Mr. Stubbs. The defense had introduced testimony from a doctor who had examined appellant and who stated that appellant would have been incapable of firing shots back at Mr. Stubbs because of the injury to his arm. On rebuttal, the State presented the testimony of one of the doctors, Dr. Scott Malowney, who treated appellant the night he was shot. He stated that if appellant was able to move his arm up and down, he was probably able to use his arm immediately following his injury. At the time the film was made, and at trial, appellant wore a prosthesis on his wrist and fingers. Appellant complains that this was misleading because he could not have had the same range of motion immediately following the injury when he was without the prosthesis. Appellant also argues that the film should not have been admitted because it was irrelevant and it emphasized pretrial publicity. We disagree.

¶24 Appellant presented evidence that he would have been unable to shoot his rifle at Mr. Stubbs due to the injury Stubbs inflicted. The evidence was relevant to refute this assertion, his ability to shoot having been made a material fact. Cherry v. State, 544 P.2d 518 (Okl.Cr. 1975). As previously discussed, almost all the jurors were aware of pretrial publicity but stated they could set aside any opinions they held. Also, the appellant presented his own expert's testimony and cross-examined the State's expert concerning the change in his ability to use his arm without the prosthesis.

¶25 The admission of evidence at trial is a matter within the trial court's discretion. The ruling will not be disturbed in the absence of abuse of that discretion. Owens v. State, 665 P.2d 832 (Okl.Cr. 1983). We do not agree with appellant that the trial court abused its discretion.

¶26 Appellant contends that error occurred when the State called a rebuttal witness whose testimony tended to impeach the credibility of appellant's fiance, Sherry McComber. The testimony of Ms. McComber concerning whether she and appellant had entered a contract in Ada, Oklahoma to purchase wedding rings was disputed by the jeweler, Mr. Criswell, with whom they dealt.

¶27 We agree with appellant that the issue of whether an agreement to purchase the rings had actually been reached was a collateral issue and not a proper [732 P.2d 896] subject for rebuttal. Robison v. State, 430 P.2d 814 (Okl.Cr. 1967). However, we do not find actual prejudice to have resulted to appellant. Mills v. State, 594 P.2d 374 (Okl.Cr. 1979). Appellant's testimony contradicted Ms. McComber's on this point and her statement appears to have been only a misunderstanding of the transaction. We do not agree that a great deal of confusion was caused for the jurors. This assignment is without merit.

¶28 The defense called Dr. Lannie Anderson to testify concerning the injury to appellant's arm. Dr. Anderson is the surgeon who attempted to repair the damage to appellant's arm caused when Mr. Stubbs shot at the intruder. Mr. Stubbs said the intruder fired two more shots toward the door after he left the house. Appellant tried to prove by Dr. Anderson's testimony that he was unable to fire the .22 calibre rifle because of his wound.

¶29 On rebuttal, the State called Dr. Malowney to testify. He was the doctor who treated appellant in the emergency room in Ardmore and again after he returned from Oklahoma City where he had had surgery. He was also married to a woman who worked for the prosecutor. This fact was not made known to defense counsel. Appellant now asserts that this was exculpatory evidence which should have been made known to him citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

¶30 While impeachment evidence may be exculpatory and require disclosure, United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), it must also be material. In Bagley, the Supreme Court held that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 105 S.Ct. at 3384. The mere possibility that an item of undisclosed information might have helped the defense or affected the outcome does not establish materiality. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

¶31 As mentioned earlier, Dr. Malowney was called as a rebuttal witness and not in the State's case-in-chief. He was not sought out by the State as an expert witness, but happened to be one of the doctors treating appellant for his gunshot wound.

¶32 However, as an expert witness, he based his opinion on medical science. The fact that his wife worked in the district attorney's office does not indicate that Dr. Malowney had a direct, personal stake in appellant's conviction. Compare Bagley, supra (witnesses were to be compensated for their undercover work according to government's satisfaction with the results). There was only a possibility that this information might have helped the defense.

¶33 Appellant cites a number of comments made by the prosecutor and contends that they denied him due process of law. A review of the record reveals that there were no objections made to any of the cited comments and no requests that the trial court admonish the jury to disregard them. Due to appellant's failure to preserve error, we will review only for fundamental error. Rushing v. State, 676 P.2d 842 (Okl.Cr. 1984). Finding none, we hold this assignment to be without merit.

XII

¶34 Police officers arrived at the Stubbs' residence the evening of the homicide to find appellant lying by his truck in a weakened condition. He was taken to a hospital emergency room with a police officer in his company. After about thirty minutes, he made exculpatory statements concerning the shootings while in a "semi-conscious" state. The police officer did not interrogate appellant and testified at trial that Brecheen did not appear to be fully conscious until ten minutes later.

¶35 Appellant contends that since the statement was made while he was only [732 P.2d 897] semiconscious, it was not voluntary and should not have been admitted at trial.

¶36 Appellant does not claim that he was interrogated by the officer. Had he been, the answers may not have been admissible. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). When an individual freely and voluntarily offers relevant statements in a partly conscious state, the issue is the weight to be given the statements. This is a factor for the jury to decide. People v. Duncan, 72 Cal. App.2d 247, 164 P.2d 313 (1945); Sutton v. State, 237 Ga. 418, 228 S.E.2d 815 (1976). The jury was properly instructed that they should decide the weight to be given to his statements if they found the statements were made freely and voluntarily, i.e. "without coercion, force, threats or duress or inducement. . . ." There was no error.

XIII

¶37 The day after appellant was wounded, he made a second statement to another police officer who was standing guard at the hospital. He contends that the officer's presence in his weakened condition amounted to interrogation, and that he could not have made a voluntary statement. He claims his will to remain silent was overborne by the psychological pressure, citing Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

¶38 Appellant also contends that neither statement should have been admitted because their probative value was outweighed by their prejudicial effect. 12 O.S. 1981 § 2403 [12-2403]. This contention is premised on the fact that appellant's weakened condition caused the statements to be worthless. Both statements were exculpatory, but also conflicted somewhat with his testimony at trial. Both pertained to the course of events at the Stubbs' house the night of the homicide.

¶39 Again, the weight to be given each statement was for the jury to decide if the jury initially found them to be voluntary, as in fact the trial judge had. See the previous assignment. If there was psychological pressure, it was self-induced and not purposely imposed by law enforcement officers. It was certainly not the type the Supreme Court held to have disqualified the statement in Townsend v. Sain, supra.

XIV

¶40 The trial court gave the Uniform Jury Instruction (OUJI-CR-813) concerning voluntariness of statements. Appellant contends it was an incorrect instruction because it did not address a person's state of consciousness. Appellant did not object to the giving of this instruction at trial, nor did he offer a proposed instruction. Thus, error was not preserved. Stratton v. State, 643 P.2d 645 (Okl.Cr. 1982). Upon our review we find the instruction given adequately apprised the jury of the law concerning voluntariness. See the two previous assignments. There was no error.

¶41 This Court held in Knott v. State, 432 P.2d 128 (Okl.Cr. 1967), that when the State introduces into evidence the confession of an accused, it is bound by exculpatory statements contained therein unless shown by the evidence to be false. Appellant contends on appeal that the trial court erred in not giving this instruction to the jury as he had requested at trial.

¶42 While appellant cites Knott in support of his argument, we specifically limited our holding therein to instances where the State introduces the confession in its case-in-chief, and where the accused does not testify. Appellant testified at trial and denied making both statements. The instruction was not warranted upon these facts.

XVI

¶43 Appellant next argues that reversal was required by an accumulation of errors at trial. We have held numerous times that an accumulation of assignments of error will not warrant reversal if the individual assignments do not. E.g., [732 P.2d 898] Woods v. State, 674 P.2d 1150 (Okl.Cr. 1984).

XVII

¶44 Appellant, for the first time on appeal, argues that the trial court erred in not instructing the jury they could not consider impeachment evidence as proof of guilt or innocence. Yet appellant failed to object to the lack of such an instruction at trial and did not submit one to the trial court. This resulted in waiver at trial. Dodson v. State, 674 P.2d 57 (Okl.Cr. 1984). We note also that the impeaching evidence did not comprise a substantial portion of the State's case as it had in Leeks v. State, 95 Okl.Cr. 326, 245 P.2d 764 (1952). Compare Sykes v. State, 572 P.2d 247 (Okl.Cr. 1977) (if not requested and not substantial portion of State's case, not fundamental error).

XVIII

¶45 Appellant asserts he was denied effective assistance of counsel as guaranteed by the Sixth Amendment because his attorney failed to make objections during the prosecutor's closing argument or to request certain instructions be given to the jury. Such a general assignment of ineffectiveness does not begin to meet the test and standards of constitutional error established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Appellant must not only demonstrate a serious deficiency in counsel's performance, he must also show the deficiency prejudiced the defense so seriously as to make the result of trial unreliable. Id.; Coleman v. State, 693 P.2d 4 (Okl.Cr. 1984).

¶46 We have reviewed the record and cannot say that trial counsel's performance fell below that of reasonably effective counsel. Johnson v. State, 620 P.2d 1311 (Okl.Cr. 1980).

XIX

¶47 Appellant contends that there was no great risk of death to anyone other than the homicide victim and that to find the existence of this aggravating circumstance would be an overbroad and unconstitutional application of Oklahoma's death penalty statutes. He urges us to adopt the "distinct act" doctrine applied by the Georgia Supreme Court.² He claims that this is the only interpretation of this aggravating circumstance which can pass constitutional muster.

¶48 This Court has considered cases of similar facts to this one and have upheld the finding of this aggravating circumstance. In both of the following cases, the second person put at risk was not in the immediate vicinity of the party killed: Ross v. State, 717 P.2d 117, (Okl.Cr. 1986) and Cartwright v. State, 695 P.2d 548 (Okl.Cr. 1985), cert. denied, ___ U.S. ___, 105 S.Ct. 3538, 87 L.Ed.2d 661. In Ross, we noted also that the United States Supreme Court has upheld cases in which the sentence of death was so assessed under a statute similar to Oklahoma's. 717 P.2d at 123. This assignment is without merit.

¶49 Appellant requests this Court to compare his sentence to that imposed in similar cases, claiming it is disproportionate. Such a comparison is no longer required nor necessary. He cites us to cases in which the individual did not receive the death penalty. Appellant fails to take into account that the juries in those cases may have found the mitigating circumstances exceeded the aggravating. In such a case, the death penalty may not be imposed. 21 O.S. 1981 § 701.11 [21-701.11].

¶50 Additionally, the Legislature recently amended the review this Court is to make in death cases by deleting the proportionality review. 21 O.S.Supp. 1986 § 701.13 [21-701.13]. [732 P.2d 899] See Foster v. State, 714 P.2d 1031 (Okl.Cr. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 249, 93 L.Ed.2d 173.

XXI

¶51 Appellant next assigns as error the trial court's failure to give a particular instruction listing mitigating circumstances. At trial, appellant did not object to the instructions given nor request and submit any additional ones. Therefore, potential error was not preserved. Dodson v. State, 674 P.2d 57 (Okl.Cr. 1984).

¶52 The instructions given accurately stated the applicable law. Johnson v. State, 621 P.2d 1162 (Okl.Cr. 1980). There was no error.

XXII

¶53 Appellant contends the evidence of mitigating circumstances outweighed that of the one aggravating circumstance the jury found to exist.

¶54 The jury was specifically instructed that to be authorized to assess the death penalty, they must find an aggravating circumstance to exist beyond a reasonable doubt and that the aggravating circumstance outweighed the mitigating circumstances. 21 O.S. 1981 § 701.11 [21-701.11]. We find upon our review of the evidence that a rational trier of fact could have found beyond a reasonable doubt that appellant knowingly created a great risk of death to more than one person and that this circumstance was not outweighed by mitigating circumstances. Spuehler v. State, 709 P.2d 202 (Okl.Cr. 1985). There is no error.

XXIII

¶55 Appellant contends that Oklahoma's death penalty statutes in general (21 O.S. 1981, §§ 701.9-701.13 [21-701.9-701.13]) are being applied in an overbroad and, therefore, unconstitutional manner. We have upheld the application of these statutes against such charges in a number of cases: Liles v. State, 702 P.2d 1025 (Okl.Cr. 1985), cert. denied ___ U.S. ___, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986); Banks v. State, 701 P.2d 418 (Okl.Cr. 1985); Nuckols v. State, 690 P.2d 463 (Okl.Cr. 1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985); Boutwell v. State, 659 P.2d 322 (Okl.Cr. 1983). Appellant has not added any new light to cause us to change these holdings.

XXIV

¶56 As appellant's final assignment, he charges that the double jeopardy protections of the federal and the state constitutions are violated by his being convicted of both Burglary with Intent to Commit Murder and of Murder from the same transaction. We have previously held that burglary and other offenses committed within the structure burgled do not merge, and conviction of both does not violate double jeopardy protections. Ziegler v. State, 610 P.2d 251 (Okl.Cr. 1980). The burglary is complete upon entry with intent to commit a crime. 21 O.S. 1981 § 1431 [21-1431]. The offenses committed after entry are separate and distinct.

XXV

¶57 Our final review is assigned by 21 O.S.Supp. 1986 § 701.13 [21-701.13](C). As previously stated, we find that the evidence supports the jury's finding of the statutory aggravating circumstance that the appellant knowingly created a great risk of death to more than one person; that being Mr. Stubbs and the homicide victim, Mrs. Stubbs. We do not find the sentence to have been imposed under the influence of passion, prejudice, or any other arbitrary factor.

¶58 Finding no error warranting reversal or modification, judgments and sentences are AFFIRMED.

BRETT, P.J., concurs.

Footnotes:

¹ This rule requiring issues to be preserved in a motion for new trial was subsequently changed. 22 O.S.Supp. 1986 § 1054.1 [22-1054.1].

² The United States Supreme Court mentioned the statutory provision in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 2939, 49 L.Ed.2d 859 (1976). It requires that a weapon or device be used which in fact endangers more than one person at a time. Appellant argues that this circumstance could not be present in his case because his .22 caliber rifle was not powerful enough that a projectile could have exited the victim's body.

PARKS, J., specially concurring.

*****

PARKS, Presiding Judge, specially concurring:

¶1 Although I concur in the affirmance of the judgment and sentence of the [732 P.2d 900] appellant, I am compelled to address several instances of improper conduct on the part of the District Attorney for Carter County. First, the improper appeals to societal alarm asserting that, unless the appellant was punished, the community, county and State would be threatened with "chaos and anarchy" are clearly improper and unnecessary. See Cobbs v. State, 629 P.2d 368, 369 (Okl.Cr. 1981). See also Henderson v. State, 716 P.2d 691, 693 (Okl.Cr. 1986) (Parks, P.J., concurring in part, dissenting in part). Second, the prosecutor improperly asked the jury to punish the appellant "as vengeance for the family that is specifically hurt, vengeance for the community to set an example . . ." See Scott v. State, 649 P.2d 560, 564 (Okl.Cr. 1982) ("The vindication of community outrage has been criticized by this Court in Franks v. State, 636 P.2d 361 (1981).").

¶2 It is difficult to understand why the State would risk reversal or modification by making such clearly improper and unnecessary comments during closing argument. However, in light of the strong evidence of guilt, the failure to make timely objections and requests for admonishments to disregard, and the failure to show prejudice, it is unnecessary to reverse or modify the conviction. See Elvaker v. State, 707 P.2d 1205, 1207 (Okl.Cr. 1985); Brodbent v. State, 700 P.2d 1021, 1022 (Okl.Cr. 1985).

¶3 I also write separately to express my view that the application of 21 O.S.Supp. 1985 § 701.13 [21-701.13](C), which became effective July 16, 1985, to cases pending on appeal at the time the statute was passed renders the enactment an ex post facto law. See Green v. State, 713 P.2d 1032, 1041 n. 4 (Okl.Cr. 1985). See also Foster v. State, 714 P.2d 1031, 1042 (Okl.Cr. 1986) (Parks, P.J., specially concurring). Nevertheless, I have compared the sentences imposed herein with those previous cases either affirmed¹ or modified² by this Court, and find the sentence to be proper.

Footnotes:

¹ Smith v. State, 727 P.2d 1366 (Okl.Cr. 1986); Thompson v. State, 724 P.2d 780 (Okl.Cr. 1986); Walker v. State, 723 P.2d 273 (Okl.Cr. 1986); Van Woundenberg v. State, 720 P.2d 328 (Okl.Cr. 1986); Newsted v. State, 720 P.2d 734 (Okl.Cr. 1986); Brewer v. State, 718 P.2d 354 (Okl.Cr. 1986); Ross v. State, 717 P.2d 117 (Okl.Cr. 1986); Bowen v. State, 715 P.2d 1093 (Okl.Cr. 1984); Foster v. State, 714 P.2d 1031 (Okl.Cr. 1986); Green v. State, 713 P.2d 1032 (Okl.Cr. 1985); Liles v. State, 702 P.2d 1025 (Okl.Cr. 1985); Banks v. State, 701 P.2d 418 (Okl.Cr. 1985); Cooks v. State, 699 P.2d 653 (Okl.Cr. 1985); Cartwright v. State, 695 P.2d 548 (Okl.Cr. 1985); Brogie v. State, 695 P.2d 538 (Okl.Cr. 1985); Stout v. State, 693 P.2d 538 (Okl.Cr. 1985); Nuckols v. State, 690 P.2d 463 (Okl.Cr. 1984); Robison v. State, 677 P.2d 1080 (Okl.Cr. 1984); Dutton v. State, 674 P.2d 1134 (Okl.Cr. 1984); Stafford v. State, 669 P.2d 285 (Okl.Cr. 1983); Coleman v. State, 668 P.2d 1126 (Okl.Cr. 1983); Stafford v. State, 665 P.2d 1205 (Okl.Cr. 1983); Davis v. State, 665 P.2d 1186 (Okl.Cr. 1983); Ake v. State, 663 P.2d 1 (Okl.Cr. 1983); Parks v. State, 651 P.2d 686 (Okl.Cr. 1982); Jones v. State, 648 P.2d 1251 (Okl.Cr. 1982); Hays v. State, 617 P.2d 223 (Okl.Cr. 1980); Chaney v. State, 612 P.2d 269 (Okl.Cr. 1980), modified on other grounds subnom. Chaney v. Brown, 730 F.2d 1334 (10th Cir. 1984).

