Jay Wesley Neill v. Gary Gibson, Warden, Oklahoma State Penitentiary , 278 F.3d 1044 ( 2001 )

ORDER

Appellant’s petition for rehearing by the panel is granted. The opinion on rehearing is filed with this order.

The suggestion for rehearing en banc was transmitted to all of the judges of the court who are in regular active service as required by Fed.R.App.P. 35, with the exception of Judge Robert H. Henry, who was recused in this matter. Judge Carlos F. Lucero voted to grant, and all other judges of the court voted to deny rehearing en banc.

Therefore, the appellant’s petition for rehearing en banc is denied.

TACHA, Chief Judge.

Petitioner-appellant Jay Wesley Neill appeals the denial of habeas relief, see 28 U.S.C. § 2254, from four death sentences. This appeal presents,.among other issues, the question of whether Oklahoma can constitutionally apply its statute permitting introduction of victim impact evidence during a capital sentencing proceeding at a trial for crimes occurring prior to that statute’s enactment. We conclude Oklahoma can do so without violating the Ex Post Facto or Due Process Clauses. We, therefore, affirm the denial of relief on this, and the remainder of Neill’s habeas claims.

!• FACTS

A jury sentenced Neill to death after convicting him of four counts of first degree malice murder stemming from Neill’s armed robbery of a Gerónimo, Oklahoma bank in December 1984. Neill did not contest his guilt during the trial’s first stage. The State’s evidence established that Neill, then age nineteen, and his co-defendant, Grady Johnson, age twenty-one, were roommates involved in a homosexual relationship. In 1984, they were having serious financial difficulties. During the week before the bank robbery, the pair purchased two knives, obtained a gun permit, bought a .32 caliber handgun and ammunition, and made plane reservations to San Francisco for Friday afternoon, December 14. On that Friday, shortly after 1:00 P.M., Neill robbed the bank. During the robbery, Neill stabbed three bank employees to death. All three women died from multiple stab wounds to their head, neck, chest and abdomen. One woman was seven months pregnant. Neill also attempted to decapitate each woman with a knife.

Five customers entered the bank during the robbery. Neill forced all five to lie face down in the back room where the employees had been stabbed. He then shot each customer in the head, killing one and wounding the other three. Neill denied attempting to shoot the fifth, an eighteen-month-old child. The child’s father testified, however, that he saw someone point a gun at his child’s head and fire several times. The weapon, by this time, was out of ammunition.

Neill and Johnson then flew to San Francisco, where they spent some of the approximately $17,000 stolen from the bank on expensive jewelry and clothing, hotels, limousines and cocaine. FBI agents arrested the pair there three days after the robbery.

Prior to this trial, Neill gave a videotaped interview to a religious television program, “The 700 Club,” and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications,¹ Neill admitted committing the crimes. Based on this evidence, the jury convicted Neill of four counts of first degree malice murder, three counts of shooting with intent to kill and one count of attempted shooting with intent to kill.

At sentencing, the State charged and the jury found, as to each murder, three aggravating factors: Neill had created a great risk of death to more than one person; he had committed the murders to avoid arrest and prosecution; and the murders were especially heinous, atrocious or cruel. The jury imposed four death sentences, as well as twenty years’ imprisonment for each non-capital conviction.

The Oklahoma Court of Criminal Appeals affirmed Neill’s convictions and death sentences, and denied post-conviction relief. See Neill v. State, 896 P.2d 537 (Okla.Crim.App.1994), cert. denied, 516 U.S. 1080, 116 S.Ct. 791, 133 L.Ed.2d 740 (1996); Neill v. State, 943 P.2d 145 (Okla.Crim.App.1997).

II. STANDARDS OF REVIEW

Because Neill filed his federal habeas petition after the effective date of the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), that Act governs this appeal. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Neill, therefore, will not be entitled to habeas relief unless he can establish that the state court resolved his claims “contrary to,” or based on “an unreasonable application of,” clearly established Supreme Court precedent, 28 U.S.C. § 2254(d)(1), or “on an unreasonable determination of the facts in light of the evidence,” id. § 2254(d)(2). We presume state court factual findings are correct, absent clear and convincing evidence to the contrary. See id. § 2254(e)(1).

Where the state court did not address the merits of a habeas claim, however, this court reviews the district court’s decision de novo, reviewing any factual findings only for clear error. See, e.g., Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir.2000).

III. DISCUSSION

A. Application of Oklahoma’s newly enacted victim impact legislation at Neill’s retrial. In 1991, after Neill’s first trial, the United States Supreme Court, reversing its earlier precedent, held that states could constitutionally admit victim impact evidence during capital sentencing proceedings. See Payne v. Tennessee, 501 U.S. 808, 824-27, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). Oklahoma, in 1992, enacted legislation permitting introduction of such evidence. See Olda. Stat. tit. 21, § 701.10(C); see also id. tit. 22, §§ 984, 984.1, 991a(D). Neill argues that applying this statute retrospectively to permit the State to introduce victim impact evidence at his 1992 retrial for these 1984 crimes violated the Ex Post Facto and Due Process Clauses. Specifically, Neill asserts that applying this statute at his retrial implicated the fourth category of ex post facto legislation recognized in Colder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) — “[e]very law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” See also Carmell v. Texas, 529 U.S. 513, 521-22, 525, 534, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (reaffirming validity of CaldePs fourth ex post facto category). Although the state appellate court rejected this claim, it did not specifically address Colder¹ s fourth category. See Neill, 896 P.2d at 553-54.

