Opposition Brief — Tommy Sharp, Interim Warden, Petitioner v. Jimmy Dean Harris

Supreme Court briefMay 11, 2020

Ask Donna

What actually matters in this document.

Text

Capital Case

Case No.19-1105

In the Supreme Court of the United States

TOMMY SHARP, Interim Warden

Oklahoma State Penitentiary,

Petitioner,

JIMMY DEAN HARRIS

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

RESPONDENT’S APPENDIX TO

BRIEF IN OPPOSITION

JACK FISHER

Okla. Bar # 2939

Fisher Law Office

P. O. Box 1976

Edmond, OK 73083

Telephone: (405) 235-9466

Facsimile: (405) 340-7269

Okfishlaw@aol.com

EMMA V. ROLLS*

Okla. Bar # 18820

Assistant Federal Public Defender

215 Dean A. McGee, Suite 707

Oklahoma City, OK 73102

Telephone: (405) 609-5975

Facsimile: (405) 609-5976

Emma_Rolls@fd.org

COUNSEL FOR RESPONDENT/APPELLEE,

JIMMY DEAN HARRIS

* Counsel of Record

Dated this 11th day of May, 2020

RESPONDENT’S APPENDIX

TABLE OF CONTENTS

Opinion of the Tenth Circuit Court of Appeals . . . . . . . . . . . . . . . . . . Resp. App. 1

Harris v. Sharp, 941 F.3d 962 (10th Cir. 2019)

Case No. 17-6109

Judgment rendered October 28, 2019

Opinion of the United States District Court . . . . . . . . . . . . . . . . . . . Resp. App. 52

Harris v. Royal, No. CIV-08-375 (W.D. Okla. 2017)

Memorandum Opinion rendered April 19, 2017

Harris v. State, 164 P.3d 1103 (Okla. Crim. App. 2007) . . . . . . . . Resp. App. 118

Case No. D-2005-117, Opinion rendered July 19, 2007

Report of Dr. Jennifer Callahan, Ph.D. . . . . . . . . . . . . . . . . . . . . . . Resp. App. 136

Report of Dr. Martin Krimsky, Ph.D. . . . . . . . . . . . . . . . . . . . . . . . Resp. App. 157

Report of Dr. Nelda Ferguson, Ph.D. . . . . . . . . . . . . . . . . . . . . . . . Resp. App. 159

962

941 FEDERAL REPORTER, 3d SERIES

range Defendant says he expected in the

absence of the cross-reference was unreasonably long, amounting to an abuse of the

court’s discretion.

CONCLUSION

We accordingly AFFIRM Defendant’s

sentence.

Jimmy Dean HARRIS, Petitioner Appellant,

Tommy SHARP, Interim Warden,

Oklahoma State Penitentiary,*

Respondent - Appellee.

No. 17-6109

United States Court of Appeals,

Tenth Circuit.

October 28, 2019

Background: Following affirmance on direct appeal of petitioner’s state court conviction for murder and sentencing to

death, 84 P.3d 731 and 164 P.3d 1103, and

denial of his motion for post-conviction relief, 167 P.3d 438, petitioner sought federal

writ of habeas corpus. The United States

District Court for the Western District of

Oklahoma, Stephen P. Friot, Senior District Judge, 2017 WL 1403302, denied petition. Petitioner appealed.

hearing to assess whether defendant

had an intellectual disability;

(2) Oklahoma Court of Criminal Appeals’

(OCCA) decision denying defendant’s

ineffective assistance of counsel claim

was based on an unreasonable factual

determination regarding what evidence

at a pretrial hearing would have

showed;

(3) OCCA’s determination that defendant’s

attorney had strategically decided how

to present mitigation evidence regarding his borderline intellectual functioning was not unreasonable in light of the

facts presented to OCCA;

(4) OCCA’s determination that defendant

did not suffer prejudice from defense

counsel’s failure to present additional

mitigation evidence was based on a

reasonable determination of facts and

Strickland standard for ineffective assistance claims;

(5) OCCA’s determination that defense

counsel had presented evidence of

defendant’s mental illness but strategically decided to downplay such evidence was not an unreasonable determination of fact;

(6) OCCA’s determination that defense

counsel acted reasonably in only engaging in limited questioning of expert

witness regarding defendant’s mental

illnesses was reasonable; and

Holdings: The Court of Appeals, Bacharach, Circuit Judge, held that:

(7) petitioner was not entitled to federal

habeas relief on his Eighth Amendment challenge alleging that jury was

prevented from considering all mitigating evidence.

(1) trial counsel’s performance was deficient in failing to request a pretrial

Affirmed in part, reversed in part, and

remanded.

* Pursuant to Fed. R. App. P. 42(c)(2), Mike

Carpenter is replaced by Tommy Sharp, as

the Interim Warden of the Oklahoma State

Penitentiary.

Resp. App. 1

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

963

1. Habeas Corpus O842

7. Criminal Law O1882

The Court of Appeals engages in de

novo review of the federal district court’s

legal analysis in a habeas case.

Attorneys are ‘‘deficient,’’ for purpose

of an ineffective assistance of counsel

claim, when their mistakes are so serious

that they stop functioning as ‘‘counsel’’ for

purposes of the Sixth Amendment. U.S.

Const. Amend. 6.

2. Habeas Corpus O766

In district court, review of a habeas

petition under Antiterrorism and Effective

Death Penalty Act is deferential when the

state appellate court rejects a claim on the

merits. 28 U.S.C.A. § 2254(d).

3. Habeas Corpus O450.1, 452

Under Antiterrorism and Effective

Death Penalty Act, to determine whether a

state-court decision was contrary to, or

involved an unreasonable application of,

clearly established law, federal courts engage in a two-step process: they first determine the clearly established law by considering Supreme Court precedent, and

then ask whether the state court’s decision

was contrary to, or involved an unreasonable application of, that precedent. 28

U.S.C.A. § 2254(d).

4. Habeas Corpus O767

On federal habeas review, the federal

court must defer to the state court’s factual findings unless the state court plainly

misapprehended or misstated the record in

making its findings, and the misapprehension goes to a material factual issue that is

central to the petitioner’s claim. 28

U.S.C.A. § 2254(d).

See publication Words and Phrases

for other judicial constructions and

definitions.

8. Criminal Law O1871

In determining whether counsel was

deficient, the court ordinarily presumes

that counsel’s performance is reasonable

and might entail a sound strategy. U.S.

Const. Amend. 6.

9. Criminal Law O1886

In capital cases alleging ineffective assistance of counsel, courts scrutinize attorney performance particularly closely in the

sentencing phase. U.S. Const. Amend. 6.

10. Criminal Law O1871, 1882

To overcome the presumption that

counsel’s performance was reasonable on

an ineffective assistance of counsel claim, a

petitioner must show that counsel’s representation fell below an objective standard

of reasonableness. U.S. Const. Amend. 6.

11. Criminal Law O1870

The Sixth Amendment entitles a defendant to effective assistance of counsel.

U.S. Const. Amend. 6.

The inquiry into whether counsel’s

representation fell below an objective

standard of reasonableness, as required to

satisfy first element of an ineffective assistance of counsel claim, is highly deferential, and courts should avoid the distorting

effects of hindsight. U.S. Const. Amend.

6. Criminal Law O1882

12. Criminal Law O1884

Under the first part of the Strickland

test for ineffective assistance of counsel,

the court is to determine whether the defendant’s attorney was deficient. U.S.

Const. Amend. 6.

Strategic decisions of counsel after a

thorough investigation are afforded even

greater deference and are virtually unchallengeable in an ineffective assistance of

counsel claim. U.S. Const. Amend. 6.

5. Criminal Law O1870

Resp. App. 2

964

941 FEDERAL REPORTER, 3d SERIES

13. Criminal Law O1870

Even under de novo review, the standard for judging counsel’s representation

on an ineffective assistance of counsel

claim is a most deferential one. U.S.

Const. Amend. 6.

14. Habeas Corpus O486(1), 773

When a habeas petitioner alleges ineffective assistance of counsel, deference exists both in the underlying constitutional

test under Strickland and the Antiterrorism and Effective Death Penalty Act standard for habeas relief, creating a doubly

deferential judicial review; under this double deference, the court considers whether

there is any reasonable argument that

counsel satisfied Strickland’s deferential

standard. U.S. Const. Amend. 6; 28

U.S.C.A. § 2254(d).

15. Criminal Law O1881

To succeed on an ineffective assistance of counsel claim, the petitioner must

show not only a deficiency in the representation but also prejudice. U.S. Const.

Amend. 6.

16. Criminal Law O1883

To establish prejudice prong of an

ineffective assistance of counsel claim, the

petitioner must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different.

U.S. Const. Amend. 6.

17. Habeas Corpus O816

Even in habeas cases involving the

death penalty, federal courts consider arguments forfeited or waived when they are

raised for the first time on appeal. 28

U.S.C.A. § 2254.

18. Courts O90(2)

Although a panel typically cannot

overrule an earlier precedent, a panel is

not bound by precedents that have been

superseded by a change in state law.

19. Habeas Corpus O766

On a federal habeas claim, Court of

Appeals considers the Oklahoma Court of

Criminal Appeals’ denial of an evidentiary

hearing on an ineffective-assistance claim

as an adjudication on the merits. 28

U.S.C.A. § 2254.

20. Criminal Law O1963

Trial counsel’s performance was deficient in failing to request a pretrial hearing to assess whether defendant had an

intellectual disability, which would have

precluded imposition of the death penalty

after he was convicted of murder, as required element of defendant’s ineffective

assistance claim; defense would have lost

nothing if it had requested a pretrial hearing on intellectual disability, even if defendant been found not to have been intellectually disabled, given availability of a posttrial motion to revisit the issue, but there

was considerable possible upside to a pretrial hearing, given evidence that defendant had an IQ score under the 70-point

threshold necessary for a determination of

intellectual disability under Oklahoma law

and an expert witness had already diagnosed defendant with an intellectual disability. U.S. Const. Amends. 6, 8.

21. Criminal Law O1884

On an ineffective assistance claim, an

attorney’s strategic decisions draw considerable deference when the attorney has

thoroughly investigated the law, the facts,

and the plausible alternatives. U.S. Const.

Amend. 6.

22. Criminal Law O1884

Merely calling an attorney’s decisions

strategy does not prevent meaningful scrutiny on an ineffective assistance claim; the

court must still determine: (1) whether an

attorney has chosen to forgo a course of

Resp. App. 3

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

action, and (2) whether that choice was

reasonable under the circumstances. U.S.

Const. Amend. 6.

23. Criminal Law O1960

In assessing the reasonableness of an

attorney’s investigation during the penalty

phase of a capital case on an ineffective

assistance claim, the court refers to the

American Bar Association Guidelines for

the Appointment and Performance of

Counsel in Death Penalty Cases, which

require that counsel at every stage of the

case should take advantage of all appropriate opportunities to argue why death is not

suitable punishment for their particular

client. U.S. Const. Amend. 6.