² Parker v. State, 713 P.2d 1032 (Okl.Cr. 1985); Kelly v. State, 692 P.2d 563 (Okl.Cr. 1984); Eddings v. State, 616 P.2d 1159 (Okl.Cr. 1980), modified, 688 P.2d 342 (Okl.Cr. 1984); Morgan v. State, No. F-79-487 (Okl.Cr. Nov. 14, 1983) (Unpublished); Johnson v. State, 665 P.2d 815 (Okl.Cr. 1982); Glidewell v. State, 663 P.2d 738 (Okl.Cr. 1983); Jones v. State, 660 P.2d 634 (Okl.Cr. 1983); Driskell v. State, 659 P.2d 343 (Okl.Cr. 1983); Boutwell v. State, 659 P.2d 322 (Okl.Cr. 1983); Munn v. State, 658 P.2d 482 (Okl.Cr. 1983); Odum v. State, 651 P.2d 703 (Okl.Cr. 1982); Burrows v. State, 640 P.2d 533 (Okl.Cr. 1982); Franks v. State, 636 P.2d 361 (Okl.Cr. 1981); Irvin v. State, 617 P.2d 588 (Okl.Cr. 1980).

485 U.S. 909

Robert A. BRECHEEN
v.
OKLAHOMA.

No. 86-7002

Supreme Court of the United States

February 29, 1988

On petition for writ of certiorari to the Court of Criminal Appeals of Oklahoma.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

This Court has insisted that an accused be tried by "a public tribunal free of prejudice, passion, excitement, and tyrannical power." Chambers v. Florida, 309 U.S. 227, 236-237, 476-477 (1940). We have recognized that failure to ensure the impartiality of a jury "violates even the minimal standards of due process." Irvin v. Dowd, 366 U.S. 717, 722, 1642 (1961). The Oklahoma court's denial of petitioner's unopposed motion for change of venue raises serious doubts about whether those minimal standards were met in this case. These doubts demand that we undertake two separate inquiries. First, we must consider whether and to what extent our precedents regarding jury impartiality set constitutional limits on state change of venue standards. Second, we must address the proper application of those precedents to the unique setting of capital sentencings.

On March 23, 1983, Marie Stubbs, wife of Hilton Stubbs, a prominent storekeeper in Ardmore, Oklahoma, was shot and killed in her home. The murder and the subsequent arrest of petitioner Robert Brecheen were the subject of extensive local newspaper and television coverage. Ardmore, which has a population of approximately 25,000, is located in Carter County, which has a population of approximately 40,000.

Petitioner's attorney filed a motion, accompanied by affidavits, for change of venue from Carter County. Although the motion was unopposed, the trial judge refused to grant it after conducting voir dire. The jury that was finally empaneled contained one person who knew the victim, one

Page 485 U.S. 909 , 910

who knew the victim's daughter, and three who knew the victim's husband. All but one of the jurors were customers at the Stubbs' family store. Three jurors knew the prosecuting attorney and three knew officers who would testify for the prosecution. All of the jurors had heard of the case through pretrial publicity. The jury convicted petitioner of burglary and homicide and sentenced him to death.

On appeal, petitioner challenged, inter alia, the trial court's refusal to grant him a change of venue. The Oklahoma Court of Criminal Appeals rejected petitioner's claim, holding that "[i]t is only when a criminal defendant establishes by clear and convincing evidence that a fair trial is a virtual impossibility that such a motion should be granted ." App. to Pet. for Cert. 2.

This Court has established that a refusal to grant a motion for change of venue may constitute a violation of due process. See Groppi v. Wisconsin, 400 U.S. 505 (1971); Rideau v. Louisiana, 373 U.S. 723 (1963); Irvin v. Dowd, supra. A defendant seeking to establish such a violation must demonstrate either that his trial resulted in "identifiable prejudice" or that it gave rise to a presumption of prejudice because it involved "such a probability that prejudice will result that it is deemed inherently lacking in due process." Estes v. Texas, 381 U.S. 532, 542-543, 1632-1633 (1965). In deciding whether such a presumption of prejudice is warranted, courts must examine "any indications in the totality of circumstances that petitioner's trial was not fundamentally fair." Murphy v. Florida, 421 U.S. 794, 799, 2036 (1975).

We have had little occasion to apply these basic principles to determine whether particular state standards for change of venue comport with the requirements of due process. Most of our precedents regarding due process and jury neutrality consist of careful examinations of the circumstances surrounding specific trials to determine whether they give rise to a presumption of prejudice. See, e.g., Sheppard v. Maxwell, 384 U.S. 333 (1966); Turner v. Louisiana, 379 U.S. 466 (1965). Although we did strike down one state venue statute which categorically denied change of venue for misdemeanors, see Groppi v. Wisconsin, supra, we have not considered any other wholesale restrictions on venue change.

Page 485 U.S. 909 , 911

In this vacuum of constitutional precedent, States have taken divergent paths. Most States have followed the well-trod course of granting motions for venue change when the totality of the circumstances establish " 'a reasonable likelihood that in the absence of such relief, a fair trial cannot be had.' " Martinez v. Superior Court, 29 Cal.3d 574, 577-578, 174 Cal.Rptr. 701, 702, 629 P.2d 502, 503 (1981) (quoting Maine v. Superior Court, 68 Cal.2d 375, 383, 66 Cal.Rptr. 724, 729, 438 P.2d 372, 377 (1968)). The Martinez court defined "reasonable likelihood" as a lesser standard of proof than "more probable than not." 29 Cal.3d at 578, 174 Cal.Rptr. at 702, 629 P.2d at 503. See also People v. Gendron, 41 Ill. 2d 351, 243 N.E.2d 208 (1968) (adopting "reasonable likelihood" standard), cert. denied, 396 U.S. 889 (1969); State v. Cuevas, 288 N.W.2d 525 (Iowa 1980) (same); State v. Beier, 263 N.W.2d 622 ( Minn.1978) (same). Other States have decided to grant change of venue motions when the circumstances establish a substantial likelihood of prejudice. See, e.g., Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066, cert. denied, 449 U.S. 840 (1980). The American Bar Association has explicitly endorsed this latter approach in its Standards Relating to Fair Trial and Free Press 8-3.3(c) (2d ed. 1980 ). Oklahoma, however, diverges sharply from its sister States in setting a much higher threshold for granting a change of venue motion, requiring " clear and convincing evidence" that a fair trial is a "virtual impossibility."

In my view, Oklahoma's strong presumption against venue change fails to accommodate properly the concerns expressed in our due process precedents. Those precedents implicitly acknowledge that the defendant's interest in a fundamentally fair trial outweighs the State's interest in holding that trial in a particular district. Oklahoma's standard is out of step with this Court's repeated recognition that "our system of law has always endeavored to prevent even the probability of unfairness." In re Murchison, 349 U.S. 133, 136, 625 (1955) ( emphasis added), quoted in Sheppard v. Maxwell, supra, 384 U.S. at 352, 86 S.Ct. at 1517; Estes v. Texas, supra, 381 U.S. at 543, 85 S.Ct. at 1633.

We frequently have invoked the opinion of Chief Justice Taft 50 years ago, which held that "[e]very procedure which would offer a possible temptation to the average man . . . to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law." Tumey v. Ohio, 273 U.S. 510, 532, 444 (1927) (emphasis added), cited in Irvin v. Dowd, supra, 366 U.S. at 722, 81 S.Ct. at 1642; Estes v. Texas,

Page 485 U.S. 909 , 912

supra, 381 U.S. at 543, 85 S.Ct. at 1633. We should grant certiorari to establish clearly the minimal requirements of the Due Process Clause for state change of venue standards.

III

Our prior precedents have left a second gap of perhaps even more importance. We have failed to give any guidance as to the circumstances that might give rise to a presumption of prejudice in the sentencing phase of a bifurcated capital trial. Our cases have dealt exclusively with factors that might influence the jury in its fact-finding function when it makes determinations of guilt or innocence. We held, for example, that the pretrial broadcast of a defendant in the act of confessing to the charged crime inherently prejudiced the jury's ability to evaluate objectively his guilt. See Rideau v. Louisiana, supra.

Similarly, we held that when key government witnesses doubled as official guardians of the jury during deliberations, the ability of the jury to assess witness credibility was presumptively prejudiced. See Turner v. Louisiana, supra. But the influences that might impair the truth-seeking function of the jury in guilt determinations are not identical to those that impinge on its responsibility to administer fairly the death penalty.

This case demonstrates that lack of congruence. The fact that many of the jurors knew the victim or members of the victim's family might not presumptively establish the fundamental unfairness of the guilt proceedings. There may be little reason to doubt the testimony of such jurors at voir dire that they could put aside their knowledge of the consequences of the crime in order to establish the facts of its commission. But the jury wears an altogether different hat when it sits as sentencer. It must make a moral decision whether a defendant already found guilty deserves to die for his crime. As we have previously recognized, the function of the sentencing jury is to "express the conscience of the community on the ultimate question of life or death." Witherspoon v. Illinois, 391 U.S. 510, 519, 1775d 776 (1968).

When a jury is composed, as this petitioner's was, of people who are personally familiar with the consequences of a defendant's crime, it cannot perform this function in an impartial manner. We held as much just last Term, when we declared that the Eighth Amendment forbids the introduction of a victim impact statement during the sentencing phase of a capital trial. We concluded that a description of the effects of the murder on the victim's family and friends

Page 485 U.S. 909 , 913

was too likely to inflame the jury and lead to a sentence based on caprice or emotion rather than reason. See Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529 (1987). Surely empaneling a jury with personal knowledge of these effects would have much the same result. The likelihood of such a result should give rise to a presumption of prejudice during the sentencing phase, just as extensive news coverage might establish that presumption in the guilt phase.

This petition raises two important issues that call for this Court's review. We must establish what the Due Process Clause requires of state legislatures and courts in formulating general standards for change of venue. Oklahoma's strong presumption against granting such motions raises serious concerns about the fundamental fairness of its criminal proceedings. In addition, we must recognize and rule on the difference between the guilt and penalty phases of a capital trial for the purpose of presuming prejudice when jury impartiality is called into question. This distinction is required not because death is a qualitatively different penalty from any other (although it is), but because the jury's function is profoundly altered when it sits as sentencer.

BRECHEEN v. STATE

1992 OK CR 42
835 P.2d 117
Case Number: PC-89-183
Decided: 06/29/1992

Oklahoma Court of Criminal Appeals

An Appeal from the District Court of Carter County; Woodrow George, District Judge.

Robert Allen Brecheen, Appellant, was convicted of First Degree Murder and Burglary in the First Degree in the District Court of Carter County, Case No. CRF-83-127. He was sentenced to death for the murder and received a sentence of twenty years for the burglary. Both convictions were affirmed by this Court following Petitioner's direct appeal. Brecheen v. State, 732 P.2d 889 (Okl.Cr. 1987) cert. denied 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 244 (1988). The trial court's decision to deny post-conviction relief is AFFIRMED.

Gloyd L. McCoy, Deputy Appellate Public Defender, Scott W. Braden, Asst. Appellate Public Defender, Allen Smith, Sp. Asst. Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Sandra Diane Howard, A. Diane Hammons, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

LANE, Presiding Judge:

¶1 Petitioner, Robert A. Brecheen, was convicted of Murder in the First Degree and Burglary in the First Degree in the District Court of Carter County, Case No. CRF-83-127. The crimes occurred when Petitioner was discovered during his burglary of the Ardmore home of Marie and Hilton Stubbs. The prosecution contended that the crimes were in retaliation for Mr. Stubbs' refusal to lend money to Petitioner. Petitioner claimed that he was forced to commit the crimes by an unidentified black man. Following the jury's guilty verdict, Petitioner was sentenced to death for the murder of Mrs. Stubbs and ordered to serve a term of twenty years for the burglary. Both convictions were affirmed by this Court following Petitioner's direct appeal. Brecheen v. State, 732 P.2d 889 (Okl.Cr. 1987), cert. denied 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 244 (1988).

¶2 In this first application for post-conviction relief, Petitioner has raised eleven allegations of error. Our consideration of these claims will be strictly limited by the statutory rules which establish our authority in post-conviction matters, 22 O.S. 1981 § 1086 [22-1086]. We held in Jones v. State, 704 P.2d 1138 (Okl.Cr. 1985), that the provisions of Section 1080 are to be applied only those claims which, for whatever reason, could not have been raised on direct appeal. Id. at 1140. See also Johnson v. State, 823 P.2d 370 (Okl.Cr. 1992); Banks v. State, 810 P.2d 1286 (Okl.Cr. 1991). In keeping with this authority, we will address only those propositions which could not have been brought at the time of the direct appeal. All other allegations are not properly before the Court.

¶3 Our consideration of the claims before us indicate that review is appropriate only with respect to three of the propositions, two of which concern jury selection and a third dealing with exculpatory evidence.¹ We consider these claims only because of either an intervening change in the law or because of some circumstance which occurred that was not known (or could not have been discovered) at the time of the direct appeal.

¶4 Petitioner has raised a number of issues involving the trial court's denial of his request for a change of venue and how that denial adversely affected his ability to obtain a fair trial before an impartial jury. Although we discussed the merits of related propositions raised in the direct appeal, we feel compelled at this point to note that in actuality, any complaint which Petitioner may have about the composition of his jury must be considered waived due to his waiver of preemptory challenges at trial.

¶5 Following the exercise of his seventh of nine preemptory challenge, Petitioner declined to employ his remaining two challenges. At that point, the twelve jurors seated in the box were deemed acceptable and were sworn to try the case. As was the case in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), Petitioner may not complain about the specific composition of his jury, having dispensed with the opportunity to remedy the situation at the trial level. His claim then, that he was forced to use one of his challenges to excuse a potential juror, is totally lacking in significance, given the fact that he did not utilize all the challenges allowed by law. Id.

¶6 On another level, Petitioner's complaints concerning the general makeup of his jury are directed to the fact that the majority of those called to potentially serve on the jury were in some way familiar with the victim of this crime or her family. We will assume that this contention is general to the jury panel, rather than specific to individual jurors. The concern seems to be not that any single person on the jury was directly unacceptable in any articulable way, but that the prevalent familiarity² with the victims, who owned a popular western wear store, coupled with knowledge of pretrial publicity culminated in a denial of due process. We find that due to a subsequent change in the standard under which such a claim must be reviewed, this issue is properly before us at this time.

¶7 Although several allegations of error were asserted with respect to the voir dire process as a part of the direct appeal, Petitioner properly points out that since the decision was rendered in his case, this Court has substantially changed the standard of review which is applied to questions of fair venue. At the time his appeal was considered, this Court utilized a relatively strict test when considering claims that a different venue should have been allowed when there has been extensive pretrial publicity in the county where the crime occurred. In connection with this Court's affirmation of the trial court's denial of Petitioner's request for a change of venue, we held that such a change is warranted only "when a criminal defendant establishes by clear and convincing evidence that a fair trial is a virtual impossibility." Brecheen, 732 P.2d at 893.

¶8 Subsequent to our denial of Petitioner's claims on appeal, we considered the same issue in Coates v. State, 773 P.2d 1281 (Okl.Cr. 1989). In that case, rather than considering whether selection of an impartial jury was a "virtual impossibility," we applied a two step test derived from previous cases by this Court in conjunction with dictates from the Supreme Court. The first prong of the analysis requires a finding that "`the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings.'" Coates, 773 P.2d at 1286, quoting Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975). If the media involvement in the case is rampant, prejudice is presumed.

¶9 The second level of inquiry is more incorporeal in that it requires an examination of the entire process to determine whether or not the defendant received a "`fundamentally fair' trial." Id. quoting Brown v. State, 743 P.2d 133, 136 (Okl.Cr. 1987). This determination must go farther than a simple consideration of whether or not each juror has promised to "set aside his opinion and consider only the evidence presented at trial." Id.

¶10 In the present case, we need not reconsider the issue of venue in any great detail. Although it is quite true that almost all of the seated jurors had some knowledge of the victim in this case due to her store ownership, and had some media exposure to the facts underlying the charges, there is no indication that the influence of the media "pervaded the process" or that the jury selected was "inherently unfair." None of the jurors actually seated were acquaintances of the victim, but had merely been customers in a store bearing her name. Likewise, though most recalled reading about the crime, none recalled specific details and all related that the reports would not influence their decision making or fact finding processes.

¶11 Although we have changed the standard of review to some extent, we have not changed the ultimate fact that a fair jury does not necessarily require totally uninformed jurors. We held in Petitioner's direct appeal, that "a defendant is not entitled to a jury which is unacquainted with the victims or the facts of his or her case." Brecheen, 732 P.2d at 893. See also McBrain v. State, 764 P.2d 905 (Okl.Cr. 1988); Wilkett v. State, 753 P.2d 383 (Okl.Cr. 1988). Having applied the doctrines of Coates, we conclude that while the jury was not totally ignorant of the facts and circumstances behind this case, the trial court's decision to retain venue in Carter County was correct and no relief is warranted on this ground.³

¶12 Our consideration of the claims made in Petitioner's tenth proposition is limited to consideration of whether his assertion that he was denied access to material evidence which would have a substantial impact on the veracity of the jury's verdict should be barred by his failure to raise it previously. Specifically, he now seeks additional review of the trial court's original refusal to allow his counsel admittance to the Stubbs home prior to the trial as well as our holding on direct appeal, that the trial court's decision was not error given that extensive pictures of the crime scene existed in addition to a diagram of the home.

