Williams v. Trammell

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 10, 2015
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JEREMY ALAN WILLIAMS,
Petitioner - Appellant,
v. No. 12-5190
ANITA TRAMMELL, Warden,
Oklahoma State Penitentiary,
Respondent - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 4:09-CV-00164-JHP-TLW)
Ryan A. Ray of Norman Wohlgemuth Chandler & Jeter, P.C., Tulsa, Oklahoma (Randy A.
Bauman of the Office of the Federal Public Defender, Oklahoma City, Oklahoma, with
him on the briefs) for Petitioner-Appellant.
Jennifer J. Dickson of the Office of Attorney General, Oklahoma City, Oklahoma (E.
Scott Pruitt, Attorney General of Oklahoma, with her on the brief) for Respondent-
Appellee.
Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
In this habeas case, Jeremy Alan Williams challenges his Oklahoma conviction for
first-degree murder and his accompanying sentence of death. The district court denied
relief but issued a certificate of appealability, giving Williams the ability to appeal his
claims of ineffective assistance of counsel. In addition, this court also agreed to hear
Williams’s sufficiency-of-the-evidence and cumulative-prejudice claims. Exercising
jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we agree with the district court and
conclude that Williams is not entitled to relief.
I. BACKGROUND
The following facts come from the direct-appeal decision of the Oklahoma Court of
Criminal Appeals (OCCA) unless otherwise noted. See Williams v. State, 188 P.3d 208,
214–218 (Okla. Crim. App. 2008). We presume that the OCCA’s factual findings are
correct. See 28 U.S.C. § 2254 (e)(1).
On the morning of June 22, 2004, two gunmen (one wearing a black-hooded
sweatshirt and the other wearing a white-hooded sweatshirt) robbed the First Fidelity
Bank in Tulsa, Oklahoma. Williams, 188 P.3d at 214. Both men wore ski masks. Id.During the robbery, the gunmen shot three people—bank customer Howard Smith, bank
president Mark Poole, and bank teller Amber Rogers. Id. When the gunmen entered the
bank, the one wearing white ordered Poole to open the safe. He complied, but the safe
would not open because it was on a fifteen-minute time delay. Id. Not long after, Smith
entered the bank. He saw the gunman wearing white, but not the one wearing black. As
Smith raised his arms, the gunman in black shot him twice from behind. Id.; (Trial. Tr.
vol. III at 745–46.) That gunman then went behind the teller area, where the gunman
wearing white was arguing with Poole. The gunman in black shot Poole in his side, with
-2-
the bullet traveling through his right arm before entering his chest. (Trial Tr. vol. III at
666, 679–80). Then the one in white stood above Poole and also shot him, hitting Poole
in the leg. Williams, 188 P.3d at 214; (Trial Tr. vol. III at 671). As the two gunmen left,
the one wearing white turned around and fired a shot that killed Rogers as she lowered
her head and crouched on the floor. Id.; (Trial. Tr. vol. III at 721–22). Smith and Poole
survived their gunshot wounds.
A witness’s description of the getaway car led police to Jeremy Williams and, soon
after, to Alvin Jordan. The state charged both men with first-degree murder (under
alternate theories of malice murder and felony murder), armed bank robbery, and
shooting with intent to kill. Williams alone went to trial.
The evidence connecting Williams to the robbery was compelling. One of Jordan’s
girlfriends testified that, sometime before the June 22 bank robbery, she overheard
Williams tell Jordan about having previously robbed a bank located on the second floor
of a building. First Fidelity was on the second story of a multi-use office building. In fact,
a single gunman had robbed that same bank on May 11. After arresting Williams for the
second bank robbery, police matched his fingerprints to those lifted from the bank after
this first robbery.
Before the June 22 bank robbery, the same girlfriend went to Williams’s apartment
with Jordan. While there, she saw a revolver resembling the one that the masked gunman
dressed in black used on June 22. She also heard Williams tell Jordan that he would kill if
he had to.
-3-
Another one of Jordan’s girlfriends placed Williams, Jordan, and the alleged getaway
driver together at 4:00 a.m. the morning of the crime. In addition, Jordan’s aunt placed
the three men together soon after the robbery and testified that Williams had boasted that
he had shot some people and that he had divided the money with Jordan and the driver.
According to her testimony, Williams said that he and Jordan each came away with
$1100, leaving $700 for the driver. The bank reported just under $3000 stolen during the
June 22 bank robbery.
Williams’s girlfriend testified that he arrived at their apartment later that morning with
the same wad of stolen cash. That evening, the girlfriend saw Williams retrieve a ski
mask and guns from the yard of an abandoned house and wipe the guns clean. Williams
owned those guns, and their caliber and appearance matched the firearms used in the
robbery. Police later determined that Williams’s DNA matched that found on the ski mask
and that a footprint left at the bank matched the shoes he was wearing when police
arrested him.
On top of all this, Williams testified that he had robbed First Fidelity in May. He said
he had jumped off the second-floor balcony when fleeing, just as one of the June 22
robbers had done. Nevertheless, Williams maintained that he did not rob First Fidelity on
June 22.
Both gunmen shot people during the robbery—although it was not entirely clear who
shot Amber Rogers. The state’s theory was that Williams was the gunman in black and
that Jordan was the gunman in white. Eyewitnesses said that the gunman in black shot
Smith from behind while the gunman in white commanded Rogers to unload the till. The
-4-
gunman in black then went behind the teller area, where he and the other gunman both
shot Poole; the gunman in black first shot Poole because Poole could not immediately
open the time-delayed safes. As the gunmen fled the bank, one turned around and
delivered the fatal shot to Rogers as she crouched on the floor. A bank employee
identified the gunman in white as the killer. Yet in the wall behind Rogers’s teller station,
investigators found a slug of the same caliber as the revolver used by the robber in black.
Still images from the bank’s security cameras showed both gunmen in various positions,
but they did not clearly depict how and when Rogers had been shot.
The state argued that it did not matter whether Williams was the actual triggerman.
The felony-murder charge certainly did not depend on it, and Williams could be guilty of
malice-murder too, so long as he aided and abetted Jordan. The trial court instructed the
jury to this end. Ultimately, using separate verdict forms, the jury found Williams guilty
of both felony murder and malice murder.
At the penalty phase of trial, the state argued that Williams deserved the death penalty
because of three aggravating circumstances: (1) the murder involved a great risk of death
to more than one person; (2) the murder was committed to avoid arrest or prosecution;
and (3) Williams posed a continuing threat to society. The state presented evidence of the
life-threatening nature of Smith’s and Poole’s injuries and impact statements from Amber
Rogers’s family. Otherwise, the state relied on the evidence it presented at trial.
The defense conceded the presence of the first aggravating circumstance but argued
the state had failed to prove the other two. The defense also presented evidence of several
mitigating circumstances, arguing that Williams: (1) did not have a prior criminal record;
-5-
(2) was likely to be rehabilitated; (3) was just 21 at the time of the murder; (4) was under
the influence of an emotional disturbance or intoxicants or both; and (5) had a difficult
upbringing and home life. Social historian, Dr. Wanda Draper, and Williams’s mother
recounted Williams’s turbulent family history for the jury.
In the end, the jury found that the murder involved a great risk of death to more than
one person and that Williams was a continuing threat to society. The jury further found
that the mitigating factors did not outweigh the aggravating factors and voted to impose
the death penalty.
The OCCA affirmed the convictions and sentence on direct appeal, see Williams, 188
P.3d 208, and later denied post-conviction relief, see Williams v. State (First Application
for Post-Conviction Relief), No. PCD–2006–1012, slip. op. (Okla. Crim. App. Jan. 13,
2009) (unpublished). In response to Williams’s habeas petition, the federal district court
denied his claims without an evidentiary hearing. But the district court did issue a
certificate of appealability for two claims: (1) ineffective assistance of counsel (mostly
during the guilt phase of trial) and (2) ineffective assistance of counsel at sentencing. This
court then expanded the certificate of appealability to include two more claims: (1)
sufficiency of the evidence to support Williams’s malice-murder conviction and (2)
cumulative error. These four claims are now before us on appeal.
II. DISCUSSION
A. Standard of Review
-6-
“In general, if a convicted state criminal defendant can show a federal habeas court
that his conviction rests upon a violation of the Federal Constitution, he may well obtain
a writ of habeas corpus that requires a new trial, a new sentence, or release.” Trevino v.
Thaler, 133 S. Ct. 1911, 1917 (2013). 28 U.S.C. § 2254 governs our review of habeas
petition and focuses on how the state court resolved the claim. Byrd v. Workman, 645 F.3d
1159, 1165 (10th Cir. 2011).
For claims that the state court adjudicated on the merits, we will only grant habeas
relief if a petitioner establishes that the state court decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or “was based on an unreasonable determination of
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)–(2).
We review de novo claims that the state court did not adjudicate on the merits. Hooks
v. Workman, 689 F.3d 1148, 1163–64 (10th Cir. 2012). A habeas petitioner must first
exhaust his claims in state court before a federal court may review them. § 2254(b)(1)(A).
B. Sufficiency of the Evidence
We begin with Williams’s claim that the evidence was insufficient to support his
conviction for first-degree malice murder. Even if Williams were to prevail, he would
still be guilty of first-degree felony murder based on the jury’s separate verdicts. Why not
then disregard this claim altogether and let Williams’s first-degree murder conviction
-7-
stand on felony-murder grounds? There are at least two reasons why addressing the
sufficiency claim is the better course.
First, the OCCA construed Williams’s verdict as one of malice murder. Williams, 188
P.3d at 225. This is Oklahoma’s practice in cases involving separate convictions of malice
and felony murder because it avoids the need to vacate the underlying felony conviction
(otherwise a source of double-jeopardy concerns). See Alverson v. State, 983 P.2d 498,
521 (Okla. Crim. App. 1999). Thus, upholding Williams’s first-degree-murder conviction
based solely on felony murder would disturb the OCCA’s preferred construction. It would
also require dismissal of the underlying robbery conviction. See Harris v. Oklahoma, 433
U.S. 682, 682 (1977) (per curiam) (“When, as here, conviction of a greater crime . . .
cannot be had without conviction of the lesser crime . . . the Double Jeopardy Clause bars
prosecution for the lesser crime, after conviction of the greater one.”).
Second, if Williams’s first-degree-murder conviction rested on felony murder alone,
we would need to address a separate question: whether Williams is even eligible for the
death penalty. See Ring v. Arizona, 536 U.S. 584, 609 (2002) (holding that a jury, not a
judge, must find facts necessary for imposition of the death penalty); Tison v. Arizona,
481 U.S. 137, 158 (1987) (clarifying that the death penalty may be imposed on a felony
murder defendant who was not the actual killer and who had no specific intent to kill, if
evidence shows “major participation in the felony committed, combined with reckless
indifference to human life.”) Although Williams would like us to reach this question,
there is no need to do so if the evidence supporting his malice-murder conviction was
sufficient. For the reasons discussed below, we conclude that it was.
-8-
In Jackson v. Virginia, the Supreme Court held that a conviction based on insufficient
evidence violates the Due Process Clause of the Fourteenth Amendment. 443 U.S. 307,
316 (1979). Weighing this constitutional guarantee against the jury’s exclusive role as
fact-finder, Jackson extended the familiar sufficiency-of-the-evidence standard to the
habeas realm: “the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis original).
In applying Jackson, we look to state law to determine the essential elements of the
crime at issue. Id. at 324 n.16. Here, Oklahoma’s first-degree murder statute provides
that:
A person commits murder in the first degree when that person unlawfully
and with malice aforethought causes the death of another human being.
Malice is that deliberate intention unlawfully to take away the life of a
human being, which is manifested by external circumstances capable of
proof.
Okla. Stat. tit. 21, § 701.7(A). Additionally, Oklahoma law punishes as a principal any
person who aids and abets the commission of a crime. Okla. Stat. Ann. tit. 21, § 172 (“All
persons concerned in the commission of crime, whether it be felony or misdemeanor, and
whether they directly commit the act constituting the offense, or aid and abet in its
commission, though not present, are principals.”). On this point, the state court instructed
the jury that a principal “is one who directly and actively commits the act(s) constituting
the offense or knowingly and with criminal intent aids and abets in the commission of the
offense or whether present or not, advises and encourages the commission of the
offense.” (Pleadings vol. VI at 1056). The state trial court also instructed the jury that:
-9-
One who does not actively commit the offense, but who aids, promotes, or
encourages the commission of a crime by another person, either by act or
counsel or both, is deemed to be a principal to the crime if he knowingly
did what he did either with criminal intent or with knowledge of the other
person’s intent. To aid or abet another in the commission of a crime implies
a consciousness of guilt in instigating, encouraging, promoting, or aiding in
the commission of that criminal offense.