24. Habeas Corpus O486(5)

Oklahoma Court of Criminal Appeals’

(OCCA) decision denying defendant’s ineffective assistance of counsel claim based on

counsel’s failure to request a pretrial hearing to determine whether defendant was

intellectually disabled and thus ineligible

for the death penalty was based on an

unreasonable factual determination that

evidence at a pretrial hearing would not

have shown that defendant was intellectually disabled, as required for defendant to

be entitled to federal habeas relief;

OCCA’s determination that defendant was

not prejudiced by the lack of a hearing was

based on its finding that there would not

have been any evidence that defendant

was intellectually disabled, despite fact

that an expert had found that he was

mildly intellectually disabled based on two

IQ tests. U.S. Const. Amends. 6, 8; 28

U.S.C.A. § 2254(d)(2).

25. Habeas Corpus O816

Petitioner adequately raised before

district court in his habeas petition his

argument that Oklahoma Court of Criminal Appeals’ denial of his ineffective assistance of counsel claim was based on an

unreasonable determination of fact in light

965

of expert’s assessment of an intellectual

disability, as required to preserve such

argument for appeal; although petitioner

treated another expert’s opinion regarding

his alleged intellectual disability as significant new evidence of intellectual disability

in district court, his argument supporting

his claim of ineffective assistance extensively discussed all prior expert opinions

on the existence of intellectual disability,

including opinion of expert at issue. U.S.

Const. Amend. 6; 28 U.S.C.A. § 2254(d)(2).

26. Habeas Corpus O816

To preserve an issue in district court,

a habeas petitioner need only alert the

court to the issue and seek a ruling. 28

U.S.C.A. § 2254.

27. Habeas Corpus O742

An evidentiary hearing on a petition

for habeas corpus is ordinarily unavailable

when the petitioner failed to diligently develop the factual bases of the claim in state

court. 28 U.S.C.A. § 2254.

28. Criminal Law O1963

Defense counsel’s deficient performance in failing to request a pretrial hearing

on the issue of a defendant’s alleged intellectual disability would be prejudicial, compelling a finding of ineffective assistance, if

a pretrial hearing would create a reasonable probability of a lesser sentence. U.S.

Const. Amend. 6.

29. Habeas Corpus O746

Petitioner who was sentenced to death

in state court upon his murder conviction

was entitled to evidentiary hearing to determine if he was prejudiced by his counsel’s deficient performance in failing to

request a pretrial hearing to determine if

he was intellectually disabled and thus ineligible for death penalty, as required to

support finding that petitioner was denied

effective assistance of counsel, in petitioner’s federal habeas action; petitioner had

Resp. App. 4

966

941 FEDERAL REPORTER, 3d SERIES

demonstrated a deficiency in his counsel’s

performance and had made allegations regarding his intellectual functioning that

could have supported a finding of an intellectual disability, if proven. U.S. Const.

Amend. 6; 28 U.S.C.A. § 2254.

30. Criminal Law O1961

To assess prejudice prong of an ineffective assistance of counsel claim based on

counsel’s failure to present mitigating evidence, the court must evaluate the totality

of the evidence, including: (1) the aggravating circumstances found by the jury; (2)

the mitigation evidence; (3) the mitigation

evidence that might have been introduced;

and (4) what the prosecution’s response to

that evidence would have been. U.S.

Const. Amend. 6.

31. Habeas Corpus O383

Petitioner failed to exhaust his claim

that defense counsel was ineffective in failing to present mitigation evidence involving intellectual disability in his sentencing

on capital murder conviction by failing to

raise such issue before Oklahoma Court of

Criminal Appeals (OCCA), and thus such

claim was barred for purpose of his federal

habeas petition; although petitioner argued

before OCCA that his counsel was ineffective for failing to present mitigation evidence regarding borderline intellectual

functioning, such argument was confined

to evidence of a lesser intellectual impairment than an intellectual disability, which

he did not raise due to an assumption that

it could only have been addressed in a

pretrial hearing. U.S. Const. Amend. 6;

28 U.S.C.A. § 2254(b)(1)(A).

32. Habeas Corpus O408

Exhaustion of state-court remedies

prior to raising an issue in a federal habeas proceeding is unnecessary when it

would

futile.

U.S.C.A.

§ 2254(b)(1)(A).

33. Federal Courts O3391

The Court of Appeals ordinarily considers an appellee’s arguments for affirmance even if they had not been presented

in district court.

34. Habeas Corpus O845

On a habeas petition, the court does

not regard a factual finding as unreasonable if reasonable minds reviewing the record might disagree about the finding in

question.

35. Habeas Corpus O486(5)

Oklahoma Court of Criminal Appeals’

(OCCA) determination that defendant’s attorney had strategically decided not to

present mitigation evidence regarding his

borderline intellectual functioning during

sentencing on capital murder conviction

was not unreasonable in light of the facts

presented to OCCA, and thus federal habeas relief based on ineffective assistance

of counsel was not warranted; evidence

showed that defense counsel knew of the

borderline intellectual functioning evidence

from defendant’s first trial on murder

charges but chose not to highlight the

diagnoses and testing in his retrial, instead

focusing on defendant’s development

throughout his life. U.S. Const. Amend. 6;

28 U.S.C.A. § 2254(d)(2).

36. Habeas Corpus O486(5)

Oklahoma Court of Criminal Appeals’

(OCCA) determination that defendant did

not suffer prejudice from defense counsel’s failure to present additional mitigation evidence involving borderline intellectual functioning during sentencing of

defendant for capital murder was based

on a reasonable determination of facts

and Strickland standard for ineffective

assistance claims, and thus defendant was

not entitled to federal habeas relief based

on ineffective assistance of counsel; given

evidence presented of defendant’s low intellectual ability, childhood development,

Resp. App. 5

967

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

and poor problem-solving skills, OCCA

could have reasonably attributed little

value to further evidence of borderline

functioning. U.S. Const. Amend. 6; 28

U.S.C.A. § 2254(d).

37. Habeas Corpus O486(5)

Oklahoma Court of Criminal Appeals’

(OCCA) determination that defense counsel had presented evidence of defendant’s

mental illness but strategically decided to

downplay such evidence was not an unreasonable determination of fact, and thus did

not support federal habeas relief based on

ineffective assistance of counsel in presenting mitigating evidence during sentencing

of defendant on capital murder conviction;

although defendant’s specific mental illness

diagnoses were not presented to the jury,

jurors had been told by expert witness

that he had a prior diagnosis of serious

psychological problems, and while counsel

asked witness whether defendant’s medications were for mental illness, he may not

have further questioned witness about

such drugs as a strategy to avoid sparking

a concern about defendant’s continued

dangerousness. U.S. Const. Amend. 6; 28

U.S.C.A. § 2254(d)(2).

38. Habeas Corpus O767

On federal habeas review, a state appellate court’s finding may be reasonable

even if the federal court would have decided the issue differently; the test is whether

the state appellate court had evidentiary

support for its view.

28 U.S.C.A.

§ 2254(d).

39. Habeas Corpus O486(5)

Oklahoma Court of Criminal Appeals’

(OCCA) determination that defense counsel acted reasonably in only engaging in

limited questioning of expert witness regarding defendant’s mental illnesses because such evidence constituted a doubleedged sword that could have served as

mitigating evidence or had substantial ag-

gravating potential was a reasonable application of Supreme Court precedents on the

deficiency prong of defendant’s ineffective

assistance claim, precluding federal habeas

relief based on such claim for defendant

who was convicted of murder and sentenced to death. U.S. Const. Amend. 6; 28

U.S.C.A. § 2254(d)(1).

40. Habeas Corpus O486(5)

Oklahoma Court of Criminal Appeals’

(OCCA) conclusion that defense counsel’s

omission of evidence regarding defendant’s

mental illness, during sentencing phase of

defendant’s capital murder trial, was not

prejudicial to defendant given fact that

counsel kept other possibly aggravating

evidence from the jury by focusing on

defendant’s development rather than his

mental illness was reasonable, and thus

defendant was not entitled to federal habeas relief based on ineffective assistance of

counsel.

U.S. Const. Amend. 6; 28

U.S.C.A. § 2254(d).

41. Criminal Law O1961

In analyzing the prejudice prong of an

ineffective assistance claim based on failure to present mitigating evidence, the

court considers not only the mitigation evidence that defense counsel should have

presented but also what the prosecution

would have presented in response. U.S.

Const. Amend. 6.

42. Constitutional Law O4705

Sentencing and Punishment O1757

In capital cases, the Eighth and Fourteenth Amendments ordinarily prevent the

trial court from barring consideration of

any of the defense evidence on mitigation.

U.S. Const. Amends. 8, 14.

43. Sentencing

and

O1780(3), 1789(9)

Punishment

In reviewing a claim that the jury was

instructed too narrowly on evidence that

Resp. App. 6

968

941 FEDERAL REPORTER, 3d SERIES

could be considered mitigating in a capital

case, the court first asks whether there is

a reasonable likelihood that the jury has

applied the challenged instruction in a way

that prevents the consideration of constitutionally relevant evidence, and second,

whether a reasonable likelihood exists that

arguments by the prosecutor reinforced an

impermissible interpretation of the challenged jury instruction and made it likely

that jurors would arrive at such an understanding.

44. Habeas Corpus O508

Oklahoma Court of Criminal Appeals’

(OCCA) approval of jury instruction used

at sentencing phase of petitioner’s capital

murder trial, which defined mitigating circumstances as those that could reduce degree of moral culpability, was not contrary

to or unreasonable application of clearly

established federal law, and thus petitioner

was not entitled to federal habeas relief on

his Eighth Amendment challenge alleging

that jury was prevented from considering

all mitigating evidence; three other jury

instructions given suggested that the jury

would have recognized its ability to consider all mitigating evidence. U.S. Const.

Amend. 8; 28 U.S.C.A. § 2254(d)(1).

45. Habeas Corpus O508

Oklahoma Court of Criminal Appeals’

(OCCA) decision that prosecutors’ arguments did not improperly invite jury to

disregard mitigating evidence in sentencing defendant for capital murder was not

based on unreasonable determination of

facts, and thus federal habeas relief was

not warranted due to alleged violation of

defendant’s Eighth and Fourteenth

Amendment rights; second prosecutor’s rebuttal argument asking jury to determine

whether aggravators outweighed the mitigation evidence defendant presented could

have been seen as an invitation to weigh

all mitigating evidence, and although prosecutor referred to moral culpability, such

argument could have been seen as a response to defense counsel’s argument that

defendant was not a cold-blooded terrorist

but was reacting to setbacks involving divorce and unemployment. U.S. Const.

Amends. 8, 14; 28 U.S.C.A. § 2254(d)(2).

46. Habeas Corpus O767

Even if a state court’s individualized

factual determinations are overturned as

unreasonable on federal habeas review,

what factual findings remain to support

the state court decision must still be

weighed under the overarching standard of

Antiterrorism and Effective Death Penalty

Act. 28 U.S.C.A. § 2254(d)(2).