¶13 Petitioner claims that additional bullet holes were found in the house, the existence of which was not disclosed to the defense, and that his investigator has discovered a witness who heard a police dispatch that a black man was in the area near the shooting. The evidence of additional bullet holes, presented by affidavit to the trial court, was disputed by several witnesses including the victim's husband. The trial court found, after careful consideration of the evidence presented that:

[t]his claim is disputed by the affidavit of the person allegedly discovering this evidence. Additionally, even if the evidence did exist, the response filed by the District Attorney reveals it was not known to the prosecutor and would have been equally discoverable by the defense with the exercise of diligence. For these reasons this allegation is meritless.

O.R. 458.

¶14 Petitioner claims that the trial court erred by making this decision without benefit of an evidentiary hearing on the issue. In Johnson, 823 P.2d at 373, we held that "[t]he statutory section in question, 22 O.S. 1981 § 1084 [22-1084], provides that an evidentiary hearing will only be required `if the application cannot be disposed of on the pleadings and record, or there exists a material issue of fact.'" As was true in Johnson, there is no indication by the trial court that any issues were presented which demanded an evidentiary hearing. The record demonstrates that the trial court considered all the evidence presented in reaching its decision. There is no allegation of additional evidence which should have been or would have been presented had an evidentiary hearing been undertaken. We find no reason presented sufficient to overcome the trial court's findings that this issue should be considered barred for failure to raise it in a timely manner.

¶15 We come to the same conclusion with respect to the allegations concerning the witness who claims to have heard a police dispatch about a black man in the area of the shooting. No reason is given why due diligence would not have discovered this witness prior to trial. Additionally, we find that the evidence (which is presented to us as hearsay on hearsay) would have been merely cumulative to the substantial evidence presented by Petitioner in connection with his defensive claim that he was forced into the Stubbs' home by an unidentified black man. The trial court also held that this claim was barred and we support that finding.

¶16 We have thoroughly reviewed the claims made by Petitioner in this Application for Post-Conviction Relief. We find that the bulk of the assertions are barred because of the failure to raise them in any earlier forum. Accordingly, we find no reason to deviate from the trial court's denial of relief. We further find that Appellant has exhausted his state remedies, having pursued both a direct appeal and post-conviction relief.

LUMPKIN, V.P.J., and BRETT and PARKS, JJ., concur.

JOHNSON, J., concurs in result.

*****

Footnotes:

¹ The other allegations of error were either considered and rejected at the direct appeal or should have been raised at that point but were not:

Proposition II, concerning the assistance of counsel during the second stage of the trial was not raised during the direct appeal, notwithstanding similar allegations with respect to the first stage proceedings. No compelling explanation for the late raising is offered.

Proposition III is merely an attempt to obtain review of comments made by the prosecutor. Relief on this ground was rejected on direct appeal. 732 P.2d at 898.

Proposition V concerns the so called "anti-sympathy" instruction. No claim was made in this regard on appeal.

Proposition VI and VII concern the appropriateness of the death sentence in a case where only one aggravating factor is alleged. The claim was rejected on direct appeal. 732 P.2d at 898.

Proposition VIII challenges the constitutionality of the aggravating circumstance found by the jury. The argument was previously considered and rejected by this Court. 732 P.2d at 898.

Proposition IX alleges that additional instructions should have been given to the jury in the second stage. This should have been brought up on direct appeal and is therefore waived.

Proposition XI concerns misconduct by a juror which was the subject of an evidentiary hearing ordered by this Court prior to the decision in the direct appeal. The issue was raised by supplemental brief and considered in the original opinion rendered in the case. Any additional arguments in this regard should have been raised at that time.

² Of the thirty nine veniremen called, at least twenty-eight had been customers in the store at some time. Most had read or heard some report of the crime.

³ Based on our finding that the jury was not unfairly influenced by either their knowledge of the victim or pretrial publicity, we see no need to review the effect that the lack of mitigating evidence may have had in accumulation with the above. We have otherwise dispensed with the allegations concerning the amount of mitigating evidence offered on the basis that such concerns should have been raised on direct appeal.

41 F.3d 1343

Robert A. Brecheen, Petitioner-appellant,
v.
Dan Reynolds, Warden of the Oklahoma State Penitentiary,
respondent-appellee

United States Court of Appeals, Tenth Circuit.

Oct. 14, 1994

Before BALDOCK, BRORBY and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

Robert Allen Brecheen appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254, along with the denial of his request for a stay of execution pursuant to 28 U.S.C. Secs. 1651, 2251. Mr. Brecheen contends the district court failed to recognize several asserted constitutional errors relating to his murder conviction and corresponding death sentence. In this appeal, we are called upon to reexamine those asserted errors, which include the denial of a fair trial because of the denial of motion for change of venue and because of prosecutorial misconduct, denial of a fair sentencing phase because of ineffective assistance of counsel, insufficient mitigating instructions, and overbroad application of aggravating factors. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and we grant Mr. Brecheen's request for a certificate of probable cause pursuant to 28 U.S.C. Sec. 2253. Finding no basis to grant relief, however, we affirm the district court's denial of Mr. Brecheen's petition.

BACKGROUND

Mr. Brecheen was convicted by a jury of first degree murder and first degree burglary.¹ The jury imposed the death penalty after it found the existence of one aggravating circumstance, namely, that Mr. Brecheen knowingly created a great risk of death to more than one person. See Okla.Stat. tit. 21, Sec. 701.12(2).

Mr. Brecheen was found guilty of killing Marie Stubbs in her living room one evening in March of 1983. From the bedroom, her husband, Hilton Stubbs, saw her fall to the floor. He then reached for his gun and rolled from his bed onto the bedroom floor. After the intruder came to the bedroom and fired into the empty bed, Mr. Stubbs fired at the intruder.

The two exchanged fire once again as the intruder left the house and headed north. Though Mr. Stubbs could not identify the intruder, Mr. Brecheen was found by police approximately two hundred yards north of the Stubbs' house, severely wounded. At trial, Mr. Brecheen admitted to being present in the house and holding the gun that killed Mrs. Stubbs. He explained he was forced to the Stubbses' house by an unidentified man who also forced him to carry a gun to the door. The defense argued the gun went off accidentally.

On direct appeal, the Oklahoma Court of Criminal Appeals² affirmed his conviction and sentence of death.³ Brecheen I, 732 P.2d at 899. Mr. Brecheen then sought postconviction relief in the Oklahoma state courts.⁴ The state district court denied relief after holding an evidentiary hearing on the question of ineffective assistance of counsel at the sentencing phase. The Oklahoma Court of Criminal Appeals affirmed the denial of postconviction relief after finding that the bulk of Mr. Brecheen's alleged errors were, or could have been, raised on direct appeal and were therefore not subject to review under Okla.Stat. tit. 22 Sec. 1086.⁵ Brecheen v. State, 835 P.2d 117, 121 (Okla.Crim.App.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1063, 122 L.Ed.2d 368 (1993) (Brecheen II ).

Mr. Brecheen thereafter filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Oklahoma. In an order dated June 30, 1994 (No. CIV 94-318-S), the Chief Judge of the district denied Mr. Brecheen's petition and his motion for a stay of execution, which had been set for July 6, 1994. On July 1, 1994, we granted Mr. Brecheen's emergency application for a temporary stay of execution to allow for the appointment of counsel, along with expedited appeal and oral argument. See Coleman v. Brown, 753 F.2d 832, 833 (10th Cir.1985).

On appeal to this court, Mr. Brecheen reasserts the six arguments offered in his petition for a writ of habeas corpus in the federal district court: (1) denial of fair trial based on the trial court's denial of his motion for a change of venue; (2) denial of a fair trial due to prosecutorial misconduct; (3) violation of due process during sentencing for failure to offer a "presumption of life" instruction; (4) violation of the Eighth Amendment during sentencing for overbroad use of a statutory aggravating circumstance; (5) ineffective assistance of counsel during the sentencing phase; and (6) cumulative error. We address these claims seriatim.

DISCUSSION

Mr. Brecheen initially claims that the state trial court erred in denying his motion for a change of venue. He claims that under the facts of this case, the actions of the state trial court amounted to a denial of his right to a fair trial by impartial jurors under the Sixth and Fourteenth Amendments. He further alleges that the standard applied by the appellate court in reviewing the state trial courts' change of venue decisions is similarly unconstitutional as a violation of due process.

Before jury selection, Mr. Brecheen moved for a change of venue from Carter County, Oklahoma, specifically from the town of Ardmore where the crime had occurred. Counsel for Mr. Brecheen claimed local and statewide newspaper and television accounts contained statements of facts that were still disputed and could be misconstrued by potential jurors as undisputed. As counsel explained, though, "we don't take the position that this pretrial publicity has been outlandish or there has been any undue or prejudicial invasion of Mr. Brecheen's rights.... [T]he problem is a good bit more subtle." The trial court reserved judgment on the motion until after making an attempt to seat a jury. During voir dire, an additional concern for defense counsel arose as most venirepersons indicated they had been past customers of the victim's western wear shop in town.

All potential jurors were asked by the trial court about their relationship with the victim and her husband, of their awareness of various media accounts, and whether such knowledge would impair their ability to reach an impartial decision. Both the prosecuting and defense attorneys also inquired along these lines. Eleven of the thirty-nine venirepersons were excluded for cause because of their exposure to pretrial publicity or friendship with the victim and her family. Of the jurors finally empaneled, all but one were prior customers of the victim's store. One juror knew the victim's daughter in a business context. All jurors were exposed to media accounts of the crime, but some expressed doubt at their ability to recall details from those accounts. One juror admitted to forming an opinion during his reading of the account but stated he could dismiss that opinion once the trial began. All jurors were asked, at least twice, whether such knowledge would influence their judgment, and all responded negatively. Defense counsel waived two peremptory challenges as the jurors were seated.

Following the empaneling, the trial court held another hearing to rule on the motion for change of venue and concluded the jurors' promises of impartiality could be trusted. This decision was affirmed on direct appeal.

An exhaustive voir dire was conducted at trial. Those who served on the jury stated they could fairly and impartially judge the case on the evidence presented. Those who formed opinions concerning appellant's guilt or doubted their ability to serve impartially were excused. We find there was adequate safeguard of the jury process ... and the need for a change of venue was not established.

Brecheen I, 732 P.2d at 893 (citation omitted). During state postconviction proceedings, the Oklahoma Court of Appeals again affirmed. "[W]hile the jury was not totally ignorant of the facts and the circumstances behind this case, the trial court's decision to retain venue in Carter County was correct and no relief is warranted on this ground." Brecheen II, 835 P.2d at 120. The federal district court rejected this argument as well, concluding that under applicable Supreme Court precedent, Mr. Brecheen's right to due process was not violated by the denial of his motion to change venue. We agree.

Our review of a state trial court's rulings on juror impartiality is "limited to enforcing the commands of the United States Constitution." Mu'Min v. Virginia, 500 U.S. 415, 422, 111 S.Ct. 1899, 1903, 114 L.Ed.2d 493 (1991). A federal habeas court may reverse a state trial court's findings only upon a showing of " 'manifest error.' " Id. at 428, 111 S.Ct. at 1907 (quoting Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2888-89, 81 L.Ed.2d 847 (1984)); Church v. Sullivan, 942 F.2d 1501, 1518 (10th Cir.1991). Part of the rationale behind the limited nature of federal review of a state trial court's findings is that "[t]he state trial judge had the benefit of observing the general demeanor of the jurors as the basis for his general finding." Church, 942 F.2d at 1519; see also Patton, 467 U.S. at 1038, 104 S.Ct. at 2892-93 (trial court's resolution of demeanor is entitled to "special deference").

Therefore, a habeas petitioner seeking to establish this type of due process violation must demonstrate either that the trial resulted in actual prejudice or that it gave rise to a presumption of prejudice because it involved "such a probability that prejudice will result that it is deemed inherently lacking in due process." Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965). Mr. Brecheen points to no actual hostility or impartiality by the jurors; therefore, we limit our discussion to whether Mr. Brecheen availed himself of a presumption of prejudice.

We do not read Mr. Brecheen's argument to depict the inflammatory local media publicity as is found in several Supreme Court decisions. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (due process violation from five volumes of news clippings, accommodation for the press in the courthouse and courtroom, publication of potential juror's names and addresses allowing the public to contact potential jurors pretrial); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (defendant's filmed confession repeatedly broadcast on the local television news of the small town); Estes, 381 U.S. 532, 85 S.Ct. 1628 (eleven volumes of press clippings, pretrial hearings broadcast on local television). We agree with the federal district court that there is no indication from review of the newspaper accounts or from defense counsel's depictions, during the pretrial and post-voir dire hearings, that the influence of the media so pervaded the proceedings as to deny Mr. Brecheen due process.

In the absence of pervasive media influence, then, a presumption of prejudice may be based upon "indications in the totality of the circumstances that petitioner's trial was not fundamentally fair." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). Fundamentally unfair circumstances may be indicated by an inflammatory atmosphere within the community or courtroom, by specific statements of jurors, or by the difficulty with which an impartial panel was selected. Id. at 800-03, 95 S.Ct. at 2036-38. Under a manifest error standard, however, " '[t]he relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.' " Mu'Min, 500 U.S. at 430, 111 S.Ct. at 1908 (quoting Patton, 467 U.S. at 1035, 104 S.Ct. at 2890-91).

Observing the entire record, we find no evidence of a fundamentally unfair proceeding. As in Mu'Min, "[t]he voir dire examination conducted by the trial court in this case was by no means perfunctory." Mu'Min, 500 U.S. at 431, 111 S.Ct. at 1908. The trial court responded to petitioner's pretrial motion with extensive voir dire and fulfilled his obligation by making a specific finding that the panel's statements of impartiality could be trusted. See Mu'Min, 500 U.S. at 425, 111 S.Ct. at 1905 (noting that the trial court must ultimately decide whether a juror's statements of impartiality are "to be believed"); id. at 427, 111 S.Ct. at 1906 (stating that the trial court has "wide discretion" in conducting voir dire and noting that "primary reliance on the judgment of the trial court makes good sense").

Only one colloquy with a potential juror raises a momentary concern. One potential juror admitted he had formed a prior opinion while reading a newspaper story describing the crime. With questioning from defense counsel, though, the potential juror clearly stated he could "approach the trial without an opinion as to [Mr. Brecheen's] guilt or innocence." Defense counsel did not request the potential juror be excused for cause, nor did he elect to use a peremptory challenge for this potential juror.

We are satisfied that no fundamental error occurred at this point. "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard." Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961).

Finally, the fact that slightly over one-quarter of the venire was excluded for cause does not indicate a pervasive community or courtroom hostility toward Mr. Brecheen. See Murphy, 421 U.S. at 803, 95 S.Ct. at 2037-38 (exclusion of under one-quarter of the venire does not indicate "a community with sentiment so poisoned against petitioner as to impeach the indifference of jurors who displayed no animus of their own"). We find no manifest error in the state trial court's denial of change of venue.⁶

The second half of Mr. Brecheen's argument is that the Oklahoma Court of Criminal Appeals applied an unconstitutional standard of review in deciding whether the trial court properly denied his motion to change venue.⁷ Specifically, Mr. Brecheen asserts that the use of the "virtual impossibility" standard,⁸ which was applicable at the time of his trial and his direct appeal,⁹ is unconstitutional.

In rejecting this claim, we reiterate our only concern is whether Mr. Brecheen's federal constitutional right to a fair and impartial jury, guaranteed to him by the Fourteenth Amendment, was violated in this case. See Mu'Min, 500 U.S. at 422, 111 S.Ct. at 1903-04 (citing Turner v. Murray, 476 U.S. 28, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986); Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973)); see also Brecheen v. Oklahoma, 485 U.S. 909, 910, 108 S.Ct. 1085, 1085-86, 99 L.Ed.2d 244 (1988) (Marshall, J., dissenting from denial of certiorari) (indicating the issue is "whether particular state standards for change of venue comport with the requirements of due process.").

For reasons stated above, we have already concluded that the procedures employed by the state trial court were constitutionally adequate and that Mr. Brecheen's rights were not violated. Therefore, even assuming, arguendo, that the use of the virtual impossibility standard could be unconstitutional under a particular set of circumstances, see id. at 911, 108 S.Ct. at 1086-87 minimal standards of due process were in fact afforded to Mr. Brecheen in this case. Therefore, the issue of what substantive standard of review was employed by the Oklahoma courts is irrelevant because this trial was fundamentally fair. Therefore, we reject this assignment of error.

In sum, we have measured the actions of the state trial court concerning the jury selection process and the change of venue issue against the standard of due process that is required by the United States Constitution. Having done so, we conclude that the Oklahoma state courts did not violate Mr. Brecheen's constitutional right to a fair and impartial jury.

Mr. Brecheen next asserts a claim of prosecutorial misconduct, alleging he was denied a fair trial because of comments made by the prosecutor throughout the course of the trial. Because Mr. Brecheen's trial counsel did not make a timely objection to any of the comments forming the basis for this claim, the Oklahoma Court of Criminal Appeals' review on direct appeal was limited to deciding whether this constituted "fundamental error." Brecheen I, 732 P.2d at 896 (citing Rushing v. State, 676 P.2d 842 (Okla.Crim.App.1984)). Because the alleged errors did not rise to this level, the Court of Criminal Appeals rejected this claim. Id. In reviewing Mr. Brecheen's application for postconviction relief, the Oklahoma Court of Criminal Appeals declined to hear this claim pursuant to state law and therefore did not address it. Brecheen II, 835 P.2d at 119 n. 1.

Before the district court, the State asserted, inter alia, this issue was procedurally barred. The district court concluded that this claim had been exhausted and therefore addressed it on the merits without specifically deciding the procedural bar issue. We do not, however, fault the district court for not deciding this question because of some ambiguity in the State's assertion of a procedural bar. We conclude the state court's judgment does not rest on an "independent" state ground and therefore does not act as a procedural bar to habeas corpus review. On the merits, however, we find no error.