Neill relies on Carmell. That case, however, is distinguishable. In Carmell, the Supreme Court addressed the retrospective application of a Texas law providing that certain sex offenses could be established solely on the victim’s testimony, when previously they would have required additional corroborating evidence. See 529 U.S. at 516, 120 S.Ct. 1620. The Court, applying Colder’& fourth category, see Carmell, 529 U.S. at 522, 120 S.Ct. 1620, held retrospective application of this Texas statute violated the ex post facto prohibition because this legislation “changed the quantum of evidence necessary to sustain a conviction.” Id. at 530, 120 S.Ct. 1620; see also id. at 531, 532-33, 546, 120 S.Ct. 1620. This change in the quantum of evidence “subverts the presumption of innocence.” Id. at 532, 120 S.Ct. 1620. In addition, the Court noted that the Texas statute did not simply regulate the mode by which the parties could place facts before the jury, but rather “govern[ed] the sufficiency of those facts for meeting the burden of proof.” Id. at 545, 120 S.Ct. 1620; see also id. at 546-47, 120 S.Ct. 1620.

In contrast, Oklahoma’s victim impact statute does not change the quantum of evidence necessary for the State to obtain a death sentence, nor does it otherwise subvert the presumption of innocence. See id. at 580-34, 120 S.Ct. 1620; see also Thompson v. Missouri, 171 U.S. 380, 387, 18 S.Ct. 922, 43 L.Ed. 204 (1898). Further, the Oklahoma statute leaves for the jury to determine the victim impact evidence’s sufficiency or effect. See Carmell, 529 U.S. at 545-47, 120 S.Ct. 1620; see also Thompson, 171 U.S. at 387, 18 S.Ct. 922. Moreover, “[v]ictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.” Payne, 501 U.S. at 825, 111 S.Ct. 2597.

This case is more analogous to Thompson, upon which the district court relied to deny Neill habeas relief. In Thompson, the Court held that retrospectively applying a state statute permitting handwriting experts’ testimony did not violate the Ex Post Facto Clause. See 171 U.S. at 380-82, 386-88, 18 S.Ct. 922.

“Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not ... alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed.... The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent stat-ute_ [Alterations which do not increase the punishment, nor change the ingredients of the offence, or the ultimate facts necessary to establish guilt, but — leaving untouched the nature of the crime and the amount or degree of proof essential to conviction — only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure.”

Id. at 385-86, 18 S.Ct. 922 (quoting Hopt v. Utah, 110 U.S. 574, 589-90, 4 S.Ct. 202, 28 L.Ed. 262 (1884)). Further, the Thompson Court indicated it could not

perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the of-fence was committed.... The statute [at issue] did nothing more than remove an obstacle ... that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established....

Id. at 387, 18 S.Ct. 922.

Neill argues, however, that Thompson is distinguishable from his case because, while expert handwriting testimony could benefit either the State or the defendant, Oklahoma’s victim impact evidence benefits only the State and would always be detrimental to the capital defendant. See also Carmell, 529 U.S. at 533 & n. 23, 546, 120 S.Ct. 1620. In Carmell, the Court did discuss this factor, noting first that “[o]rdi-nary rules of evidence, for example, do not violate the [Ex Post Facto] Clause.” Id. at 533 n. 23, 120 S.Ct. 1620. The Court further indicated that these “ordinary rules of evidence ... are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case.” Id.; see id. at 546, 120 S.Ct. 1620 (noting changes lowering quantum of proof, and thus implicating Ex Post Facto Clause, will always inure to State’s benefit, but witness competency laws “do not necessarily run in the State’s favor”); see also Thompson, 171 U.S. at 387-88, 18 S.Ct. 922. But that factor alone is not dispositive. See McCulloch v. State, 39 S.W.3d 678, 684 (Tex.Ct. App.2001). Rather, the Carmell Court noted that, “[m]ore crucially, such [ordinary rules of evidence], by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption.” 529 U.S. at 533 n. 23, 120 S.Ct. 1620. Despite the fact that Oklahoma's statute permitting victim impact evidence benefits only the State,² therefore, it does not violate the ex post facto prohibition here because it neither changes the quantum of proof nor otherwise subverts the presumption of innocence. See Carmell, 529 U.S. at 530-33 & 533 n. 23, 120 S.Ct. 1620. The “inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 510 n. 6, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (further quotation omitted). Neill, therefore, is not entitled to habeas relief.

B. Second-stage jury instruction. Oklahoma law provides that, if a capital sentencing jury cannot reach a unanimous verdict within a reasonable time, the trial court shall impose a life sentence, either with or without the possibility of parole. See Okla. Stat, tit. 21, § 701.11. The Eighth Amendment, however, does not require the trial court to instruct jurors on the consequences of their failure to agree. See Jones v. United States, 527 U.S. 373, 381, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Neill argues the Constitution, nonetheless, did require such an instruction in this case because here the prosecutor affirmatively misinformed jurors that if they failed to reach a unanimous sentencing decision, there would be another retrial. See Trial tr. vol. v. at 1315. Jones does indicate that, “[i]n theory, the ... failure to instruct the jury as to the consequences of deadlock could give rise to an Eighth Amendment problem,” noting “a jury cannot be ‘affirmatively misled regarding its role in the sentencing process.’ ” 527 U.S. at 381-82, 119 S.Ct. 2090 (quoting Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994)).

Because the Oklahoma Court of Criminal Appeals denied relief solely on state law grounds, see Neill, 896 P.2d at 557, this court reviews this constitutional claim de novo. See Thomas, 218 F.3d at 1220.