47. Habeas Corpus O508

Oklahoma Court of Criminal Appeals’

(OCCA) decision that prosecutor’s improper comment, suggesting that mitigation evidence mattered only if it reduced defendant’s culpability, did not preclude jury

from considering mitigating evidence in

light of jury instructions and other comments by prosecution was not based on

unreasonable application of Supreme

Court precedent, and thus federal habeas

relief was not warranted due to alleged

violation of defendant’s Eighth and Fourteenth Amendment rights in his prosecution for capital murder; jury received virtually all jury instructions that federal

courts had regarded as curative in such

circumstances. U.S. Const. Amends. 8, 14;

28 U.S.C.A. § 2254(d)(1).

48. Habeas Corpus O498

When a habeas petitioner argues that

a prosecutor exploited a jury instruction to

improperly restrict what could be mitigating, the court considers the extent to

which the jury was properly instructed.

49. Sentencing and Punishment O57

Families of murder victims are

banned from requesting a particular sentence.

Resp. App. 7

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

969

50. Habeas Corpus O508

55. Habeas Corpus O447

Oklahoma Court of Criminal Appeals’

(OCCA) determination that trial court did

not violate the constitution by permitting

two of victim’s family members to request

the death penalty in defendant’s murder

trial was contrary to clearly established

Supreme Court precedent, as required for

defendant to be entitled to federal habeas

relief. 28 U.S.C.A. § 2254(d)(1).

For harmlessness inquiry, federal habeas court considers whether the constitutional error had substantial and injurious

effect or influence in determining the

jury’s verdict.

51. Habeas Corpus O765.1

Federal habeas court engages in de

novo review of whether state court’s constitutional error was harmless.

52. Habeas Corpus O505

Federal habeas court regards improper testimony requesting a particular sentence as prejudicial, thus warranting habeas relief, only if it had a substantial and

injurious effect or influence in determining

the jury’s verdict.

53. Habeas Corpus O505

Erroneous introduction of victim-impact testimony is reviewable for harmlessness on federal habeas review.

54. Habeas Corpus O508

Trial court’s erroneous introduction of

victim-impact testimony, in which two family members of victim requested death

penalty, did not substantially affect jury’s

recommendation to sentence defendant to

death on murder conviction, and thus was

harmless, precluding federal habeas relief,

where improper testimony was very brief,

prosecutor did not mention such testimony

in closing arguments, and state had presented powerful evidence on aggravating

factors of the great risk of death of more

than one person and defendant’s continuing threat, which defendant did not challenge. 28 U.S.C.A. § 2254.

56. Habeas Corpus O461

A cumulative-error analysis on federal

habeas review aggregates all errors that

are individually harmless, analyzing

whether the cumulative effect undermines

confidence in the fairness of the retrial and

reliability of the verdict.

57. Habeas Corpus O461

Federal habeas court considers cumulative errors to be separate constitutional

violations.

58. Habeas Corpus O486(1)

When a federal habeas court rejects a

claim of ineffective assistance based on a

lack of prejudice, it can aggregate the

prejudice from the deficient performance.

U.S. Const. Amend. 6.

59. Habeas Corpus O818

Court of Appeals can grant a certificate of appealability on an issue in a habeas case only if the district court’s ruling

were debatable among reasonable jurists.

60. Habeas Corpus O818

No reasonable jurist would have regarded as debatable issue of whether defendant’s trial counsel breached his duty to

defendant by failing to present as mitigation evidence a psychological risk assessment in response to state’s evidence that

defendant posed a continuing threat to

society, and thus court would not grant

certificate of appealability to review such

issue in defendant’s federal habeas action

challenging his conviction for murder and

sentencing to death; counsel had presented

expert witness who testified that defendant would not have posed a significant

Resp. App. 8

970

941 FEDERAL REPORTER, 3d SERIES

risk of future violence in a structured environment, and additional expert that defendant sought to have testify would have

testified that he was bipolar with psychotic

features, which could have backfired and

led to further evidence of dangerousness.

28 U.S.C.A. § 2254(d).

Appeal from the United States District Court for the Western District of

Oklahoma (D.C. No. 5:08-CV-00375-F)

Jack Fisher, Fisher Law Office, Edmond, Oklahoma, and Emma V. Rolls, Assistant Federal Public Defender, Oklahoma City, Oklahoma, on behalf of the

Petitioner-Appellant.

Jennifer L. Crabb, Assistant Attorney

General (Mike Hunter, Attorney General

of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, on behalf of the

Respondent-Appellee.

Before TYMKOVICH, Chief Judge,

BACHARACH, and McHUGH, Circuit

Judges.

BACHARACH, Circuit Judge.

The Standard of ReviewTTT972

Appellate Arguments Covered in an Existing Certificate of AppealabilityTTT973

(b) The Need for an Evidentiary HearingTTT982

(c)

ConclusionTTT987

C. Failure to Adequately Present Mitigation EvidenceTTT987

1. The Legal Standard and the Standard

of ReviewTTT987

2. Intellectual Impairment as a MitigatingTTT988

(a) Evidence of an Intellectual ImpairmentTTT988

(b) Mitigation Evidence Involving an Intellectual DisabilityTTT989

i. The OCCA’s Reliance on Both Prongs

(Deficient

Performance

and

Prejudice)TTT991

ii.

Deficient PerformanceTTT991

iii.

PrejudiceTTT993

(d) Mitigation Evidence Involving Mental

IllnessTTT994

ii. Other Existing Evidence of Mr. Harris’s Mental IllnessTTT995

BackgroundTTT971

Assistance

Determination

i. Mental Health Evidence in the 2005

RetrialTTT994

TABLE OF CONTENTS

I. Ineffective

selTTT973

(a) Unreasonable

FactTTT978

Coun-

The Strickland StandardTTT973

B. Failure to Seek a Pretrial Hearing

on Intellectual Disability as a Bar to ExecutionTTT974

iii. Claim of Ineffective Assistance of

CounselTTT995

Deficiency ProngTTT996

(i) Unreasonable Factual DeterminationsTTT996

(ii) Unreasonable Application of Supreme Court PrecedentsTTT997

PrejudiceTTT997

II. Jury Instructions and Closing Arguments as to Mitigation EvidenceTTT999

The Standard of ReviewTTT974

Deficiency ProngTTT976

A. The Standard of ReviewTTT999

Prejudice ProngTTT978

The Jury InstructionTTT1000

Resp. App. 9

971

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

C. The Prosecutors’

mentsTTT1001

Closing

Argu-

1. Applicability

§ 2254(d)TTT1001

U.S.C.

2. Unreasonable

FactTTT1001

Determination

3. Unreasonable Application of Supreme

Court PrecedentTTT1003

III.

Victim-Impact TestimonyTTT1006

A. The Constitutional Limit on VictimImpact TestimonyTTT1006

B. The Victim-Impact Testimony and

the Issue of HarmlessnessTTT1007

C. Structural

rorTTT1007

IV.

Harmless

On appeal, Mr. Harris argues in part

that his trial counsel was ineffective in

failing to seek a pretrial hearing on the

existence of an intellectual disability, which

would have prevented the death penalty.1

The federal district court rejected this

claim. In our view, the district court should

have conducted an evidentiary hearing to

decide this claim, so we reverse and remand for further consideration. Given the

need to remand on this issue, we also

remand for the district court to reconsider

the claim of cumulative error. But we affirm the denial of habeas relief on Mr.

Harris’s other claims.

Er-

HarmlessnessTTT1008

Cumulative ErrorTTT1010

Motion to Expand the Certificate of AppealabilityTTT1011

Background 2

Jimmy Dean Harris and Pam Harris

were married for about twenty years. Mr.

Harris repaired transmissions, as did Pam,

who worked for Mr. Merle Taylor. With

the passage of time came marital strain

between Mr. Harris and Pam.

ConclusionTTT1012

Mr. Jimmy Dean Harris was convicted

of first-degree murder and sentenced to

death. He appealed, and the Oklahoma

Court of Criminal Appeals (OCCA) reversed his sentence and remanded for a

retrial at the penalty phase. After the retrial, the state district court reimposed the

death penalty. Mr. Harris appealed and

sought post-conviction relief in state court.

When these efforts failed, he brought a

habeas petition in federal district court.

The court denied relief, and Mr. Harris

appeals.

Older opinions often used the term ‘‘mentally retarded.’’ See, e.g., Atkins v. Virginia, 536

U.S. 304, 316, 122 S.Ct. 2242, 153 L.Ed.2d

335 (2002). But more recently, we have used

the term ‘‘intellectually disabled.’’ See Postelle

v. Carpenter, 901 F.3d 1202, 1210 n.4 (10th

Cir. 2018); cf. Rosa’s Law, Pub. L. No. 111256, 124 Stat. 2643 (2010) (changing references in federal law from ‘‘mental retarda-

In 1999, Pam obtained a divorce and

restraining order, requiring Mr. Harris to

move out of their house. He complied,

moving his belongings into a storage shed,

but he grew distraught—crying, drinking,

and taking Valium.

The next day, Pam returned home and

discovered that Mr. Harris had vandalized

the house and moved some of her belongings into the storage shed. This incident

led Pam to change the locks and to obtain

a second restraining order, which required

Mr. Harris to stay away from the house.

tion’’ and ‘‘mentally retarded’’ to ‘‘intellectual

disability’’ and ‘‘intellectually disabled’’).

Under the Antiterrorism and Effective

Death Penalty Act (AEDPA), we defer to the

OCCA’s factual findings absent clear and convincing evidence to the contrary. 28 U.S.C.

§ 2254(e)(1). We thus state the facts as the

OCCA found them unless noted otherwise.

Resp. App. 10

972

941 FEDERAL REPORTER, 3d SERIES

Mr. Harris repeatedly asked Pam to

allow him to retrieve his tools. After a few

days, Mr. Harris went to Pam’s workplace

and shot at her, Mr. Taylor, and his

daughter (Jennifer Taylor). Mr. Taylor

died, Pam was wounded, and Jennifer Taylor escaped without injury.

At a 2001 trial, the jury found Mr. Harris guilty of first-degree murder in the

death of Merle Taylor and recommended

the death penalty, finding one aggravating

circumstance (creation of a substantial risk

of death to more than one person).3 As

noted above, the death sentence was vacated by the OCCA in a prior appeal. At the

2005 retrial on the penalty, the prosecution

alleged two aggravating factors:

1. Mr. Harris created a substantial risk

of death to more than one person.

2. Mr. Harris posed a continuing threat

to society. The jury found both aggravating factors and again recommended the death penalty. The trial

court agreed with the recommendation and resentenced Mr. Harris to

the death penalty.

The Standard of Review

[1, 2] We engage in de novo review of

the federal district court’s legal analysis.

Littlejohn v. Trammell, 704 F.3d 817, 825

(10th Cir. 2013). In district court, review is

deferential when the state appellate court

rejects a claim on the merits. After rejection of the claim in state court, the federal

district court can reach the merits only if

the state appellate court’s decision was

contrary to, or involving an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United

States; or

The jury also found Mr. Harris guilty of

based on an unreasonable determination of the facts given the evidence

presented in state court.

Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254(d).

[3] To determine whether a state-court

decision was contrary to, or involved an

unreasonable application of, clearly established law, we engage in a two-step process. Budder v. Addison, 851 F.3d 1047,

1051 (10th Cir.), cert. denied, ––– U.S.