It is a well-established principle that the Supreme Court will not review a state court's interpretation of federal law on direct review, "if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991) (citing, inter alia, Klinger v. Missouri, 80 U.S. (13 Wall.) 257, 263, 20 L.Ed. 635 (1872)).

A state court's finding is considered "independent if it is separate and distinct from federal law." Andrews v. Deland, 943 F.2d 1162, 1188 n. 40 (10th Cir.1991) (citing Ake v. Oklahoma, 470 U.S. 68, 75, 105 S.Ct. 1087, 1092, 84 L.Ed.2d 53 (1985)), cert. denied, --- U.S. ----, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992). A state court's finding is deemed to be "adequate" if it is applied "evenhandedly"; that is, if it is " 'strictly or regularly followed.' " Andrews, 943 F.2d at 1188 n. 40 (quoting Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982)).

In the direct review setting, application of the adequate and independent state ground doctrine is jurisdictional: resolution of a federal issue could not affect a judgment that was adequately supported by an alternative ruling of state law, and therefore, review by the Supreme Court "could amount to nothing more than an advisory opinion" in violation of U.S. Const. art. III. Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 462-64, 89 L.Ed. 789 (1945).

Although well-established in the direct review context, it was not until the relatively recent decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that the Supreme Court extended the adequate and independent state ground doctrine to federal habeas review. Id. at 87, 97 S.Ct. at 2506; see also County Court of Ulster County v. Allen, 442 U.S. 140, 148, 99 S.Ct. 2213, 2220, 60 L.Ed.2d 777 (1979). In the habeas context, however, the adequate and independent state ground doctrine is not jurisdictional but "is grounded in concerns of comity and federalism." Coleman, 501 U.S. at 730, 111 S.Ct. at 2554, (discussing the different underpinnings of the adequate and independent state ground doctrine on direct and collateral review).

The doctrine provides that "[w]hen a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court." Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593, 115 L.Ed.2d 706 (1991). Review is precluded "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565; see Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043-44, 103 L.Ed.2d 308 (1989); Ballinger v. Kerby, 3 F.3d 1371, 1375 (10th Cir.1993).

The law of procedural defaults thus applies to preclude federal habeas review of claims that have not been adjudicated on the merits by a state court because of noncompliance with a state procedural rule. E.g., Coleman, 501 U.S. at 728, 111 S.Ct. at 2553; Wainwright, 433 U.S. at 87, 97 S.Ct. at 2506-07. Although earlier habeas corpus precedents may have suggested to the contrary, Coleman explicitly recognizes the "important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565 (citing McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 1468-69, 113 L.Ed.2d 517 (1991)).

It is clear these precepts apply with equal force in capital cases. See Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); Smith v. Murray, 477 U.S. 527, 538, 106 S.Ct. 2661, 2668, 91 L.Ed.2d 434 (1986); Parks v. Reynolds, 958 F.2d 989, 994-95 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1310, 117 L.Ed.2d 530 (1992). With this understanding of the law of procedural defaults, we must now determine whether Mr. Brecheen's prosecutorial misconduct claim is procedurally barred.

In the present case, the Oklahoma Court of Criminal Appeals' review of Mr. Brecheen's prosecutorial misconduct claim was limited to review for "fundamental error." See Brecheen I, 732 P.2d at 896. Despite what appears to be a ruling based on noncompliance with a state procedural rule, Ake holds that such a determination amounts to an adjudication of the merits of a federal claim under Oklahoma law for purposes of deciding whether a claim is procedurally barred.

In Ake, the Supreme Court, interpreting Oklahoma law, held Oklahoma's waiver rule does not apply to fundamental trial error, which necessarily included federal constitutional error. Ake, 470 U.S. at 74-75, 105 S.Ct. at 1091-92. The Court then stated:

Thus, the State has made application of the procedural bar depend on an antecedent ruling on federal law, that is, on the determination of whether federal constitutional error has been committed. Before applying the waiver doctrine to a constitutional question, the state court must rule, either explicitly or implicitly, on the merits of the constitutional question.

Id. at 75, 105 S.Ct. at 1092. Therefore, because this state procedural ruling is dependent on an antecedent ruling of federal law, "the state-law prong of the court's holding is not independent of federal law." Id.; cf. Gutierrez v. Moriarty, 922 F.2d 1464, 1469 (10th Cir.) (comparing New Mexico law as to waiver of constitutional rights with Oklahoma law), cert. denied, --- U.S. ----, 112 S.Ct. 140, 116 L.Ed.2d 106 (1991). Therefore, under the holding of Ake, we conclude the Court of Criminal Appeals' decision did not rest on an "independent" state law ground and therefore this claim is not procedurally barred.¹⁰ Therefore, we must now address the merits of this claim.

Mr. Brecheen's prosecutorial misconduct claim is based on several prejudicial statements made during the prosecution's voir dire and closing argument. He argues the prosecutor improperly (1) attempted to frighten the jury into convicting Mr. Brecheen; (2) called for revenge; (3) made deterrence arguments to the jury; (4) appealed to the jury's passions and prejudices; (5) misstated evidence; (6) appealed to the jury's sense of civic responsibility; (7) attacked defense counsel; and (8) used Biblical references. In addition, Mr. Brecheen briefly suggests the cumulative effect of these statements amounts to a constitutional violation.

The following illustrates the tenor of the prosecutor's remarks:

Murder is the coldest word.... It's cold. You think about the word and it will run chills down your spine, because it's [sic] what it's talking about is the deliberate intention of one human being to take from another the most precious thing they have, and that's their human life.

....

I submit to you ladies and gentlemen, that this tragedy, death of Mrs. Stubbs--talk about somebody suffering, suffering, pleading for sympathy and if I wanted to do that, I could do that right now. He hasn't suffered anything--not like she did, to be standing in your own home, comfortably watching TV, somebody come to your door with a gun--thinking that's your wife, your husband as they flee from that door and that gun goes off in their head. Think about waking up and walking to the living room and finding that laying there.

....

How much harder, cooler, calmer can an individual get than to take a gun and go to an acquaintance's home, kill them when they answer the door and try to kill another one. How much colder and harder can a human being get, to go in there with the intention of taking a human life, before you ever get there, thinking about it, to plan it out, to walk up there and do it. You can't, ladies and gentlemen. There's no harder you can get. There's no--no way a human mind can get any harder than that; no remorse, nothing.

....

The murder ... is a crime against, and a threat to every other member of that community, county and state, and unless it is punished, unless it is carried out, then we have no government, then we have no law, then we have chaos and anarchy.... The average person can take a hundred locks and put on their doors, have all of their guns and be prepared to fend off any attack, anybody that wants to come in, any strong man that wants to take over, anybody that wants to take over can do it, unless the law works, and the law works here. It works with twelve people.

Counsel for Mr. Brecheen incorrectly directs us to violations of state law allegedly caused by these statements. Our review as a federal habeas court is for federal constitutional violation; "the narrow one of due process, and not the broad exercise of supervisory power." Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); accord Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471-72, 91 L.Ed.2d 144 (1986). As we noted in Coleman v. Brown, 802 F.2d 1227 (10th Cir.1986), cert. denied, 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987), "[r]emarks that would cause us to reverse in a direct appeal of a federal conviction [under our supervisory powers] are not necessarily grounds for reversal when spoken in state courts." Id. at 1237.

In general, Donnelly directs us to limit our review of this type of claim to the question of whether the challenged statements "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643, 94 S.Ct. at 1871; accord Darden, 477 U.S. at 181, 106 S.Ct. at 2471-72; Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir.1990). In making this "fundamental fairness" determination, we must "consider[ ] the pertinent surrounding circumstances at trial," Mahorney, 917 F.2d at 473, including the strength of the state's case relating to the petitioner's guilt, Coleman v. Brown, 802 F.2d at 1237, and the prejudice, if any, attributable to the prosecutor's comments, Mahorney, 917 F.2d at 472-73.

If, however, the impropriety complained of " 'effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair.' " Yarrington v. Davies, 992 F.2d 1077, 1079 (10th Cir.1993) (emphasis added) (quoting Mahorney, 917 F.2d at 472).

Mr. Brecheen does not argue the prosecutor's statements violated a specific constitutional right; therefore, we analyze this claim under the fundamental fairness standard of Donnelly, see Yarrington, 992 F.2d at 1080, and not Mahorney as Mr. Brecheen urges. See Coleman v. Saffle, 869 F.2d 1377, 1395 (10th Cir.1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1835, 108 L.Ed.2d 964 (1990). After a careful review of the totality of circumstances of the trial, we do not find the statements of the prosecutor so prejudiced the jury against the petitioner as to deny him the fundamental fairness to which he is entitled under the Constitution.

"[I]t is not enough that the prosecutor['s] remarks were undesirable or even universally condemned." Darden, 477 U.S. at 181, 106 S.Ct. at 2471. Writing separately on Mr. Brecheen's direct appeal, one judge of the Oklahoma Court of Criminal Appeals commented:

It is difficult to understand why the State would risk reversal or modification by making such clearly improper and unnecessary comments during closing argument. However, in light of the strong evidence of guilt, the failure to make timely objections and requests for admonishments to disregard, and the failure to show prejudice, it is unnecessary to reverse or modify the conviction.

Brecheen I, 732 P.2d at 900 (Parks, Presiding Judge, concurring). In addition, the district court noted "some of the prosecutor's statements were unnecessary and improper," but also confirmed that "[c]onsideration of the trial record reveals there is convincingly strong evidence against Petitioner." Brecheen, No. CIV-94-318-S, slip op. at 33, 35. While "improper appeals to societal alarm" and requests for "vengeance for the community to set an example" are unwarranted, they are also not the type of comments that the Supreme Court has suggested might amount to a due process violation. See Darden, 477 U.S. at 181-82, 106 S.Ct. at 2471-72, quoted in Saffle, 869 F.2d at 1396. Thus, while we agree with the determination of courts before us that the conduct of the state prosecutor was unbecoming to his office and needlessly jeopardized his case, we also agree that Mr. Brecheen has not shown how these remarks, either individually or collectively, violated his right to due process.

Mr. Brecheen next assigns error relating to the instructions given to the sentencing jury.

In his direct appeal, Mr. Brecheen argued, inter alia, that permitting the imposition of the death penalty if the defendant knowingly created a great risk of danger to more than one person under Oklahoma law violated the Eighth Amendment because it was unconstitutionally overbroad. The Oklahoma Court of Criminal Appeals rejected this challenge in reliance on its existing precedent. See Brecheen I, 732 P.2d at 899.

In his subsequent application for postconviction relief, Mr. Brecheen attempted to reassert this claim along with another claim regarding the trial court's failure to give a so-called "presumption of life" instruction. The Oklahoma Court of Criminal Appeals invoked Okla.Stat. tit. 22 Sec. 1086 and concluded the first claim had already been asserted and would not be reconsidered and the second claim could have been asserted on direct appeal such that it was now barred by res judicata. See Brecheen II, 835 P.2d at 119 n. 1. We address these claims in reverse order.

Mr. Brecheen's allegation that the trial court erred by failing to give a "presumption of life" instruction was not raised on direct appeal. For reasons discussed earlier, we recognize Oklahoma's procedural bar to claims that were waived on direct appeal as an adequate and independent state ground for not reaching the merits of the claim. See Steele, 11 F.3d at 1522 & n. 5.

Therefore, unless Mr. Brecheen can show that one of the narrow, recognized exceptions to the procedural bar rule is applicable, we will not, out of respect for the Oklahoma courts' procedural rules, adjudicate the merits of this claim. See Coleman, 501 U.S. at 750, 111 S.Ct. at 2564-65. Mr. Brecheen does not argue that he has shown cause and prejudice to override his procedural default; instead, he relies on the "fundamental miscarriage of justice" exception. See Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986), quoted in Harris, 489 U.S. at 262, 109 S.Ct. at 1042-43; see also Coleman, 501 U.S. at 749-50, 111 S.Ct. at 2564-65.

The Supreme Court recently expounded on the narrow scope of this exception and indicated it is equivalent to a showing of "actual innocence." See Herrera v. Collins, --- U.S. ----, ----, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993); Sawyer v. Whitley, --- U.S. ----, ----, 112 S.Ct. 2514, 2518-19, 120 L.Ed.2d 269 (1992) (discussing Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct. 2616, 2627, 91 L.Ed.2d 364 (1986) (plurality opinion)). "The fundamental miscarriage of justice exception is available 'only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.' " Herrera, --- U.S. at ----, 113 S.Ct. at 862 (emphasis in original) (quoting Kuhlmann, 477 U.S. at 454, 106 S.Ct. at 2627 (plurality opinion)). This rule is "grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons," Herrera, --- U.S. at ----, 113 S.Ct. at 862 (citing McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470), and these standards apply with full force in capital cases. See Murray v. Giarratano, 492 U.S. 1, 9, 109 S.Ct. 2765, 2769-70, 106 L.Ed.2d 1 (1989) (plurality opinion), quoted in Herrera, --- U.S. at ----, 113 S.Ct. at 863.

As the name suggests, the appropriate inquiry concerns actual or factual innocence, as compared to legal innocence. See Steele, 11 F.3d at 1522 n. 8. " '[D]emonstrating that an error is by its nature the kind of error that might have affected the accuracy of a death sentence is far from demonstrating that an individual defendant probably is "actually innocent" of the sentence he or she received.' " Sawyer, --- U.S. at ----, 112 S.Ct. at 2519 (quoting Dugger v. Adams, 489 U.S. 401, 412 n. 6, 109 S.Ct. 1211, 1218 n. 6, 103 L.Ed.2d 435 (1989)); Steele, 11 F.3d at 1522 & n. 8.

As in the case of a petitioner who can demonstrate cause and prejudice to override a procedural default, a sufficient showing of actual innocence serves only to excuse a habeas petitioner's procedural default so a court may adjudicate the merits of the underlying claim. A claim of actual innocence, in other words, "is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera, --- U.S. at ----, 113 S.Ct. at 862 (emphasis added); see also Murray v. Carrier, 477 U.S. at 496, 106 S.Ct. at 2649-50; Steele, 11 F.3d at 1522 & n. 8.

In the specific context of a sentencing challenge, the Supreme Court has held actual innocence requires the petitioner to show "by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty under [state] law." Sawyer, --- U.S. at ----, 112 S.Ct. at 2523. Persuaded by the "eligibility" test of the Fifth and Eleventh Circuits, the Court held the correct focus is on "those elements which render a defendant eligible for the death penalty, and not on additional mitigating evidence which was prevented from being introduced as a result of a claimed constitutional error." Id.

Applying these teachings to this case, we conclude Mr. Brecheen has not shown how our failure to address the merits of this claim because of his procedural default will result in a miscarriage of justice. He has not demonstrated that the failure to give this mitigating instruction, which we assume was warranted, affected his "eligibility" to receive the death penalty under Sawyer and its progeny. The Supreme Court's adoption of the eligibility standard in Sawyer refutes the position that we should look to the presence or absence of particular mitigating circumstances such as the alleged failure to give a mitigating instruction. Therefore, we reject this allegation of error.

Mr. Brecheen next raises an Eighth Amendment challenge to Oklahoma's application of the "great risk of death" aggravating circumstance in regard to his sentence.¹¹ Because the Oklahoma Court of Criminal Appeals adjudicated this claim on the merits in Mr. Brecheen's direct appeal, it is not subject to a procedural bar, notwithstanding the Court of Criminal Appeals' decision not to rehear this claim on his application for postconviction relief. See Ylst, 501 U.S. at 804, 111 S.Ct. at 2595.

Oklahoma's rule preventing relitigation in state postconviction proceedings of claims raised and decided on direct appeal does not constitute a procedural bar to federal habeas review. In Ylst, 501 U.S. 797, 111 S.Ct. 2590, the Supreme Court considered the effect of unexplained state court orders on an earlier reasoned state court order for purposes of federal habeas review.

The Court noted that because a state court's subsequent unexplained order is "not meant to convey anything as to the reason for the decision," id. at 803, 111 S.Ct. at 2594 (emphasis in original), a "look through" rule that gives the later unexplained decision "no effect" most nearly reflects the role that such decisions are intended to play. Id. at 804, 111 S.Ct. at 2595 (emphasis in original) (footnote omitted).

In practice, the look-through rule tells a federal habeas court to ignore the unexplained order and focus upon the last reasoned state court decision. Id. at 803, 111 S.Ct. at 2594; Church, 942 F.2d at 1507. In so doing, the federal habeas court places itself in a position to determine if the reasoning used in that state court opinion " 'fairly appear[s] to rest primarily upon federal law,' " Ylst, 501 U.S. at 802, 111 S.Ct. at 2594 (quoting Coleman, 501 U.S. at 737, 111 S.Ct. at 2558), such that habeas review is proper, or if the state court decision rested on an adequate and independent state ground, i.e., a procedural bar. Ylst, 501 U.S. at 802, 111 S.Ct. at 2594.

The presumption that subsequent unexplained orders should be given no effect is a relatively accurate barometer in most cases. Id. at 804, 111 S.Ct. at 2595 ("The maxim is that silence implies consent ... and courts generally behave accordingly, affirming without further discussion when they agree, not when they disagree, with the reasons given below."). As the Court noted in a footnote, however, the only recurring circumstance where this presumption is unrealistic is the situation presently before us, where

the later state decision rests upon a prohibition against further [emphasis in original] state review--for example, an unexplained denial of state habeas resting in fact upon a rule ... preventing the relitigation on state habeas of claims raised on direct appeal. In that circumstance, even though the presumption does not posit the real reason for the later denial, it does produce a result ('looking through' to the last reasoned decision) that is the correct one for federal habeas courts. Since a later state decision based upon ineligibility for further state review [does not] rest[ ] upon [a] procedural default ... its effect upon the availability of federal habeas is nil--which is precisely the effect accorded by the 'look-through' presumption.

Id. at 804 n. 3, 111 S.Ct. at 2595 n. 3 (emphasis added).

