APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

TACHA, Chief Judge.

Petitioner-appellant Don Wilson Hawkins appeals the denial of habeas relief, see 28 U.S.C. § 2254, from his Oklahoma first-degree felony murder conviction and death sentence. Among other claims, Hawkins argues that the State improperly based his first-degree felony murder conviction on kidnapping for extortion, which is not a specifically enumerated felony supporting a first-degree murder conviction under Oklahoma law. The Oklahoma Court of Criminal Appeals, nevertheless, interpreted Oklahoma's first-degree felony murder statute to include kidnapping for extortion as an underlying felony. We hold that the Oklahoma appellate court's interpretation was not unforeseeable and therefore did not deprive Hawkins of due process. We therefore affirm the district court's denial of habeas relief on this claim, as well as on Hawkins's other claims.

I. FACTS

On August 19, 1985, Hawkins, armed with a revolver, forced his way into Linda Thompson's car, as she purchased stamps at a self-service postal station at a shopping mall near her home. Thompson's two small daughters, Lori, age four, and Katie, eighteen months old, were also in the car at the time.

According to Hawkins, his original plan was to kidnap Thompson and hold her for ransom. Hawkins drove the victims to the home of Shirley Pitts, with whom Hawkins had been living for several months. Pitts's fifteen-year-old nephew, Chris Lovell, and Hawkins's cousin, Dale Shelton, were staying with the couple at that time.

At the house, Pitts and Lovell watched the children. Hawkins and Shelton kept Thompson upstairs in the house for several hours. Later that night, they took Thompson to a barn several hundred yards away, where they kept her chained in the barn's loft. Her children remained locked in a bedroom in the house.

Shelton and Lovell each raped Thompson. During the night, they did allow Thompson to see her children at the house. In the morning, after permitting Thompson briefly to say goodbye to her daughters, Hawkins and Shelton drove Linda Thompson to a nearby lake, where Hawkins hog-tied and drowned her, while Shelton stood lookout. Hawkins and Shelton hid the body and fled the state. Pitts and Lovell left Thompson's daughters with their babysitter.

Police arrested Pitts and Lovell later that day. California police arrested Hawkins and Shelton two months later, in Sacramento. Following his arrest, Hawkins made a statement to Oklahoma detectives admitting these crimes, including drowning Thompson because she otherwise could be a witness against him.

The jury convicted Hawkins of the first-degree felony murder of Linda Thompson and two counts of kidnapping her children for extortion. The jury sentenced him to life imprisonment on the two kidnapping-for-extortion convictions, which Hawkins had committed after two or more prior felony convictions.

During the capital sentencing proceeding, the State incorporated its first-stage evidence and presented additional evidence concerning Hawkins's further violent criminal conduct. That evidence established that, after Thompson's murder, Hawkins had kidnapped, raped, and sodomized two teenage girls in San Diego, California.

The following day, he had kidnapped and robbed two other women, one of whom his accomplice had raped and sodomized. In addition, immediately prior to Thompson's murder, Hawkins had killed a man in Denver, Colorado. Hawkins had also beaten his girlfriend Pitts and kept her locked in a trailer while the couple briefly lived in Colorado. Finally, Hawkins had lost his job in Colorado after he shot at his boss's car.

Hawkins instructed his defense attorney, during the trial's second stage, not to raise any objections or cross-examine any State witnesses. Hawkins also directed his attorney not to put on any evidence in mitigation or present any opening or closing argument.

Jurors found all four of the charged aggravating factors: 1) Hawkins had killed Thompson to avoid arrest; 2) Thompson's murder was especially heinous, atrocious, or cruel; 3) Hawkins is a continuing threat to society; and 4) Hawkins had previously been convicted of a violent felony.

The jury then sentenced Hawkins to death. The Oklahoma Court of Criminal Appeals affirmed Hawkins's convictions and sentences on direct appeal, see Hawkins v. State, 891 P.2d 586 (Okla. Crim. App. 1994), cert. denied, 516 U.S. 977 (1995), and denied post-conviction relief in an unpublished opinion.

The State also tried Shelton jointly with Hawkins. The jury convicted Shelton of first-degree felony murder, first-degree rape and forcible oral sodomy, all involving Linda Thompson, and of kidnapping Thompson's two children for extortion. Jurors sentenced Shelton to five consecutive life sentences. See Shelton v. State, 793 P.2d 866, 869 (Okla. Crim. App. 1990).

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In his second claim, Hawkins contends that his trial attorney was ineffective during the capital sentencing proceeding because the attorney failed to investigate and present mitigating evidence. See Appellant's opening br. at 25; see also Dist. Ct. R. doc. 14 at 22-23 (§ 2254 petition). Hawkins further asserts that he, himself, could not knowingly and voluntarily waive presenting mitigating evidence because his defense attorney failed to explain mitigating evidence adequately to him. See Appellant's opening br. at 25-26; see also Dist. Ct. R. at 28 (§ 2254 petition). The State argues, however, that Hawkins never presented these specific ineffective-assistance arguments to any state court and that this habeas claim thus remains unexhausted. See 28 U.S.C. § 2254(b)(1)(A).

In order to exhaust his state remedies, a federal habeas petitioner must have first fairly presented the substance of his federal habeas claim to state courts. See, e.g., O'Sullivan, 526 U.S. at 844-45 (pre-AEDPA). Although the federal district court here, "out of an overabundance of caution," Dist. Ct. R. doc. 24 at 17, addressed this claim's merit, we decline to do so because it remains unexhausted and Oklahoma courts would now deem it procedurally barred. See Coleman v. Thompson, 501 U.S. 722, 735 n.* (1991). See generally Medlock v. Ward, 200 F.3d 1314, 1322 (10th Cir. 2000) (denying habeas relief on procedural-default basis, despite district court's decision addressing claim's merit).

During his capital sentencing proceeding, Hawkins instructed his defense attorney not to present any mitigating evidence or argument, and not to cross-examine the State's witnesses or raise any objections. On direct appeal, then, Hawkins alleged that he had been "denied the effective assistance of counsel when the trial judge, over defense counsel's objection, allowed [Hawkins] to commit state sanctioned suicide." Appellant's direct-appeal br. at 22. Hawkins further argued to the state appellate court:

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For these reasons, we AFFIRM the district court's denying Hawkins habeas relief.

LUCERO, Circuit Judge, concurring:

Because the majority correctly concludes that Hawkins' claim of ineffective assistance of counsel is procedurally barred, I join the opinion of the court. If relief from procedural proscription is to be afforded to this defendant, such relief must come from higher authority. I write separately to note that the opinion of the court should not be read as an imprimatur of approval on the unacceptable practice of trial lawyers forsaking their duties to investigate potential mitigating evidence, to inform defendants of their constitutional right to present mitigating evidence, and to explain the general significance of mitigating evidence to clients in capital cases.