Allen failed to appear at trial in August 1991, although he had been served with a subpoena the preceding week. The trial court, in Allen's absence, found that he had consented to the interception of this conversation, in light of the fact that he had permitted officers to "wire" him with a radio transmitter and had given him the sports car to use. The state court's determination that Allen voluntarily consented is a finding of fact, see Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), to which this court must defer, absent petitioner's assertion of clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1).

Petitioner challenges the trial court's finding of consent with a signed statement from Allen, dated August 1998, in which Allen asserts that police coerced his cooperation by threatening Allen and his family. Petitioner asserted this evidence for the first time in these § 2254 proceedings and sought an evidentiary hearing on the issue of consent.

The district court properly determined that, under 28 U.S.C. § 2254(e)(2), it could not conduct an evidentiary hearing. In relevant part, § 2254(e)(2) provides that, where a petitioner has failed to develop the factual basis of his federal habeas claim in state court, the federal habeas court "shall not" conduct an evidentiary hearing unless the petitioner shows that the factual predicate could not have been discovered previously, through the exercise of due diligence, and "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."

Petitioner will not be deemed to have "fail[ed] to develop the factual basis" of this claim "unless there is lack of diligence or some greater fault, attributable to" him. Williams, 120 S. Ct. at 1488. "Diligence . . . depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court . . . ." Id. at 1490.

Petitioner alleges only that his investigator did not start looking for Allen until appointed counsel began preparing for the federal habeas proceeding, seven years after his trial, and that only through skill and luck did the investigator find Allen after a four-month search. These allegations are insufficient to show petitioner's due diligence in seeking to develop the factual basis of this claim in state court. See Smallwood v. Gibson, 191 F.3d 1257, 1266 (10th Cir. 1999), petition for cert. filed (U.S. Mar. 9, 2000) (No. 99-9445).

Petitioner argues that his efforts to develop this claim in state court were diligent, albeit unsuccessful, because the State withheld evidence of its coercion of Allen. See Williams, 120 S. Ct. at 1488 (petitioner is not at fault when his diligent efforts are thwarted by another's conduct); see also id. at 1489. This conclusory allegation, however, is insufficient to explain petitioner's failure to look for Allen at the time of trial or for almost seven years following trial.

Petitioner argued at trial and on direct appeal that Allen had not consented to the interception of his conversation with petitioner. Petitioner, thus, was aware of the disputed consent issue throughout his state court proceedings. See id. at 1490 (diligence is based on available information). He fails to assert, however, any efforts he undertook during those state proceedings to develop the factual basis of that claim. See id. at 1491-92.

Because petitioner failed to develop the factual basis of this § 2254 claim, he must establish both that any efforts to discover the facts would have been in vain and that he has a "convincing claim of innocence." Williams, 120 S. Ct. at 1490 (citing 28 U.S.C. § 2254(e)(2)(A)(ii) and (B)); see also id. at 1491. This he has not done. The district court, therefore, properly denied petitioner an evidentiary hearing on the issue of consent.

III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Petitioner argues that his trial attorney provided constitutionally ineffective representation by failing to obtain the testimony of his co-defendant, Ted Holt, and by failing to investigate and present mitigating evidence. Petitioner did not assert these claims until his state post-conviction proceeding.

The Oklahoma Court of Criminal Appeals held that petitioner had thus procedurally defaulted these ineffective assistance claims, because the facts upon which they were based were available at the time of his direct appeal. See Johnson, 952 P.2d at 1006. Because petitioner was represented at trial and on appeal by different attorneys, the adequacy of this state procedural bar to preclude federal habeas review turns on whether he could have adequately developed the factual bases of these claims on direct appeal. See English v. Cody, 146 F.3d 1257, 1263 (10th Cir. 1998).