Thus, under the Ylst footnote, if a state court addresses the merits of a particular federal claim on direct appeal, as it did here with respect to Mr. Brecheen's Eighth Amendment claim, then its subsequent refusal to grant "further" state review in an application for postconviction relief should be given no effect and does not constitute a procedural bar for purposes of federal habeas corpus review. Id. at 803-04 & n. 3, 111 S.Ct. at 2594-95 & n. 3.

Therefore, we are free to examine the merits of this aspect of Mr. Brecheen's Eighth Amendment challenge, which posits that the "great risk of death to others" aggravating circumstance is unconstitutional because it does not provide the sentencer with a rationally reviewable standard. Because we conclude that this aggravating circumstance is consistent with the dictates of the Supreme Court's interpretation of the Eighth Amendment, we reject this claim of error.

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the various opinions of the Supreme Court established the principle that the Eighth Amendment imposes some limitations on the ability of the States to impose the punishment of death. This core tenet was adhered to in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), where a plurality of the Court stated that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Id. at 189, 96 S.Ct. at 2932 (opinion of Stewart, Powell, and Stevens, JJ.); see also Lewis v. Jeffers, 497 U.S. 764, 774, 110 S.Ct. 3092, 3098-99, 111 L.Ed.2d 606 (1990) (majority opinion). In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), Justice Stewart's plurality opinion reiterated that "if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty." Id. at 428, 100 S.Ct. at 1764 (plurality opinion); Lewis, 497 U.S. at 774, 110 S.Ct. at 3098-99; Zant v. Stephens, 462 U.S. 862, 874, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983) (quoting Gregg, 428 U.S. at 189, 96 S.Ct. at 2932-33).

To provide the necessary guidance to a capital sentencing jury, and thereby reduce the concerns relating to the potential for arbitrary application of the death penalty, those states that allow the imposition of this "qualitatively different" punishment have enacted comprehensive statutory schemes to regulate the circumstances under which it may be administered. Cartwright v. Maynard, 822 F.2d 1477, 1483 (10th Cir.1987) (en banc) (Cartwright II ), aff'd, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).

In some states, aggravating circumstances are simply a device for "narrow[ing] the class of first degree murderers that are eligible for the death penalty." Id. at 1480 (citing cases decided under Georgia, Utah, and Louisiana law where the courts use aggravating circumstances to determine which first degree murders are capital offenses). In other states, including Oklahoma, aggravating circumstances serve a "decidedly different" function. Id. As we stated in Cartwright II:

An aggravating circumstance under the Oklahoma scheme does not establish a threshold that distinguishes capital murders from other first degree murders. In Oklahoma any first degree murder is punishable by life imprisonment or death. Okla.Stat.Ann. tit. 21, Sec. 701.9 (West.1983).... Oklahoma uses an aggravating circumstance to guide the discretion of the sentencer in determining whether the death penalty should be imposed for a particular murder. Okla.Stat.Ann. tit. 21, Sec. 701.10 (West 1983).

Id. (emphasis in original). In Oklahoma, aggravating factors perform a "crucial function in a capital punishment statute" by establishing standards that "channel the discretion of the sentencer" in its decision of whether the circumstances of a particular crime warrant imposition of the death penalty. Id. at 1485. These aggravating factors reflect a legislative determination of which extraordinary situations entailing "special indicia of blameworthiness or dangerousness in the killing," id., "reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant, 462 U.S. at 877, 103 S.Ct. at 2742. In essence, then, aggravating circumstances in Oklahoma "direct the sentencer's attention to a particular aspect of a killing that justifies the death penalty." Cartwright II, 822 F.2d at 1485.

Capital punishment issues under the Eighth Amendment may implicate concerns related to the eligibility decision, the selection decision, or both. See Tuilaepa v. California, --- U.S. ----, ----, 114 S.Ct. 2630, 2634, 129 L.Ed.2d 750 (1994). The eligibility decision focuses on whether the individual has been convicted "of a crime for which the death penalty is a proportionate punishment." Id. (citing Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977)).

Precedent establishes that death is a proportionate punishment in a homicide case as long as the trier of fact finds one constitutionally sufficient aggravating circumstance (or its equivalent) at either the guilt or the penalty phase. Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2634 (citing Lowenfield v. Phelps, 484 U.S. 231, 244-46, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988); Zant, 462 U.S. at 878, 103 S.Ct. at 2743).

In contrast to the eligibility decision, the selection decision focuses on whether a particular individual who is eligible for the death penalty should in fact receive that sentence or whether some lesser sentence is warranted. See Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635. "What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant, 462 U.S. at 879, 103 S.Ct. at 2743-44 (emphasis in original), quoted in Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635.

In order to satisfy this individualized determination requirement, the sentencer must be afforded the opportunity to "consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime." Tuilaepa, at ----, 114 S.Ct. at 2635 (citing Blystone v. Pennsylvania, 494 U.S. 299, 307, 110 S.Ct. 1078, 1083-84, 108 L.Ed.2d 255 (1990)). In Johnson v. Texas, --- U.S. ----, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), the Court stated that "[a]s long as the mitigating evidence is within 'the effective reach of the sentencer,' the requirements of the Eighth Amendment are satisfied." Id. at ----, 113 S.Ct. at 2669 (quoting Graham v. Collins, --- U.S. ----, ----, 113 S.Ct. 892, 901, 122 L.Ed.2d 260 (1993)).

The primary issue before us involves a determination of whether the jury's consideration of Oklahoma's "great risk of death to others" aggravating circumstance in making the eligibility decision contravened the Eighth Amendment. Tuilaepa holds that there are two criteria for determining whether a particular aggravating circumstance is constitutional. "First, the circumstance may not apply to every defendant convicted of a murder; it must apply only to a subclass of defendants convicted of murder." Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635 (citing Arave v. Creech, --- U.S. ----, ----, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993) ("If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm." (Emphasis in original.)). "Second, the aggravating circumstance may not be unconstitutionally vague." Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635; Walton v. Arizona, 497 U.S. 639, 654, 110 S.Ct. 3047, 3057-58, 111 L.Ed.2d 511 (1990) (stating that the court must determine "whether the statutory language defining the circumstance is itself too vague to provide any guidance to the sentencer."). We must now measure Okla.Stat. tit. 21, Sec. 701.12(2) against these requirements.

We have no trouble concluding this aggravating circumstance comports with the "subclass" requirement. The aggravating factor that resulted in the imposition of the death penalty in this case applies if it is shown that the defendant "knowingly created a great risk of death to more than one person." Okla.Stat. tit. 21, Sec. 701.12(2).

This factor cannot reasonably be said to apply to every defendant convicted of murder, as in the case of Oklahoma's "especially heinous, atrocious, or cruel" aggravating circumstance, which we invalidated in Cartwright II and which was affirmed by the Supreme Court, or Georgia's "outrageously or wantonly vile, horrible or inhuman" circumstance invalidated in Godfrey. See Walton, 497 U.S. at 652-56, 110 S.Ct. at 3057 (discussing why these aggravating circumstances were invalid). But cf. Arave, --- U.S. at ----, 113 S.Ct. at 1541-45 (upholding the constitutionality of Idaho's aggravating factor which requires proof that "the defendant exhibited utter disregard for human life.").

In contrast to the aggravating circumstances at issue in Cartwright and Godfrey, the "great risk of death to others" factor applied in this case only applies to a defined and limited subclass of murderers, namely, those where the defendant's conduct not only resulted in murder, but also posed a significant risk of death to other individuals. Because this circumstance could not reasonably be interpreted as applying to every defendant convicted of murder, we find that it is properly limited to a particular subclass and is therefore constitutional under the Eighth Amendment, as interpreted in Tuilaepa and Arave.

With respect to the vagueness component of the inquiry, we find Mr. Brecheen's argument fails to note that the panel's decision in Cartwright, which is still valid precedent after en banc review,¹² see Cartwright II, 822 F.2d at 1478 n. 2, rejected the precise claim of vagueness advanced here with respect to this specific aggravating circumstance. See Cartwright v. Maynard, 802 F.2d 1203, 1221-22 (10th Cir.1986) (Cartwright I ) (citing, inter alia, Proffitt v. Florida, 428 U.S. 242, 256, 96 S.Ct. 2960, 2968, 49 L.Ed.2d 913 (1976) (upholding the Florida courts' construction of a similarly worded aggravating factor)).

Reviewing Oklahoma case law prior to 1986, we found the construction of the "great risk" factor by Oklahoma courts provided consistent guidance to the jury so as to limit its discretion and thereby withstand an Eighth Amendment challenge. See Cartwright I, 802 F.2d at 1222. We find no deviation from this conclusion since that time. See, e.g., Snow v. State, 876 P.2d 291 (Okla.Crim.App.1994); Ellis v. State, 867 P.2d 1289 (Okla.Crim.App.1992), cert. denied, --- U.S. ----, 115 S.Ct. 178, 130 L.Ed.2d 113 (1994); Trice v. State, 853 P.2d 203 (Okla.Crim.App.), cert. denied, --- U.S. ----, 114 S.Ct. 638, 126 L.Ed.2d 597 (1993); Nguyen v. State, 769 P.2d 167 (Okla.Crim.App.1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3264, 106 L.Ed.2d 609 (1989).

The construction given to this circumstance by the Oklahoma courts does not require the death of more than one person. It only requires an act or acts by the defendant that create the risk of death to another who is in close proximity to the killing itself in terms of time, location, and intent. Snow, 876 P.2d at 297.

In this case, the jury found Mr. Brecheen killed Mrs. Stubbs, fired a gun several times into the empty bed of Mr. Stubbs, and then returned fire into the Stubbses' residence as he fled. The sentencer's ultimate conclusion that this conduct constitutes a "great risk of danger to more than one person" is entirely consistent with both the facts of this case and the Oklahoma courts' construction of this factor. Because "our vagueness review is quite deferential," Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635, and because this factor "has some 'common-sense core of meaning ... that criminal juries should be capable of understanding,' " Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2636 (quoting with approval Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959-60, 49 L.Ed.2d 929 (1976) (White, J., concurring in judgment)), we find that this aggravating factor is not unconstitutionally vague.¹³IV. Ineffective Assistance of Counsel

Mr. Brecheen's final assignment of error is a claim he received ineffective assistance of trial counsel at the sentencing phase of his trial. The procedural posture of this claim requires some elaboration.

Mr. Brecheen did not raise this claim on his direct appeal. In his application for postconviction relief, Mr. Brecheen, with new counsel, raised this issue before the state district court. The state court granted an evidentiary hearing in which Mr. Brecheen offered expert testimony evaluating trial counsel's sentencing phase conduct. The state district court ultimately concluded on the merits that there was no Sixth Amendment violation.

On postconviction review, however, the Oklahoma Court of Criminal Appeals did not resolve this issue on the merits. Instead, it concluded this issue was res judicata under Sec. 1086 because it was "not raised during the direct appeal, notwithstanding similar allegations with respect to the first stage proceedings. No compelling explanation for the late raising is offered." Brecheen II, 835 P.2d at 119 n. 1.

In reviewing Mr. Brecheen's federal habeas petition, the district court found the ineffective assistance claim procedurally barred, but, out of an "overabundance of caution," that court considered and dismissed the issue on the merits. No. CIV-94-318-S, slip op. at 12-18. On appeal, Mr. Brecheen argues the federal district court erred in failing to grant him a separate evidentiary hearing on this issue, in finding this claim procedurally barred and in dismissing it on the merits. We address these claims in turn.

We agree with the district court that Mr. Brecheen was not entitled to an additional evidentiary hearing in federal court because he received a full and fair hearing in state court. See Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1294 (1994).

In Parks v. Brown, 840 F.2d 1496 (10th Cir.1987), we stated there is no absolute right to an evidentiary hearing "in every case involving a claim of ineffectiveness of counsel." Id. at 1509. Rather, the determination of whether an evidentiary hearing is mandated involves application of a two-pronged test. First, the petitioner bears the burden of "alleg[ing] facts which, if proved, would entitle him to relief." Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963);¹⁴ Lucero v. Kerby, 7 F.3d 1520, 1522 (10th Cir.1993).

If the petitioner carries this burden, then an evidentiary hearing is required " 'if the habeas applicant did not receive a full and fair evidentiary hearing in the state court, either at the time of the trial or in a collateral proceeding.' " Church, 942 F.2d at 1510 (emphasis added) (quoting Townsend, 372 U.S. at 312, 83 S.Ct. at 756-57); see also Keeney, --- U.S. at ----, 112 S.Ct. at 1720. The "full and fair" hearing exception is especially applicable if "a state court has made findings as to those very facts." Meeks v. Singletary, 963 F.2d 316, 319 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1362, 122 L.Ed.2d 741 (1993). Because Mr. Brecheen has not alleged any specific facts that would entitle him to relief other than the facts adduced at the state court hearing, and because we believe the hearing afforded Mr. Brecheen a full and fair hearing at the state level, we agree with the district court's conclusion not to grant an evidentiary hearing.

During the state court evidentiary hearing, current counsel for Mr. Brecheen presented testimony of the attorney who handled the trial in this case, along with the testimony of several potential mitigating witnesses and the investigator hired by current counsel to locate mitigating affiants. Mr. Brecheen testified as well in his own behalf. Furthermore, the state court admitted the deposition testimony of an expert witness who evaluated trial counsel's performance and admitted the affidavits of several persons who supported Mr. Brecheen.

Under these circumstances, and accounting for the fact that a state court's findings of fact are entitled to a presumption of correctness,¹⁵ and in the absence of any evidence to the contrary, we believe Mr. Brecheen received a full and fair postconviction evidentiary hearing on the question of ineffective assistance of counsel in state district court. Therefore, the district court's conclusion that another evidentiary hearing was not necessary was correct.

Mr. Brecheen next claims the district court erred in finding this claim procedurally barred. The district court concluded that the Court of Criminal Appeals' decision rejecting Mr. Brecheen's postconviction appeal of this claim rested on his failure to raise it on direct appeal, which the district court viewed as an adequate and independent state ground to support the decision. Although we conclude the Court of Criminal Appeals' decision rested on a state law ground "independent" of federal law (i.e., waiver), we do not believe in this case Oklahoma's application of this procedural rule was an "adequate" state ground. Therefore, we agree with Mr. Brecheen that his claim is not procedurally barred.

The general rule is the failure to raise a claim at trial or on direct appeal will preclude federal habeas corpus review of the merits of the claim absent a showing of either cause and prejudice or a fundamental miscarriage of justice. See Andrews, 943 F.2d at 1188; Osborn v. Shillinger, 861 F.2d 612, 622 (10th Cir.1988). When, however, the underlying claim is ineffective assistance of counsel, then our cases indicate the "general" rule must give way because of countervailing concerns unique to ineffective assistance claims. In Osborn, we quoted the following passage from Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986):

"Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment [ineffective assistance of counsel] claims to trial and direct review would seriously interfere with an accused's right to effective representation."

Osborn, 861 F.2d at 622 (quoting Kimmelman, 477 U.S. at 378, 106 S.Ct. at 2584-85). This need to give a meaningful opportunity to assess and develop a claim of ineffective assistance of counsel, coupled with the fact that such claims may require an opportunity to develop additional facts,¹⁶ compel the conclusion that "ineffective assistance claims may be brought for the first time collaterally." Osborn, 861 F.2d at 622; accord Andrews, 943 F.2d at 1192-93. Osborn indicates that this result is dictated by the interplay of two factors: the need for additional fact-finding, along with the need to permit the petitioner to consult with separate counsel on appeal in order to obtain an objective assessment as to trial counsel's performance. Osborn, 861 F.2d at 623.

Although Mr. Brecheen was represented by separate counsel on his direct appeal, a fact distinguishing this case from Osborn, he nonetheless did not have an opportunity to develop any additional facts relating to trial counsel's performance in the direct review process since evidentiary hearings are unavailable at the appellate level. He was, however, given this opportunity when he filed his postconviction petition, and his claim was ultimately denied on the merits after a hearing. Yet on appeal, the Court of Criminal Appeals refused to review this claim on the merits, even after a hearing had taken place, because it concluded the claim was waived for not having been raised on direct appeal. See Brecheen II, 835 P.2d at 119 n. 1.

While this determination provides an "independent" state law ground for rejecting this claim, we do not believe it is an adequate basis. The practical effect of this ruling is to force Mr. Brecheen either to raise this claim on direct appeal, with new counsel but without the benefit of additional fact-finding, or have the claim forfeited under state law. This Hobson's choice cannot constitute an adequate state ground under the controlling case law because it deprives Mr. Brecheen of any meaningful review of his ineffective assistance claim. What Osborn and its progeny give Mr. Brecheen--the opportunity to raise this claim on collateral review--the Court of Criminal Appeals effectively takes away by finding the claim waived. Therefore, we do not find this claim procedurally barred, and accordingly, we turn to the merits to determine whether trial counsel was ineffective.

The primary thrust of Mr. Brecheen's ineffectiveness argument is that defense counsel failed to present additional mitigating evidence during the sentencing phase of his trial. Trial counsel's ineffectiveness purportedly stemmed from his lack of investigation and preparation as to the available mitigating evidence. To demonstrate this lack of investigation, Mr. Brecheen, in his attempt to obtain postconviction relief, filed numerous affidavits from family, friends, and coworkers who contend they would have appeared to testify on his behalf had they been called. After the state district court held an evidentiary hearing on this issue, it concluded that:

Time and hindsight aid the defendant and current counsel in scrutinizing the conduct of trial counsel. However, when viewed in the context of the then existing circumstances, the Court is not convinced that conduct falls below the standard set by Strickland v. Washington, 466 U.S. 688, 104 S.Ct. [2052] 2053, 80 L.Ed.2d 674 (1984).

In so deciding as the trier of fact at the evidentiary hearing, the Court finds the defendant discussed with his attorney his option regarding mitigating evidence and made a voluntary decision to forego the opportunity to call witnesses. However, this is but one of the factors which causes the Court to determine the defendant was adequately represented.

Order of Feb. 10, 1989, No. CRF-83-127, slip op. at 1-2 (20th Judicial District, Oklahoma).