––––, 138 S. Ct. 475, 199 L.Ed.2d 374

(2017). We first determine the clearly established law by considering Supreme

Court precedent. Williams v. Taylor, 529

U.S. 362, 379, 120 S.Ct. 1495, 146 L.Ed.2d

389 (2000). We then ask whether the state

court’s decision was contrary to, or involved an unreasonable application of, that

precedent. Id.

[4] We must defer to the state court’s

factual findings unless ‘‘the state court[ ]

plainly misapprehend[ed] or misstate[d]

the record in making [its] findings, and the

misapprehension goes to a material factual

issue that is central to [the] petitioner’s

claim.’’ Ryder ex rel. Ryder v. Warrior,

810 F.3d 724, 739 (10th Cir. 2016) (quoting

Byrd v. Workman, 645 F.3d 1159, 1171–72

(10th Cir. 2011)). To overcome the state

appellate court’s factual findings, the petitioner must show that they are objectively

unreasonable. Smith v. Aldridge, 904 F.3d

874, 880 (10th Cir. 2018).

If the state’s highest court acted unreasonably in applying Supreme Court precedent or finding facts, the district court

must decide whether the conviction or sentence violated the Constitution. See Fry v.

Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321,

168 L.Ed.2d 16 (2007) (stating that 28

U.S.C. § 2254(d) provides ‘‘precondition[s]

to the grant of habeas relief TTT, not an

entitlement to it’’); Hancock v. Trammell,

attempted murder as to Pam.

Resp. App. 11

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

798 F.3d 1002, 1010 (10th Cir. 2015)

(‘‘[E]ven when petitioners satisfy the

threshold in § 2254(d), they must establish

a violation of federal law or the federal

constitution.’’).

Appellate Arguments Covered in

an Existing Certificate of

Appealability

Our court previously granted a certificate of appealability on Mr. Harris’s appellate arguments involving ineffective

assistance of counsel, an improper jury

instruction on mitigation evidence, improper closing arguments about the mitigation evidence, improper victim testimony recommending a particular sentence,

and cumulative error. We reverse and

remand for further consideration of the

claims involving (1) ineffective assistance

in the failure to seek a pretrial hearing

on an intellectual disability and (2) cumulative error.

Ineffective Assistance of Counsel

[5] The Sixth Amendment entitles a

defendant to effective assistance of counsel. Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Invoking this amendment, Mr. Harris argues that his attorney at the 2005 retrial

was ineffective for failing to

seek a pretrial hearing on the existence of an intellectual disability,

which would have precluded the

death penalty,

present additional trial evidence for

mitigation based on an intellectual

disability, and

present additional mitigation evidence at trial regarding a lesser intellectual impairment or mental illness.

973

The Strickland Standard

To address Mr. Harris’s arguments, the

district court needed to apply the two-part

test set out in Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

[6–9] Under the first part of the test,

the court was to determine whether Mr.

Harris’s attorney was deficient. Attorneys

are deficient when their mistakes are so

serious that they stop functioning as

‘‘counsel’’ for purposes of the Sixth

Amendment. Id. at 687, 104 S.Ct. 2052. In

making this determination, the court ordinarily presumes that counsel’s performance is reasonable and might entail a

sound strategy. Newmiller v. Raemisch,

877 F.3d 1178, 1196 (10th Cir. 2017). In

capital cases, however, courts scrutinize

attorney performance particularly closely

in the sentencing phase. Littlejohn v.

Trammell, 704 F.3d 817, 859 (10th Cir.

2013).

[10–13] To overcome this presumption,

a petitioner ‘‘must show that counsel’s representation fell below an objective standard of reasonableness.’’ Strickland, 466

U.S. at 688, 104 S.Ct. 2052. This inquiry is

‘‘highly deferential,’’ and courts should

avoid ‘‘the distorting effects of hindsight.’’

Id. at 689, 104 S.Ct. 2052. Strategic decisions after a ‘‘thorough investigation’’ are

afforded even greater deference and are

‘‘virtually unchallengeable.’’ Id. at 690, 104

S.Ct. 2052. ‘‘Even under de novo review,

the standard for judging counsel’s representation is a most deferential one.’’ Harrington v. Richter, 562 U.S. 86, 105, 131

S.Ct. 770, 178 L.Ed.2d 624 (2011).

[14] When a habeas petitioner alleges

ineffective assistance of counsel, deference

exists both in the underlying constitutional

test (Strickland) and the AEDPA’s standard for habeas relief, creating a ‘‘doubly

deferential judicial review.’’ Knowles v.

Resp. App. 12

974

941 FEDERAL REPORTER, 3d SERIES

Mirzayance, 556 U.S. 111, 123, 129 S.Ct.

1411, 173 L.Ed.2d 251 (2009). Under this

double deference, we consider ‘‘whether

there is any reasonable argument that

counsel satisfied Strickland’s deferential

standard.’’ Ellis v. Raemisch, 872 F.3d

1064, 1084 (10th Cir. 2017) (quoting Harrington v. Richter, 562 U.S. 86, 105, 131

S.Ct. 770, 178 L.Ed.2d 624 (2011) (emphasis in original)).

[15, 16] The petitioner must show not

only a deficiency in the representation but

also prejudice. Strickland v. Washington,

466 U.S. 668, 692, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). For prejudice, the petitioner ‘‘must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different.’’ Id.

at 694, 104 S.Ct. 2052.

Failure to Seek a Pretrial Hearing on Intellectual Disability as a

Bar to Execution

Mr. Harris argues that his counsel was

ineffective for failing to seek a pretrial

hearing on an intellectual disability that

would render him ineligible for the death

penalty. This argument is based on Atkins

v. Virginia, 536 U.S. 304, 122 S.Ct. 2242,

153 L.Ed.2d 335 (2002), where the Supreme Court concluded that the execution

of intellectually disabled persons violates

the Eighth Amendment’s prohibition on

cruel-and-unusual punishment. 536 U.S. at

317, 321, 122 S.Ct. 2242.4

Despite this conclusion, the Supreme

Court allowed states to establish their own

standards for an intellectual disability. Id.

at 317, 122 S.Ct. 2242 n.22. We thus focus

on the content of Oklahoma law (when Mr.

Harris’s retrial took place). At that time,

In the first direct appeal, Mr. Harris’s appellate counsel invoked Atkins, urging the

OCCA to remand for the state trial court to

determine the existence of an intellectual dis-

Oklahoma law allowed consideration of an

intellectual disability only if the defendant

had at least one IQ score under 70. See

Murphy v. State, 54 P.3d 556, 567–68

(Okla. Crim. App. 2002), overruled in part

on other grounds by Blonner v. State, 127

P.3d 1135, 1139 (Okla. Crim. App. 2006).

Upon such a showing, the defendant could

then establish an intellectual disability by

proving intellectual and adaptive deficits

and manifestation before age eighteen. Id.;

see pp. 983–84, below.

Mr. Harris argues that his attorney was

ineffective by failing to ask for a pretrial

hearing on intellectual disability. To address this argument, we consider and apply the standard of review.

1. The Standard of Review

In denying relief on this claim, the

OCCA explained that ‘‘[Mr.] Harris must

[1] show that counsel’s performance was so

deficient that he did not have counsel as

guaranteed by the Sixth Amendment, and

that [2] the deficient performance created

errors so serious as to deprive him of a

fair trial with reliable results.’’ Harris v.

State, 164 P.3d 1103, 1114 (Okla. Crim.

App. 2007). The OCCA rejected this claim

on the ground that Mr. Harris could not

establish prejudice. See id. at 1115–16

(concluding that ‘‘Harris cannot show he

was prejudiced by counsel’s failure’’ because ‘‘[w]e cannot conclude there was a

reasonable probability that, but for counsel’s omission, the results of this resentencing proceeding would have been different’’).

The State nevertheless argues that the

OCCA implicitly decided the deficiency

prong on the merits. The State’s argument

ability. But the OCCA vacated the sentence

without reaching this issue. Harris v. State, 84

P.3d 731, 757 (Okla. Crim. App. 2004).

Resp. App. 13

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

conflates two of the OCCA’s determinations: One involves Mr. Harris’s claim that

his counsel failed to seek a pretrial hearing

on the existence of an intellectual disability; the other determination involves Mr.

Harris’s claim that his counsel failed to

adequately present mitigating evidence at

the trial. See Harris v. State, 164 P.3d

1103, 1118 (Okla. Crim. App. 2007). For

the second claim (failure to adequately

present mitigating evidence at the trial),

the OCCA addressed the merits of the

deficiency prong. But the OCCA did not

address the deficiency prong on the first

claim (failure to seek a pretrial hearing on

intellectual disability). For this claim, the

OCCA expressly rested on the prejudice

prong without any mention of the deficiency prong. Harris v. State, 164 P.3d 1103,

1115–16 (Okla. Crim. App. 2007).

Because the OCCA did not adjudicate

the merits of the deficiency prong on this

claim, we engage in de novo review of this

part of the district court’s ruling. See

Rompilla v. Beard, 545 U.S. 374, 390, 125

S.Ct. 2456, 162 L.Ed.2d 360 (2005) (reviewing de novo the prejudice prong of an

ineffective-assistance claim because the

state court had not reached this prong);

Smith v. Sharp, 935 F.3d 1064, 1072 (10th

Cir. 2019) (‘‘[I]n cases in which a state

court addresses only one prong of a multiprong analysis, the Supreme Court requires that federal habeas courts address

the other prongs de novo.’’).

But the OCCA did reach the merits of

the prejudice prong, rejecting Mr. Harris’s

arguments. Still, Mr. Harris argues that

Our precedents are inconsistent in discussing preservation in cases involving 28 U.S.C.

§ 2254. We sometimes treat unpreserved issues as waived, sometimes as forfeited. See

Harmon v. Sharp, 936 F.3d 1044, 1085–91

(10th Cir. 2019) (Holmes, J., concurring) (discussing this inconsistency in our case law).

The difference here is academic. If the issue

975

we should engage in de novo review on this

prong because the OCCA did not

1 sufficiently consider Dr. Callahan’s

report or

1 permit an evidentiary hearing.

[17] Mr. Harris did not raise his first

argument (insufficient consideration of the

evidence by the OCCA) in district court.

Even in habeas cases involving the death

penalty, we consider arguments forfeited

or waived when they are raised for the

first time on appeal. See Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015)

(forfeited); Owens v. Trammell, 792 F.3d

1234, 1246 (10th Cir. 2015) (waived).5

Mr. Harris’s second argument (the

OCCA’s denial of an evidentiary hearing)

is based on Wilson v. Workman, 577 F.3d

1284 (10th Cir. 2009) (en banc), where we

considered the OCCA’s denial of an evidentiary hearing and rejection of an ineffective-assistance claim without considering material non-record evidence. In these

circumstances, we concluded that the denial did not constitute an adjudication on the

merits under § 2254(d). Wilson, 577 F.3d

at 1300.

After we issued this opinion, however,

the OCCA clarified its procedures for deciding these claims. Simpson v. State, 230

P.3d 888 (Okla. Crim. App. 2010). Given

this clarification, we concluded in Lott v.