Although the prosecutor did, at one point, misstate Oklahoma law, his argument as a whole did not mislead the jury. Following his misstatement that the jury’s failure to reach a unanimous sentencing decision would result in another retrial, the prosecutor argued that if defense counsel could get one juror to vote against the death penalty, that punishment could not be imposed. See Trial tr. vol. V at 1321. Defense counsel also argued to the jury that, if one of them believed death was not the appropriate punishment, that juror should hold out and the judge would eventually declare a deadlock and impose a life sentence without the possibility of parole. See id. at 1308, 1313. Further, the prosecutor ended his argument by asserting that there was no mistrial at sentencing and that if one juror “cannot agree [to a death sentence], then it’s life without parole.” Id. at 1327. In light of the entire record, then, the prosecutor’s single misstatement did not mislead the jury concerning its sentencing role. An instruction on the consequences resulting from the jury’s failure to reach a unanimous sentencing decision, therefore, was unnecessary. See Jones, 527 U.S. at 381-82, 119 S.Ct. 2090.

For these same reasons, Neill’s claims that his trial attorney was ineffective for failing to object to the prosecutor’s misstatement, and to object to the prosecutor’s argument generally concerning the possibility of another retrial, lack merit.³ See, e.g., Werts v. Vaughn, 228 F.3d 178, 205 (3d Cir.2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1621, 149 L.Ed.2d 483 (2001); see also Washington v. Hofbauer, 228 F.3d 689, 699 (6th Cir.2000) (noting that, before assessing whether defense counsel was ineffective for failing to object to prosecutorial misconduct, habeas court must first determine whether prosecutor in fact committed misconduct).

C. Denial of impartial jury. A capital defendant may challenge for cause any juror who will automatically vote to impose a death sentence upon a first degree murder conviction. See Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Relying on Morgan, Neill argues that the trial court and his defense attorney failed to question three individuals who sat on Neill’s jury-Hyde, Loggins, and Hannabass — concerning whether each could consider imposing a sentence less than death if the jury did convict Neill of first degree murder. On appeal to this court, Neill asserts three theories warranting habeas relief on this claim: 1) having any one of these three individuals on the jury violated Morgan; 2) the trial court’s failure to pose this question sua sponte deprived Neill of due process and a fundamentally fair trial; and 3) defense counsel was constitutionally ineffective for failing to make this inquiry.

1. Procedural posture. Because Neill did not challenge these three jurors until his state post-conviction application, the Oklahoma Court of Criminal Appeals held he had waived these claims. See Neill, 943 P.2d at 147-48. That state procedural bar is adequate to preclude habeas review of Neill’s Morgan and due process claims. See Hale v. Gibson, 227 F.3d 1298, 1328 (10th Cir.2000) (Oklahoma’s procedural bar, applicable to most claims not raised on direct appeal, except ineffective-assistance claims, is adequate and independent default rule), cert denied, — U.S. -, 121 S.Ct. 2608, 150 L.Ed.2d 764 (2001). Neill does not assert either cause and prejudice excusing this default, nor that this court’s refusal to consider these claims would result in a fundamental miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Neill’s procedural default, therefore, precludes federal habeas review. See id.

The State’s procedural bar, however, is not adequate to preclude habeas review of Neill’s ineffective-assistance claim because the same attorney represented Neill both at trial and on direct appeal. See English v. Cody, 146 F.3d 1257,1263 (10th Cir.1998); see also Walker v. Gibson, 228 F.3d 1217, 1231-32 (10th Cir.2000), cert denied, 533 U.S. 933, 121 S.Ct. 2560, 150 L.Ed.2d 725 (2001). Accordingly, the State concedes that the merits of that claim are properly before this court. See Appellee’s Br. at 22-23.

2. Ineffective assistance of trial counsel. This court’s inquiry is thus limited to whether trial counsel was ineffective for failing to ask these three jurors if they would automatically vote to impose a death sentence upon Neill’s first degree murder conviction. To succeed, Neill must establish both that counsel’s performance was deficient and Neill’s defense was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the state appellate court did not address this claim’s merit, this court’s review is de novo. See Thomas, 218 F.3d at 1220; see also Smith v. Gibson, 197 F.3d 454, 461 (10th Cir.1999) (reviewing ineffective assistance claims, which present mixed questions of law and fact, de novo), cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 60 (2000).

Generally, “[a]n attorney’s actions during voir dire are considered to be matters of trial strategy,” which “cannot be the basis” of an ineffective assistance claim “unless counsel’s decision is ... so ill chosen that it permeates the entire trial with obvious unfairness.” Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir.1997); see also Hale, 221 F.3d at 1317-18; Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir.), cert. denied, 531 U.S. 938, 121 S.Ct. 329, 148 L.Ed.2d 264 (2000). Further,

[ljawyers experienced in the trial of capital cases have widely varying views about addressing the delicate balance between the disqualification of jurors whose personal beliefs prevent them from ever imposing the penalty of death under Witherspoon v. Illinois, 391 U.S. 510, 520-23, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and those who would automatically recommend that sentence if they found the defendant guilty. Morgan, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492_ The difficulty of the task is greater where[, as here,] there has been widespread publicity and public comment about the crime, the investigation and pre-trial proceedings....

United States v. McVeigh, 118 F.Supp.2d 1137, 1152 (D.Colo.2000) (28 U.S.C. § 2255 proceeding).

Here, defense counsel indicated to Neill, prior to trial, that he intended to concentrate specifically on voir dire matters and he hoped thereby to create reversible error. See Post-conviction application, app. E at 4, 14, 16. Further, either defense counsel or the prosecutor asked all other prospective jurors whether they would consider imposing a sentence less than death. Trial counsel, therefore, was well aware of the need for this inquiry. Nevertheless, the record is insufficient to permit this court to determine whether defense counsel’s failure to ask only these three jurors whether they would automatically vote for a death sentence was strategic and, if so, whether that strategy was reasonable.