The district court agreed with the state court's conclusion. The district court first concluded that Mr. Brecheen introduced some mitigating evidence during the sentencing phase, namely, the guilt phase mitigating evidence that was incorporated into the sentencing phase. The district court then found that trial counsel's decision to limit the amount of mitigating evidence to be introduced at the sentencing phase was a reasonable tactical decision, especially in light of Mr. Brecheen's request that counsel forego the introduction of additional mitigating evidence. We address the district court's conclusion after first enunciating the legal standards that govern our review of this issue.

The Sixth Amendment to the Constitution provides, in relevant part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "The Supreme Court has long 'recognized that "the right to counsel is the right to effective assistance of counsel" ' under the Sixth Amendment." Osborn, 861 F.2d at 624 (emphasis added) (quoting Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64); accord Dutton v. Brown, 812 F.2d 593, 597 (10th Cir.1987). This right extends to a capital sentencing hearing. Harris v. Dugger, 874 F.2d 756, 762 (11th Cir.), cert. denied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d 568 (1989)

To prevail on a Sixth Amendment claim of actual¹⁷ ineffective assistance of counsel under the Sixth Amendment, Mr. Brecheen must first show that counsel "committed serious errors in light of 'prevailing professional norms' " in that the representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65; Haddock, 12 F.3d 950, 955 (10th Cir.1993).

In so doing, the petitioner must overcome the "strong presumption" that counsel's conduct falls within the "wide range of reasonable professional assistance" that " 'might be considered sound trial strategy,' " Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)); he must, in other words, overcome the presumption that counsel's conduct was constitutionally effective. Haddock, 12 F.3d at 955. 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.1994), cert. denied, --- U.S. ----, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994), and therefore may not be predicated on " 'the distorting effects of hindsight.' " Parks, 840 F.2d at 1510 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Finally, in reviewing ineffective assistance claims, we "address not what is prudent or appropriate, but only what is constitutionally compelled." Cronic, 466 U.S. at 665 n. 38, 104 S.Ct. at 2050 n. 38, cited with approval in Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3125-26, 97 L.Ed.2d 638 (1987).

If constitutionally deficient performance is shown, then Mr. Brecheen must demonstrate that "there is a 'reasonable probability' that 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, 104 S.Ct. at 2064-65, 2068; Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838, 842-43, 122 L.Ed.2d 180 (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, 104 S.Ct. at 2069, quoted in Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993).

The petitioner carries the burden of establishing both that the purported deficiencies unreasonably fell beneath prevailing norms of professional conduct and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 686, 104 S.Ct. at 2063-64; Yarrington, 992 F.2d at 1079. 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, 104 S.Ct. at 2064.

"[T]he performance and prejudice prongs under Strickland involve mixed questions of law and fact which we review de novo." United States v. Owens, 882 F.2d 1493, 1501-02 n. 16 (10th Cir.1989), quoted in United States v. Whalen, 976 F.2d 1346, 1347 (10th Cir.1992); see also Haddock, 12 F.3d at 955; United States v. Miller, 907 F.2d 994, 997 (10th Cir.1990); Porter, 14 F.3d at 558.

Accordingly, "in a federal habeas challenge to a state criminal judgment, a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. Sec. 2254(d)." Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, quoted in Bolender v. Singletary, 16 F.3d 1547, 1558 n. 12 (11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994); Miller, 907 F.2d at 997 (quoting Wycoff v. Nix, 869 F.2d 1111, 1117 (8th Cir.), cert. denied, 493 U.S. 863, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989)). The state court's findings of historical fact, however, are entitled to the presumption of correctness. Miller, 907 F.2d at 997; Bolender, 16 F.3d at 1558 n. 12. The federal district court's findings of fact are subject to review only for clear error. See Haddock, 12 F.3d at 955; Miller, 907 F.2d at 996; cf. Whalen, 976 F.2d at 1347 (clear error standard applies to district court's findings of fact in a Sec. 2255 action).

The gravamen of Mr. Brecheen's argument on the merits is that trial counsel's performance during the sentencing phase was ineffective due to his lack of preparation and inadequate investigation of possible mitigating circumstances.¹⁸

In the context of the sentencing phase of a capital case, we agree with our sister circuits and emphasize that "[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988) (emphasis added) (citing Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987)); accord Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir.1994); Porter, 14 F.3d at 557; Lightbourne v. Dugger, 829 F.2d 1012, 1025 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988).

Because of the existence of this duty, we also agree that "[t]he failure to conduct a reasonable investigation into possible mitigating circumstances" may "fall outside the scope of reasonable professional assistance," Bolender, 16 F.3d at 1557; Lightbourne, 829 F.2d at 1025; see also Sanders, 21 F.3d at 1456, and thereby amount to deficient representation under the first prong of Strickland.¹⁹

In stating that an attorney has an affirmative duty to conduct an investigation into the existence of potential mitigating evidence, we do not imply that this duty is boundless. To the contrary, an attorney "is not required to investigate all leads" as long as the decision not to pursue a particular lead, or to pursue a particular lead only so far, is reasonable under the circumstances. See Bolender, 16 F.3d at 1557 & n. 11 (citing cases); Harris, 874 F.2d at 763 (citing Strickland, 466 U.S. at 691, 104 S.Ct. at 2066-67).

In this case, we are unpersuaded by Mr. Brecheen's argument that his trial counsel inadequately prepared and investigated for the sentencing phase of trial. Our review of the evidentiary hearing and the entire record in this case supports the findings of the district court that trial counsel did in fact prepare and present some mitigating evidence at the sentencing phase. Mr. Brecheen's trial counsel, as part of general preparation for the trial, directed an investigation of Mr. Brecheen and his family. Counsel was aware of Mr. Brecheen's background, which he shared with the jury during the guilt phase and which was necessarily incorporated into the sentencing phase. That evidence included testimony that Mr. Brecheen had moved back home to assist his family when his father became ill; that he was a high school graduate with two years of training as a carpenter; that he was one of nine children in a large, church-going family; and that he had held a supervisory position in an oil field job.

There was also evidence presented from his mother that he was a polite individual, and evidence from his fiancee that she still intended to marry Mr. Brecheen regardless of what happened. During his closing argument at the sentencing phase, trial counsel reiterated most, if not all, of this evidence along with additional mitigating circumstances. Moreover, review of the affidavits submitted by Mr. Brecheen's current counsel show trial counsel talked with other family members about testifying as character witnesses, but that he chose not to pursue that course of action for fear of risking a stronger response from the government.²⁰

We do not believe that trial counsel's preparatory action in this case constituted inadequate investigatory work under Strickland. Leads were discovered and reasonably followed by counsel, and mitigating evidence was both presented and prepared to be presented. Tactical considerations, such as the effect of cross-examination on the credibility of the proposed witnesses, were also taken into account. Although others may choose to do differently, that is not the standard of our review. Moreover, recognizing the fact-specific nature of this inquiry, we believe our conclusion that trial counsel was not ineffective here is entirely consistent with our precedents holding that trial counsel was inadequate based on his or her complete lack of investigative efforts. See Stafford v. Saffle, 34 F.3d 1557 (10th Cir.1994) (finding that counsel's failure to conduct any investigation for possible mitigating evidence amounted to deficient conduct); Osborn, 861 F.2d at 626-27 (finding counsel's lack of preparation constituted deficient conduct); see also Sanders, 21 F.3d at 1456-57 (citing Ninth Circuit cases); Bolender, 16 F.3d at 1558 & 1559-60 n. 16 (citing Eleventh Circuit decisions); Brewer v. Aiken, 935 F.2d 850, 857-59 (7th Cir.1991). See generally Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.) ("It should be beyond cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness."), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985).

We therefore conclude the district court's findings of adequate investigation and preparation are adequately supported by the state court record. Therefore, Mr. Brecheen's ineffective assistance of counsel claim on this point must fail.

Mr. Brecheen next asserts that even if trial counsel discharged his duty to investigate, he was still ineffective for failing to introduce this additional mitigating evidence, notwithstanding Mr. Brecheen's request that counsel forego the introduction of that mitigating evidence. Because we conclude the decision not to introduce additional mitigating evidence was a reasonable tactical choice on the part of Mr. Brecheen's trial counsel, we reject this claim of error.

We agree with the Fifth and Eleventh Circuits that " '[c]ounsel has no absolute duty to present mitigating character evidence' at all." Bolender, 16 F.3d at 1557 (citing Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987)); Devier, 3 F.3d at 1453. From this, it follows a fortiori that the failure to present available mitigating evidence is not per se ineffective assistance of counsel. Bolender, 16 F.3d at 1557; King v. Puckett, 1 F.3d 280, 284 (5th Cir.1993).

If counsel has mitigating evidence available but elects not to present that evidence, then the inquiry must focus on the reason or reasons for the decision not to introduce that evidence. If counsel had "a reasonable basis for his strategic decision that an explanation of petitioner's history would not have minimized the risk of the death penalty," Burger, 483 U.S. at 795, 107 S.Ct. at 3126, quoted in Devier, 3 F.3d at 1453, then that decision must be given "a strong presumption of correctness" and "the inquiry is generally at an end." Porter, 14 F.3d at 557; see also Laws v. Armontrout, 863 F.2d 1377, 1385 (8th Cir.1988) (en banc), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). If, however, the decision is not tactical, and counsel's performance is therefore deficient, then the first prong of Strickland is satisfied. The court must then engage in a "harmlessness review," Middleton, 849 F.2d at 493, to determine whether petitioner carried his burden of demonstrating that he was prejudiced by the deficient performance. Porter, 14 F.3d at 557; Middleton, 849 F.2d at 493.

We digress momentarily to explain why we believe Mr. Brecheen's argument that his purported waiver of his right to present mitigating evidence was not made knowingly, intelligently and voluntarily is misdirected. The "knowing, intelligent and voluntary" standard for a waiver, which is traceable to Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), applies to a defined and limited class of issues that, because of their stature as "fundamental" decisions, are waivable only by the defendant. See United States v. Teague, 953 F.2d 1525, 1531 (11th Cir.) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). In Teague, the Eleventh Circuit noted the dichotomy between "fundamental" rights, such as the right to plead guilty, see Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969),²¹ the right to a jury trial, see Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), the right to pursue an appeal, see Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and other trial rights that "primarily involve trial strategy and tactics," including the decision as to "what evidence should be introduced." Teague, 953 F.2d at 1531. Having thus established this dichotomy, the Eleventh Circuit stated that fundamental rights are waivable only by the defendant because of the personal nature and importance of the right. Id. In contrast, however, the court expressly found that nonfundamental trial rights, including evidentiary matters, "are waivable by defense counsel on the defendant's behalf." Id.

Thus, although the narrow legal issue in Teague, whether the right to testify recognized in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) was a fundamental right, is not on point, the reasoning employed in Teague is clearly relevant to Mr. Brecheen's waiver argument in this case. In short, the question as to the propriety of introducing additional mitigating evidence in this case is not a fundamental right subject to the Zerbst waiver standard, but rather, fits squarely into the category of rights that are nonfundamental and that are not reviewed for compliance with the heightened waiver standard.²²

Therefore, while trial counsel still retains an obligation to discuss this type of strategic matter with the client, given the client's right to assist in his own defense, see Godinez v. Moran, --- U.S. ----, ----, 113 S.Ct. 2680, 2686, 125 L.Ed.2d 321 (1993), we think the ultimate decision whether to introduce this type of evidence is vested in trial counsel. E.g., Bolender, 16 F.3d at 1557 (" 'A lawyer's election not to present mitigating evidence is a tactical choice.' " (Citation omitted and emphasis added)). No claim has been advanced in this case that trial counsel did not consult with Mr. Brecheen before making this decision. Therefore, as long as counsel's decision is reasonable, it is not the prerogative of the federal courts to second-guess it.

As we have stated, then, the relevant inquiry is whether trial counsel's decision was an informed tactical decision that was reasonable under the circumstances of the case. Having delineated the appropriate legal framework, "it is important to note that 'the mere incantation of "strategy" does not insulate attorney behavior from review; an attorney must have chosen not to present mitigating evidence after having investigated the defendant's background, and that choice must have been reasonable under the circumstances.' " Bolender, 16 F.3d at 1558 (quoting Stevens, 968 F.2d at 1083) (emphasis in original).

Applying these principles to the case at bar, we find counsel's actions were in fact based on reasonable investigative efforts and that the decision constituted a reasonable tactical choice under the circumstances. The sequence of events relating to the sentencing proceedings is as follows. After the jury returned its verdict of guilty at the first phase of the trial, the sentencing proceedings were to begin in the evening after a long day of testimony in which the jury had heard from Mr. Brecheen and his mother. As the jury returned its guilty verdict, trial counsel observed several jurors were extremely upset and agitated. Rather than seek to postpone sentencing deliberations into the next days, trial counsel believed those jurors who did not feel strongly about the guilty verdict might refuse to vote unanimously for the death penalty if asked to deliberate as soon as possible. Trial counsel also testified that, at that time, his strategy was to first present the defendant, then the defendant's sisters followed by his fiancee. Because some contradictory testimony had been elicited earlier among Mr. Brecheen, his mother, and his fiancee, trial counsel was concerned about further impeachment of the potential witnesses.

Just prior to the sentencing phase, defense counsel told the trial judge that Mr. Brecheen, having been informed of his right to present mitigating testimony, did not wish to delay the proceeding by putting on additional evidence. The trial court instructed the jury, in Mr. Brecheen's presence, to consider evidence relative to mitigation that was presented on the defendant's behalf during the guilt phase of trial because the defendant did not wish to present any further evidence.

While it might have been preferable for the state trial court to interview Mr. Brecheen prior to the sentencing phase, as was suggested by trial counsel, the evidence adduced during the state postconviction evidentiary hearing shows both trial counsel and Mr. Brecheen were given full opportunity to explain this sequence of events. The postconviction trial court, as trier of fact, found "the defendant discussed with his attorney his option regarding mitigating evidence and made a voluntary decision to forego the opportunity to call witnesses." Although this finding is not entitled to a presumption of correctness, we find that it is nonetheless correct on its merits and that it supports a conclusion that the decision not to present additional mitigating evidence was within the realm of reasonable tactical decisions.

In sum, counsel incorporated the mitigating evidence adduced at the guilt phase of trial into the sentencing phase. In addition, counsel was prepared to present mitigating evidence and had assembled witnesses in the courtroom in anticipation of offering their testimony. In light of Mr. Brecheen's request to forego introducing additional evidence, however, counsel weighed several factors, including tactical considerations, and in the exercise of his professional judgment, agreed with the request. As the Supreme Court has stated, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691, 104 S.Ct. at 2066. Counsel then drew the jury's attention to relevant testimony they had heard that day and to other mitigating factors in an attempt to persuade the jury to spare Mr. Brecheen from the sentence that it ultimately imposed. Under these circumstances, we cannot conclude Mr. Brecheen was deprived of his constitutional right to effective assistance of counsel.²³

CONCLUSION

Review of a death sentence is among the most serious examinations any court of law ever undertakes. We have given exhaustive and serious consideration to Mr. Brecheen's claims, as have each of the state and federal courts preceding us, in recognition of the fact that "[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case." Burger, 483 U.S. at 785, 107 S.Ct. at 3121. Mr. Brecheen was tried before an impartial jury with the assistance of competent counsel in a proceeding unaffected by constitutional error.

Accordingly, we AFFIRM the decision of the federal district court denying Mr. Brecheen's petition for a writ of habeas corpus. His request for a stay of execution, see McFarland v. Scott, --- U.S. ----, ----, 114 S.Ct. 2568, 2573-74, 129 L.Ed.2d 666 (1994), shall be extended pending the timely filing of a petition for a stay, or for a writ of certiorari, or both, with the United States Supreme Court and during the pendency of any proceedings before that Court.

*****

EBEL, Circuit Judge, dissenting.

This is a difficult case and my decision to dissent is a close one. I agree with much of what the majority opinion says. Indeed, my only quarrel is with the majority's conclusion that Brecheen failed to establish that he had ineffective trial counsel during the sentencing phase of the trial.

The sentencing phase of a capital case is a vitally important proceeding and it requires careful preparation, advanced consultation with the client, and vigorous advocacy. It is not a stepchild to the guilt phase of the trial, but itself deserves to share center stage with the guilt phase. "[F]ailure to present significant mitigating evidence creates a one-sided, non-adversarial sentencing hearing. Such a sentencing hearing undermines the proper functioning of the adversarial process and erodes confidence in the outcome of the case." Ronnie Seidel, Right to Effective Assistance of Counsel at Capital Sentencing: Frey v. Fulcomer, 66 Tem.L.Rev. 1107, 1118 (1993). See Lockett v. Ohio, 438 U.S. 586, 602-06, 98 S.Ct. 2954, 2963-65, 57 L.Ed.2d 973 (1978); ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, Guideline 11.4.1(A) & (C) (1989) (As soon as counsel begins a capital case he or she "should conduct independent investigations relating to the guilt/innocence phase and to the penalty phase.... The investigation ... should be conducted regardless of any initial assertion by the client that mitigation is not to be offered."). It is at the sentencing phase of the trial that the jury is asked to turn its attention away from whether the defendant is guilty or innocent and to focus on the defendant as an individual. The lawyer's job is to assist the jury in its assessment of who the defendant is and why he or she committed the crime.

Brecheen claims that his counsel, Mr. Sleeper, was ineffective because he failed to discover and present mitigating evidence that raises a reasonable probability that the jury would have declined to vote for the death penalty if such evidence had been before it. We have to decide if Sleeper's representation fell below the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and, if so, whether Brecheen was thereby prejudiced.

To prove that counsel's performance was deficient, Brecheen bears the burden of meeting the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Court held that a defendant must show: (1) "that counsel's performance was deficient" with reference to prevailing professional norms, and (2) "that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064; United States v. Rivera, 900 F.2d 1462, 1472 (10th Cir.1990). Prejudice is shown by demonstrating that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Rivera, 900 F.2d at 1472.