Trammell that

1 Wilson no longer applies and

1 any denial of a request for an evidentiary hearing on an ineffective-assistance claim constitutes an adjudication on the merits.

involves forfeiture rather than waiver, we

could consider the issue under the plain-error

standard. United States v. Carrasco-Salazar,

494 F.3d 1270, 1272 (10th Cir. 2007). But Mr.

Harris has not argued plain error, so we

would not entertain the issue even if it had

been forfeited rather than waived. See Hancock, 798 F.3d at 1011.

Resp. App. 14

976

941 FEDERAL REPORTER, 3d SERIES

705 F.3d 1167, 1213 (10th Cir. 2013). Mr.

Harris’s argument is thus foreclosed by

Lott.

Mr. Harris contends that (1) the panel in

Lott could not overrule the en banc opinion

in Wilson and (2) the OCCA’s clarification

of the standard came after the OCCA had

rejected Mr. Harris’s argument. We reject

both contentions.

[18] It is true that a panel typically

cannot overrule an earlier precedent. United States v. White, 782 F.3d 1118, 1123 n.2

(10th Cir. 2015). But a panel is not bound

by precedents that have been superseded

by a change in state law. Wankier v.

Crown Equip. Corp., 353 F.3d 862, 867

(10th Cir. 2003). Our interpretation of

state law changed when the OCCA clarified the standard for adjudicating a request for an evidentiary hearing. Lott, 705

F.3d at 1213.

[19] As Mr. Harris points out, the

OCCA had rejected his argument before

the OCCA clarified the state-law standard.

But the same was true in Lott, and we

relied there on the OCCA’s clarification in

deciding that the denial of an evidentiary

hearing constituted an adjudication on the

merits. Id. This approach makes sense because the OCCA was clarifying what its

rules had already been and didn’t suddenly

start adjudicating the merits when denying

evidentiary hearings. Wilson v. Trammell,

706 F.3d 1286, 1311 (10th Cir. 2013) (Gorsuch, J., concurring). Before Lott, we had

simply misunderstood Oklahoma law. See

id. (‘‘[T]he OCCA has explained that Wilson was mistaken in its understanding of

Oklahoma law.’’). Under Lott, we thus consider the OCCA’s denial of an evidentiary

hearing on an ineffective-assistance claim

as an adjudication on the merits.

Alternatively, Mr. Harris could have asked

the trial jury to determine the existence and

impact of an intellectual disability. Lane, 87

We thus engage in de novo review of the

OCCA’s ruling on the deficiency prong, but

we apply § 2254(d)’s deferential standard

of review on the prejudice prong.

Deficiency Prong

[20] Applying de novo review, we conclude that Mr. Harris’s attorney was deficient in failing to request a pretrial hearing to assess an intellectual disability.

[21, 22] The State argues that defense

counsel strategically decided to forgo a

pretrial hearing after a thorough investigation. Strategic decisions draw considerable

deference when the attorney has thoroughly investigated the law, the facts, and the

plausible alternatives. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). But merely calling

something a strategy does not prevent

meaningful scrutiny. We must still determine (1) whether an attorney has chosen

to forgo a course of action and (2) whether

that choice was reasonable under the circumstances. Brecheen v. Reynolds, 41 F.3d

1343, 1369 (10th Cir. 1994).

[23] In assessing the reasonableness of

an attorney’s investigation, we engage in

close scrutiny during the penalty phase of

capital cases. Littlejohn v. Trammell, 704

F.3d 817, 859 (10th Cir. 2013). In these

cases, ‘‘we refer to the ABA Guidelines for

the Appointment and Performance of

Counsel in Death Penalty Cases.’’ Id.

These guidelines require that ‘‘[c]ounsel at

every stage of the case should take advantage of all appropriate opportunities to

argue why death is not suitable punishment for their particular client.’’ ABA

Guidelines § 10.11(L). One appropriate opportunity involved a pretrial hearing on

the existence of an intellectual disability.6

P.3d at 632. But Mr. Harris argues only that

his attorney should have requested a pretrial

hearing.

Resp. App. 15

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

State ex rel. Lane v. Bass, 87 P.3d 629, 633

(Okla. Crim. App. 2004), overruled in part

on other grounds by Blonner v. State, 127

P.3d 1135, 1139 (Okla. Crim. App. 2006).

Had Mr. Harris been found intellectually

disabled, he would have been ineligible for

the death penalty. Id. at 632.

When the 2005 retrial took place, Oklahoma law permitted pretrial evidentiary

hearings before a judge on the existence of

an intellectual disability. See State ex rel.

Lane v. Bass, 87 P.3d 629, 633–35 (Okla.

Crim. App. 2004), overruled in part on

other grounds by Blonner v. State, 127

P.3d 1135, 1139 (Okla. Crim. App. 2006). If

the defendant preferred a jury, he or she

could also opt for a jury finding on the

existence of an intellectual disability. If the

jury found no intellectual disability, the

defendant could ask the judge to revisit

the issue after the trial. Id. at 635.

So if the judge or jury found no intellectual disability, the defense would have lost

nothing. But if either the judge or jury

found an intellectual disability, the death

penalty would have vanished as a possibility. Defense counsel thus had a risk-free

opportunity to avoid the death penalty.

Frazier v. Jenkins, 770 F.3d 485, 501 (6th

Cir. 2014)7; see Clinkscale v. Carter, 375

F.3d 430, 443 (6th Cir. 2004) (holding that

The Frazier court explained: ‘‘[W]e fail to

see the downside in having a non-frivolous

Atkins hearing, and it is difficult to ascertain a

strategic reason for withdrawing the motion

[for an Atkins hearing] in this case.’’ 770 F.3d

at 501.

At oral argument, the State also suggests

that Mr. Harris might have wanted to avoid

the delay from a pretrial hearing on intellectual disability. But the State had never before

argued in state or federal court that Mr. Harris wanted to expedite his capital proceedings. See United States v. Gaines, 918 F.3d

793, 800–801 (10th Cir. 2019) (‘‘We typically

decline to consider an appellee’s contentions

raised for the first time in oral argument.’’).

977

defense counsel was deficient by failing to

file a timely notice of an alibi defense when

counsel had ‘‘everything to gain’’ and

‘‘nothing to lose’’); see also Browning v.

Baker, 875 F.3d 444, 473 (9th Cir. 2017)

(‘‘[T]he obligation to investigate, recognized by Strickland, exists when there is

no reason to believe doing so would be

fruitless or harmful.’’).8

Though no downside existed,9 a pretrial

hearing had considerable upside. The evidence of an intellectual disability was

ready-made. For example, Mr. Harris had

IQ scores under the 70-point threshold

necessary for a determination of intellectual disability under Oklahoma law. Murphy

v. State, 54 P.3d 556, 567–68 (Okla. Crim.

App. 2002), overruled in part on other

grounds by Blonner v. State, 127 P.3d

1135, 1139 (Okla. Crim. App. 2006). One

expert witness, Dr. Martin Krimsky, had

already diagnosed Mr. Harris with a mild

intellectual disability. And other evidence

of Mr. Harris’s difficulties in intellectual

and adaptive functioning had already been

introduced at a competency hearing and

the 2001 trial.

The State contends that defense counsel

did not request a pretrial hearing because

he believed that Mr. Harris was not intellectually disabled.10 For this contention,

We do not suggest that counsel should always argue points lacking any downside. See

Knowles v. Mirzayance, 556 U.S. 111, 121–22,

129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (stating that counsel may not be ineffective by

declining to assert a defense even when there

is nothing to lose).

10. In oral argument, the State also argues for

the first time that a pretrial hearing on intellectual disability might have generated new

evidence for the State to support an aggravating circumstance. This argument was omitted in the briefs. See note 8, above. But even if

we were to consider this argument, the State

does not explain what new evidence would

have been elicited at the pretrial hearing that

Resp. App. 16

978

941 FEDERAL REPORTER, 3d SERIES

the State points to the voir dire, where

defense counsel conceded that Mr. Harris

was not intellectually disabled. We do not

know why defense counsel made this concession,11 and there is nothing to suggest

that he had investigated the possibility of

an intellectual disability. Before this concession, Dr. Krimsky had already testified

that Mr. Harris was intellectually disabled.

Even if defense counsel had disagreed with

Dr. Krimsky’s assessment, the ABA guideline required him to take advantage of

every opportunity to argue against a death

sentence. One such opportunity existed for

a pretrial hearing on an intellectual disability, and the failure to request this hearing fell outside the acceptable range of

reasonable performance. See Williamson

v. Ward, 110 F.3d 1508, 1517–18 & n.12

(10th Cir. 1997) (concluding that the petitioner’s counsel was ineffective in failing to

seek a competency hearing given the existing evidence of incompetency and the lack

of any strategic advantage).

***

Defense counsel had nothing to lose by

requesting a pretrial hearing on an intellectual disability. Prevailing would have

eliminated the possibility of the death penalty, and losing would have left Mr. Harris

precisely where he would be anyway, free

to urge acquittal and a life sentence upon a

conviction. Given the evidence already developed in the 2001 proceedings, any reasonable defense attorney would have

sought a pretrial hearing on the existence

of an intellectual disability. By failing to

had not already been fully aired in the 2001

proceedings. Those proceedings included a

competency hearing and trial, and both included considerable evidence of Mr. Harris’s

mental state. In fact, the State ultimately conceded that any resulting evidence in aggravation had already been created in the 2001

proceedings. We thus reject the State’s eventual argument that the pretrial hearing might

have generated additional evidence of an aggravating circumstance.

seek a pretrial hearing, Mr. Harris’s attorney bypassed a risk-free opportunity to

avoid the death penalty. Bypassing this

opportunity constituted a deficiency in the

representation.

3. Prejudice Prong

Because the OCCA adjudicated the

prejudice prong on the merits, the federal

district court could have reached the merits of the prejudice issue only if Mr. Harris had cleared the hurdle under 28

U.S.C. § 2254(d). See pp. 972–73, above.

Section 2254(d) prevents consideration of

the merits unless the OCCA’s decision on

prejudice was (1) contrary to, or an unreasonable application of, clearly established

federal law or (2) based on an unreasonable determination of fact in light of the

evidence presented in state court. 28

U.S.C. § 2254(d)(1)–(2).

In our view, the OCCA’s decision on

prejudice was based on an unreasonable

factual determination, so we consider the

merits.12

(a) Unreasonable

Fact

Determination

[24] Mr. Harris contends that the

OCCA’s decision was based on an unreasonable factual determination under 28

U.S.C. § 2254(d)(2). He points to this passage in the OCCA’s decision: ‘‘All Harris’s

experts, including the ones who testified at

his [2001] trial and competency hearing,

considered these scores along with Har11. When defense counsel made the concession, he was supposed to be asking questions

to the venirepersons.

12. Given this conclusion, we need not decide

whether the OCCA’s decision on prejudice

was contrary to, or an unreasonable application of, clearly established federal law.

Resp. App. 17

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

ris’s other characteristics and concluded he

was not mentally retarded.’’ Harris v.

State, 164 P.3d 1103, 1115 (Okla. Crim.

App. 2007). Mr. Harris contends that this

passage reflects an unreasonable determination of fact because Dr. Krimsky had

assessed an intellectual disability.13

[25] The State argues that Mr. Harris

failed to preserve this contention in district

court by limiting his argument to Dr. Callahan’s affidavit. We disagree.