Regardless, Neill has failed to establish any resulting prejudice. See Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (noting court may consider Strickland ‘s prejudice component without first addressing adequacy of counsel’s performance). To do so, Neill must show “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, 104 S.Ct. 2052. Because “[i]f even one” juror who would automatically vote for a death sentence “is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence,” Morgan, 504 U.S. at 729,112 S.Ct. 2222, we address whether any of these jurors would have automatically voted to impose a death sentence, see McVeigh, 118 F.Supp.2d at 1152 (noting, in addressing similar ineffective-assistance claim, that “[t]he primary focus is on the jurors’ willingness to consider a life sentence after finding the defendant guilty of the crimes charged”); see also Hale, 227 F.3d at 1320 (addressing claim that defense counsel was ineffective for failing to remove biased jurors during voir dire by requiring petitioner to show jurors were in fact biased).

To that end, Neill proffers his investigators’ affidavits indicating that, four years after the trial, Juror Loggins “felt that the death penalty was the only appropriate punishment for murder, under any circumstances,” Post-conviction application, app. H at 4,12, and Juror Hyde “felt that if you take a life, you deserve the same sentence,” id. at 16, 17. The district court, however, did not abuse its discretion in refusing to consider these affidavits, deeming them inadmissible hearsay.⁴ See United States v. Davis, 60 F.3d 1479, 1484 (10th Cir.1995) (direct criminal appeal) (noting district court has discretion to refuse to consider jury consultant’s affidavit containing hearsay concerning what jurors had told her); see also Western Spring Serv. Co. v. Andrew, 229 F.2d 413, 419 (10th Cir.1956) (holding, in civil action, that attorney’s affidavit concerning what juror told attorney was hearsay, entitled to no consideration).

Even assuming this court could consider these affidavits, cf. Walker, 228 F.3d at 1233, they fail to show prejudice, cf. Hale, 227 F.3d at 1319 (noting, in addressing claim that trial counsel was ineffective for failing to remove jurors with preconceived belief defendant was guilty, that “[t]o show a juror was biased,” petitioner must show more than that the juror “had a preconceived notion of guilt;” he “must show that the juror had such a fixed opinion that he or she could not judge impartially”). Neill’s affidavits attribute to these jurors single, brief, conclusory statements, without providing the context in which these jurors made these statements, nor the time frame during which they were to have held these beliefs. Moreover, “[c]onsideration of statements made by trial jurors after they experienced the entire trial and sentencing hearing and after deliberating on the verdicts are not reasonably probative of ... whether [jurors] could consider the evidence with open minds and follow the court’s instructions on the law_” McVeigh, 118 F.Supp.2d at 1153.

Apart from these affidavits, Neill points to Juror Hannabass’s response to the question posed to him during voir dire as to whether he could consider imposing a death sentence. Juror Hannabass answered “I can do it. I would like to.” Trial tr. vol II. at 470-71. Neither defense counsel nor anyone else further questioned this juror concerning his ability to consider imposing a sentence less than death. Nonetheless, this ambiguous voir dire response, without more, is insufficient to establish that Juror Hannabass would have automatically voted to impose a death sentence, upon Neill’s first degree murder conviction. Cf. Moore v. Gibson, 195 F.3d 1152, 1170 (10th Cir.1999) (holding trial judge, in finding juror impartial and thus qualified to serve, and aided by judge’s assessment of juror’s credibility, may resolve any ambiguity in juror’s voir dire response in State’s favor).

For these same reasons, neither the investigators’ affidavits nor the voir dire transcript are sufficient to have required the district court to conduct an evidentiary hearing. See Walker, 228 F.3d at 1231. Neill, therefore, is not entitled to habeas relief on this ineffective-assistance claim.

D. Prosecutorial misconduct. Neill challenges several comments the prosecutor made, arguing both that the remarks were improper and trial counsel was ineffective for failing to object to them at trial. Because Neill did not assert these prosecutorial-misconduct claims until his state post-conviction application, however, the Oklahoma appellate court deemed him to have waived them. See Neill, 943 P.2d at 147-48. That independent state procedural bar will be adequate to preclude federal habeas review, unless Neill can establish cause and prejudice excusing his default, or that this court’s refusal to consider these claims will result in a fundamental miscarriage of justice. See, e.g., Hale, 227 F.3d at 1328; see also Coleman, 501 U.S. at 750, 111 S.Ct. 2546. Neill does not here assert a fundamental miscarriage of justice. Instead, as cause excusing his default, Neill argues that his appellate attorney was ineffective for failing to raise these prosecutorial-misconduct claims on direct appeal. See generally Coleman, 501 U.S. at 752-54, 111 S.Ct. 2546 (holding constitutionally ineffective assistance can establish cause excusing procedural default). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs this ineffective-appellate-assistance inquiry. See Smith, 528 U.S. at 285, 120 S.Ct. 746; see also Coleman, 501 U.S. at 752, 111 S.Ct. 2546. Neill, therefore, must establish both that counsel’s performance was deficient and that his defense was thereby prejudiced. See Strickland, 466 U.S. at 687, 104 5.Ct. 2052. Here, the relevant questions are whether appellate counsel was “objectively unreasonable” in failing to raise these prosecutorial-misconduct claims on direct appeal and, if so, whether there is a “reasonable probability that, but for his counsel’s unreasonable failure” to raise these claims, Neill “would have prevailed on his appeal.” Smith, 528 U.S. at 285-86, 120 S.Ct. 746 (applying Strickland, 466 U.S. at 687-91, 694, 104 S.Ct. 2052). “When considering a claim of ineffective assistance of appellate counsel for failure to raise an issue, we look to the merits of the omitted issue.”⁵ Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir.1999).