     A.  Failure to obtain co-defendant Holt's testimony

At Holt's trial, occurring after petitioner's conviction, Holt testified that he had been friends with Crain for ten years. He had met, but did not really know, petitioner. Holt denied hiring petitioner to kill his wife. The jury acquitted Holt. Petitioner asserts that his trial attorney should have sought immunity for Holt, so that he could have given this same testimony at petitioner's trial.

Petitioner's direct appeal attorney had the information necessary to raise this claim on direct appeal, because the state trial court had ordered the court reporter to give petitioner's attorney the audiotapes of Holt's trial. The state's procedural bar, therefore, is adequate to preclude federal habeas review.

As cause excusing this default, petitioner asserts his appellate counsel was ineffective in failing to raise this claim on direct appeal. See generally Coleman v. Thompson, 501 U.S. 722, 750 (1991) (discussing cause and prejudice excusing procedural default). The relevant inquiry is whether appellate counsel omitted a claim that was "clearly meritorious." Johnson v. Gibson, 169 F.3d 1239, 1251 (10th Cir.) (further quotation omitted), cert. denied, 120 S. Ct. 415 (1999).

In order for his ineffective assistance of trial counsel claim to have clear merit, petitioner must establish both that trial counsel's performance was deficient and that petitioner was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687 (1984). He alleges prejudice in both the first and second stages of his trial.

The district court held that, even if Holt had testified at petitioner's trial as he testified at his own, the jury would not have acquitted petitioner, in light of petitioner's confessions and the evidence corroborating the details of those confessions. We agree and affirm on that basis.

For similar reasons, there is not a reasonable probability that, had they heard Holt's testimony, jurors in petitioner's case would have concluded the balance of aggravating and mitigating evidence did not warrant death. See id. at 695. Petitioner's ineffective assistance of trial counsel claim is, thus, not clearly meritorious and he is, therefore, unable to establish the cause and prejudice necessary to excuse this default.

     B.  Failure to prepare adequately for sentencing

Petitioner asserts that trial counsel provided constitutionally ineffective representation during the sentencing stage of his trial by failing to investigate and present mitigating evidence. The state appellate court deemed petitioner to have defaulted this claim, raised for the first time in his state post-conviction pleadings, because trial counsel's ineffective representation at sentencing was "obvious" from the direct appeal record. See Johnson, 952 P.2d at 1007.

In order to resolve the prejudice component of this ineffective assistance claim, it still would have been necessary for the reviewing court to go beyond the trial record to consider evidence petitioner alleges trial counsel should have presented, see generally Williams, 120 S. Ct. at 1515, and we are not persuaded that Oklahoma's procedural bar is adequate to preclude habeas review of this claim. See Pickens v. Gibson, 206 F.3d 998, 1001 (10th Cir. 2000); English, 146 F.3d at 1264.

Where counsel's alleged errors occurred during a capital sentencing proceeding, the prejudice inquiry is "whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695; see also Cooks v. Ward, 165 F.3d 1283, 1296 (10th Cir. 1998) (requiring reviewing court to consider strength of government's case and aggravating circumstances jury found to exist, as well as mitigating factors that might have been presented), cert. denied, 120 S. Ct. 94 (1999).

The district court held that the additional mitigating evidence petitioner now asserts was either cumulative or insufficient to persuade the jury not to impose a death sentence, in light of the aggravating and mitigating evidence that was presented at sentencing. We agree that petitioner has failed to establish the requisite prejudice.

At sentencing, in support of its charged aggravators, the State incorporated the first stage evidence; the parties stipulated to petitioner's prior manslaughter conviction; the State presented a detective's testimony that petitioner had, prior to the killing, set the victim's house on fire at the request of Crain and Holt; and played portions of the tape recorded conversation between petitioner and informant Allen, during which petitioner bragged about the killing and threatened to kill Holt and harass Crain because they had failed to pay petitioner for the murder.