[26] To preserve the issue in district

court, Mr. Harris needed only to alert the

court to the issue and seek a ruling. See

Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1141 (10th Cir.

2007) (‘‘An issue is preserved for appeal if

a party alerts the district court to the issue

and seeks a ruling.’’); United States v.

Harrison, 743 F.3d 760, 763 (10th Cir.

2014) (stating that the test for specificity

of an objection in district court ‘‘is whether

the district court was adequately alerted to

the issue’’). We thus consider whether Mr.

Harris’s argument in district court encompassed Dr. Krimsky’s opinion. The State

answers ‘‘no;’’ we answer ‘‘yes.’’

979

(d).’’). In the ensuing section, Mr. Harris

extensively discusses all of the prior expert

opinions on the existence of an intellectual

disability.

For example, in discussing the criterion

of significant sub-average intellectual functioning, Mr. Harris discusses Dr. Callahan’s references to IQ tests administered

by herself, Dr. Martin Krimsky, and Dr.

Nelda Ferguson. Mr. Harris notes that the

IQ tests by Dr. Ferguson and Dr. Krimsky

would have met the state-law criterion for

IQ test results below 70. And Mr. Harris

underscores Dr. Krimsky’s test results and

assessment of mild intellectual disability:

Dr. Krimsky concluded the IQ scores

indicated that Mr. Harris was mildly

mentally retarded. He did not believe

Mr. Harris was malingering or ‘‘trying

to fool the test.’’ He again confirmed

Jimmy Dean Harris ‘‘an individual with

mental retardation.’’

Id. at 110 (citations omitted).

Mr. Harris also discusses the expert

opinions by Dr. John Smith, Dr. Wanda

Draper, and Dr. Ray Hand. In this discussion, Mr. Harris points out that Dr. Smith

confirmed Dr. Krimsky’s testing as an indication of intellectual disability. Id. at 112.

In district court, Mr. Harris treated Dr.

Callahan’s opinion as significant new evidence of intellectual disability. But Mr.

Harris did not confine his argument to Dr.

Callahan’s opinion. Mr. Harris’s argument

on prejudice spanned roughly 32 pages.

Within this discussion lay Mr. Harris’s

challenge to the OCCA’s characterization

of the expert opinions. Mr. Harris prefaces

this discussion by explaining why the

OCCA’s decision was unreasonable under

§ 2254(d)(2). See Habeas Pet. at 107 (‘‘Below is a discussion of the three (3) criteria,

the impact of Dr. Callahan’s report and

argument why the OCCA decision was unreasonable under both prongs of § 2254

Despite this broad record-based attack

on the OCCA’s factual determination, the

State points to two pages in which Mr.

Harris discusses his reliance on Dr. Callahan’s opinion. The State’s reliance on these

two pages disregards the other 30 pages in

Mr. Harris’s argument as well as the nature of Dr. Callahan’s report. In this report, Dr. Callahan relied not only on her

own examination and testing but also on

the prior testing and diagnoses. For example, Dr. Callahan noted that Dr. Krimsky,

Dr. Ferguson, and Dr. Smith had sepa-

13. Dr. Krimsky actually used the term ‘‘mentally retarded.’’ But in analyzing Mr. Harris’s

claim, we use the term ‘‘intellectually disabled.’’ See note 1, above.

Resp. App. 18

980

941 FEDERAL REPORTER, 3d SERIES

rately diagnosed Mr. Harris as having a

mild intellectual disability.

The State also argues that Mr. Harris

was relying solely on Dr. Callahan’s opinion. We disagree. Mr. Harris addressed all

of the expert witnesses, including both Dr.

Krimsky and Dr. Callahan. On appeal, Mr.

Harris narrows his focus to Dr. Krimsky.

This narrower argument is subsumed by

the broader argument that Mr. Harris had

presented in district court. The district

court was thus alerted to Mr. Harris’s

appellate argument, which sufficed for

preservation. See Joseph A. ex rel. Wolfe v.

N.M. Dep’t of Hum. Servs., 28 F.3d 1056,

1060 (10th Cir. 1994) (concluding that the

appellants had preserved their appellate

argument because it had been subsumed

by the argument presented in district

court); accord PCTV Gold, Inc. v. Speednet, LLC, 508 F.3d 1137, 1144 n.5 (8th Cir.

2007) (concluding that an appellate argument was preserved because it had been

encompassed in a more general argument

presented in district court). Because Mr.

Harris preserved the issue, we consider

the merits of his challenge to the reasonableness of the OCCA’s factual determination.

We conclude that the OCCA was clearly

mistaken as to Dr. Krimsky. The OCCA

concluded that all of the defense experts

had opined that Mr. Harris was not intellectually disabled. Harris v. State, 164

P.3d 1103, 1115 (Okla. Crim. App. 2007).

But Dr. Krimsky had opined that Mr. Harris was intellectually disabled.

In our appeal, the State appears to acknowledge expert testimony that Mr. Harris is intellectually disabled: ‘‘The only experts who have opined that Petitioner is

mentally retarded have relied upon unreliable test results that contradict the experts’ experiences with him.’’ Appellee’s

Resp. Br. at 32–33. In oral argument, the

State elaborates on this argument, insist-

ing that the OCCA could reasonably reject

Dr. Krimsky’s test results because Mr.

Harris was psychotic at the time of testing.

But this was not the OCCA’s rationale.

The OCCA reasoned that all defense experts had opined that Mr. Harris was not

intellectually disabled, and this was simply

not true of Dr. Krimsky. Harris, 164 P.3d

at 1115.

The State also denies that the OCCA

misunderstood Dr. Krimsky’s opinion. The

State points to a footnote where the OCCA

1 noted that one expert had believed

that he ‘‘had’’ to say that Mr. Harris’s test scores indicated an intellectual disability but

1 added that it ‘‘was not his conclusion’’ after examining Mr. Harris.

Id. at 1115 n.55.

The State’s argument misstates the testimony. Dr. Krimsky testified that he had

administered two IQ tests: (1) the Slossen

Intelligence Test Revised (‘‘SIT’’) and (2)

the Wechsler Adult Intelligence Scale, Revised (‘‘WAIS-R’’). Mr. Harris scored a 66

on the SIT and a 68 on the WAIS-R, and

Dr. Krimsky regarded these scores as

proof of mild intellectual disability.

He explained that ‘‘[t]here was an ambiguity comparing the result of the first test

[the SIT] TTT and [Mr. Harris’s] occupation of having been involved in repair of

auto transmissions.’’ 2001 Comp. Hearing,

vol. 1, at 63. But Dr. Krimsky noted that

the second test [the WAIS-R] was ‘‘much

more comprehensive’’ with ‘‘a high validity

in relation to occupational and socioeconomic status.’’ Id. at 64. Dr. Krimsky ultimately considered both sets of results to

be consistent and accurate.

Dr. Krimsky also testified that Mr. Harris’s mechanical skills could have been acquired by someone who was mildly intellectually disabled, pointing out that Mr.

Harris had spent ‘‘a long period of time

Resp. App. 19

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

TTT observing his father and other people

fix transmissions.’’ Id. at 65. Given this

lengthy period of observation, Dr. Krimsky

opined that Mr. Harris’s low IQ was consistent with his skill in fixing transmissions.

Dr. Krimsky thus testified that Mr. Harris’s skills did not undermine the assessment of mild intellectual disability. In fact,

Dr. Krimsky corrected an attorney who

had referred to Mr. Harris as ‘‘borderline,’’ with Dr. Krimsky repeating his characterization of Mr. Harris as having ‘‘mild

mental retardation.’’14 Id. The OCCA thus

made an unreasonable factual finding that

all of Mr. Harris’s experts had opined that

he was not intellectually disabled. Dr.

Krimsky was one of Mr. Harris’s experts,

and he specifically opined that Mr. Harris

was intellectually disabled.

981

sonable factual determination; the state

court’s decision must have also been

‘‘based on’’ the unreasonable factual determination. Byrd v. Workman, 645 F.3d

1159, 1172 (10th Cir. 2011).

In our view, however, the OCCA did

indeed base its decision on the unreasonable factual determination. The OCCA explained that it had found no prejudice:

Nothing in this record shows that, had

counsel made [a request for a pretrial

hearing], evidence would have shown by

a preponderance of the evidence that

Harris was mentally retarded. There is

a great deal of evidence in the record to

show otherwise, including the opinion

of several experts who testified that

Harris was not mentally retarded. We

cannot conclude that there was a reasonable probability that, but for counsel’s

omissions, the results of this resentencing proceeding would have been different.

The State also argues that even if the

OCCA’s factual determination had been

unreasonable, this factual determination

had not formed the basis for the OCCA’s

decision. As the State points out, it is not

enough for Mr. Harris to show an unrea-

Harris v. State, 164 P.3d 1103, 1116 (Okla.

Crim. App. 2007) (emphasis added).15 By

14. At one point, Dr. Krimsky was asked,

‘‘[W]hat conclusions did you come to regarding [Mr. Harris’s] mental state as far as his IQ

and the mental retardation?’’ Id. He answered

that the ‘‘mental retardation’’ was ‘‘incidental.’’ Id. In Dr. Krimsky’s view, Mr. Harris

was ‘‘in a psychotic status and in need of

mental health treatment, psychiatric treatment.’’ Id. at 65–66. Dr. Krimsky used the

term ‘‘mental state’’ to refer to Mr. Harris’s

competency and his ability to retain consistent contact with his ‘‘outer situation.’’ Id. at

66–67. With respect to this mental state, Dr.

Krimsky concluded that Mr. Harris was delusional and not competent, adding that Mr.

Harris’s competency could probably be restored within a reasonable period of time. But

Dr. Krimsky did not testify that the delusions

had affected the IQ scores or that Mr. Harris

was trying to manipulate the results. Indeed,

Dr. Krimsky’s assessment of Mr. Harris’s intellectual disability remained consistent

throughout the competency hearing. In Dr.

Krimsky’s unchanging view, Mr. Harris had

mild intellectual disability.

15. In assessing the evidence, the OCCA disregarded the fact that the controlling Oklahoma definition of intellectual disability was

set forth in a case decided after the competency hearing and the first trial. Murphy v.

State, 54 P.3d 556, 567-68 (Okla. Crim. App.

2002), overruled in part on other grounds by

Blonner v. State, 127 P.3d 1135, 1139 (Okla.

Crim. App. 2006). Accordingly, none of the

2001 testimony applied the controlling standard for an intellectual disability. We have no

way of knowing what the expert witnesses

would have said if they had applied the standard for an intellectual disability that governed at the time of the 2005 retrial. For

example, Dr. Ray Hand testified at the first

trial that Mr. Harris had exhibited ‘‘borderline intellectual functioning’’ but was not

‘‘mentally retarded.’’ 2001 Tr., v. 15, at 133–

34. But Dr. Hand based that conclusion in

part on his view about which IQ scores were

‘‘more realistic and more representative of

[Mr. Harris’s] actual abilities.’’ Id. at 131. In

contrast, the controlling standard does not

Resp. App. 20

982

941 FEDERAL REPORTER, 3d SERIES

highlighting the expert opinions rejecting

an intellectual disability, the OCCA suggested that this was the critical evidence

on prejudice. The OCCU thus based its

decision on its perception of the various

expert opinions, including its mistaken

perception of Dr. Krimsky’s opinion.