(Pleadings vol. VI at 1057).
Williams argues that even if the evidence was sufficient to prove his involvement in
the robbery and his intentional shooting of Smith and Poole, no evidence proved that he
caused the death of Amber Rogers. The state does not argue otherwise. Nor did the
OCCA believe that the state’s evidence pointed to Williams as the actual killer. Williams,
188 P.3d at 226. Accordingly, like the OCCA, we address whether the evidence was
sufficient to support Williams’s conviction under an aiding and abetting theory.
A conviction for aiding and abetting can rest on a wide range of underlying conduct,
including “acts, words or gestures encouraging the commission of the offense, either
before or at the time of the offense.” Wingfield v. Massie, 122 F.3d 1329, 1332 (10th Cir.
1997) (quoting VanWoundenberg v. State, 720 P.2d 328, 333 (Okla. Crim. App. 1986))
(internal quotation marks omitted). Some mental state beyond “mere assent” or
“acquiescence” is also required, Wingfield, 122 F.3d at 1332, but in the malice-murder
context, the OCCA has required even more. To convict an aider and abettor as a principal
in a first-degree-malice-murder prosecution, the state must prove: “(1) that the defendant
[that is, the aider and abettor] personally intended the death of the victim; and (2) that the
defendant aided and abetted with full knowledge of the perpetrator’s intent.” Id. (citing
Johnson v. State, 928 P.2d 309, 315 (Okla. Crim. App. 1996)).
- 10 -
At least, this was the law. On Williams’s direct appeal, the OCCA suggested in a
footnote that Johnson’s two-pronged intent requirement might be outdated:
According to Appellant’s brief, we must determine whether the evidence
was sufficient to show that either Williams shot and intended to kill Amber
Rogers, or Williams aided and abetted the Rogers’ killer with a personal
intent to kill or he aided and abetted with full knowledge of the intent of the
killer. See Johnson v. State, 1996 OK CR 36, ¶ 20 928 P.2d 309, 315. We
overrule the language in Johnson which indicates this is the proper test and
we continue to abide by the general aiding and abetting language. See
Banks v. State, 2002 OK CR 9, ¶ 13, 43 P.3d 390, 397 (“Aiding and abetting
in a crime requires the State to show that the accused procured the crime to
be done, or aided, assisted, abetted, advised or encouraged the commission
of the crime.”) We note that Appellant would even lose this proposition
under the Johnson test, because his involvement was such that he
personally had the intent to kill or knew that his codefendant had the intent
to kill, when Amber Rogers was shot.
Williams, 188 P.3d at 225 n.18.
We are unsure what to make of footnote 18. On one hand, the OCCA appears to have
rejected the two-pronged intent requirement from Johnson. On the other hand, as we
discuss below, the OCCA still seems to consider Williams’s case under Johnson in
evaluating the sufficiency of the evidence.
Further muddling matters is the OCCA’s treatment of Banks. The OCCA cited Banks
to state its adherence to “the general aiding and abetting language” as the “proper test”
for malice murder under an aiding and abetting theory. Williams, 188 P.3d at 225 n.18
(citing Banks, 43 P.3d at 397 (“Aiding and abetting in a crime requires the State to show
that the accused procured the crime to be done, or aided, assisted, abetted, advised or
encouraged the commission of the crime.”)). Yet, the OCCA in Banks also stated nearly
identical language to that from Johnson:
- 11 -
To convict Banks of malice aforethought murder, the jury had to find that
he caused the unlawful death of a human with malice aforethought, or aided
and abetted another in the commission of the murder with the personal
intent to kill, and with knowledge of the perpetrator’s intent to kill.
See Banks, 43 P.3d at 397 (emphasis added).
We are uncertain why the OCCA overruled Johnson without any mention of this
similar language from Banks. We also note that, as far as we can tell, the only meaningful
difference between the Johnson and Banks standards is that Johnson states that the aider
and abettor must intend the death “of the victim,” 928 P.2d at 315, and Banks does not, 43
P.3d at 397.
Further adding to our confusion is the OCCA’s statement that it will abide by its
“general aiding and abetting language.” Williams, 188 P.3d at 225 n.18. This language—
found in the very next sentence of Banks—features no mens rea requirement at all, but
simply provides that the aider and abettor must advise, encourage, assist—or, rather
unhelpfully, aid and abet. Banks, 43 P.3d at 397. This suggests to us that an Oklahoma
conviction for aiding and abetting malice murder may no longer require intent of any
kind.
That would cause serious problems. We generally disfavor offenses that require no
mens rea. See Staples v. United States, 511 U.S. 600, 606 (1994). One of the “basics”
about aiding and abetting is the intent requirement—“a person aids and abets a crime
when (in addition to taking the requisite act) he intends to facilitate that offense’s
commission.” Rosemond v. United States, 134 S. Ct. 1240, 1248 (2014). Oklahoma’s
- 12 -
provision for aiding and abetting, which apparently requires nothing more than “advising
or encouraging,” seems to miss the mark.
Williams asserts that, whatever the OCCA did, it did not give him the benefit of
Johnson. According to him, footnote 18 shows that the OCCA failed to consider whether
the evidence was sufficient to prove the crime. He maintains that no rational jury could
have found him guilty of the essential elements of aiding and abetting malice murder as
those elements are set forth in Johnson—namely, that he “intended” Rogers’s death. See
Johnson, 928 P.2d at 315. Additionally, he argues that the OCCA’s overruling of Johnson
violated due-process limitations on the retroactive application of new rules of law. See
Rogers v. Tennessee, 532 U.S. 451, 459 (2001).
The state responds that Williams cannot raise the Rogers argument because he failed
to exhaust it in state court. Of course, Williams had no way of knowing that the OCCA
would purportedly overrule Johnson on direct appeal. He did seek rehearing on that basis,
which the OCCA denied. Still, according to the state, Williams did not fairly present his
claim because a petition for rehearing is discretionary. See Castille v. Peoples, 489 U.S.
346, 349 (1989) (holding that presentation of claims to a State’s highest court on
discretionary review does not satisfy exhaustion requirements of 28 U.S.C. § 2254.)
We assume (without deciding) that the state is right and that Williams should have
raised his “ex post facto” argument by way of post-conviction application. Because
footnote 18 intertwines with Williams’s properly exhausted Jackson claim, however, we
will consider Williams’s arguments on the merits. See 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the
- 13 -
failure of the applicant to exhaust the remedies available in the courts of the State.”) In
the end, despite the OCCA’s confusion in, and our concern about, footnote 18, we do not
believe Williams is entitled to habeas relief because of it.
While the OCCA may have overruled Johnson, it also indicated that Williams’s
sufficiency claim failed under that very standard. See Williams, 188 P.3d at 225 n.18
(“Appellant would even lose this proposition under the Johnson test.”) True, as Williams
points out, the OCCA then proceeded to misstate Johnson in the very next breath—
claiming it requires evidence of intent to kill or knowledge of the perpetrator’s intent,
instead of evidence that “the aider and abetter personally intended the death of the victim
and aided and abetted with full knowledge of the intent of the perpetrator.” Johnson, 928
P.2d at 315 (emphasis added). Even so, in the body of its opinion, the OCCA was faithful
to Johnson. It considered whether the evidence was sufficient to prove Williams’s intent
to kill, and it discussed Williams’s knowledge of Jordan’s intent. Williams, 188 P.3d at
226. Although the OCCA overruled Johnson, it still evaluated Williams’s arguments
under what Johnson previously required. See id. at 226. Regardless, and no matter what
footnote 18 says or means, we believe the OCCA weighed the evidence against the
essential elements of the crime.
In one respect, however, the OCCA did not adopt Williams’s view of the elements. As
Johnson stated, a person aids and abets malice murder if he intends the death “of the
victim.” 928 P.2d at 315. Given this, Williams argues the evidence in his case needed to
show—but did not show—that he intended the death of Amber Rogers, not just anyone.
The OCCA disagreed. In its view, it was enough that there was sufficient evidence of
- 14 -
Williams’s general intent to kill and his knowledge of Jordan’s similar general intent.
Williams, 188 P.3d at 226.
Addressing Williams’s Jackson claim, we decline the invitation to consider whether
the OCCA should have required proof of intent to kill Rogers because, in our view, this is
fundamentally a matter of state law. See Anderson-Bey v. Zavaras, 641 F.3d 445, 448–52
(10th Cir. 2011) (rejecting Jackson claim that amounted to a challenge to the state court’s
interpretation of an “uncertain” statutory term.) This is not to say that courts may simply
ignore elements previously (and unequivocally) deemed essential in resolving a
sufficiency-of-the-evidence claim. However, before Williams’s case, the OCCA had not
yet addressed the requirements of aiding and abetting malice murder under truly
analogous circumstances—that is, where two gunmen shot different people during the
same criminal enterprise, but only one of the shooting victims died. Other cases
addressing aiding and abetting in the malice-murder context involved the death of the
targeted victim. See, e.g. Young v. State, 12 P.3d 20, 29–30, 40 (Okla. Crim. App. 2000);
Torres v. State, 962 P.2d 3, 8, 16–17 (Okla. Crim. App. 1998).
It would make sense in those cases that the question would be phrased as whether the
aider and abettor intended the death “of the victim”—i.e. the targeted person who died.
Here, however, the OCCA determined that, where there are multiple targets and only one
death, the gunman whose target survives may be convicted of first-degree malice murder
if he knows his cohort intended to kill, and the cohort’s gunshot turns out to be fatal.
Although it would have been reasonable to reach a different conclusion, the OCCA did
not—and its interpretation is authoritative. See Estelle v. McGuire, 502 U.S. 62, 67–68
- 15 -
(1991) (“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”).
Nor are we persuaded that the OCCA’s resolution of Williams’s Jackson claim
offended the due process guarantee of fair warning. The Supreme Court has “repeatedly
held that a state court’s interpretation of state law, including one announced on direct
appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (emphasis added). This makes
sense in light of the discussion above; it is not unusual that courts need to clarify and
interpret prior opinions as new circumstances and fact patterns come up against the law—
particularly against common law doctrines (such as intent). See Rogers, 532 U.S. at 461.
So long as any interpretation (or alteration) is not “unexpected and indefensible by
reference to the law which had been expressed prior to the conduct in issue,” there are no
due process concerns. Id. at 462 (citation omitted). Whatever measure of evolution the
OCCA took in extending its aiding and abetting law to Williams’s malice-murder
conviction, we can hardly say it was unexpected or indefensible.
Having addressed footnote 18 and Williams’s due-process arguments on that score,
we turn now to the sufficiency of the evidence. As discussed, the OCCA weighed the
evidence against the requirements set forth in Johnson, with the exception of the
particular requirement that Williams needed to intend the death of Amber Rogers. We
approve that weighing. The question now is whether the evidence met the constitutional
threshold—or, more precisely, because we address the question on habeas—whether the
- 16 -
OCCA’s determination that the evidence was sufficient to support the jury’s verdict was
itself reasonable. Hooks, 689 F.3d at 1167.
Once the jury concluded that Williams robbed First Fidelity, the evidence was
susceptible to limited interpretations. See Torres v. Mullin, 317 F.3d 1145, 1155 (10th Cir.
2003) (deciding that a rational juror could conclude that the defendant had the requisite
intent to kill, despite evidence that was susceptible to interpretation). As the state argued,
the jury could have concluded that Williams and Jordan jointly planned to rob the bank
and to kill whoever stood in their way. Alternatively, the jury might have concluded that
the plan was just to rob the bank and that Williams never intended for anyone to die. But
we cannot consider that option, because the jury found that Williams shot with intent to
kill when it convicted him of two counts of that crime.
Another possibility is that Williams intended to kill but that Jordan did not. But the
evidence belies this theory because Jordan shot Rogers at close range in the middle of her
torso while she was crouching on the ground. This leaves just one possible interpretation
that might lead to acquittal: that Williams intended to kill without knowing that Jordan
intended to do the same. This is an unflattering defense to say the least. Apparently,
Williams would like us to believe that he knew himself to be capable of murder but that
he thought better of his friend.