Applying Strickland, the state appellate court held Neill had faked to establish that direct-appeal counsel’s performance was deficient. See Neill, 943 P.2d at 148. Our review under AEDPA, then, is further restricted to determining whether the state appellate court, in denying relief, unreasonably applied Strickland,⁶ See 28 U.S.C. § 2254(d)(1); see also, e.g., Elliott v. Williams, 248 F.3d 1205, 1208 (10th Cir.2001), cert. denied, — U.S.-, 122 S.Ct. 286, 151 L.Ed.2d 211 (2001) (No. 01-5508).

Neill also argues that his trial attorney was ineffective for failing to object at trial to the prosecutor’s improper comments. The state appellate court deemed Neill to have also defaulted these ineffective-trial-counsel claims because Neill likewise did not raise these claims until his state post-conviction application. See Neill, 943 P.2d at 147-48. Because Neill had the same attorney at trial and on direct appeal, however, this procedural bar is not adequate to preclude our habeas review. See English, 146 F.3d at 1263. We, therefore, also address the merits of Neill’s ineffective-trial-counsel claims.

Under Strickland, then, Neill must again establish both trial counsel’s deficient performance and resulting prejudice to his defense. See 466 U.S. at 687, 104 S.Ct. 2052. In the context of a capital sentencing proceeding, the relevant 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.” Id. at 695, 104 S.Ct. 2052. Because the state appellate court did not address the merits of Neill’s ineffective-trial-counsel claims, our review is de novo. See Thomas, 218 F.3d at 1220; see also Smith, 197 F.3d at 461.

To resolve these claims, therefore, we focus on the merits of the underlying prosecutorial-misconduct claims. See Hooks, 184 F.3d at 1221; see also Werts, 228 F.3d at 205 (holding trial counsel’s performance cannot be ineffective for failing to object to the prosecutor’s proper remarks). Where a prosecutorial misconduct claim does not implicate any specific constitutional right, Neill will be entitled to habeas relief only if the prosecutor’s improper remark resulted in a fundamentally unfair proceeding. See Donnelly v. De-Christoforo, 416 U.S. 637, 643, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see also, e.g., Rojem v. Gibson, 245 F.3d 1130, 1142 (10th Cir.2001). If, instead, the challenged comment implicates a specific constitutional right, then Neill will not have to establish that the remark rendered the entire proceeding fundamentally unfair. See, e.g., Walker, 228 F.3d at 1241.

1. Mitigating evidence. During second-stage closing argument, the prosecutor addressed each of Neill’s five proffered mitigating factors, arguing none of them justified a sentence less than death under Oklahoma law. While Neill has the right to have the jury consider any constitutionally relevant mitigating evidence he presents, see, e.g., Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998), citing cases, “[t]he prosecutor is permitted to comment upon and to argue the appropriate weight to be given mitigating factors,” Walker, 228 F.3d at 1243; see also, e.g., Fox, 200 F.3d at 1299-1300. Further, the trial court did instruct jurors that it was their duty to determine what circumstances were mitigating. See, e.g., Walker, 228 F.3d at 1243. The prosecutor’s argument, therefore, was not improper. Neill’s trial attorney, thus, could not have been constitutionally ineffective for failing to object to it. See, e.g., Werts, 228 F.3d at 205.

Nor was appellate counsel objectively unreasonable for failing to raise this claim on direct appeal. See Smith, 528 U.S. at 285, 120 S.Ct. 746 (applying Strickland, 466 U.S. at 687-91, 104 S.Ct. 2052). The state appellate court, therefore, did not unreasonably apply Strickland to deny Neill relief on this ineffective-appellate-counsel claim.

2. Caldwell⁷ violation. In response to defense counsel’s argument that the responsibility to impose, or to prevent, a death sentence rested with each individual juror, the prosecutor argued that “an undue and unfair burden has been placed ... squarely on your shoulders that if any of you do not hold out then it’s gonna be your responsibility and you’re gonna be the one that has caused Jay Neill to be executed. That’s not our law.” Trial tr. vol. Vat 1314.

Caldwell precludes improperly diminishing capital jurors’ sense of responsibility for imposing a death sentence. See 472 U.S. at 323, 328-29, 341, 105 S.Ct. 2633. This includes remarks inaccurately describing the jury’s role under state law. See Romano, 512 U.S. at 9, 114 S.Ct. 2004. Considered in the context of the entire trial, see Walker, 228 F.3d at 1243, however, the prosecutor’s remarks here did not mislead jurors as to their role in sentencing Neill to death. See, e.g., Pickens v. Gibson, 206 F.3d 988, 999-1000 (10th Cir. 2000). Moreover, the prosecutor had earlier argued that the jurors were there to decide whether to give Neill the death penalty. See Walker, 228 F.3d at 1243. And the trial court instructed jurors that it was their “duty to determine the penalty to be imposed.” O.R. at 130; see Walker, 228 F.3d at 1243. Because these challenged remarks, considered in the context of the entire trial, did not violate Caldwell, trial counsel was again not ineffective for failing to object. See, e.g., Werts, 228 F.3d at 205.