In mitigation, petitioner testified that he had completed two years of college; served four years in the Marine Corps, receiving an honorable discharge; had worked in oil fields and machine shops and trained horses; maintained his innocence of the murder, but expressed his condolences to the victim's family for his part in hiding the murder weapons; and begged for his life and the opportunity to know his children growing up. Two of his sisters testified that petitioner was a good brother, helpful and good with children, hardworking and dependable. They asked the jury to spare his life because his family and his children needed him. Petitioner's mother testified that petitioner was a good son, nice and helpful, and she did not want him to die.

In support of his application for post-conviction relief, petitioner presented affidavits of these witnesses, and other friends and relatives who would have further testified that petitioner was a good friend, popular in high school, a good athlete, a church member, nonviolent, morally good, talented, smart, hardworking, and fond of horses and cars. They could also have testified that petitioner was subject to physical abuse as the first black student to attend integrated schools in that area, and that his fiancé had died in a car wreck the day before their wedding. One individual suspected petitioner's stepfather abused him.

A psychologist, Vesta Gettys, Ph.D., evaluated petitioner for purposes of his state post-conviction proceedings. After administering several tests, Dr. Gettys concluded petitioner's results were normal, he had a strong need to present himself in the best light, he approached things passively, he had very low self-esteem and it was unlikely he would present much of a behavior problem.

In his § 2254 pleadings, petitioner sought to expand the federal habeas record to include the affidavit of Manuel St. Martin, M.D., a psychiatrist and attorney. See Rule 7, Rules Governing Section 2254 Cases. Dr. St. Martin indicated that petitioner's background included a number of "markers" that should have indicated to trial counsel that a neuropsychological exam was necessary.

Those markers included head injuries suffered while breaking horses, bull riding, and boxing; petitioner's alcoholism; his prior heroin addiction; his impoverished upbringing; the absence of his alcoholic and abusive father; his school attendance during integration of area schools; and his leaving home and becoming the family breadwinner at age twelve.

Dr. St. Martin acknowledged his evaluation was consistent with that of Dr. Gettys. In addition, Dr. St. Martin indicated that petitioner's stoic or cavalier attitude was really a coping mechanism which may have created a false impression with the jury that he lacked remorse; petitioner would adapt well to structured prison life; and his use of alcohol would have made it more likely that he would tell a false story under police interrogation. The district court declined to consider this affidavit, holding it was not sufficiently relevant to warrant expanding the record.

Even considering Dr. St. Martin's affidavit, this additional mitigating evidence was not sufficient to warrant habeas relief. See, e.g., Clayton v. Gibson, 199 F.3d 1162, 1178-79 (10th Cir. 1999), petition for cert. filed (U.S. May 20, 2000) (No. 99-9630); Smith v. Gibson, 197 F.3d 454, 463-64 (10th Cir. 1999), petition for cert. filed (U.S. May 19, 2000) (No. 99-9652).

Petitioner's case is distinguishable from the Supreme Court's decision in Williams, 120 S. Ct. 1495. In that case, the Court held Williams was prejudiced by defense counsel's deficient investigation, which failed to disclose "extensive records graphically describing Williams' nightmarish childhood," including his parents' criminal neglect of Williams and his siblings and Williams' severe and repeated beatings by his father. Id. at 1514-15.

Trial counsel also failed to discover that Williams was borderline mentally retarded, completing only the sixth grade; had received prison commendations for helping to break up a prison drug ring and returning a guard's wallet; prison officials considered him to be one of the inmates least likely to act violently; and a member of a prison ministry would have testified petitioner thrived in the structured prison environment. See id. at 1514. The additional mitigating evidence petitioner has presented in this case fails to rise to the same level of significance as that found in Williams.

Nor is this case like that of Mayes v. Gibson, 210 F.3d 1284, 1290-91 (10th Cir. 2000), in which this court held that trial counsel's failure to present additional mitigating evidence had prejudiced the petitioner. Unlike this case, in Mayes, the State's case supporting the capital murder conviction was relatively weak, the jury "obvious[ly] struggle[d] in deliberations," and found the existence of only one aggravating circumstance. Id. at 1291.

IV.  HEARSAY TESTIMONY