The OCCA was skeptical of this notion on direct appeal and said as follows:
It is clear that [Williams] intended to kill at the bank. It is also clear that he
knew that his codefendant was armed with a loaded weapon and both of
them had spoken of killing, “if they had [to],” in preparation for this
robbery. If he had intended to kill when he shot, how could he not know
that his codefendant also shot with intent to kill? These two defendants
- 17 -
acted with one accord and the evidence shows that they shot each person
with intent to kill.
Williams, 188 P.3d at 226.
Some of the OCCA’s observations are more persuasive than others. Least persuasive
in our view is the observation that Jordan spoke of killing if he had to. We find no record
support for attributing this remark to Jordan. In fact, it was Williams who said that “he
would kill if he had to”—as the OCCA correctly noted in its recitation of the record.
(Trial Tr. vol. V at 1106.) The OCCA may have merely intended to observe that Jordan
participated in conversations about killing. Regardless, this finding, one that Williams
does not challenge here, was just one supporting the OCCA’s conclusion.
Somewhat more persuasive is the OCCA’s observation that Williams’s own clear
intent to kill made it unlikely that Williams could be ignorant that Jordan shot with a
different purpose. This might suggest that the OCCA believed that Williams became
aware of Jordan’s intent to kill when Jordan first shot Poole. That could be. More likely,
however, we think the OCCA simply meant to point out that it was unlikely that Williams
was ignorant of Jordan’s intent to kill based on his own obvious intent.
This brings us to the OCCA’s final and most persuasive point—that Williams and
Jordan acted together with a shared understanding. The following evidence supports this
conclusion:
 According to one witness, Williams and Jordan hung out nearly every day
in the six months leading up to the robbery. Another witness said that the
two “was running together,” and neither one was really the leader of the
other. (Trial Tr. vol. V at 1118, 1157).
- 18 -
 During this time, Jordan was nearly always armed—and Williams supplied
him with a gun on at least one occasion.
 Williams knew that Jordan used guns to get what he wanted. In fact,
Williams testified that Jordan had pulled a gun on him more than once.
 Williams also testified that he knew that Jordan had shot some people
during his robbery of a convenience store the week before the robbery.
 Williams testified that he “wasn’t surprised” that Jordan had shot people at
the convenience store. (Trial Tr. vol. VII at 1547.) His friend had a
reputation for being particularly “crazy” and “violent.” (Trial Tr. vol. V at
1148).
 Jordan did not back out of the robbery even though Williams said that he
was prepared to kill if he had to.
 Finally, following the robbery, there was no evidence that Williams was
surprised that Jordan shot people (including Amber Rogers) at close range
when they were inside the bank.
In view of this evidence, we cannot say that the OCCA’s decision was contrary to or
an unreasonable application of Jackson. Certainly, the OCCA’s reasoning was not
altogether clear, accurate, or comprehensive. In supporting our conclusion, we rely on
additional evidence that the OCCA did not. Still, we pay deference to the OCCA’s
ultimate decision—“after all, what matters is that the evidence support the OCCA’s
result.” Torres, 317 F.3d at 1156 (emphasis added). We are confident that the evidence
supporting Williams’s malice-murder conviction was constitutionally sufficient. See
Jackson, 443 U.S. at 313–14 (stating that conviction can occur only when there is
“evidence that is sufficient fairly to support a conclusion that every element of the crime
has been established beyond a reasonable doubt.”).
C. Ineffective Assistance of Counsel (Guilt Phase)
- 19 -
1. The Applicable Standard
We turn now to Williams’s claim that his lawyer inadequately responded to the state’s
evidence and witnesses—primarily during the guilt phase. Although Williams had two
lawyers, he appears to focus this ineffective-assistance claim on lead counsel’s alleged
failures. We imagine this is because Williams contends that lead counsel was under the
influence of drugs and alcohol throughout the trial.
To prevail on a Sixth Amendment claim of ineffective assistance, a defendant must
show both that (1) counsel “committed serious errors in light of prevailing professional
norms such that his legal representation fell below an objective standard of
reasonableness,” and (2) there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Grant v.
Trammell, 727 F.3d 1006, 1017 (10th Cir. 2013) (internal quotation marks omitted)
(citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).
2. The OCCA’s Decision
In rejecting on direct appeal the ineffective assistance claim based on his counsel’s
failure-to-object during both trial and sentencing, the OCCA relied in part on its
resolution of Williams’s related claim that the trial court committed plain error by not
disallowing certain testimony even absent objection. See Williams, 188 P.3d at 230 n.20
(referring to the discussion of Williams’s proposition that the state introduced highly
prejudicial evidence during trial). This claim regarding certain trial testimony is not
before us on habeas. Nonetheless, in evaluating Williams’s ineffective assistance claims,
- 20 -
the OCCA considered whether the trial court’s admission of that testimony rose to the
level of “plain error affecting substantial rights.” Id. at 222; see also Okla. Stat. Ann. tit.
12, § 2104 (“Nothing in this section precludes taking notice of plain errors affecting
substantial rights although they were not brought to the attention of the court.”). Under
Oklahoma law, an error affects the defendant’s substantial rights if it “affect[s] the
outcome of the proceeding.” Hogan v. State, 139 P.3d 907, 923 (Okla. Crim. App. 2006).
The OCCA concluded that no proposition of error rose to this level.
Turning then to Williams’s Strickland claim, the OCCA referred back to its plain-error
determinations:
Williams points out that counsel failed to object to the introduction of
several pieces of testimonial and real evidence, which he has complained
about in several propositions in this appeal. In discussing these propositions
of error, we found that either there was no error or that the error did not rise
to the level of plain error.
Williams also argues that counsel was ineffective for failing to object to
several instances of prosecutorial misconduct which are raised as error in
proposition six. We noted that counsel did object to the most egregious
instances of misconduct.
We further find that counsel’s failure to object to the introduction of certain
items of evidence and the prosecutor’s alleged misconduct did not rise to
the level of ineffective assistance of counsel under the Strickland standard.
Williams, 188 P.3d at 231.
Williams does not challenge the OCCA’s approach to resolving his Strickland claim.
Initially, we had our own doubts as to whether the OCCA’s approach was faithful to
federal law. True enough, when a defendant fails to show that a trial court’s admission of
evidence was improper for some reason, it likely follows that the lawyer did not perform
- 21 -
deficiently by failing to object to its admission.1 See Cannon v. Mullin, 383 F.3d 1152,
1162 (10th Cir. 2004) (finding no deficient performance in defense counsel’s failure to
object when there was “no meritorious state-law objection available” to counsel).
However, it does not necessarily follow that there can be no prejudice under
Strickland when there is no plain error under Oklahoma’s plain error standard. This is
because, as far as we can tell, Oklahoma’s substantial rights/plain error standard requires
a defendant to show more than what is necessary to satisfy the prejudice standard under
Strickland. That is, for a defendant to meet Oklahoma’s plain error standard, he must
show that the error affected the outcome of the proceeding. Hogan, 139 P.3d at 323. But
to satisfy Strickland, a defendant need only show that counsel’s error created a
reasonable probability that the proceeding’s outcome would be different. Strickland, 466
U.S. at 694 (emphasis added).2
Of course, if the OCCA made a positive finding that certain evidence did not affect
the outcome of trial, then this would necessarily include a finding that the evidence did
not influence the outcome to some lesser degree—or put another way, that the evidence
did not create a reasonable probability of a different outcome. Here, however, the OCCA
1
The opposite, however, is certainly not true. A lawyer’s failure to object to error
(even plain error) does not amount to ineffective assistance per se. Gordon v. United
States, 518 F.3d 1291, 1300 (11th Cir. 2008).
2
In this context, both inquiries focus on the harm the contested evidence causes when
it is stacked up against the other (uncontested) evidence of guilt. It follows that when a
substantial-rights standard requires no more than Strickland, as is true of the federal
plain-error standard, the standards are “virtually identical.” Close v. United States, 679
F.3d 714, 720–21 (8th Cir. 2012) cert. denied, 133 S. Ct. 464, (2012).
- 22 -
simply concluded that there was no plain error. Under that general conclusion, it is
impossible to say whether Williams lost because he just could not make the requisite
showing that the error was outcome-determinative or because the OCCA affirmatively
concluded that the error did not determine the outcome. The distinction is a subtle one,
but it matters if the OCCA treated its plain-error determinations as dispositive.
The OCCA did not. Instead, that court made the “further finding” that Williams failed
to satisfy the requirements of Strickland—not just the requirements of plain error.
Williams, 188 P.3d at 231. Because of this, we believe that the OCCA rejected Williams’s
claims under the appropriate federal standard. Moreover, based on our review of the
record, we cannot say that the OCCA’s decision was an unreasonable application of that
standard. See Thornburg v. Mullin, 422 F.3d 1113, 1138–39 (10th Cir. 2005) (reaching
the same conclusion when the OCCA found no plain error but also separately concluded
that there was no prejudice under Strickland).
None of this is to say that the OCCA’s disposition under Strickland was a model of
clarity. Again, the OCCA simply concluded that Williams’s claims “did not rise to the
level of ineffective assistance of counsel under the Strickland standard.” Williams, 188
P.3d at 231. From this statement, it is unclear which of Strickland’s prongs the OCCA
believed Williams failed to satisfy. See Hooks, 689 F.3d at 1187 (recognizing that a court
can decide a Strickland claim under either prong). The OCCA’s reference to its plain-
error determinations does not help. By finding no error, the OCCA might have concluded
that counsel did not perform deficiently. Conversely, it might just as reasonably have
assumed deficient performance and concluded that there was no resulting prejudice,
- 23 -
particularly since Williams often did not explain why his lawyer should have objected.
When the OCCA found error not requiring reversal, it might still have concluded that the
lawyer’s representation was reasonable. Alternatively, it might have concluded that any
error (actual or assumed) did not undermine confidence in the outcome. In short, we have
no way of knowing what the OCCA was thinking.
This uncertainty does not change our deference. Even “[w]here a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state court to deny relief.”
Harrington, 131 S. Ct. at 784; see Lafler v. Cooper, 132 S. Ct. 1376, 1396 (2012) (“The
state court’s analysis was admittedly not a model of clarity, but federal habeas corpus is a
guard against extreme malfunctions in the state criminal justice systems, not a license to
penalize a state court for its opinion-writing technique.”) (internal quotation marks
omitted). This is true when, as here, the state court does not reveal which element of a
claim it found insufficient. See Harrington, 131 S. Ct. at 784. Our task is still to evaluate
the reasonableness of the OCCA’s application of Strickland, considering the
reasonableness of the theories that “could have supported” the OCCA’s decision. Id. at
786. This panel must identify what those theories are.
We believe that the OCCA reasonably could have resolved Williams’s challenges
under the first prong of Strickland by concluding that Williams’s lawyer did not commit
any “serious errors in light of prevailing professional norms such that his legal
representation fell below an objective standard of reasonableness.” Wackerly v. Workman,
580 F.3d 1171, 1176 (10th Cir. 2009) (internal quotation marks omitted). First, we
- 24 -
consider Williams’s argument that lead counsel was constructively absent because of
counsel’s substance abuse. We then will discuss Williams’s challenges involving his trial
counsel’s alleged errors. Next, we address the challenges involving Officer Felton’s and
Dyra Malone’s testimony. In those two cases, we assume deficient performance but
nonetheless uphold the OCCA’s decision for lack of prejudice under prong two of
Strickland. Finally, we decline to consider Williams’s challenge to alleged prosecutorial
misconduct because he inadequately briefed it.
3. Trial Counsel’s Alleged Substance Abuse
Williams recognizes that Strickland is the default standard for ineffective-assistance
claims, but he argues that a different standard should apply in his case. Because of the
alleged substance abuse, Williams contends that his lawyer “may have been”
constructively absent from trial, thereby entitling him to relief under United States v.
Cronic, 466 U.S. 648, 658–59 (1984). Williams raised this argument in his second
application for state post-conviction relief after he read a list-serv email that his lawyer
authored. In that email, the lawyer acknowledged the toll of taking on death-penalty
cases. He also wrote that he “pop[s] valium like candy just to face the day,” yet he “can
only lay off the valium and alcohol during trial.” (R. vol. I at 617, 747–49.) Both the
OCCA and the district court rejected the notion that the substance abuse mattered. They
also denied Williams’s requests for an evidentiary hearing to explore the subject.