Similarly, direct-appeal counsel was not objectively unreasonable for failing to raise this Caldwell claim on direct appeal. See Smith, 528 U.S. at 285, 120 S.Ct. 746 (applying Strickland, 466 U.S. at 687-91, 104 S.Ct. 2052). The Oklahoma Court of Criminal Appeals, therefore, did not unreasonably apply Strickland to deny Neill relief on his ineffective-appellate-counsel claim based on these remarks. See 28 U.S.C. § 2254(d)(1).

Neill also complains that the prosecutor violated Caldwell by suggesting to jurors that their decision to impose a death sentence was just a recommendation. In addition, Neill challenges the prosecutor’s remarks again urging jurors not to “put the undue burden on your shoulder that you’re the cause of the person losing their life or you’re the cause of starting this down the track. You’ve done nothing....” Trial tr. vol. V at 1325. Later, the prosecutor informed jurors that they were “only one step in the process.” Id. at 1326. Because defense counsel objected to these comments, see id. at 1315, 1325-26, however, Neill’s ineffective-trial-counsel claim fails.

Further, these remarks did not mislead jurors as to their sentencing role under state law. See Romano, 512 U.S. at 9, 114 S.Ct. 2004; see also Johnson v. Gibson, 254 F.3d 1155, 1161-62 (10th Cir.2001), cert. denied, — U.S.-, 122 S.Ct. 566, 151 L.Ed.2d 439 (2001) (No. 01-6566). Appellate counsel, therefore, was not objectively unreasonable in failing to raise this Caldwell claim on direct appeal. See Smith, 528 U.S. at 285, 120 S.Ct. 746 (applying Strickland, 466 U.S. at 687-91, 104 S.Ct. 2052). Nor was there a “reasonable probability” that, had counsel raised this claim, Neill “would have prevailed” on direct appeal. Id. at 285-86, 104 S.Ct. 2052 (applying Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The state appellate court, therefore, did not unreasonably apply Strickland to deny Neill relief on this ineffective-appellate-assistance claim. See 28 U.S.C. § 2254(d)(1).

3. Comments on Neill’s homosexuality. Lastly, Neill challenges as inflammatory the prosecutor’s two remarks concerning Neill’s homosexuality. First, the prosecutor, challenging Neill’s proffered mitigating factor that he was acting under an extreme emotional disturbance when he committed these crimes because he feared losing his relationship with Johnson, noted Neill was “a vowed homosexual. He had a gay lover he didn’t want to lose.” Trial tr. vol. V at 1283. The prosecutor then compared Neill’s situation to the breakup of a heterosexual relationship or marriage, arguing neither situátion justified murder. See id. These comments on Neill’s homosexuality were accurate, in light of the evidence, and were relevant to both the State’s case and Neill’s defense theory. See Clayton v. Gibson, 199 F.3d 1162, 1174 (10th Cir.1999) (upholding prosecutor’s accurate and relevant comments), cert. denied, 531 U.S. 838, 121 S.Ct. 100, 148 L.Ed.2d 59 (2000). Neill testified during the trial’s second stage about his turbulent relationship with Johnson. And, prior to closing arguments, he proffered an instruction listing his mitigating factors, including the fact that Neill “was suffering extreme mental and emotional disturbances with regard to his relationship with Robert Grady Johnson which affected his mental thought processes.” O.R. v. II at 138. “[T]he prosecutor is permitted to comment upon and to argue the appropriate weight to be given mitigating factors.” Walker, 228 F.3d at 1243. Trial counsel, therefore, was not ineffective for failing to object to this remark. See, e.g., Werts, 228 F.3d at 205.

For these same reasons, direct-appeal counsel was not objectively unreasonable for failing to raise this claim on direct appeal. See Smith, 528 U.S. at 285, 120 S.Ct. 746 (applying Strickland, 466 U.S. at 687-91, 104 S.Ct. 2052). And there was not a “reasonable probability that, but for his counsel’s unreasonable failure” to raise this claim, Neill “would have prevailed on his appeal.” Id. at 285-86, 104 S.Ct. 2052 (applying Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The state appellate court’s decision denying relief on Neill’s ineffective-appellate-assistance claim, therefore, reasonably applied Strickland. See 28 U.S.C. § 2254(d)(1).

The prosecutor made a second comment on Neill’s homosexuality:

If I could ask each of you to disregard Jay Neill and take him out of the person but consider these things in a generic way. I want you to think briefly about the man you’re sitting in judgment on ... and believe me, ... you have every thing in this case, the good, the bad, everything that the law allows to aid you in this decision. But just generic, just put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I’d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you’re sitting in judgment on-disregard Jay Neill. You’re deciding life or death on a person that’s a vowed [sic] homosexual.

Trial tr. vol. V at 1285-86. Defense counsel then unsuccessfully objected. Because he did so, he did not provide constitutional-ly ineffective representation.

The prosecutor continued

I don’t want to import to you that a person’s sexual preference is an aggravating factor. It is not. But these are areas you consider whenever you determine the type of person you’re setting in judgment on.... The individual’s homosexual. He’s in love with Robert Grady Johnson. He’ll do anything to keep his love, anything.

Id. at 1287

There does not appear to be any legitimate justification for these remarks. They are improper. Nonetheless, “not every improper or unfair remark made by a prosecutor will amount to a federal constitutional deprivation.” Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir.) (citing Caldwell, 472 U.S. at 338, 105 S.Ct. 2633), cert. denied, 531 U.S. 1055, 121 S.Ct. 664, 148 L.Ed.2d 566 (2000). Rather, to warrant habeas relief, “it is not enough that the prosecutors’ remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors’ comments so infected the trial with .unfairness as to make the resulting [sentencing decision] a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (further citation, quotations omitted). In considering whether the prosecutor’s remark rendered the trial fundamentally unfair, this court considers the prosecutor’s remark “in context, considering the strength of the State’s case and determining whether the prosecutor’s challenged remarks plausibly could have tipped the scales in favor of the prosecution.” Rojem, 245 F.3d at 1142-43 (further quotation omitted); see also Donnelly, 416 U.S. at 643, 94 S.Ct. 1868 (considering fundamental fairness in light of entire proceedings). “Ultimately, we consider the probable effect the prosecutor’s remarks had on the jury’s ability to judge the evidence fairly.” Rojem, 245 F.3d at 1143.