(b) The Need for an Evidentiary Hearing

We thus must tackle the prejudice prong

in the first instance. Magnan v. Trammell,

719 F.3d 1159, 1175 (10th Cir. 2013). To do

so, we must consider the evidence of intellectual disability.

Mr. Harris contends that a pretrial

hearing could have led to a finding of

intellectual disability, pointing to his history of IQ testing, Dr. Callahan’s report,

expert testimony, and evidence of difficulties in adaptive functioning. In response,

the State focuses on Mr. Harris’s older IQ

tests, the testimony of other experts, and

Mr. Harris’s employment history.

The issue of prejudice turns on whether

a reasonable factfinder could find an intellectual disability. With this issue hotly disputed and the lack of a factual finding, the

district court could not grant habeas relief.

See Littlejohn v. Trammell, 704 F.3d 817,

856 (10th Cir. 2013) (stating that even

though counsel’s conduct may have been

prejudicial, the court could not grant habeas relief ‘‘[a]t this juncture’’ because the

require the parties or the court to identify the

more realistic or representative score. The

question is instead whether the defendant has

‘‘an intelligence quotient of seventy or below,

as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligence quotient test.’’ Murphy, 54

P.3d at 568. Dr. Hand did not apply this test.

Dr. Hand also testified about various deficits in Mr. Harris’s adaptive functioning. But

Dr. Hand was not asked whether Mr. Harris

had ‘‘significant limitations in adaptive functioning in at least two of the following skill

areas: communication; self-care; social/interpersonal skills; home living; self-direction; ac-

persuasiveness of particular expert testimony was disputed and the claim was

‘‘highly fact-bound’’).

Nor could the district court deny habeas

relief, for no factfinder has considered Mr.

Harris’s evidence of intellectual disability

based on the Oklahoma test that applied

during Mr. Harris’s retrial. Without a factual finding based on the applicable test, a

court could not properly assess the extent

of the prejudice.

To decide the issue of prejudice, the

district court needed to assess the likelihood that defense counsel could have proven the existence of an intellectual disability. Like us, the district court had only a

cold record containing conflicting evidence

on Mr. Harris’s intellectual status. Dr.

Krimsky assessed an intellectual disability;

Dr. Callahan assessed borderline intellectual functioning; and Dr. Draper considered Mr. Harris to be intellectually impaired but not intellectually disabled.16

No court has had the opportunity to

hear these experts testify and apply the

Oklahoma test on intellectual disability. If

these experts had testified in a pretrial

hearing focused on that test, which experts

would have swayed the factfinder? To provide at least a meaningful prediction, a

court must at least hear the conflicting

evidence, apply Oklahoma’s test for an intellectual disability, and determine which

expert witnesses to believe. See Smith v.

ademics; health and safety; use of community

resources; and work.’’ Murphy, 54 P.3d at

568.

16. Dr. Hand and Dr. Smith supplied other

assessments. Dr. Hand did not believe that

Mr. Harris was mentally retarded (under his

definition of mental retardation) but thought

that he had ‘‘mixed specific learning disabilities’’ and was likely ‘‘slow’’ or had ‘‘borderline intellectual functioning.’’ 2001 Tr., v. 15,

at 133–34. And Dr. Smith believed that Mr.

Harris had ‘‘normal intelligence.’’ Comp.

Hearing, v. 1, at 215.

Resp. App. 21

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

Sharp, 935 F.3d 1064, 1077 (10th Cir. 2019)

(stating that ‘‘Atkins clearly establishes

that intellectual disability must be assessed, at least in part, under the existing

clinical definitions applied through expert

testimony’’ and recognizing ‘‘the centrality

of expert testimony to our review of Atkins verdicts’’). No court has engaged in

this scrutiny, so any court would need an

evidentiary hearing to predict the outcome

of a pretrial hearing on an intellectual

disability.

We addressed a similar situation in Littlejohn v. Trammell, 704 F.3d 817 (10th

Cir. 2013). There we concluded that the

availability of habeas relief turned on a

disputed factual issue that prevented a

meaningful decision based on the cold record alone. Littlejohn, 704 F.3d at 856. We

directed the district court to conduct an

evidentiary hearing on the issue of prejudice. Id. Here we have the same need for

an evidentiary hearing.

[27] An evidentiary hearing is ordinarily unavailable when the petitioner

failed to diligently develop the factual bases of the claim in state court. Williams v.

Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479,

146 L.Ed.2d 435 (2000).17 Here, however,

Mr. Harris diligently tried to develop the

factual foundations of his claim when he

was in state court. For example, he argued

that his trial counsel had failed to seek a

pretrial hearing on intellectual disability.

With this argument, Mr. Harris requested

an evidentiary hearing and supported the

request with Dr. Callahan’s affidavit. The

OCCA denied this request.

Mr. Harris did all that he could to develop the factual foundation for a showing of

17. Exceptions exist when the habeas claim is

based on

1 a new constitutional rule that the Supreme Court has made retroactive on

collateral review or

1 a factual predicate not reasonably discoverable earlier through reasonable dil-

983

prejudice. By denying the opportunity for

an evidentiary hearing, the OCCA left us

with only a cold record and no factual

findings for the innately fact-intensive issue of prejudice.

[28] Because Mr. Harris was diligent,

we consider whether Mr. Harris’s proof of

allegations would entitle him to habeas

relief. See Hammon v. Ward, 466 F.3d

919, 927 (10th Cir. 2006). That inquiry

turns on the issue of prejudice. Defense

counsel’s deficient performance would be

prejudicial if a pretrial hearing would create a reasonable probability of a lesser

sentence. See Strickland v. Washington,

466 U.S. 668, 694, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984).

Mr. Harris argues that if his trial attorney had requested a pretrial hearing, the

trial court would have granted the request

and found Mr. Harris intellectually disabled, rendering him ineligible for execution. We thus gauge the likelihood that the

state court would have found an intellectual disability.

As noted, the Supreme Court has prohibited the execution of intellectually disabled individuals, but allowed the states to

define the term ‘‘intellectual disability.’’ Atkins v. Virginia, 536 U.S. 304, 317, 122

S.Ct. 2242, 153 L.Ed.2d 335 (2002). When

Mr. Harris appealed his conviction, Oklahoma law required a defendant to show at

least one IQ score under 70. Murphy v.

State, 54 P.3d 556, 567–68 (Okla. Crim.

App. 2002), overruled in part on other

grounds by Blonner v. State, 127 P.3d

1135, 1139 (Okla. Crim. App. 2006). If the

defendant produced at least one score unigence, along with clear and convincing

evidence showing that no reasonable

factfinder would have found guilt without the constitutional error.

28 U.S.C. § 2254(e)(2)(A)(i)–(ii).

Resp. App. 22

984

941 FEDERAL REPORTER, 3d SERIES

der 70, he or she would need to satisfy

three elements:

1. The person ‘‘functions at a significantly sub-average intellectual level

that substantially limits his or her

ability to understand and process information, to communicate, to learn

from experience or mistakes, to engage in logical reasoning, to control

impulses, and to understand the reactions of others.’’

2. The disability ‘‘manifested itself before the age of eighteen.’’

3. The disability ‘‘is accompanied by

significant limitations in adaptive

functioning in at least two of the

following skill areas: communication;

self-care; social/interpersonal skills;

home living; self-direction; academics; health and safety; use of

community resources; and work.’’

Id.; see p. 974, above.

Mr. Harris’s counsel could have satisfied

the threshold requirement for at least one

IQ score below 70. And the State does not

challenge the second element (manifestation before the age of eighteen). The dispute exists on the first and third elements,

which address Mr. Harris’s intellectual and

adaptive deficits.

Mr. Harris’s evidence on intellectual deficits involves three categories:

his history of IQ testing,

the testimony of an expert witness,

and

the affidavit of an expert witness.

First, Mr. Harris’s IQ testing began in

his childhood. Two childhood IQ tests

yielded scores of 87 and 83. After the

murder, new IQ tests yielded scores of 63,

66, 68, and 75. And after Mr. Harris’s

retrial, Dr. Jennifer Callahan tested Harris’s IQ and obtained scores ranging from

67–75 and 72–77.

Resp. App. 23

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

Second, Mr. Harris points to Dr. Krimsky’s testimony about his two IQ tests. Dr.

Krimsky testified in the 2001 competency

hearing, explaining that his testing showed

‘‘mild mental retardation.’’ See 2001 Comp.

Hearing, v. 1, at 58. When asked whether

Mr. Harris’s occupation was consistent

with borderline intellectual disability, Dr.

Krimsky corrected the attorney, pointing

out that Mr. Harris was ‘‘not borderline’’

and reiterated that he had ‘‘mild mental

retardation.’’ Id. at 65.

Third, Mr. Harris points to an affidavit

and report by Dr. Callahan, who concluded

that Mr. Harris’s IQ fell in the ‘‘impaired

to borderline impaired range.’’ R. at 287.

On one test, Mr. Harris’s scaled score was

67–75; on another test, the scaled scored

was 72–77, which Dr. Callahan said would

985

approximate the mental status of a child

only 6 years and 10 months old. Dr. Callahan explained the disparity in Mr. Harris’s

IQ scores, concluding that ‘‘greater consistency’’ existed in the scores than ‘‘one may

appreciate initially’’ because IQ is ideally

viewed as a range and IQ scores change

over time based on a phenomenon known

as the ‘‘Flynn effect.’’ Id. at 288.

The Flynn effect is designed to account

for two facts:

1. IQ tests measure intelligence relative to the contemporaneous general

population, not as an absolute number.

2. IQ scores tend to increase over time.

Given these two facts, an older IQ

test would typically yield a higher

Resp. App. 24

986

941 FEDERAL REPORTER, 3d SERIES

figure than a more recent test for

the same individual. For example,

Mr. Harris took one of the IQ tests

in 1964. By the time of Mr. Harris’s

test, the grading scale was roughly

fifteen years old. So Dr. Callahan

lowered Mr. Harris’s score from 83

v/- 5 to 75.5 v/- 5.

Dr. Callahan concluded that her findings

indicated ‘‘borderline intellectual functioning,’’ but she acknowledged that Mr. Harris’s cognitive abilities were ‘‘not uniformly

at this level.’’ Id. at 289.18

Mr. Harris also presented six forms of

evidence involving adaptive deficits:

1. Dr. Callahan’s testing showed

adaptive strengths, including Mr.

Harris’s ‘‘visual-spatial thinking abilities,’’ which explained how he could

work. But his ‘‘relative weakness[es]’’ included the inability to

quickly process information, difficulty in learning and recalling new information, and impairment in his

ability to ‘‘plan and organize.’’ Id. at

289–90.

2. Mr. Harris had a history of poor

academic performance. Even with

tutors, he dropped out of high school

and experienced problems in recognizing words, spelling, and doing

mathematics. These problems led

Dr. Callahan to regard Mr. Harris

as functionally illiterate, with abilities approximating those of a first or

second grader.