Just as the OCCA and the district court did, we apply Strickland here. In evaluating
Williams’s claims, we turn to Cronic, where the Supreme Court identified three extreme
- 25 -
situations “so likely to prejudice the accused that the cost of litigating their effect in a
particular case [under Strickland] is unjustified.” Bell v. Cone, 535 U.S. 685, 695 (2002)
(citing Cronic, 466 U.S. at 658–59). See also Hooks v. Workman, 606 F.3d 715, 724 (10th
Cir. 2010). Williams’s bases his constructive-absence argument on Cronic’s second
situation: “a presumption of prejudice is warranted if counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” Hooks, 606 F.3d at 724 (internal
quotation marks omitted) (emphasis added). This means that the lawyer’s failures must
run throughout the entire proceeding, Hooks, 689 F.3d at 1186, and that the lawyer’s
performance “be so inadequate that, in effect, no assistance of counsel is provided.”
Cronic, 466 U.S. at 654 n.11.3
There is simply no way that the isolated failures of Williams’s lawyer (assumed
below) rise to this level of complete failure. See Bell, 535 U.S. at 696–97 (“When we
spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to
test the prosecutor’s case, we indicated that the attorney’s failure must be complete.”).
Both of Williams’s lawyers fought vigorously for acquittal, and later, against the death
3
Williams also argues in passing that his case involves “circumstances where
competent counsel very likely could not render effective assistance.” Appellant’s Br. at
83. Williams thus attempts to invoke the third Cronic exception, which applies when
“counsel is called upon to render assistance under circumstances where competent
counsel very likely could not.” Bell, 535 U.S. at 696. The example the Supreme Court
gave in Cronic is Powell v. Alabama, 287 U.S. 45, 58 (1932), where counsel was only
“appointed” when two lawyers offered to “assist” on the morning of trial. Williams does
not point to any analogous institutional problems here. And to the extent he argues that
his lawyer’s alleged drug abuse should qualify, this novel position is not “clearly
established law” within the meaning of § 2254(d)(1). See Fairchild v. Workman, 579
F.3d 1134, 1139 (10th Cir. 2009) (law is not “clearly established” when it requires
extraction of “general legal principles developed in factually distinct contexts.”).
- 26 -
penalty. The lawyers filed numerous pre-trial motions, made compelling arguments
during first- and second-stage proceedings, asked for sidebars and hearings outside the
jury’s presence, raised numerous objections to the state’s evidence and arguments, and
presented a cogent theory of innocence. See Hooks, 689 F.3d at 1186 (collecting cases
and finding Cronic standard inapplicable based on similar findings).
Even if Williams could prove that one of his lawyers was really under the influence of
drugs or alcohol at trial, this would not negate their professional efforts on his behalf. For
this reason alone, there is no need for an evidentiary hearing to assess Cronic’s
applicability. See Littlejohn v. Trammell, 704 F.3d 817, 858 (10th Cir. 2013) (recognizing
that, even when we owe no deference to the state court’s decision, we can grant a habeas
petitioner an evidentiary hearing only when his allegations, if true, “would entitle him to
habeas relief.”) (internal quotation marks omitted). Nor is there a need for a hearing
under Strickland, where our concern is the objective reasonableness of the lawyer’s
conduct—not the lawyer’s subjective reasoning. See Harrington v. Richter, 131 S. Ct.
770, 790 (2011) (“Strickland … calls for an inquiry into the objective reasonableness of
counsel’s performance, not counsel’s subjective state of mind.”).
We turn now to Williams’s other arguments of ineffective assistance of counsel. First,
he argues that his lawyer failed to object to several pieces of evidence and to various
statements by the prosecutor—we count seven total alleged deficiencies. Second, he
argues that his lawyer failed to prepare to impeach one of the state’s witnesses. Williams
raised both of these challenges on direct appeal, although the OCCA resolved only his
failure-to-object arguments. Even so, we presume “that the state court adjudicated the
- 27 -
claim on the merits in the absence of any indication or state-law procedural principles to
the contrary.” Johnson v. Williams, 133 S. Ct. 1088, 1094 (2013). Although this
presumption is rebuttable, see id. at 1096–97, Williams offers no argument why the
presumption should not apply. Thus, the deferential standards of § 2254(d) apply to
Williams’s failure-to-object and failure-to-prepare claims. Hooks, 689 F.3d at 1163. Yet,
we note, the outcome would remain the same even under de novo review.
4. Failure to Object to Evidence of the Stolen Watch
Williams first complains that his lawyer should have objected to evidence about a
watch found in the apartment of Jordan’s girlfriend, Tarina Clark. Notably, this is the
same apartment where Williams, Jordan, and the getaway driver met the night before the
June 22 robbery. The state first presented evidence of Williams’s DNA on the watch. On
cross-examination, the prosecutor then asked Williams if he knew the watch was stolen.
Williams said he did not know and that Jordan gave him the watch. Williams seems to
argue that his lawyer should have objected to both the DNA evidence and to the question
about whether he knew that the watch was stolen. Except for relevance, he does not
identify a basis for the objection, but he instead complains that the evidence was
irrelevant and portrayed him as a thief.
Regardless of whether the question elicited relevant evidence, we believe that the
DNA evidence was highly relevant because it tied Williams to Clark’s apartment and
corroborated her testimony about his presence there soon before the bank robbery. On
these grounds, we imagine the trial court would have overruled any objection from
- 28 -
Williams. The DNA evidence itself had nothing to do with the watch’s being stolen and,
as the OCCA pointed out, the presence of Williams’s watch at Clark’s apartment
corroborated her testimony that Williams was there. See Williams, 188 P.3d at 220.
Addressing the question about the watch’s status as stolen, we defer to the OCCA’s
view that it was improper. See Okla. Stat. Ann. tit. 12, § 2404 (“Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.”) The question elicited testimony that Williams possessed
stolen things. Its sole purpose was to suggest Williams’s propensity to steal—as he rightly
claims.
The OCCA nonetheless could reasonably conclude that trial counsel was not deficient
for failing to object. As the OCCA recognized, the stolen-watch evidence was hardly
significant when compared to the evidence of Williams’s other crimes, much of which the
defense introduced. Williams, 188 P.3d at 220. Williams himself relied on his general
thievery to explain the wad of cash that police seized from him the day of the robbery (he
claimed that the money came from his stealing and selling his girlfriend’s TV). In
addition, to distance himself from the shoeprint found at First Fidelity, he claimed that he
had stolen several identical pairs of shoes and sold them to others. Other evidence did not
tend to show innocence. Along the same line, the defense elicited testimony from Dyra
Malone that Williams stole most of the things he owned. Williams himself admitted that
- 29 -
he sold stolen weapons and used drugs. He also admitted that he robbed First Fidelity in
May.4
Nor can we say that Williams’s counsel was deficient in introducing this evidence.
The wad of cash and matching shoeprints needed an explanation. Moreover, by “owning
up” to conduct he could hardly deny, the defense had a chance to bolster credibility. If
Williams freely admitted his other crimes, the jury might conclude that he was telling the
truth when he denied his involvement in the June 22 robbery. See Bullock v. Carver, 297
F.3d 1036, 1051 (10th Cir. 2002) (“As a general matter, we presume that an attorney
performed in an objectively reasonable manner because his conduct might be considered
part of a sound strategy.”) (emphasis original). Had Williams’s lawyer objected to the
evidence of the stolen watch, he might have drawn unnecessary attention to it or
otherwise suggested to the jury that Williams had something to hide. A reasonable
defense lawyer could choose a strategy of not objecting under the circumstances, and “it
would be well within the bounds of a reasonable judicial determination for the state court
to conclude” that counsel’s performance was not deficient. Harrington, 131 S. Ct. at 789.
5. Failure to Object to Photographs of Tarina Clark’s Apartment
The state introduced photographs of the apartment that Jordan shared with his
girlfriend, Tarina Clark. Except perhaps relevance, Williams simply does not identify a
4
In his habeas petition and brief before us, Williams generally complains of all other-
crimes evidence admitted without objection, but he only identifies the watch. Like the
district court, we will not speculate what other evidence (if any) Williams might mean to
include in this Strickland challenge.
- 30 -
valid objection to admission of the photographs. He repeats his assertion from direct
appeal that the photographs prejudiced him. In particular, he complains that the
photographs invited “impermissible inferences about his lifestyle and the people with
whom he associated.” (Appellant’s Br. at 69).
We agree with the OCCA that the photographs had probative value. Williams, 188
P.3d at 223. They helped corroborate Clark’s testimony. For example, one photograph
showed towels pushed up against the dishwasher; Clark had testified that she was angry
with Jordan the night before the robbery for allowing the dishwasher to overflow.
Another photograph showed a pair of Fubu tennis shoes like the ones Williams owned
(with soles matching the footprint taken from the first robbery of First Fidelity). Clark
testified that Jordan owned those shoes but rarely wore them because they were too
small. Accordingly, we think the OCCA reasonably could have concluded that Williams’s
lawyer’s failure to object to the photographs was not deficient performance.
6. Failure to Object to Post-Autopsy Photographs of Amber Rogers
The state admitted without objection two photographs taken at the medical examiner’s
office showing Amber Rogers’s nude body. Williams argues that any reasonably
competent lawyer would have objected to the photographs, “which served only to evoke
the passions and sympathy of the jury.” Appellant’s Br. at 70. Williams also suggests that
the photographs were not relevant because the manner of death was not disputed and
because the body bore signs of medical intervention by that point in time. The prosecutor
referred to the photographs in second-stage closing argument.
- 31 -
The OCCA found that the trial court did not err in admitting the photographs, which
“show[ed] the handiwork of the defendant” and “more closely depict[ed] the nature and
extent of the gunshot wound on the victim’s body than any other evidence available.”
Williams, 188 P.3d at 223. We similarly conclude that photographs of a victim’s body,
while gruesome, can be relevant when they depict the extent of injuries and are probative
of intent to kill. See, e.g., Wilson v. Sirmons, 536 F.3d 1064, 1115 (10th Cir. 2008).
Nothing Williams says leads us to believe that the photographs were so obviously
prejudicial that counsel’s failure to object was deficient. The OCCA could have
reasonably rejected this claim on the same theory.
During penalty-phase closing argument, the prosecutor referred to the photographs as
the “most powerful image.” (Trial Tr. vol. VIII at 1872). But even if a reasonably
competent lawyer would have objected to this, Williams does not explain why the same
lawyer would have anticipated the prosecutor’s comment as a reason to object to the
photographs themselves. See Harrington, 131 S. Ct. at 789 (“Reliance on the harsh light
of hindsight . . . is precisely what Strickland and AEDPA seek to prevent.”) (internal
quotation marks omitted). The photographs are the subject of this challenge—nothing
else.5
7. Failure to Object to Testimony of Treating Physicians
5
In his brief before us, Williams argues his lawyer should have objected to the
testimony of the doctor who referenced the photographs as well. But Williams did not
raise this argument in his habeas petition, so we do not address it here. See United States
v. Windrix, 405 F.3d 1146, 1156 (10th Cir. 2005) (declining to address a claim petitioner
did not raise before district court).
- 32 -
Amber Rogers’s treating physician testified at length about the medical treatment he
gave Rogers before her death. This testimony included details of surgery. The state also
presented testimony during the penalty phase from Smith’s and Poole’s treating
physicians. These doctors similarly testified about what they did to treat the gunshot-
related injuries.
On direct appeal, Williams contended that the testimony of the treating physicians
was irrelevant. The OCCA disagreed:
The State is obligated to show that the death was caused by the criminal
actions of the defendant. In order to show that, in this case, the State had to
show that Amber Rogers died despite the heroic efforts of the surgery team.
There was no plain error here.
Williams also complains about the second stage testimony of the surgeons
that treated the other victims who did not die. Again, there was no objection
to this testimony, thus we review for plain error only. 12 O.S.2001, § 2104.
Here, one of the aggravating circumstances alleged was that Williams
created a great risk of death to more than one person. Although, Williams
claims that evidence that these two victims were shot was sufficient to
show a great risk of death to more than one person, our cases reveal that
testimony about the nature and extent of gunshot wounds are relevant for
this aggravating circumstance.
Williams, 188 P.3d at 224.
In connection with his Strickland claim, Williams argues that certain unspecified
details of the doctors’ testimony were “unfairly prejudicial and were introduced only to
inflame the passions of the jury.” Appellant’s Br. at 71. With respect to the penalty-phase
testimony, he goes even further, claiming that the doctors’ testimony was “entirely
irrelevant.” Id. Given the OCCA’s observations to the contrary, we cannot agree. In our
view, it was reasonable to conclude that the testimony was relevant because it supported
- 33 -
the state’s theory that Williams’s crime showed “a great risk of death to more than one
person.” Williams, 188 P.3d at 224. We think it follows that the OCCA could have
reasonably concluded that counsel’s failure to object on relevance grounds was not
deficient performance.