In this case, without in any way condoning the prosecutor’s remarks, we cannot say that they tipped the scales of justice in the State’s favor or precluded jurors from considering the evidence fairly. The State’s evidence, which was largely undisputed, overwhelmingly established that, during a bank robbery, Neill stabbed three bank employees to death, including one woman who was seven months pregnant. Neill also attempted to decapitate each woman with a knife. He forced the five customers who entered the bank during the robbery to he face down in the back room where he had stabbed the bank employees. Neill then shot four customers in the head, killing one and wounding three others, and attempted to shoot the fifth, an eighteen-month-old child. After-wards, Neill flew to San Francisco with Johnson, where they spent the stolen money on expensive jewelry and clothing, hotels, limousines and cocaine. Except for trying to shoot the child, Neill admits committing these crimes. In addition to overwhelmingly establishing Neill’s guilt, this evidence also fully supports the three charged aggravating factors: Neill created a great risk of death to more than one person; he committed these murders to avoid arrest and prosecution for the bank robbery; and the murders were especially heinous, atrocious or cruel.

Neill did present some significant mitigating evidence. He admitted committing these crimes, with the exception of trying to shoot the child, and he expressed his remorse. In addition, Neill testified at sentencing concerning his background, including his childhood medical problems, his physically abusive father and stepfather, Neill’s newly found Christian faith, his relationship with Johnson, and Neill’s hope that his testifying would facilitate his and the victims’ healing. He also assured jurors that he would not pursue any appeals if they sentenced him to life without parole instead of death. Neill further testified that he had corresponded with one of the injured victims, who had forgiven him. And Pamela Matthews, who was the first person in the bank after the robbery and who discovered the victims, also testified concerning Neill’s communications with her, his remorse, and her forgiving him.

Nevertheless, in light of the overwhelming evidence supporting Neill’s guilt and the charged aggravating factors, weighed against this mitigating evidence, we cannot say that the prosecutor’s improper comments influenced the jury’s verdict or otherwise rendered the capital sentencing proceeding fundamentally unfair. See, e.g., Rojem, 245 F.3d at 1142-43; see also Tillman, 215 F.3d at 1129-30.

Because the improper remarks did not result in a fundamentally unfair trial, therefore, appellate counsel was not objectively unreasonable for failing to raise this prosecutorial-misconduct claim on direct appeal. See Smith, 528 U.S. at 285, 120 S.Ct. 746 (applying Strickland, 466 U.S. at 687-91, 104 S.Ct. 2052). Nor was there a reasonable probability that, had appellate counsel raised this claim, Neill would have prevailed on his direct appeal. See id. at 285-86, 120 S.Ct. 746 (applying Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

E. Ineffective representation at sentencing.

Neill argues his defense attorney ineffectively represented him during the capital sentencing proceeding by failing to investigate and present additional mitigating evidence. Although the Oklahoma Court of Criminal Appeals held Neill had waived this claim by failing to raise it on direct appeal, see Neill, 943 P.2d at 147-48, the State does not continue to assert that procedural default here. Again, because Neill had the same attorney at trial and on direct appeal, and because the trial record alone would not have been sufficient to resolve this issue, the state procedural bar is, in any event, not adequate to preclude federal habeas review. See English, 146 F.3d at 1264; see also, e.g., McGregor v. Gibson, 219 F.3d 1245, 1252-53 (10th Cir.2000), overruled on reh’g en banc on other grounds, 248 F.3d 946 (10th Cir.2001). Because the state appellate court did not address this claim’s merit, however, we consider it de novo. See Thomas, 218 F.3d at 1220.

Neill must establish both that trial counsel’s representation at sentencing was deficient, and he was thereby prejudiced. See Strickland, 466 U.S. at 687,104 S.Ct. 2052. We need address here only whether any alleged deficiency prejudiced Neill. See, e.g., Smith, 528 U.S. at 286 n. 14, 120 S.Ct. 746. In the context of a capital sentencing proceeding, the relevant prejudice inquiry is “whether there is a reasonable probability” that, absent these alleged errors, the jury “would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052. In making this determination, we consider the strength of the State’s case, the aggravating circumstances the jury found, the mitigating evidence defense counsel did present, and the additional mitigating evidence the defense might have presented. See, e.g., Walker, 228 F.3d at 1234.

The jury found that Neill had robbed a bank, killing four, wounding three others and attempting to shoot an eighteen-month-old child. The jury further found the existence of three aggravating factors as to each of the four murders. Overwhelming evidence supported these findings. In mitigation, Neill admitted committing these crimes, with the exception of shooting at the child, and expressed his remorse. In addition, Neill testified concerning his background, including his childhood medical problems, his physically abusive father and stepfather, Neill’s newly found Christian faith, his relationship with Johnson, and Neill’s hope that his testifying would facilitate his and the victims’ healing. He also assured jurors that he would not pursue any appeals if they sentenced him to life without parole instead of death. Pamela Matthews, who was the first- person in the bank after the robbery and who discovered the victims, also testified concerning Neill’s communications with her, his remorse, and her forgiving him.