The majority found that Brecheen's counsel did not perform below the Strickland standard and, therefore, the majority did not need to address the prejudice prong of Strickland. The majority offers essentially three explanations for finding Brecheen's counsel not ineffective: (1) Brecheen did not want his attorney to present any mitigating evidence at the sentencing phase; (2) Sleeper adequately investigated Brecheen's background; and (3) it was a legitimate trial strategy not to put on separate mitigating evidence. I will address each of these in turn.

The first issue is the effect to be given to Brecheen's request that no mitigating evidence be put on at the sentencing stage of the trial. Although there is a dispute in the record, the district court in the state habeas proceeding concluded that Brecheen said he did not want mitigating evidence presented, and I am required to accept the state court's factual finding in that regard.

I agree with the majority that this should be evaluated not as a question of a client's waiver of an essential constitutional right, but rather as a question of whether his counsel performed up to the standards required by the Constitution in consulting with the client and in making the decision not to put on further evidence. That is, it is the counsel's conduct that is being scrutinized in this ineffective counsel claim. The majority finds support for counsel's decision not to put on further evidence from the fact that Brecheen asked that no further mitigating evidence be advanced. However, as the majority observed, the approach to be taken at the mitigation stage of a capital trial involves many technical and complicated considerations beyond the understanding and experience of most clients. The weight to be given a client's wishes either to put on evidence or to refrain from putting on evidence will depend on how well informed the client is and on the adequacy of the lawyer's advice to the client in this regard. Blanco v. Singletary, 943 F.2d 1477, 1502 (11th Cir.1991) ("lawyers may not blindly follow" clients' commands to forego presenting mitigating evidence because "the lawyer first must evaluate potential avenues and advise the client of those offering potential merit") (quoting Thompson v. Wainright, 787 F.2d 1447, 1451 (11th Cir.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987)); Jeffries v. Blodgett, 5 F.3d 1180, 1198 (9th Cir.1993) (counsel's acquiescence in Jeffries' informed and knowing decision to forego mitigating evidence was not an ineffective assistance of counsel), cert. denied, --- U.S. ----, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994).

In order to give much weight to a client's preferences as to how to present a defense, the client must have been adequately informed by his attorney about the legal ramifications of the decision and the factual evidence that could be presented and its potential significance. Most clients do not have the wherewithal to make such an important decision without their attorney's advice and guidance.

Here, the record before us establishes that Sleeper did not provide Brecheen with such information. The testimony of Brecheen and others,1 including Sleeper, indicates that Brecheen was not so advised, nor was Sleeper in a position to give Brecheen the needed advice because Sleeper had not marshalled the evidence that could have been presented on Brecheen's behalf. Not only was a summary of the testimony that could have been presented not relayed to Brecheen, he was not made aware of the legal consequences of foregoing the presentation of separate mitigation evidence. Additionally, Brecheen was not given enough time to consider adequately the minimal information that his counsel provided to him after the jury returned its guilty verdict because the sentencing phase of the trial began almost immediately thereafter. Thus, I would give relatively little weight here to Brecheen's reactive and ill-informed desire essentially to give up and not to put on any separate mitigation defense.

Turning to the second issue of the adequacy of Sleeper's investigation, the record shows that Sleeper did not invest any significant effort in checking Brecheen's character or background for the sentencing phase of the trial.2 Sleeper did investigate the crime; however, as the affidavits show, he did a wholly inadequate job of developing mitigating evidence of Brecheen's background and character. Blake v. Kemp, 758 F.2d 523, 533 (11th Cir.) ("It should be beyond cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness."), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985); Brewer v. Aiken, 935 F.2d 850, 858 (7th Cir.1991) (In the light of "attorney's failure to make a reasonable investigation to discover ... readily available evidence regarding [defendant's] low I.Q., susceptibility to the influence of friends and disadvantaged background, we hold that 'counsel's representation fell below an objective standard of reasonableness.' ") (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2064-65). The record reveals to me a wholly inadequate effort by Sleeper to develop and marshal mitigating evidence. He made very little effort to develop sympathetic evidence about Brecheen's background, and no effort to contact most of the townsfolk who would have testified so favorably to him.

Finally, I address the claim that Sleeper's decision not to put on mitigating evidence can be justified as trial strategy. The majority characterized Sleeper's decision as a legitimate trial strategy to get the jury back into deliberations quickly because the jurors appeared agitated. However, a trial decision based on an inadequate investigation, resulting in insufficient information, cannot be a legitimate trial strategy. When the storm hits, it is hardly strategic to choose one's course without first knowing from where the winds blow. Because Sleeper had not investigated what kind of mitigating evidence could be developed for Brecheen, he can hardly have made a defensible trial strategy at the last minute to forego the mitigation phase of the trial.

In any event, Sleeper's "trial strategy" was to get the jury back into deliberations quickly because some jurors seemed agitated. However, there was no explanation offered why a brief presentation of mitigating evidence would do anything other than increase whatever doubts the jurors may already have had. This is not a case where the record reveals that the state would have put on further damaging evidence if mitigation evidence were introduced. Nor is it a case where this evidence would significantly have delayed deliberations if it had effectively been marshalled in advance. Instead, no trial strategy is offered to explain why brief, highly favorable background evidence along the lines contained in the attached affidavits of potential witnesses would have been harmful to Brecheen.

In conclusion, there was simply no adequate effort to present "aspect[s] of [Brecheen's] character" that the jury could use as a basis for determining that, notwithstanding the terrible crime for which he was convicted, he should not be given the death penalty. Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-65. When I consider the critical role that effective presentation of mitigating evidence plays in a death penalty case, I conclude that Sleeper's assistance fell below the prevailing professional norms. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

I next evaluate whether Sleeper's ineffective assistance of counsel prejudiced Brecheen. Applying the Strickland standard in Osborn v. Shillinger, we said that because

the Court intended the prejudice standard to be flexible, it emphasized that "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Instead, the defendant bears the burden of showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."

861 F.2d at 626 (quoting Strickland, 466 U.S. at 693, 694, 104 S.Ct. at 2067-68) (internal citations omitted). When the ineffective assistance claim relates to the sentencing phase of the trial, the standard is whether there is "a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. at 2068. This is the test I have to apply. Do I harbor a significant doubt that this evidence would have caused at least one juror to choose life rather than death? Chaney v. Brown, 730 F.2d 1334, 1352 (10th Cir.1984). The jury found as an aggravating factor that Brecheen put more than one person at risk of death or great bodily injury. Against that aggravating factor and the facts of the murder, which the majority detailed, I have to decide whether the mitigating evidence that could have been presented on Brecheen's behalf raises a significant doubt about the jury's decision. See id. 466 U.S. at 696, 104 S.Ct. at 2068.

Habeas counsel compiled 39 affidavits from affiants who say they would have testified on Brecheen's behalf had they been requested to do so. Although the majority opinion dismisses the volume of these affidavits as cumulative, I find strength in the number of these affidavits, especially because many of them are not from relatives. Person after person came forward and said what an exemplary child and young adult Brecheen had been. For a person convicted of murder and sentenced to death, his background is atypical.

The record shows that Brecheen had served in the National Guard, he was not a drug user, he was never observed fighting or drunk, he was a model prisoner, and he had a steady job, had been trusted in supervisory positions, had former employers who spoke highly of him, had good relations with his family, and had a fiancee. Many people from the community who were not related to him would have testified to acts of kindness and generosity in his life, of his compassion for a mentally retarded little girl, and of his unwillingness to kill deer, squirrels, and the hog the family raised for meat. Brecheen was active in church and had served as a youth director for two years. While in high school, he won numerous medals on the track team and went to the State High School Track Meet his senior year. Not only did he graduate from high school, but he went on to receive some vocational education.

I am apologetic about burdening the Federal Reporter with additional material; however, I think the mitigating evidence in this case cannot be fully appreciated without reading directly the affidavits sworn to on Brecheen's behalf. Considering the affidavits, one gets a sense of who Brecheen is through the eyes of those who know him and who thought his life was worthwhile and should be spared. When his conviction is considered in the context of his other life experiences, one is left with the distinct impression that his conduct the night of the murder was aberrational. Had the jurors heard this mitigating evidence, I must conclude there is a reasonable probability that at least one juror would have decided that Brecheen's life should be spared--particularly considering the fact testified to by Sleeper that several jurors seemed genuinely shaken by the verdict of guilt that they had just returned.

Sleeper's failure to present this evidence to the jury deprived Brecheen of the chance to have the jury focus on him as an individual and on his humanity. The Supreme Court has stressed the importance of an individualized sentence determination in death penalty cases. See, e.g., Lockett, 438 U.S. at 602-06, 98 S.Ct. at 2963-65 (capital sentencing scheme must provide for an individualized assessment of the appropriateness of the death penalty). Brecheen did not receive that individualized consideration.

CONCLUSION

I am left with the firm belief that there is a reasonable probability that, but for counsel's unprofessional errors, the jury would have concluded that the balance of the one aggravating factor and the mitigating evidence did not warrant death. Therefore, I must respectfully DISSENT.

*****

The facts described in this section are taken from the Oklahoma Court of Criminal Appeals' opinion affirming Mr. Brecheen's conviction on direct appeal. Brecheen v. State, 732 P.2d 889, 892 (Okla.Crim.App.1987), cert. denied, 485 U.S. 909, 108 S.Ct. 1085, 99 L.Ed.2d 244 (1988) (Brecheen I )

Written determinations of historical fact by state courts are presumed to be correct. 28 U.S.C. Sec. 2254(d); see Steele v. Young, 11 F.3d 1518, 1520 n. 2 (10th Cir.1993). Considering the assertions made in Mr. Brecheen's petition, we believe that the presumption of correctness is appropriate. Id.

The Court of Criminal Appeals is vested with "exclusive appellate jurisdiction" over all criminal appellate actions. See Okla. Const., art. 7, Sec. 4; Okla.Stat. tit. 20 Sec. 40. In the words of that court, it is "the court of last resort in criminal cases." State v. Blevins, 825 P.2d 270, 271 (Okla.Crim.App.1992) (emphasis omitted)

Mr. Brecheen's counsel asserted twenty-four errors on direct appeal: (1) lack of fair trial for denial of change of venue; (2) improper for cause excusal of venireman; (3) insufficient evidence of "breaking" element of burglary; (4)-(5) improper instructions concerning the "breaking" element; (6) juror misconduct; (7) improper denial of access to victim's house; (8) improper rebuttal evidence of film from television news broadcast; (9) improper rebuttal testimony on issue of collateral importance; (10) improper rebuttal testimony from potentially biased expert; (11) prosecutorial misconduct; (12) improper admission of comments made by Mr. Brecheen in hospital in "semi-conscious" state; (13) improper admission of comments made under psychological police pressure; (14) improper jury instruction regarding the voluntariness of statements; (15) failure to instruct regarding exculpatory statement made in Mr. Brecheen's confession; (16) cumulative error; (17) failure to instruct against the use of impeachment evidence in guilt-innocence phase; (18) ineffective assistance of counsel during guilt-innocence phase; (19) unconstitutional application of state aggravating factors; (20) disproportionate sentence; (21) improper instructions regarding mitigating factors; (22) improper balancing of aggravating and mitigating factors; (23) unconstitutionality of state death penalty statutes in general; and (24) double jeopardy. See Brecheen I, 732 P.2d at 892-99

Oklahoma, like many jurisdictions, has statutorily limited the availability of postconviction relief. See Okla.Stat. tit. 22, Secs. 1080-1088 ("Oklahoma Post-Conviction Procedure Act"). The Oklahoma Court of Criminal Appeals has repeatedly stated that postconviction relief is not intended to serve as a " 'second appeal under the mask of post-conviction application.' " Hale v. State, 807 P.2d 264, 267 (Okla.Crim.App.) (quoting Ellington v. Crisp, 547 P.2d 391, 393 (Okla.Crim.App.1976)), cert. denied. --- U.S. ----, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991); accord Smith v. State, 826 P.2d 615, 616 (Okla.Crim.App.), cert. denied, --- U.S. ----, 113 S.Ct. 405, 121 L.Ed.2d 331 (1992)

That court has further held that Sec. 1086 of its Post-Conviction Procedure Act embodies the principles of res judicata and precludes state collateral review of issues actually raised on direct appeal, as well as those issues that could have been raised on direct appeal but were not. Hale, 807 P.2d at 266-67 (citing Coleman v. State, 693 P.2d 4, 5 (Okla.Crim.App.1984); Castleberry v. State, 590 P.2d 697, 703 (Okla.Crim.App.1979)). In essence, then, postconviction relief is reserved only for the rare set of circumstances where a particular claim "could not have been raised on direct appeal." Johnson v. State, 823 P.2d 370, 372 (Okla.Crim.App.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1984, 118 L.Ed.2d 582 (1992).

The claims that were not reviewed included: (1) ineffective assistance of counsel during sentencing phase; (2) prosecutorial misconduct; (3) failure to give "anti-sympathy" instruction; (4)-(5) insufficient foundation for jury's decision to assess death penalty; (6) unconstitutional aggravating factor; (7) inadequate instructions during the sentencing phase; and (8) juror misconduct. See Brecheen II, 835 P.2d at 118-19 & n. 1. The only claims that the court reviewed were two change of venue issues and one matter relating to the disclosure of exculpatory evidence. Id. at 119-21

In his argument before this court, Mr. Brecheen contends the federal district court improperly found a waiver of issues regarding the composition of the jury because defense counsel did not use two peremptory challenges. The federal district court did not hold petitioner's change of venue argument was waived, but only that any residual issues relating to jury composition were waived. Brecheen v. Reynolds, No. CIV-94-318-S, slip op. at 19 n. 4 (citing Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988)). Since we divine no additional issues relating to jury composition raised by the petitioner, we do not treat the federal district court's conclusion as error

Mr. Brecheen does not assert that the Oklahoma courts have denied him an opportunity to file a motion for a change of venue, an opportunity that is required by the due process clause. See Groppi v. Wisconsin, 400 U.S. 505, 511, 91 S.Ct. 490, 493-94, 27 L.Ed.2d 571 (1971) (finding a Wisconsin statute that categorically denied individuals accused of misdemeanors with an "opportunity" to show "that a change of venue is required in his case" constitutionally infirm) (emphasis in original). Instead, he challenges the substantive standard of review

"It is only when a criminal defendant establishes by clear and convincing evidence that a fair trial is a virtual impossibility that such a motion should be granted." Brecheen I, 732 P.2d at 893 (emphasis added)

The Oklahoma Court of Criminal Appeals has recently abandoned its standard of review for denials of motions to change venue. See Brown v. State, 871 P.2d 56, 61-62 (Okla.Crim.App.) (expressly overruling the "virtual impossibility" standard in favor of a requirement that defendant show a fair and impartial trial is "improbable"), cert. denied, --- U.S. ----, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994). In addition, although the Oklahoma Court of Criminal Appeals reviewed Mr. Brecheen's argument on this point in his application for postconviction relief under a standard that was less stringent than the virtual impossibility standard applied on direct appeal, see Brecheen II, 835 P.2d at 120 (following a two-step test used in Coates v. State, 773 P.2d 1281, 1286 (Okla.Crim.App.1989)), we must examine the standard in place at the time of Mr. Brecheen's direct appeal in order to determine whether it comported with federal due process requirements

On direct appeal, the Oklahoma Court of Criminal Appeals reviews claims not preserved at trial for "fundamental error." This fundamental error exception to claims that would otherwise be barred is limited to the direct review setting and does not apply to claims raised for the first time in state post-conviction proceedings. See Steele, 11 F.3d at 1522 n. 5

Section 701.12(2) of the Oklahoma statutes provides that the phrase "aggravating circumstances" includes a finding that the "defendant knowingly created a great risk of death to more than one person."

En banc review, and ultimately certiorari, were granted in Cartwright II to decide whether a separate aggravating circumstance not implicated in this case, Sec. 701.12(4), which allowed the imposition of a death sentence for a crime found to be "especially heinous, atrocious, or cruel," was unconstitutionally vague and overbroad in violation of the Eighth Amendment. Our unanimous en banc decision finding this aggravating factor unconstitutional, and the Supreme Court's subsequent affirmance, did not address the aggravating factor at issue in this case, which implicates Sec. 701.12(2). See Maynard v. Cartwright, 486 U.S. 356, 360, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988), aff'g, 822 F.2d 1477, 1492 (10th Cir.1987), rev'g on other grounds, Coleman v. Brown, 802 F.2d at 1219-21

Although Mr. Brecheen does not assert a claim regarding the constitutionality of the selection decision, we find that because there is some degree of overlap between this type of claim and his claim that he received ineffective assistance of counsel at sentencing, it is appropriate to address this issue

The Supreme Court has held that the selection decision, which requires an individualized sentencing determination, "is met when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime." Tuilaepa, --- U.S. at ----, 114 S.Ct. at 2635 (citing Blystone, 494 U.S. at 307, 110 S.Ct. at 1083-84); see also Johnson v. Texas, --- U.S. at ----, 113 S.Ct. at 2669. Although Mr. Brecheen asserts he received ineffective assistance of trial counsel at the sentencing phase, based on counsel's failure to introduce additional mitigating evidence, the record is clear that the mitigating evidence adduced during the guilt phase was incorporated into the sentencing phase. Therefore, the sentencing jury was in fact allowed to "consider relevant mitigating evidence."

Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion); and Dutton v. Brown, 812 F.2d 593 (10th Cir.) (en banc), cert. denied, 484 U.S. 870, 108 S.Ct. 197, 98 L.Ed.2d 149 (1987), are not to the contrary. Those cases all involved situations where the sentencer was, for a variety of reasons, prevented or precluded from considering relevant mitigating evidence. For example, Woodson and Roberts involved state statutes that excluded all mitigating evidence from the sentencer's consideration; Lockett and Green involved state statutes that limited the type of mitigating evidence that could be introduced; Eddings involved a trial judge's erroneous interpretation of existing precedent which he believed prohibited him from considering certain types of mitigating evidence; and Skipper and Dutton involved a trial court's affirmative act of excluding relevant mitigating evidence that the defendant wished to offer. In the present case, however, there is no evidence in the record that state law or the trial court "excluded" evidence that the defendant wished to offer from the sentencer's consideration, in contravention of the cases described above; rather, the evidence supports a finding that Mr. Brecheen and his trial counsel made a tactical decision to forego the introduction of additional mitigating evidence. Because Lockett and its progeny stand only for the proposition that a State may not, by statute or judicial act, "cut off in an absolute manner the presentation of mitigating evidence," McKoy v. North Carolina, 494 U.S. 433, 456, 110 S.Ct. 1227, 1240, 108 L.Ed.2d 369 (1990) (Kennedy, J., concurring), quoted in Johnson, --- U.S. at ----, 113 S.Ct. at 2666 (majority opinion), we find that entire line of authority inapposite to the case before us.

Therefore, while we conclude there was no Eighth Amendment violation in regard to the selection decision, we discuss below whether there was a Sixth Amendment violation of the right to effective assistance of counsel at sentencing in regard to the decision not to introduce additional mitigating evidence.

We note that Townsend v. Sain is still valid precedent except to the extent it applies the "deliberate bypass" or "knowing waiver" standard, as opposed to the cause and prejudice and fundamental miscarriage of justice standards, to establish an excuse for a habeas petitioner's failure to develop a material fact in state court proceedings. See Keeney v. Tamayo-Reyes, --- U.S. ----, ----, 112 S.Ct. 1715, 1719, 118 L.Ed.2d 318 (1992) (overruling in part Townsend, 372 U.S. at 317, 83 S.Ct. at 759)

"Explicit and implicit findings by state trial and appellate courts 'shall be presumed to be correct,' 28 U.S.C. Sec. 2254(d), unless one of seven factors listed in section 2254(d) are present, or the federal court concludes that the state court findings are not fairly supported by the record." Case v. Mondragon, 887 F.2d 1388, 1392 (10th Cir.1989), cert. denied, 494 U.S. 1035, 110 S.Ct. 1490, 108 L.Ed.2d 626 (1990) (citations omitted); see also Marshall v. Lonberger, 459 U.S. 422, 431-32, 103 S.Ct. 843, 849-50, 74 L.Ed.2d 646 (1983)

See, e.g., Osborn, 861 F.2d at 623; Beaulieu v. United States, 930 F.2d 805, 807 (10th Cir.1991) (noting the need when the record is insufficient for additional fact-finding on ineffective assistance of counsel claims in the context of Sec. 2255 claim)

Mr. Brecheen's ineffective assistance of counsel claim does not allege "presumed" ineffectiveness of counsel, which exists in such contexts as an actual conflict of interest, see Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 1178, 55 L.Ed.2d 426 (1978), or the total absence of counsel during a critical stage of the proceedings, see United States v. Cronic, 466 U.S. 648, 659 n. 25, 104 S.Ct. 2039, 2047 n. 25, 80 L.Ed.2d 657 (1984). For clarity, we therefore refer to his claim as one alleging "actual" ineffective assistance of counsel

Mr. Brecheen also asserts in his supplemental brief that his alleged waiver of the right to present additional mitigating evidence was invalid because it was not made knowingly, intelligently and voluntarily. For reasons enunciated below, we do not believe that this subissue relating to the validity vel non of the purported waiver is appropriate to our analysis

Bolender states that the failure to conduct a reasonable investigation may render counsel's assistance "ineffective." Bolender, 16 F.3d at 1557. Bolender, however, relies on Lightbourne, an earlier Eleventh Circuit decision, for this proposition. In fact, Lightbourne states that the failure to investigate may constitute deficient representation (i.e., the first prong of Strickland ) and not necessarily proof of ineffectiveness (i.e., the first and second prongs of Strickland )

In our view, the statement from Lightbourne appears more consonant with Strickland in that inadequate investigation, inadequate preparation, or both, should not, ipso facto, mean that counsel was "ineffective" absent a showing of prejudice. Therefore, we believe, as in Lightbourne, that under such circumstances, petitioner still retains the burden of establishing that he was prejudiced as a result of counsel's failure to conduct a reasonable investigation. See Sanders, 21 F.3d at 1457 ("the failure to conduct a reasonable investigation constitutes deficient performance.").

Current counsel has diligently sought to show, through sheer volume of affidavits, the extent of mitigating witnesses undiscovered by trial counsel. We believe the affiants are well-intentioned in their support of Mr. Brecheen's moral character, but we find the great percentage of the affidavits to be cumulative and therefore offer little indication of trial counsel's ineffectiveness. See Devier v. Zant, 3 F.3d 1445, 1452 (11th Cir.1993) (failure to call for cumulative mitigating testimony during sentencing phase is no evidence of inadequate preparation); Mathenia v. Delo, 975 F.2d 444, 448 (8th Cir.1992) (same), cert. denied, --- U.S. ----, 113 S.Ct. 1609, 123 L.Ed.2d 170 (1993)

See also Parke v. Raley, --- U.S. ----, ----, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992)

In Singleton v. Lockhart, 962 F.2d 1315 (8th Cir.1992), the Eighth Circuit seemingly endorsed the application of the heightened waiver standard under similar circumstances. 962 F.2d at 1321. To the extent that our conclusion is inconsistent with the Eighth Circuit's decision in Singleton, we respectfully disagree with its conclusion. In spite of the obvious importance of this issue, it is still, at its core, an evidentiary question that is inherently tactical in nature and therefore vested in the discretion of trial counsel

Because we find no constitutional error in any of Mr. Brecheen's claims, we must also reject his final claim of cumulative error. See United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir.1990) ("[A] cumulative-error analysis should evaluate only the effect of matters determined to be error, not the cumulative effect [of non-errors].")

62 F.3d 1428

Robert A. BRECHEEN, Petitioner,
v.
Ron J. WARD, Warden of the Oklahoma State Penitentiary Respondent.

No. 95-7126.

United States Court of Appeals, Tenth Circuit.

Aug. 10, 1995.

Before BALDOCK, BRORBY, and EBEL, Circuit Judges.

ORDER AND JUDGMENT1

Petitioner Robert Allen Brecheen appeals the district court's denial of his second petition for writ of habeas corpus. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

The parties are familiar with the factual and procedural history of this case. After pursuing a direct appeal and post-conviction relief in the state courts of Oklahoma, Petitioner was denied federal habeas corpus relief in the United States District Court for the Eastern District of Oklahoma by an order dated June 30, 1994. On appeal to this court, Petitioner raised six grounds for relief: (1) denial of a fair trial based on the trial court's denial of his motion for a change of venue; (2) denial of a fair trial due to prosecutorial misconduct and improper jury argument; (3) violation of due process during sentencing for failure to offer a "presumption of life" instruction; (4) violation of the Eighth Amendment during sentencing for overbroad use of a statutory aggravating circumstance; (5) ineffective assistance of counsel during the sentencing phase; and (6) cumulative error. Brecheen v. Reynolds, 41 F.3d 1343, 1349 (10th Cir.1994). We affirmed the district court's decision. Id. at 1370. The United States Supreme Court denied certiorari. Brecheen v. Reynolds, 115 S.Ct. 2564 (1995).

On August 3, 1995, Petitioner filed a second application for post-conviction relief in Oklahoma state district court predicated upon his June 1995 discovery of previously unknown evidence of alleged juror misconduct. Specifically, his second application was predicated upon: 1) unknown evidence contained in a taped interview conducted by the district attorney's office; and 2) a previously known allegation of an improper comment made by a juror.

In 1985, Petitioner's trial counsel filed a motion for new trial alleging juror misconduct. Specifically, counsel alleged that one of the juror's exited the courtroom after voir dire and told Barbara Stubbs, the victim's daughter, "It's in the bag, I'm on the jury." Pet. at 26. The court refused to hear the motion.

In late 1985, the Oklahoma Court of Criminal Appeals ordered an evidentiary hearing on the issue. To prepare for the evidentiary hearing, the district attorney's office conducted taped interviews with each of the jurors. In one of these interviews, juror Linda Winchester revealed that juror Pat Mullenix allegedly watched the news on television during the trial. The district attorney's office did not turn over this taped interview to the defense. Thus, neither the defense nor the trial court were aware of the contents of the taped interview at the time of the hearing. Following the hearing, the trial court concluded there was no juror misconduct and the Court of Criminal Appeals affirmed.

In May 1988, Petitioner submitted a motion to the district attorney requesting production of the taped interviews. The district attorney declined to produce them. In June 1995, following the election of a new district attorney, Petitioner was granted access to the state's prosecution file, reviewed the taped interview with juror Winchester and thereby discovered her allegation that juror Mullenix watched the news during the trial.

Following this discovery, Petitioner filed a second application for post-conviction relief in Oklahoma state district court alleging six grounds for relief: (1) evidence of juror misconduct wrongfully withheld by the State in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) ineffective assistance of counsel during the sentencing phase; (3) improper denial of proportionality review by the Oklahoma Court of Criminal Appeals; (4) denial of a fair trial due to counsel's failure to discover an "automatic death penalty juror" during voir dire; (5) denial of a fair trial due to improper prosecutorial argument; and (6) denial of his Sixth, Eighth, and Fourteenth Amendment rights due to the state's failure to provide adequate notice that it was seeking the death penalty.

On August 1, 1995, the state district court conducted an evidentiary hearing limited to the juror misconduct issue, finding the other issues either waived or barred. At the hearing, the state introduced the deposition of juror Mullenix. In her deposition, Mullenix stated she did not watch television news during the trial and followed the instructions of the judge. The district court found:

I have reviewed the entire record prior to today's hearing. Based on the record and that which was presented in today's hearing, I find that the verdict of the jury was based on the evidence which was presented and the instructions from the judge, and not based on events occurring outside the courtroom. Consequently, the Application for Post-Conviction Relief is denied.

Tr. at 44. The Oklahoma Court of Criminal Appeals affirmed in an order dated August 7, 1995.

On August 8, 1995, Petitioner filed the instant petition for writ of habeas corpus in federal district court raising the same issues raised in his second state application for post-conviction relief. The federal district court concluded Petitioner was not entitled to relief as to his juror misconduct claim based upon the factual findings of the Oklahoma trial court.

The court also concluded the taped interview withheld by the prosecution was not exculpatory and therefore denied Petitioner relief as to his Brady claim. Finally, the court concluded each of Petitioner's remaining issues were either successive or abusive. As a result, the court denied the petition, Petitioner's request for a hearing, and his motion for stay of execution. The court granted a certificate of probable cause and this appeal followed.2

II.

Rule 9(b) of the Rules Governing Section 2254 Cases provides:

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

The state has the burden to plead abuse of the writ. McCleskey v. Zant, 499 U.S. 467, 494 (1991). "Once the state raises abuse of the writ and pleads it with particularity, 'the burden shifts to the petitioner to show by a preponderance of the evidence, he has not abused the writ procedure.' " Andrews v. Deland, 943 F.2d 1162, 1172 (10th Cir.1991) (quoting Coleman v. Saffle, 869 F.2d 1377, 1381 (10th Cir.1989)); see also McCleskey, 499 U.S. at 494.

Under Rule 9(b), successive claims are those claims which are "identical to grounds heard and decided on the merits in a previous petition." Ryder v. Jenkins, 46 F.3d 59, 61 n. 3 (10th Cir.1995). Successive claims are barred unless a petitioner can demonstrate that " 'the ends of justice would be served by a redetermination of the ground.' " Parks v. Reynolds, 958 F.2d 989, 994 (10th Cir.1992) (quoting Sanders v. United States, 373 U.S. 1 (1963)), cert. denied, 503 U.S. 928 (1992).

Under this inquiry, a petitioner must show that a "constitutional violation probably has caused the conviction of one innocent of the crime." McCleskey, 499 U.S. at 494 (equating the "ends of justice" inquiry with the "fundamental miscarriage of justice" inquiry of abuse of the writ cases); see Sawyer v. Whitley, 112 S.Ct. 2514 (1992) (for application of this standard to the penalty phase of a capital trial).

"Abusive claims are new claims not raised in a previous petition." Ryder, 46 F.3d at 61 n. 3. Abusive claims are barred in a subsequent petition unless the petitioner can show cause for his failure to raise the claim and resulting prejudice or that a fundamental miscarriage of justice would result from the court's failure to consider the new claim. McCleskey, 499 U.S. at 493-95.

In order to establish cause, a petitioner must demonstrate that "some objective factor external to the defense impeded counsel's" efforts to raise the claim. Id. at 493 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). "Adequate cause includes interference by officials which makes compliance with a state's procedural rule impracticable, demonstration of the unavailability of a factual or legal basis, or constitutionally ineffective assistance of counsel in not bringing a claim." Worthen v. Kaiser, 952 F.2d 1266, 1268 (10th Cir.1992).

The requirement that a petitioner show cause "is based on the principle that a petitioner must conduct a reasonable and diligent investigation directed at including all relevant claims and grounds for relief in the first federal habeas petition." Id. (citing McCleskey, 499 U.S. at 498). "If what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant. Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim." McCleskey, 499 U.S. at 498. With these principles in mind, we address each of Petitioner's contentions in turn.

Petitioner first contends he was denied a fair trial due to juror misconduct. Due process requires a defendant have "a jury capable and willing to decide the issue solely on the evidence before it." Smith v. Phillips, 455 U.S. 213, 217 (1982); see also Peters v. Kiff, 407 U.S. 493, 501 (1972) (a defendant has a "due process right to a competent and impartial tribunal."). The Supreme Court has held "that an impartial jury consists of nothing more than 'jurors who will conscientiously apply the law and find the facts.' " Lockhart v. McCree, 476 U.S. 162, 178 (1986) (quoting Wainwright v. Witt, 469 U.S. 412, 423 (1985)).

In the context of a federal habeas proceeding, "[e]xplicit and implicit findings by state trial and appellate courts 'shall be presumed to be correct,' 28 U.S.C. 2254(d), unless one of the seven factors listed in section 2254(d) are present, or the federal court concluded that the state court findings are not fairly supported by the record." Case v. Mondragon, 887 F.2d 1388, 1392 (10th Cir.1989), cert. denied, 110 S.Ct. 1490 (1990).

In the instant case, we conclude the district court did not err in concluding Petitioner failed to show he was deprived of an impartial jury. Smith, 455 U.S. at 217. Both state courts found that the verdict of the jury was based upon the evidence presented at trial and not upon extraneous material. We conclude in accordance with the district court that the factual findings of the Oklahoma courts are entitled to deference. See Case, 887 F.2d at 1392; 28 U.S.C. 2254(d). We therefore affirm the district court's rejection of Petitioner's juror misconduct claim.

Petitioner next contends the state violated Brady by concealing the taped interview with juror Winchester. Under Brady, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. To establish a Brady violation, the petitioner must show that: 1) the prosecution suppressed evidence; 2) the evidence was favorable to the accused; and 3) the evidence was material. United States v. Hughes, 33 F.3d 1248, 1251 (10th Cir.1994). "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). "A 'reasonable probability' of a different result is ... shown when the Government's evidentiary suppression 'undermines confidence in the outcome of the trial.' " Kyles v. Whitley, 115 S.Ct. 1555, 1566 (1995) (quoting Bagley, 473 U.S. at 678).

In the instant case, the district court concluded that the taped interview withheld by the state was not exculpatory and therefore rejected Petitioner's Brady claim. We agree with this conclusion. We additionally hold Petitioner has failed to demonstrate the withheld evidence was material, such that there was a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682. We therefore affirm the district court's rejection of Petitioner's Brady claim.3

Petitioner next contends he received ineffective assistance of counsel in the sentencing phase and was denied a fair trial due to improper prosecutorial jury argument. These claims are "grounds heard and decided on the merits" in his previous federal habeas petition, Ryder, 46 F.3d at 61 n. 3, and are thus successive. Petitioner has not shown "the ends of justice would be served by a redetermination" of these successive claims. Sanders, 373 U.S. at 15. Thus, we affirm the district court's dismissal of these claims as successive.

Petitioner's remaining claims are new claims not raised in his previous habeas petition and are thus abusive. See Ryder, 46 F.3d at 61 n. 3. Consequently, Petitioner must show cause for and prejudice from his failure to raise these claims in his earlier petition or that a fundamental miscarriage of justice would result from a failure to consider the new claims. See McCleskey, 499 U.S. at 493-95.

After careful consideration, we conclude Petitioner has failed to show cause and prejudice to excuse his failure to raise these claims in an earlier petition. See id. In addition, Petitioner has not shown that a fundamental miscarriage of justice would result by dismissing these abusive claims because he has not demonstrated that a constitutional violation "probably has caused the conviction of one innocent of the crime", id. at 494, or innocent of the death penalty.

III.

In accordance with the foregoing, we AFFIRM the district court's denial of the instant petition and Petitioner's request for an evidentiary hearing. We DENY Petitioner's application for stay of execution. See Delo v. Stokes, 495 U.S. 320, 321 (1990) ("A stay of execution pending disposition of a second or successive federal habeas petition should be granted only when there are 'substantial grounds upon which relief might be granted.' ") (quoting Barefoot v. Estelle, 463 U.S. 880, 895 (1983)). The mandate shall issue forthwith.

*****

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

This panel has closely monitored this petition since it was initially filed in the United States District Court, and considerable effort has been expended on the issues raised. This panel has had the benefit of the pleadings filed in both state and federal courts with attached appendices, plus the transcript of the August 1, 1995 hearing. We have received the petition for writ of habeas corpus with supporting authorities, the state's response, and Petitioner's reply, filed in federal district court and accept them as filed in this court. Accordingly, the panel has determined unanimously that oral argument would not be useful, that no further briefing is necessary in this court, and that further delay in this appeal is not warranted. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9

We have assumed without deciding that a Brady violation could exist in the context of a post-conviction proceeding