8. Failure to Object to Detective Felton’s Testimony
The investigating police officer, Detective Felton, testified that shortly after
Williams’s arrest, he saw abrasions and lacerations on Williams’s shin. When asked if he
found anything significant about the injuries, Felton testified: “Meeting with the other
detectives it was determined that one of the suspects had fled the bank by jumping off the
second floor balcony. These looked just like injuries that one might receive by, you know,
jumping and falling.” (Trial Tr. vol. V at 1181).
Williams contends that this testimony was plainly inadmissible because it was not
based on Felton’s perceptions as a lay witness. Presumably, he thinks that his counsel
should have objected for this reason.
The OCCA concluded that Felton’s testimony was improper because it was based on
specialized knowledge. Williams, 188 P.3d at 225. We accept this and assume that a
reasonably competent lawyer would have objected. Still, we think the OCCA could have
reasonably concluded that there was no reasonable probability of acquittal but for
counsel’s unprofessional errors. See Strickland, 466 U.S. at 694.
While Felton’s testimony certainly linked Williams to the crime, and while testimony
from a police officer can be particularly persuasive to juries, we believe that Felton’s
- 34 -
opinion may have bordered on pure speculation. The OCCA concluded similarly.
Williams, 188 P.3d at 225 (concluding that the opinion, without specialized knowledge,
would be “pure speculation”). The photographs Felton referenced showed generic injuries
that any number of accidents could have caused. The jury might even have believed
Williams that he did not know what caused the injuries. Further, Felton did not flatly
declare that Williams had jumped off the balcony; he merely said that Williams’s injuries
were consistent with those someone might sustain by “jumping and falling.” Given the
isolated and limited nature of the offending testimony and the overwhelming evidence
that Williams robbed the bank, we cannot begin to say that, absent this testimony,
Williams would have had a reasonable probability of acquittal. The OCCA’s decision
under Strickland was objectively reasonable.
9. Failure to Object to Dyra Malone’s Testimony
Williams next complains about a portion of the redirect testimony of his girlfriend,
Dyra Malone. Malone testified on direct examination about her interactions with
Williams on the day of the robbery. She said that Williams came to her apartment around
11:00 a.m. with “wads” of cash and said that he had “jacked a white man.” (Trial Tr. vol.
V at 1019, 1023). She did not say that Williams had confessed to anything more. On
cross-examination, Malone admitted that she had spoken with prosecutors at least a
dozen times, and first spoken with defense counsel on the day she testified. She further
testified that she did not ask Williams any questions after he displayed wads of cash after
supposedly having “jacked a white guy.” (Trial Tr. vol. V at 1063). Malone briefly
- 35 -
described her own arrest and how police had questioned her at length, but she did not say
what the police had asked her or what she had told them.
On redirect examination, however, the prosecutor began with this:
Prosecutor: Ma’am, you had been asked about the statements to police.
What did you tell police when they talked to you?
Malone: Um –
Prosecutor: Let me rephrase the question. . . . Did you tell police that
Jeremy had told you something about a bank, his cousin Tony, and a lady,
and that he said his cousin started shooting? Did you tell police that Jeremy
had told you that?
Malone: Yes.
Prosecutor: And that was in the first statement to police; is that correct?
Malone: Yes.
Prosecutor: And at the preliminary hearing you said that you didn’t say that,
is that correct, or that he didn’t tell you that?
Malone: He didn’t tell me that.
(Trial Tr. vol. V at 1069). Malone further explained this earlier statement by saying that
police had threatened her that if she “didn’t start talking they were going to put [her] in
jail.” (Trial Tr. vol. V at 1069). She then said that she had based her early statement on
what the police “told [her] about what happened.” (Trial Tr. vol. V at 1069).
Williams contends that his lawyer should have objected to this questioning because
“neither the prosecution nor defense [had] impeached Dyra Malone with any prior
inconsistent statements.” Appellant’s Br. at 68. We are unsure what Williams means by
this. Perhaps he is saying that the question was improper because the prosecutor had no
- 36 -
inconsistent statement from Malone’s earlier testimony to impeach. Before the OCCA,
Williams argued that the prosecutor’s question was inadmissible because it exceeded the
scope of cross-examination and because there was no limiting instruction. See Williams,
188 P.3d at 222.
While we may not have divined the objection that Williams wanted his lawyer to
make, we think we understand his ultimate concern: the only reason the state questioned
Malone about her first statement to the police was to introduce Williams’s admitting to
the crime.
Even assuming that an effective lawyer would have objected, we would still conclude
that the OCCA’s decision was reasonable under Strickland. Williams simply cannot show
a reasonable probability of acquittal had his lawyer objected and the evidence stayed out.6
In reality, Malone’s testimony on redirect likely weighed in Williams’s favor. After
Malone testified about her initial statement to the police, she declared it spoon-fed and
coerced. All the worse for the state, she then emphasized that Williams had never
confessed to her having committed the bank robbery. Of course, none of this changes the
fact that Williams did confess to another witness, Beverly Jordan. Moreover, Malone was
consistent in maintaining that Williams told her he had “jacked a white man.” (Trial. Tr.
vol. V at 1023). We are confident that the jury’s verdict would have been the same
6
For the first time on appeal, Williams argues that Malone’s testimony on redirect
prejudiced him because it somehow enabled the prosecution to introduce evidence of the
May robbery. Williams did not argue this to the district court, so we do not consider it
here. See Windrix, 405 F.3d at 1156. Regardless, Malone’s redirect testimony did not
concern the May robbery of First Fidelity.
- 37 -
without Malone’s redirect testimony. The OCCA reasonably could have rejected this
claim on a lack of prejudice.
10. Failure to Impeach Officer Kennedy
As stated above, the OCCA did not purport to resolve this failure-to-impeach claim.
Even so, because Williams presented this claim to the OCCA, we presume that the OCCA
adjudicated it on the merits, particularly in the absence of any argument from Williams to
the contrary. Johnson, 133 S. Ct. at 1094. Thus, we apply § 2254(d)’s deferential standard
of review to Williams’s failure-to-object and failure-to-prepare claims. Hooks, 689 F.3d at
1163. In doing so, we see that the district court found that this alleged failure simply “did
not rise to the level of a constitutional violation.” Williams v. Workman, 2012 WL
5197674, at *18 n.10 (N.D. Okla. Oct. 19, 2012) (unpublished). We agree. In our view,
the OCCA could have reasonably concluded that the lawyer’s performance was not
deficient. We would reach the same result even under de novo review.
About an hour after the bank robbery, Police Officer Kennedy stopped Williams for a
moving violation. In connection with this stop, Kennedy did a pat-down search and
discovered a wad of cash. At trial, he testified that he counted this money and that it
amounted to approximately $1100 (the amount a previous witness identified as
Williams’s claimed share of the robbery proceeds). At the suppression hearing, however,
Kennedy had testified that he had not counted the money for an exact amount. Instead, he
estimated that it was over $1000 based on his fingering through the cash.
- 38 -
Williams argues that his lawyer should have properly prepared to cross-examine
Kennedy by having the suppression-hearing transcript on hand. Without the transcript,
Williams claims that his lawyer could not effectively impeach Kennedy on cross-
examination; he could only ask Kennedy if he remembered testifying that he had not
counted the money. When Kennedy responded, “I don’t remember—I did count the
money,” that was the end of it. (Trial Tr. vol. IV at 983).
When reviewing ineffective-assistance claims, we must make every effort “to
eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689. Here, we think
this means considering whether Williams’s lawyer had any reason to anticipate that
Kennedy would change his testimony, making resort to the suppression-hearing transcript
necessary. Williams gives us no reason to think this change in testimony was anything
other than a “remote possibilit[y].” Harrington, 131 S. Ct. at 779.
What’s more, we must consider whether a reasonable lawyer would even have
perceived any inconsistency in Kennedy’s testimony. We cannot conclude that a
reasonable lawyer would have immediately been able to perceive the inconsistency. True,
Kennedy testified at the suppression hearing that he had not counted the money, but he
also testified that he had estimated the amount to be over $1000 based on having fingered
through the cash. At trial, Kennedy’s testimony was not much different: there he
estimated the amount to be approximately $1100 based on his having counted the money.
Despite this minor inconsistency, Williams’s lawyer still managed to detect that
Kennedy’s story had changed, acquire the suppression-hearing transcript, and finally
persuade the trial court to admonish the jury “to disregard [Kennedy’s] statement that he
- 39 -
counted money” and that “it was a thousand dollars.” (Trial Tr. vol. VII at 1531–32). We
can hardly say that this conduct falls below the high standard of objectively unreasonable
performance under Strickland.
11. Failure to Object to Prosecutorial Misconduct
Williams points to “five general categories of prosecutorial misconduct to which [his
lawyer] failed to object.” (Appellant’s Br. at 72). These include: (i) the prosecutor’s
expression of his personal opinion in first-stage closing argument that Williams was
guilty; (ii) “numerous instances” of arguing facts not in evidence; (iii) unnecessary
ridicule of Mr. Williams; (iv) “numerous instances” of “evoking improper sympathy for
the victim;” and (v) expressions of the prosecutor’s personal opinion from the second-
stage closing argument that Williams deserved the death penalty. (Id. at 72–73). Williams
clarifies that his challenge extends only to “prosecutorial misconduct to which [his
lawyer] made no objection.” (Id. at 73). He acknowledges that his lawyer did in fact
object to at least some of the alleged misconduct. What Williams says is that the
“numerous instances of prosecutorial misconduct in both phases of trial” were
“constitutionally deficient [failures] in contravention of Strickland.” (Appellant’s Br. at
78).
Once again, Williams does not explain what objections his lawyer should have made.
We have overlooked this problem in connection with his other challenges, but even if we
did so here, we would face the added difficulty of trying to determine what alleged
misconduct forms the basis of his complaint. We can hardly be sure what Williams means
- 40 -
when he describes these five general “categories.” Apart from mentioning first- and
second-stage closing arguments (both of which were lengthy), he does not direct us with
any specificity to where we might locate the prosecutor’s allegedly improper statements
in the transcript. Indeed, he does not include a single quote from the transcript or a single
cite to the record in this section of his brief or habeas petition.
Williams supplies only one supporting citation. He points to the OCCA’s rejection of
his stand-alone challenge to the alleged prosecutorial misconduct on direct appeal.
(Appellant’s Br. at 73); Williams, 188 P.3d at 231. The OCCA dedicated twenty
paragraphs of its opinion to this challenge. Williams, 188 P.3d at 228–230. Sometimes the
OCCA specified whether trial counsel objected below; other times it did not. Sometimes
it quoted the alleged misconduct, other times it paraphrased Williams’s challenge.
Sometimes it addressed Williams’s arguments by referring to other sections of its
opinion. In no case did the OCCA conclude that the trial court had committed plain error.
We have no way of knowing what previously alleged misconduct Williams now intends
to incorporate in his Strickland challenge.
For these reasons, we lack the information to address this challenge in any meaningful
fashion. Even if we were inclined to sift through the OCCA’s decision and the trial
transcript, we feel ill-prepared to guess which comments might form the basis for this
Strickland challenge and why.7 For these reasons, we must decline to address Williams’s
7
The district court did not engage in this guesswork either. It simply concluded in
general terms that Williams had not demonstrated constitutionally ineffective assistance.
Williams, 2012 WL 5197674, at *16, *19.
- 41 -
argument. In doing so, we note that “[e]ven a capital defendant can waive an argument by
inadequately briefing an issue.” Grant, 727 F.3d at 1025; Bronson v. Swensen, 500 F.3d
1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that
are not raised, or are inadequately presented, in an appellant’s opening brief.”).
12. Conclusion
In sum, Williams has failed to show that he is entitled to relief with respect to any of
the challenges above. In only two instances have we assumed that Williams’s legal
representation was anything less than objectively reasonable. Again, we only assumed
deficient performance in trial counsel’s failure to object to certain testimony of Dyra
Malone and Officer Felton. In those instances, we have already said that the OCCA
reasonably could have concluded that Williams failed to make the requisite showing of
prejudice. We now go a step further and say that those two modest errors are insufficient
to warrant relief under Strickland, even considering their combined prejudicial effect. See
Hooks, 689 F.3d at 1187–88 (recognizing that resolving each allegation of ineffective
assistance on prejudice grounds is not “sufficient to dispose of the claim because a further
analysis of ‘cumulative prejudice’” is necessary); Cargle v. Mullin, 317 F.3d 1196, 1212
(10th Cir. 2003) (“[A] decision to grant relief on ineffective assistance grounds is a
function of the prejudice flowing from all of counsel's deficient performance....”)