Neill now argues that trial counsel should have investigated and presented additional available mitigating evidence from Neill’s friends and family indicating that he was, among other things, clean cut, loving, well behaved, easygoing, nonviolent, caring, funny, outgoing, with lots of friends and girlfriends, compassionate, intelligent, loved, devoted to his family, hardworking, and sincere in his apologies for the crimes. Neill further asserts defense counsel should have obtained a psychiatric evaluation, which would have shown that Neill had previously suffered a number of head injuries resulting in unconsciousness and he had deficits in his reasoning, judgment and problem-solving abilities, which would have been exacerbated by his emotional stress at the time these crimes occurred.

In light of the State’s strong case and the number of aggravators the jury found, there is no reasonable probability that, had trial counsel presented this additional mitigating evidence, the jury would have imposed a sentence less than death. See, e.g., Walker, 228 F.3d at 1234; Hale, 227 F.3d at 1316-17; Smith, 197 F.3d at 463-64.

F. Trial court’s refusal to define further life sentence without possibility of parole. The trial court instructed jurors that they could consider imposing sentences of death, life imprisonment, or life imprisonment without the possibility of parole. Neill challenges the trial court’s refusal to instruct further as to the meaning of life without parole. The state appellate court held Neill had waived this claim by failing to raise it on direct appeal. See Neill, 943 P.2d at 149-50. Although the State continues to assert this procedural default, we instead address this claim’s merit, because the denial of relief can be “more easily and succinctly affirmed” on that basis. Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir.), cert. denied, 531 U.S. 982, 121 S.Ct. 434, 148 L.Ed.2d 441 (2000).

This court has previously determined that the trial court need not further define life without the possibility of parole. See Mayes v. Gibson, 210 F.3d 1284, 1294 (10th Cir.), cert. denied, 531 U.S. 1020, 121 S.Ct. 586, 148 L.Ed.2d 501 (2000). Additionally, while Neill relies on Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality), that decision concerned capital cases where a defendant’s future dangerousness is at issue, see, e.g., O’Dell v. Netherland, 521 U.S. 151, 153, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997); Mayes, 210 F.3d at 1294. Here, however, the State did not charge Neill with the continuing threat aggravator.

G. Cumulative error. Because there was no constitutional error, Neill has also failed to establish any cumulative error warranting habeas relief. See, e.g., Clayton, 199 F.3d at 1180.

IV. CONCLUSION

Having considered the record and the parties’ arguments, we AFFIRM the denial of habeas relief.⁸

1 . The State had initially tried Neill and Johnson jointly. The Oklahoma Court of Criminal Appeals, however, reversed their resulting convictions, holding, among other errors, that the trial court should have severed their trials. See Neill v. State, 827 P.2d 884 (Okla.Crim.App.1992). Neill gave this videotaped interview and wrote these letters in between his first and second trials.

2 . Admitting victim impact evidence, however, does not weight the capital sentencing proceeding in the State’s favor. Rather, Payne held the State could present victim impact evidence, in part, to counter a capital defendant's right to present any mitigating evidence. See 501 U.S. at 822-23, 825-26, 111 S.Ct. 2597.

3 . As explained in section 111(D)(1), infra, while Neill has procedurally defaulted his prosecutorial misconduct allegations, we will address his related ineffective-assistance claims.

4 . The district court specifically addressed only the affidavits concerning Juror Loggins.

5 . This court has expressed this test in terms of appellate counsel's omitting a "dead-bang winner/' often defined in part as a claim that "would have resulted in a reversal on appeal.” United States v. Cook, 45 F.3d 388, 395 (10th Cir.1995). To the extent this language can be read as requiring the defendant to establish that the omitted claim would have resulted in his obtaining relief on appeal, see, e.g., Smith v. Massey, 235 F.3d 1259, 1274 (10th Cir.2000), cert. denied, - U.S. -, 122 S.Ct. 235, 151 L.Ed.2d 169 (2001) (No. 01-5117); Walker v. Gibson, 228 F.3d 1217, 1237 (10th Cir.2000), cert. denied, 533 U.S. 933, 121 S.Ct. 2560, 150 L.Ed.2d 725 (2001), rather than there being only a reasonable probability the omitted claim would have re-suited in relief, see Banks v. Reynolds, 54 F.3d 1508, 1515 n. 13 (10th Cir.1995), this language conflicts with Strickland. See 466 U.S. at 694, 104 S.Ct. 2052. The en banc court, therefore, expressly disavows the use of the "dead-bang winner” language to imply requiring a showing more onerous than a reasonable probability that the omitted claim would have resulted in a reversal on appeal.

6 . The state appellate court specifically held that Neill had failed to present any facts "supporting his allegation that direct appeal counsel was ineffective for omitting [these prose-cutorial-misconduct] issues.” Neill 943 P.2d at 148. In denying relief, therefore, the Oklahoma Court of Criminal Appeals did not specifically address appellate counsel's failure to raise each instance of alleged prosecutorial misconduct. Nonetheless, under AEDPA, this court still defers to the state appellate court’s decision denying relief, even though that court did not expressly state its reasoning on each specific claim. See, e.g., Walker, 228 F.3d at 1241 (citing Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999)).

7 . Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (plurality).

8 . We also deny Neill’s motion for a certificate of appealability, see 28 U.S.C. § 2253(c), on his claims challenging the trial court's admission of gruesome crime scene and autopsy photographs, and the jury’s consulting a Bible during its deliberations. Neill has failed to show that either claim makes a "substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2); see also, e.g., English v. Cody, 241 F.3d 1279, 1281 (10th Cir.2001).