(emphasis added).
D. Ineffective Assistance of Counsel (Penalty Phase)
- 42 -
Williams also argues that his lawyers should have presented more and better
mitigating evidence during the penalty phase of trial. During this phase, his lawyers
called social historian and developmental specialist, Dr. Wanda Draper, to testify about
Williams’s background and social/cognitive development. Williams’s mother, Joni
Williams, also testified. She offered similar background testimony and asked the jury to
spare her son’s life. Still, in Williams’s view, his lawyers “wholly failed to satisfy their
constitutionally required duty to thoroughly investigate and present mitigating evidence.”
(Appellant’s Br. at 41–43). He claims that his lawyers should have engaged the services
of a dedicated “mitigation specialist” and that they should have called more fact
witnesses (including family members, a childhood pastor, teachers, and friends). He also
claims that his lawyers were “effectively absent” once the trial court appointed Dr.
Draper. (Appellant’s Br. at 42). In Williams’s view, trial counsel should have better
prepared and assisted Dr. Draper. At the very least, Williams believes he is entitled to
develop these arguments at an evidentiary hearing, which the OCCA and the district court
both denied.
Strickland governs penalty-phase claims of ineffective assistance. See Wiggins v.
Smith, 539 U.S. 510, 521 (2003).8 Again, to prevail, Williams must show both that (1)
counsel “committed serious errors in light of prevailing professional norms such that his
legal representation fell below an objective standard of reasonableness,” and (2) there is
8
Williams does not argue that Cronic is the applicable standard here, nor does he
raise lead counsel’s alleged substance abuse.
- 43 -
“a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Grant, 727 F.3d at 1017 (citing Strickland, 466
U.S. at 694) (internal quotation marks omitted). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” See Strickland, 466 U.S. at 694.
The first issue we encounter in this claim is whether Williams properly exhausted it in
state court. We cannot grant habeas relief “unless it appears that the applicant has
exhausted the remedies available in the courts of the State.” Gray v. Netherland, 518 U.S.
152, 161 (1996); 28 U.S.C. § 2254(b). Before the federal district court, the state argued
that Williams’s habeas claim differed from the one he presented to the OCCA.
(Appellee’s Br. at 14–16.) For instance, in his state post-conviction application, Williams
named nine witnesses his lawyers either failed to contact or call as witnesses. The state
pointed out, however, that Williams named a dozen different witnesses in his federal
habeas petition.9 Additionally, according to the state, Williams argued for the first time in
federal court that his lawyers failed to devote adequate time to Dr. Draper. He also
presented a new affidavit from Dr. Draper that he never presented to the OCCA. In the
state’s view, these differences changed the substance of Williams’s claim. The district
court agreed and found the claim partially unexhausted—at least “[i]nsofar as Williams’s
[ineffective-assistance claim] complains of counsels’ dealing with Dr. Draper.” Williams,
2012 WL 5197674, at *11–12.
9
By our count, Williams actually supplemented his habeas petition with thirteen new
witnesses.
- 44 -
We agree with the district court’s conclusion. A party exhausts a claim in state court
when it has been “fairly presented.” Picard v. Conner, 404 U.S. 270, 275 (1971). “Fair
presentation,” in turn, requires that the petitioner raise in state court the “substance” of
his federal claims. Id. at 278. This includes not only the constitutional guarantee at issue,
but also the underlying facts that entitle a petitioner to relief. Gray, 518 U.S. at 163; see
Fairchild v. Workman, 579 F.3d 1134, 1149 (10th Cir. 2009) (“A claim is more than a
mere theory on which a court could grant relief; a claim must have a factual basis, and an
adjudication of that claim requires an evaluation of that factual basis.”) (citation omitted).
Here, Williams did not present to the OCCA the factual basis for his “Draper claim.”
Williams did not allege in his state post-conviction application that his lawyers failed to
prepare or assist Dr. Draper, or that her testimony might have improved with more
consultation. Instead, he argued that his lawyers should have called more witnesses and
hired a mitigation specialist—i.e., someone else to investigate Williams’s background and
presumably testify during the penalty phase.10 Williams argued that “[h]ad trial counsel
fully investigated [his] family and social history, they would have discovered numerous
sources of information from individuals that have known [him] for his entire life.” (See
First Application for State Post-Conviction Relief, at 19). To that end, Williams supplied
the OCCA with affidavits from his relatives (mostly uncles) stating what they would have
testified to had they been called as witnesses. Williams’s focus in his state post-
10
In his state post-conviction relief application, Williams also argued that his lawyers
received inadequate compensation and that trial counsel was ineffective for failing to
rehabilitate jurors who expressed doubts about imposing the death penalty, but he does
not renew those claims in his federal habeas petition.
- 45 -
conviction relief application was thus on his lawyers’ failure to discover and call
additional witnesses, not on any failure to adequately support a witness who did testify.
In federal court, however, we see different allegations, most of which Williams
supports by referring to Dr. Draper’s newly submitted affidavit. See R. vol. I at 116
(“Counsel never conducted, or facilitated the conduct of, any further follow-up or
individual meetings with any of these persons.”); id. at 118 (“No preparation occurred for
Dr. Draper’s testimony with the trial team.”); id. at 119 (“Dr. Draper received no
communication from . . . any member of the Williams trial team about meeting before her
testimony or to prepare for the presentation of that evidence.”); id. at 120 (“[Williams’s
lawyers] wholly failed to prepare Dr. Draper for her trial testimony.”); id. at 123 (“Had
counsel ensured that an adequate investigation of [Developmental Disorganized
Detachment Disorder] and adequate preparation for Dr. Draper’s testimony had taken
place, Dr. Draper would have given much more extensive testimony on this condition”
and “Because of counsel’s failure to facilitate additional investigation or prepare Dr.
Draper for trial testimony, no member of Mr. Williams’s defense team investigated the
potential mental-health issues which may have [underlay] Mr. Williams’s suicide
attempt.”); id. at 124 (“[A]s a consequence of counsel’s failure to . . . adequately prepare
Dr. Draper to testify concerning the issue of Mr. Williams’s future dangerousness, the
prosecution effectively cross examined Dr. Draper” and “As a consequence of counsel’s
failure in assisting Dr. Draper . . . the demonstrative aid typically used by Dr. Draper—
the ‘life path’—was wholly inadequate.”).
- 46 -
Williams runs into another problem with Dr. Draper’s new affidavit. Even if Williams
had exhausted these claims in state court, § 2254 would restrict our (and the district
court’s) discretion to consider that affidavit. “[Section] 2254(e)(2) still restricts the
discretion of federal habeas courts to consider new evidence when deciding claims that
were not adjudicated on the merits in state court.” Cullen v. Pinholster, 131 S. Ct. 1388,
1401 (2011). This is because the state trial on the merits should be the “main event,”
rather than a “tryout on the road” for what will later be the determinative federal habeas
proceeding. Wainwright v. Sykes, 433 U.S. 72, 90 (1977).
In sum, Williams alleges that his lawyers failed to assist Dr. Draper in a number of
ways, and that her expert mitigation testimony therefore suffered. Even though these
allegations would typically come within Strickland’s ambit, they raise an entirely new
complaint of deficient performance and resulting prejudice because Williams raises them
now for the first time. See Gray, 518 U.S. at 163 (“[I]t is not enough to make a general
appeal to a [broad] constitutional guarantee . . . to present the ‘substance’ of such a claim
to a state court.”); Hawkins v. Mullin, 291 F.3d 658, 669 (10th Cir. 2002) (“The fact that
[the petitioner] asserted some ineffective-assistance claims in state court … will not
suffice to exhaust this significantly different federal habeas claim.”).
Like the district court, our exhaustion determination is limited to the “Draper claim”
alone. Even though Williams names many new witnesses in his habeas petition, he does
not contend that these witnesses would have said anything more than the relatives he
named in his first post-conviction application. Accordingly, the “ultimate question”
before the OCCA with respect to this claim was the same as the one before us—is there a
- 47 -
reasonable probability of a different outcome but for counsels’ alleged failure to call
additional witnesses? See Picard, 404 U.S. at 277–78 (“there are instances in which ‘the
ultimate question for disposition’ . . . will be the same despite variations in the legal
theory or factual allegations urged in its support.”) (internal citation omitted).
In seeking to persuade us that he exhausted his “Draper claim,” Williams argues that
his presentation of new evidence (Dr. Draper’s affidavit) did not change the substance of
his claim—it merely supplemented it. But if the Draper claim is one he already presented
to the OCCA—one that the OCCA presumably resolved on the merits—then the claim in
this court must be based on the record Williams presented to the OCCA. See Cullen, 131
S. Ct. at 1398 (stating that “review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits”). As a result, we cannot
consider the Draper affidavit, and his Draper claim necessarily fails.
Next, we consider what to do with this partially unexhausted claim. The district court
concluded that remand was not appropriate because “Oklahoma would bar consideration
of this precise claim on an independent and adequate state law procedural ground if
Williams presented it in a third post-conviction application.” Williams, 2012 WL
5197674, at *12. After all, were Williams to return to state court at this point, he would
raise this failure-to-prepare claim in what would now be a third application for post-
conviction relief. Oklahoma requires a post-conviction relief applicant to raise all
grounds for relief which he actually knows or should have known through the exercise of
due diligence in his original application for relief. See Cummings v. Sirmons, 506 F.3d
1211, 1222–23 (10th Cir. 2007) (summarizing Oklahoma’s rule for bringing claims in
- 48 -
post-conviction relief applications); see also Okla. Stat. tit. 22 §§ 1086, 1089(D)(2), (8)–
(9).
There would be little question that Oklahoma’s rule against successive petitions
would bar us from considering Williams’s habeas claim if the OCCA had applied the rule
itself. The doctrine of procedural default prevents a federal court from reviewing “the
merits of a claim—including constitutional claims—that a state court declined to hear
because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 132 S.
Ct. 1309, 1316 (2012). Habeas review is improper under those circumstances because the
state procedural rule, so long as it is “firmly established and consistently followed,” is a
“nonfederal ground adequate to support the judgment.” Id.We have previously held that the OCCA’s ban on successive post-conviction
applications is just such a firmly established and consistently followed rule. See Thacker
v. Workman, 678 F.3d 820, 835–36 (10th Cir. 2012). What’s more, Williams does not
have a good excuse for not including the failure-to-prepare arguments in his first post-
conviction application. Martinez, 132 S. Ct. at 1316 (recognizing that “[a] prisoner may
obtain federal review of a defaulted claim by showing cause for the default and prejudice
from a violation of federal law.”). While Williams attempts to blame his lawyers, he only
argues that his appellate lawyer was ineffective for failing to raise his unexhausted claim
on direct appeal. To be sure, this might excuse Williams’s noncompliance with
Oklahoma’s separate rule requiring presentment of claims on direct appeal. See Berget v.
State, 907 P.2d 1078, 1081 (Okla. Crim. App. 1995) (stating that “issues which were not
raised on direct appeal, but could have been, are waived,” but considering “claims which,
- 49 -
for whatever reason, could not have been raised on direct appeal.”). But this rule is not at
issue here; rather, we are only concerned with the rule against successive post-conviction
applications. See Okla. Stat. tit. 22 § 1086. Williams’s argument does nothing to show
why we should excuse his noncompliance with the successive applications rule.
Of course, the OCCA did not bar Williams’s unexhausted failure-to-prepare claim
because Williams never presented it. The procedural default described above is thus
distinguishable from the “anticipatory procedural default” at issue here—where a
petitioner fails to exhaust a claim and we, as a federal court, nonetheless conclude that
the claim would be procedurally defaulted on remand. See Thacker, 678 F.3d at 839–41.
According to the Supreme Court, a habeas petition is procedurally defaulted if the
petitioner “failed to exhaust state remedies and the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would now
find the claims procedurally barred.” Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991); Watson v. State of N.M., 45 F.3d 385, 386 n.1 (10th Cir. 1995). This question is
arguably more complicated than merely deferring to the state’s actual invocation of a
procedural bar because we must predict what the state court would do. This case asks us
to consider how certain we must be in our prediction.
In Williams’s view, there can be no room for uncertainty. He believes uncertainty
exists in his case because Oklahoma sometimes forgives noncompliance with the bar on
successive post-conviction applications. He points us to Valdez v. State, where the
Oklahoma Court of Criminal Appeals not only considered, but also granted, a second
application for post-conviction relief. 46 P.3d 703, 711 (Okla. Crim. App. 2002). The
- 50 -
OCCA made clear that it retains the power to grant a successive post-conviction
application “when an error complained of has resulted in a miscarriage of justice, or
constitutes a substantial violation of a constitutional or statutory right.” Id. at 710.
Williams cites several other cases since Valdez in which the OCCA has similarly declined
to apply this procedural bar. Given this case law, Williams suggests that we cannot
predict whether the OCCA would apply a procedural bar to his claim. But inconsistently,
Williams makes a prediction of his own: the OCCA will not apply a procedural bar to his
unexhausted claim because it is “particularly strong,” especially when “supplemented by
the facts in Dr. Draper’s affidavit.” (Appellant’s Reply Br. at 13).
We cannot agree with Williams that his ineffective-assistance claim is at all like those
claims the Oklahoma courts have considered in other noncomplying successive petitions.
Williams raises a run-of-the-mill Strickland claim that is far different from the “special
case” the OCCA recognized in Valdez. See 46 P.3d at 711 n.25. Valdez was special
because the lawyers there knew that their client was a citizen of Mexico and nonetheless
failed to comply with the Vienna Convention when they failed to contact the Mexican
Consulate, thereby depriving the Consulate the ability to intervene and present its
discovery that the defendant suffered from organic brain damage. Id. at 706, 709–10.
The other Oklahoma cases Williams cites involve equally compelling circumstances
not present here. See, e.g., Malicoat v. State, 137 P.3d 1234, 1235 (Okla. Crim. App.
2006) (declining to apply a procedural bar to consider whether Oklahoma’s lethal
injection protocol violated the Eighth Amendment’s prohibition against cruel and unusual
punishment). As we have said before, albeit in the context of the OCCA’s own
- 51 -
invocation of the successive-petition ban, the Valdez exception only applies in cases
involving an “exceptional circumstance,” Black v. Workman, 682 F.3d 880, 917 (10th Cir.
2012), and it is “insufficient to overcome Oklahoma’s regular and consistent application
of its procedural-bar rule in the vast majority of cases,” Thacker, 678 F.3d at 835–36
(internal quotation marks omitted).
Considering Williams’s claim, the chances that the OCCA might excuse his
noncompliance with the ban on successive-petitions are slim to none. True, we are not the
state court and we can never predict with 100% accuracy how another court will resolve
an unexhausted claim under its own procedural rules. But we do not believe this level of
certainty is what the Supreme Court requires. Instead, we think it is enough if, looking to
the state’s treatment of its procedural bar, the likelihood of default in the petitioner’s case
is beyond debate or dispute. See Cummings, 506 F.3d at 1223.
Indeed, this was enough in Cummings, where a habeas petitioner also failed to
exhaust a Strickland claim involving his lawyer’s failure to seek DNA testing of “critical
evidence.” Id. at 1222. Despite the petitioner’s claim that he should not be subject to the
same procedural bar because he was innocent (presumably, an argument he would have
made on remand in state court), we “readily concluded” that his claim was subject to an
anticipatory procedural bar. Id. at 1223. It was “beyond dispute” that, “were [the
petitioner] to attempt to now present the claim to the Oklahoma state courts in a second
application for post-conviction relief, it would be deemed procedurally barred.” Id. at
1223. Nothing Williams says leads us to believe that the likelihood of a procedural bar in
his case is any less certain.
- 52 -
Williams raises two other arguments in resisting an anticipatory procedural bar for his
failure-to-prepare claim. First, as proof of the OCCA’s unpredictability and the need for
remand, he points to the fact that in this very case the OCCA excused a procedural bar to
consider other ineffective-assistance claims that he did not raise on direct appeal. See
Williams, No. PCD 2006–1012, at *3–8. Williams raised these claims in his state post-
conviction relief application contrary to Oklahoma’s general rule requiring that
defendants present all claims on direct appeal. See Okla. Stat. tit. 22, § 1089(C). But just
because the OCCA declined to apply one procedural rule—the presentment of claims on
direct appeal—in one context does not mean that it would decline to apply an entirely
different procedural rule—requiring a petitioner to raise all known (or should have
known) claims in a single, initial application for post-conviction relief—in another.11
Second, Williams argues that the procedural rule at issue in his case is not an adequate
and independent state ground to bar his failure-to-prepare claim. Specifically, Williams
says that the general prohibition against successive post-conviction applications
intertwines with federal law, which would not preclude habeas review. He seems to say
that, under the Valdez exception, a state court is required to consider the merits of a
11
This is all the more true here given our prior announcement that we will only
consider the OCCA’s rule requiring presentment of ineffective-assistance claims on
direct appeal as an adequate ground for procedural default under certain circumstances.
See English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). What’s more, Williams
argued that his appellate lawyer was ineffective in failing to raise this claim on direct
appeal, thereby giving the OCCA another reason to reach the merits. Neither of these
concerns would weigh in favor of excusing Williams’s entirely unrelated failure to raise
his Draper-centric arguments in his first (or second) application for post-conviction relief.
- 53 -
constitutional claim—thereby raising questions of federal law and undermining the very
reason we defer to state procedural dismissals. But we have already rejected this
argument. See Banks v. Workman, 692 F.3d 1133, 1145 (10th Cir. 2012) (concluding that
Oklahoma’s procedural bar is independent of federal law, notwithstanding the OCCA’s
power to excuse default in “extreme cases”). And to whatever extent the Valdez exception
raises questions of federal law, we have considered those federal questions in determining
for ourselves that Valdez does not extend to Williams’s ineffective-assistance claim.
This brings us to the merits. The OCCA rejected the exhausted portion of Williams’s
ineffective-assistance claim under Strickland. In its view, the mitigation-specialist claim
failed because Williams had not shown what additional evidence the mitigation specialist
would have unearthed. Williams, No. PCD 2006–1012, at *5. The OCCA then resolved
Williams’s claim that his lawyers should have called other witnesses. It concluded that
the lawyers decided not to use these witnesses (aunt, uncle and grandfather) after a
reasonable investigation into mitigation evidence. Id. at *8. The OCCA further concluded
that this decision “amounted to reasonable trial strategy, thus counsel was not ineffective
for failing to utilize these relatives as mitigation witnesses.” Id.As for the claim that the lawyers should have hired a mitigation specialist, we agree
with the OCCA that Williams has failed to identify what other testimony (if any) a
mitigation expert would have discovered. We also fail to understand why Dr. Draper did
not adequately fulfill that role. Accordingly, we cannot say—as we must to reverse—that
the OCCA’s decision was contrary to or an unreasonable application of federal law, or
- 54 -
that it resulted in an unreasonable determination of the facts presented in the state courts.
See 28 U.S.C. § 2254(d).
As for the claim involving uncalled witnesses, like the district court, we choose to
resolve this claim under the prejudice-prong of Strickland. See Rompilla v. Beard, 545
U.S. 374, 390 (2005) (“Because the state courts found the representation adequate, they
never reached the issue of prejudice … and so we examine this element of the Strickland
claim de novo.”) In doing so, we assume that Williams can satisfy Strickland’s first prong
(deficient performance) because his trial lawyers did not interview Williams’s family and
friends. See Cole v. Trammell, 755 F.3d 1142, 1161 (10th Cir. 2014) (assuming the same
“because family and social history is one of the crucial areas of investigation emphasized
in the ABA Guidelines”) (internal quotation marks omitted). Still, our assumption does
not bring Williams the relief he desires; in the end, he cannot show that his lawyers’
failures resulted in prejudice under Strickland.
To show prejudice, Williams must show that his lawyers’ failures mattered—“namely,
that there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Grant, 727 F.3d at 1018 (citing
Strickland, 466 U.S. at 694). When a petitioner alleges ineffective assistance of counsel
stemming from a failure to investigate mitigating evidence at a capital-sentencing
proceeding, “we evaluate the totality of the evidence—both that adduced at trial, and the
evidence adduced in habeas proceedings.” Smith v. Mullin, 379 F.3d 919, 942 (10th Cir.
2004) (quoting Wiggins, 539 U.S. at 536). This includes weighing “the evidence in
aggravation against the totality of available mitigating evidence.” Hooks, 689 F.3d at
- 55 -
1202. “In a system like Oklahoma’s, where only a unanimous jury may impose the death
penalty, the question is whether it’s ‘reasonably probabl[e] that at least one juror would
have struck a different balance.’” Grant, 727 F.3d at 1018–19 (quoting Wiggins, 539 U.S.
at 537). Here, the OCCA did not reach this prejudice question, but we are sure that there
was no substantial probability, let alone a conceivable one, that one juror (or more) would
have voted against the death penalty had counsel not (assumed to have) failed to call
other witnesses. See Harrington, 131 S. Ct. at 792 (defining reasonable probability as the
likelihood of a different result being “substantial, not just conceivable”).12
We reach this conclusion based on what Williams tells us the uncalled witnesses
would have said. In the prejudice section of his brief, Williams claims that the uncalled
witnesses would have testified about his “criminogenic upbringing,” that he “lack[ed] …
any parent figure for the majority of his life,” and “that he could potentially thrive and
rehabilitate himself in prison.” (Appellant’s Br. at 46). He gives no specifics about what
each witness might have said or why this might have changed the outcome at sentencing.
Admittedly, in his habeas petition, Williams says the witnesses would have testified to
slightly more—that he was born premature, that he was on a heart monitor during
infancy, that the Department of Human Services came to check on him as a baby, that he
got lost in his grandmother’s home, that he didn’t have a room of his own, that he
12
In his brief, Williams alludes to a claim that his lawyers failed to prepare Joni
Williams. The parties do not focus on this claim—likely because Williams failed to
develop it properly in his briefing. To the extent Williams raises such a claim, however, it
fails under Strickland’s prejudice prong as well. Williams does not even hint at what
more his mother might have said if trial counsel better prepared her.
- 56 -
witnessed police encounters involving his uncles, that he was greatly affected by his
grandmother’s death, that his uncles were involved in gangs, and that he was exposed to
violence and criminal activity from a young age. If we consider the affidavits Williams
presented in state court, the uncles also may have testified that they would sometimes
beat up on Williams. Some would also have testified, based on personal experience, that
prison was difficult and that a sentence of life in prison would not let Williams “off the
hook.”
There is one key reason why this excluded testimony falls short of that necessary to
show prejudice under Strickland—the sentencing jury was already “well acquainted”
with evidence of Williams’s “background and potential humanizing features.” Wong v.
Belmontes, 558 U.S. 15, 23 (2009); see Wackerly, 580 F.3d at 1182 (finding no prejudice
when petitioner argued that his lawyer should have introduced evidence that was
cumulative of evidence the jury did hear). As the OCCA outlined, both Dr. Draper and
Joni Williams testified at length about Williams’s upbringing. They told the jury about the
circumstances of Williams’s conception and premature birth. They told the jury how
Williams had no contact with his biological father and how Joni left Williams with her
mother to raise him. They told the jury that Williams got lost in his grandmother’s home
and that Williams was even more lost following his grandmother’s death by heart attack
(which Williams witnessed). They told the jury that Williams’s uncles were a negative
influence and that they exposed him to violence and drug abuse from a young age. Dr.
Draper even told the jury that the uncles would beat up on Williams. Williams gives us no
reason to think that other family and friends would have added to this humanizing
- 57 -
evidence in any significant way. Even if other witnesses might have offered additional
details or unique perspectives, we fail to see how the exclusion of this largely cumulative
evidence might undermine confidence in the outcome. “Many of our cases have also
refused to find prejudice when the evidence the defendant says counsel should have
presented would have been cumulative of the evidence the jury actually heard.” See
Grant, 727 F.3d at 1022.
The only non-cumulative information the uncles might have presented is their first-
hand accounts of prison and its effects. Had the lawyers presented this testimony,
Williams contends there is a reasonable probability that at least one juror might have
voted differently. This argument is not without merit; undoubtedly, the jurors considered
whether life imprisonment was sufficient punishment for Williams and, under the
“continuing threat” aggravating circumstance, whether he might remain a violent person
even in prison. But even if Williams’s uncles had told the jury that prison was horrible
and that it has the potential to reform, we cannot overlook the “double-edged nature” of
this evidence. Wackerly, 580 F.3d at 1178. For example, if the uncles had testified, then
the state would have pointed out to the jury that most of Williams’s closest family
members are convicted felons. Also likely, the prosecution would have elicited testimony
about the criminal activities that landed the uncles in jail—as well as any criminal
activities since. Further, the jury would have seen that much of Williams’s support system
comprised of individuals who (at least at one point in life) were tied to gangs and
organized violence. This evidence might have made a difference, “but in the wrong
direction” for Williams. Wong, 558 U.S. at 22.
- 58 -
By pointing this out, we do not mean to say that convicted felons cannot give
powerful mitigation testimony. For example, in Harlow v. Murphy, on which Williams
relies, the United States District Court for the District of Wyoming found ineffective
assistance and resulting prejudice based on counsel’s failure to present testimony from a
defendant’s fellow inmates. R. vol. I at 406–26 (citing No. 05–cv–039–B, at *38–58 (D.
Wyo. Feb. 15, 2008) (unpublished)). The petitioner in that case murdered a prison guard
during an attempted escape. The other inmates whom trial counsel did not call to testify
would have refuted specific evidence that the defendant was violent during his time in
prison. Id.Here, however, Williams only says that his uncles would have told the jury that prison
has both the power to punish and to reform. These rather obvious points would not have
provided much benefit, if any, to Williams, particularly when paired with the more
damaging information the jury would have learned had the uncles testified. Thus, in
discussing the uncles’ testimony, we simply mean to point out that we cannot just
consider how the uncles would have responded to friendly questions from the defense.
We must also consider what rebuttal evidence the uncles would have “put into play” if the
uncles actually testified. Wong, 558 U.S. at 22.
In his habeas petition, Williams also argues that several of his relatives would also
have asked the jury to spare his life. The jury heard Joni Williams’s plea, and we do not
doubt that there are others who love the defendant and would similarly implore the jury
not to impose the death penalty. The fact remains that Williams has failed to explain why
pleas from additional witnesses would have made a difference in the jury’s consideration
- 59 -
of the aggravating and mitigating circumstances in his case, or in its decision to impose
the ultimate sentence of death.
In sum, as sad and difficult as a defendant’s circumstances may be, “evidence of
childhood abuse or neglect isn’t always severe enough to earn a jury’s sympathies.”
Grant, 727 F.3d at 1021. The mitigation evidence presented here was obviously not
enough to earn the jury’s sympathies. Even if trial counsel had hired a mitigation expert
or called additional witnesses to testify, Williams cannot point to any other evidence that
his lawyers should have presented that might have moved even a single juror’s
sympathies his way. See Grant, 727 F.3d at 1018–19.
Williams would nonetheless like us to grant him an evidentiary hearing on this claim
to consider new evidence that was not before the OCCA. He points out that claims of this
variety usually require a hearing. Williams dedicates much of his brief to arguing why he
is entitled to a hearing and why § 2254(e)(2), which only allows hearings under
compelling circumstances, does not apply.
Under the provisions of § 2254(e)(2), a habeas petitioner cannot receive an
evidentiary hearing whenever an “applicant has failed to develop the factual basis of a
claim in State court proceedings.” Under those circumstances, a petitioner can only
receive a hearing when “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.” 28 U.S.C. § 2254(e)(2).
Williams argues that we should not hold him to such a high burden here because he tried
- 60 -
to develop the factual basis for his claim in state court but the OCCA unreasonably
refused to hold a hearing.
But even if we agree with Williams that § 2254(e)(2) does not apply and afford him
the benefit of our less-rigorous pre-AEDPA standard, we see no reason for a hearing in
this case. See Cannon v. Mullin, 383 F.3d 1152, 1175 (10th Cir. 2004). When §2254(e)(2)
is inapplicable, a habeas petitioner still is not entitled to an evidentiary hearing unless
“(1) the facts were not adequately developed in the state court, so long as that failure
[was] not attributable to the petitioner, and (2) his allegations, if true and not contravened
by the existing factual record, would entitle him to habeas relief.” Id. (internal citation
and quotation marks omitted).
We agree that, under the less-rigorous pre-AEDPA standard, a hearing is usually
required when a defendant alleges his lawyer failed to investigate his background.
Without a hearing, it is often difficult to “reliably determine whether counsel’s
investigation was deficient without knowing what was investigated, and the scope of the
investigation can rarely be discerned from the trial record.” Fairchild, 579 F.3d at 1142.
Even if we agree with Williams that a hearing would have shed light on his lawyers’
performance in this case, we fail to see how a hearing would give us any insight into the
question of prejudice—our basis for resolving this claim. Even affording Williams the
benefit of assuming that counsel performed deficiently and of the pre-AEDPA standard
for determining whether to grant an evidentiary hearing, we cannot conclude that a
hearing is necessary. While Williams has alleged facts that, if true, would show deficient
performance, this is already something we have assumed. However, Williams has not
- 61 -
alleged facts that, if true, would demonstrate prejudice under Strickland. See Cannon, 383
F.3d at 1175. An evidentiary hearing is for determining if allegations have factual
support; it is not for uncovering new allegations of which the habeas petitioner is
currently unaware. See Medina v. Barnes, 71 F.3d 363, 366 (10th Cir. 1995) (determining
whether petitioner was entitled to an evidentiary hearing “to resolve any disputed facts
underlying his claims”).
E. Cumulative Error
This leaves us with Williams’s claim of cumulative error. He argues that while each
identified error may be insufficient to warrant habeas relief in isolation, “when viewed in
their entirety there can be no doubt that [he] has not received effective assistance as
required by the Sixth Amendment.” (Appellant’s Br. at 90).
“In the federal habeas context, a cumulative-error analysis aggregates all
constitutional errors found to be harmless and analyzes whether their cumulative effect
on the outcome of the trial is such that collectively they can no longer be determined to
be harmless.” Cole, 755 F.3d at 1177.
Here, Williams’s “perfunctory assertion falls well short of what’s needed to overturn a
judgment, let alone one as long-settled and repeatedly reviewed as this one.” Grant, 727
F.3d at 1025. Even so, we have already concluded that the cumulative effect of all
presumed errors of counsel was insufficient to create a reasonable probability that, but for
those errors, the jury would not have convicted Williams of first-degree murder or
imposed the death penalty. Similarly, Williams has not persuaded us that the combined
- 62 -
errors of counsel led to Williams receiving a trial that was not “fundamentally fair.” See
Cole, 755 F.3d at 1177 (framing cumulative-error question in this fashion).
III. CONCLUSION
We affirm the district court’s judgment. We deny Williams’s motion to expand the
certificate of appealability.
- 63 -
No. 12-5190, Williams v. Trammell
GORSUCH, Circuit Judge, concurring.
I am pleased to join the court’s opinion and write only to add that if the
OCCA really means to suggest that strict liability offenses can trigger the death
penalty, it will face its problems. Addressing Mr. Williams’s direct appeal and
the larger question of accessory liability in murder cases, the OCCA “overrule[d]”
its earlier precedents requiring the government to prove that the defendant
personally intended the death of the victim; mentioned no substitute mens rea;
and stated that when it comes to proving actus reus, “only slight participation is
needed” to transform a spectator into an accessory to murder subject to a capital
charge. Williams v. State, 188 P.3d 208, 225-26 & n.18 (Okla. Crim. App. 2008)
(quoting Powell v. State, 995 P.2d 510, 524 (Okla. Crim. App. 2000)). Under this
formulation it seems Oklahoma could seek to execute someone just because he
sold a gun to a buyer who later used it for murder. Even if the seller was lawfully
in the business of selling firearms. Even if the seller didn’t know the buyer’s
plans. Even if the seller wasn’t in any way reckless about the possibility that
someone would get hurt. Oddly, too, on this account accessory liability for
murder is strict though principal liability still requires proof of mens rea in
Oklahoma.
It’s hard to imagine the OCCA meant such a revolution in accessory
liability in murder cases. Hopefully (surely) the court will soon identify an
appropriate mens rea. But if it really meant what it said, it will find itself on the
wrong side of Supreme Court authority. In Enmund v. Florida, 458 U.S. 782(1982), the Court read the Eighth Amendment to prohibit as “cruel and unusual
punishment” the execution of an accessory to murder in the absence of proof that
he “attempt[ed] to kill, or intend[ed] that a killing take place or that lethal
force . . . be employed.” Id. at 797. In Tison v. Arizona, 481 U.S. 137 (1987), the
Court relaxed this rule somewhat, allowing a state to execute an accessory on a
lesser mens rea showing — “reckless indifference to human life” — so long as
the defendant was a “major participant” in the principal’s criminal activities that
led to the homicide. Id. at 158 & n.12. But I am unaware of any Supreme Court
case law permitting states to execute accessories on a strict liability basis, without
any showing of mens rea.
Indeed, executing someone for a strict liability offense would represent not
only a highly “unusual” punishment but one inimical to the common law at the
time of the founding. See, e.g., 1 Matthew Hale, The History of the Pleas of the
Crown 38 (1736) (“[I]t is the will and intention, that regularly is required, as well
as the act, and event, to make the offense capital.”); Francis Bacon, The Elements
of the Common Lawes of England 36 (1630) (“In capitall causes in favorem vitae,
the law will not punish in so high a degree, except the malice of the will and
intention appeare . . . .”); see also Francis Bowes Sayre, Mens Rea, 45 Harv. L.
Rev. 974, 993 (1932) (“By the second half of the seventeenth century, it was
universally accepted law that an evil intent was as necessary for felony as the act
-2-
itself.”); Paul J. Larkin, Jr., Strict Liability Offenses, Incarceration, and the Cruel
and Unusual Punishments Clause, 37 Harv. J.L. & Pub. Pol’y 1065 (2014).
Of course, in relatively recent times strict liability has insinuated its way
into tort law and even the lower rungs of the criminal law, especially statutory
and regulatory offenses that impose financial penalties. But the question here
isn’t who foots the bill but who faces the executioner. And when society seeks to
pass the ultimate moral judgment on an individual’s actions, the law doesn’t
concern itself with comparatively trivial questions like who is the least-cost
avoider but instead takes as its guide individual free will and choice. As Justice
Jackson explained: “The contention that an injury can amount to a crime only
when inflicted by intention is no provincial or transient notion. It is as universal
and persistent in mature systems of law as belief in freedom of the human will
and a consequent ability and duty of the normal individual to choose between
good and evil.” Morissette v. United States, 342 U.S. 246, 250 (1952); see also
Staples v. United States, 511 U.S. 600, 616-17 (1994) (“In a system that generally
requires a ‘vicious will’ to establish a crime, imposing severe punishments for
offenses that require no mens rea would seem incongruous.” (quoting 4 William
Blackstone, Commentaries *21)).
Indeed, even well outside the capital context the usual rule for accessory
liability in American common law has, absent legislative innovation, required the
government to prove that the defendant intended the object of his principal’s
-3-
crimes — precisely to ensure liability extends only to those who freely choose
wrong and the dragnet doesn’t reach individuals like the gun seller in the example
above who perhaps could have (cheaply) avoided the crime but who are going
about a lawful business. See, e.g., Rosemond v. United States, 134 S. Ct. 1240,
1245, 1248-49 (2014); United States v. Manatau, 647 F.3d 1048, 1052 (10th Cir.
2011); United States v. Falcone, 109 F.2d 579, 581 (2d Cir. 1940) (Hand, J.)
(defending the traditional view requiring intent for accessory liability in crime
though of course Hand was himself a key innovator in tort (PL>B) when it came
to low-cost avoidance); Model Penal Code § 2.02 cmt. 2 (1985); id. § 2.06 cmt.
6(c).
As the court today explains, we can avoid deciding whether the OCCA’s
revamping of Oklahoma aiding and abetting law passes muster under the Supreme
Court’s Eighth Amendment jurisprudence, though the answer seems both clear
and clearly unfavorable. We can, however, only because the OCCA proceeded to
acknowledge that its alterations to Oklahoma accessory liability law were
essentially irrelevant to its resolution of this case. After overturning its accessory
liability precedents, the OCCA noted that Mr. Williams could be found guilty
even under its preexisting formulation of aiding and abetting doctrine because, in
fact, he intended to kill or knew of his principal’s intent to kill and contributed
substantially to the murder. Williams, 188 P.3d at 225-26 & n.18. My colleagues
explain that the OCCA’s determinations on these scores are both reasonable given
-4-
the factual record in this case and sufficient to satisfy the Eighth Amendment rule
announced in Tison. But without the fortuity of this alternative holding, it is
altogether unclear that the OCCA’s decision in this case would warrant any
deference in federal court under the directions Congress has given us in 28 U.S.C.
§ 2254(d)(1).
-5-