3. Though Mr. Harris worked as a mechanic, he was ‘‘slow’’ and his wife

needed to read the technical manuals and call hotlines for help. 2005

Tr., v. 5, at 55–56, 58, 157.

18. Dr. Callahan added that Mr. Harris was

not malingering.

19. For example, in Pickens v. State, 126 P.3d

612 (Okla. Crim. App. 2005), the OCCA concluded that a petitioner was intellectually dis-

A former employer testified about

difficulty in communicating with Mr.

Harris, stating that ‘‘[h]e would start

one sentence and end it with a different sentence.’’ 2001 Tr., v. 12, at

28–29.

Mr. Harris engaged in very risky

behavior as a child and teen, leading

to injuries.

Mr. Harris had a lifelong addiction

to alcohol and narcotics, showing difficulties in self-care (a feature of

adaptive functioning).

This combination of evidence could lead to

a reasonable finding that Mr. Harris had

satisfied the first and third elements of an

intellectual disability (impairments in intellectual and adaptive functioning).

The State disagrees, relying on Mr.

Harris’s childhood IQ tests and employment history. But the tests and employment history invoked by the State are

controverted by

Dr. Callahan’s discussion of the

Flynn effect, which would contextualize the IQ scores stressed by the

State,

expert testimony that an intellectual

disability would not necessarily prevent work as a mechanic, and

OCCA decisions in other cases stating that similar evidence of adaptive

functioning and borderline intellectual functioning did not preclude relief.19

Thus, proof of Mr. Harris’s allegations

would support the finding of an intellectual

disability. Given the potential for this finding, a habeas court could view defense

abled as a matter of law when his IQ testing

indicated borderline intellectual functioning

and showed some ability to function adaptively. 126 P.3d at 618–20.

Resp. App. 25

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

counsel’s failure to request a pretrial hearing as prejudicial.

[29] Ultimately, however, we cannot

accurately resolve the dispute over the

first and third elements of an intellectual

disability. Mr. Harris and the State point

to evidentiary disputes on these elements,

and these disputes have not been presented to a factfinder for resolution under

Oklahoma’s test for an intellectual disability. So a decision on the prejudice prong

should await an evidentiary hearing in district court. See p. 983, above (discussing

Littlejohn v. Trammell, 704 F.3d 817, 856–

57 (10th Cir. 2013)); accord Sasser v.

Hobbs, 735 F.3d 833, 850 (8th Cir. 2013)

(concluding that ‘‘misconceptions about the

Arkansas legal standard [for identifying an

intellectual disability] led the district court

to answer the wrong factual questions,

leaving the pertinent questions unanswered’’ and that ‘‘[t]he proper course TTT

[was] to vacate the district court’s finding

that [the defendant] [was] not mentally

retarded and remand so that the district

court [could] answer the critical factual

questions in the first instance according to

the correct legal standard’’); Allen v. Buss,

558 F.3d 657, 663 (9th Cir. 2009) (observing that ‘‘the [state] trial court did not

determine whether [the petitioner] is mentally retarded under Indiana’s test for

mental retardation’’ and remanding the

case to the federal district court for an

evidentiary hearing).

987

shown a deficiency in defense counsel’s performance and

alleged a theory of prejudice that, if

true, could justify habeas relief.

Although factual disputes preclude us from

deciding the issue of prejudice, Mr. Harris

is entitled to an evidentiary hearing. We

thus remand for an evidentiary hearing as

to prejudice. At this hearing, the parties

should be able to present expert testimony

on whether Mr. Harris satisfied Oklahoma’s test for an intellectual disability.

Smith v. Sharp, 935 F.3d 1064, 1077 (10th

Cir. 2019) (noting our prior recognition of

‘‘the centrality of expert testimony to our

review of Atkins verdicts’’).

Failure to Adequately Present

Mitigation Evidence

The Supreme Court has recognized that

attorneys in death-penalty cases are ineffective if they bypass evidence that might

have altered the jury’s selection of a penalty. Williams v. Taylor, 529 U.S. 362, 398,

120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Mr.

Harris invokes this case law, arguing that

his attorney failed to adequately present

mitigation evidence on intellectual impairments and mental illness.

Mr. Harris’s arguments encompass evidence that would show not only an intellectual disability but also lesser intellectual

impairments that the jury could regard as

mitigating. Mr. Harris also points to evidence of other mental illnesses.20

The Legal Standard and the Standard of Review

Engaging in de novo review, we conclude that Mr. Harris has

[30] For these arguments, we consider

whether the OCCA unreasonably applied

20. We consider three categories of mitigating

evidence. The first is an ‘‘intellectual disability,’’ meaning evidence that meets the Oklahoma test at the time of the 2005 retrial. The

second is ‘‘borderline intellectual functioning,’’ which consists of lesser cognitive and

adaptive impairments that might be mitigating. See 2001 Tr., v. 15, at 133–36 (testimony

of Dr. Hand). The third category consists of

other mental illnesses that might be mitigating.

Resp. App. 26

988

941 FEDERAL REPORTER, 3d SERIES

Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To

assess prejudice, we must evaluate the totality of the evidence, including

the aggravating circumstances found

by the jury,

2. the mitigation evidence,

3. the mitigation evidence that might

have been introduced, and

4. ‘‘what the prosecution’s response to

that evidence would have been.’’

Littlejohn v. Royal, 875 F.3d 548, 553

(10th Cir. 2017), cert. denied, ––– U.S.

––––, 139 S. Ct. 102, 202 L.Ed.2d 65 (2018).

Applying both prongs of Strickland (deficiency and prejudice), the OCCA rejected

the mitigation-related claims on the merits.21 Harris v. State, 164 P.3d 1103, 1118

(Okla. Crim. App. 2007). We thus apply the

standard set out in 28 U.S.C. § 2254(d).

See pp. 972–73, above.

Intellectual Impairment as a Mitigating Factor

Mr. Harris argues that his attorney performed deficiently by calling only one expert witness (Dr. Draper) to testify about

an intellectual impairment involving either

an intellectual disability or borderline intellectual functioning. According to Mr.

Harris, his attorney should have presented

better mitigation evidence of an intellectual impairment. In our view, however, the

OCCA acted reasonably in rejecting this

claim based on a failure to show either

deficient performance or prejudice.

(a) Evidence of Intellectual Impairments

witness, Dr. Wanda Draper. Dr. Draper

was not an expert in intellectual impairments; her expertise instead involved development, an interdisciplinary field involving psychology, sociology, and other

disciplines. She testified mainly about Mr.

Harris’s ‘‘life path,’’ which included his

childhood, education, and personal relationships. 2005 Tr., v. 5, at 35.

Some of Dr. Draper’s testimony concerned Mr. Harris’s intellectual impairments. For example, Dr. Draper testified

that Mr. Harris had ‘‘[p]oor [s]chool [p]erformance,’’ was ‘‘[s]low [i]n school,’’ had an

IQ score in the 80s, suffered from ‘‘[d]yslexia,’’ had a ‘‘[c]ompulsive personality,’’ and

experienced a ‘‘[p]erception disorder.’’ Def.

Exh. 2. Dr. Draper added that (1) Mr.

Harris’s dyslexia had impeded his ability

to read and write and (2) he had suffered

from a ‘‘perception disorder,’’ which led to

compulsiveness and an inability to see

things in perspective. 2005 Tr., v. 5, at 43.

Dr. Draper explained that Mr. Harris

‘‘was not retarded, but he was slow and he

had to do things very slowly and with

help.’’ Id. at 58. According to Dr. Draper,

the need to act slowly rendered him dependent on Pam. Dr. Draper also explained the unevenness in Mr. Harris’s IQ

test results:

Q: [H]e was given IQ tests, for lack of a

better term, intelligence test, after

the fact, after he was arrested.

A: Right.

Q: And there was a scatter in those IQ

tests?

In the 2005 retrial, defense counsel presented testimony by seven of Mr. Harris’s

family, friends, and associates. But Mr.

Harris’s attorney called only one expert

A: Yes, they were relatively low, but

there was a scatter. And because he

had what we would call high level of

spatial and visual intelligence he was

able to do that transmission work.

21. Mr. Harris insists that the OCCA’s denial

of an evidentiary hearing could not have constituted a denial on the merits. But as we

explain above, this argument is based on a

misunderstanding of Oklahoma law. See pp.

975–76, above.

Resp. App. 27

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

He had good eye/hand coordination.

And he was able to look at a threedimensional object and figure how it

goes together in a car. And all of

that comes from a pretty high level

of spatial intelligence. But his other

intelligences were much lacking.

Id. at 68. On cross-examination, Dr. Draper supplied greater detail about Mr. Harris’s history of intelligence testing:

[W]hen he was tested during his early

school years it was low/normal IQ, I

believe, in the low 80s as a full scale.

And it was only later, after the fact,

after the incident, I think he was given a

battery of tests by several different examiners and he was found to have an IQ

that ranged from the 60s to the 80s.

Id. at 133.

Both sides presented closing arguments

on Mr. Harris’s intellectual functioning. In

their arguments, the prosecutors acknowledged that Mr. Harris had a low IQ, but

questioned the reliability of Dr. Draper’s

testimony about past IQ tests. The prosecutors also pointed out that another expert

witness had opined that Mr. Harris was

malingering and told the jury:

Who ever told you that he had a low IQ

and that made it difficult for him to

solve problems? He can solve problems.

He just doesn’t solve them in a way that

we think is appropriate. Jimmy Dean

Harris doesn’t have any problem with

the way he solves problems. It’s the rest

of us that need to fear him for his

problem-solving abilities.

2005 Tr., v. 6, at 935.

The defense countered with Dr. Draper’s testimony. Defense counsel urged the

jury to focus on

[t]he images of a kid who falls behind in

school because he just can’t read. He’s

got dyslexia, but he’s also close to mentally retarded. We don’t have an exact

989

number, but Dr. Draper testified that 75

was the best consensus of all the numbers that she looked at in the 60 hours

that she prepared, talking to everybody

in this case, looking into his life.

Id. at 944. The attorney later emphasized

Mr. Harris’s ‘‘75 IQ and real lack of problem-solving skills,’’ noting that Dr. Draper

had ‘‘talked about [how] a person with a

little better makeup, a little better development,’’ would have been able to navigate

the marital conflict without resorting to

murder. Id. at 960.

(b) Mitigation Evidence Involving an

Intellectual Disability

[31] On appeal, Mr. Harris argues that

his trial counsel was ineffective in failing to

present mitigation evidence involving both

an intellectual disability and borderline intellectual functioning. But in the OCCA,

Mr. Harris did not argue that defense

counsel should have presented mitigation

evidence involving an intellectual disability.

In briefing the issue to the OCCA, defense counsel was specific, confining his

argument to mitigation evidence involving

borderline intellectual functioning. In making this argument, defense counsel considered intellectual disability an issue that

could be addressed only in a pretrial hearing. If the defendant prevailed, he would

be ineligible for the death penalty under

Atkins v. Virginia, 536 U.S. 304, 321, 122

S.Ct. 2242, 153 L.Ed.2d 335 (2002). If the

defendant lost on this issue, defense counsel apparently assumed that he would have

been barred from urging mitigation based

on an intellectual disability. Cf. Blonner v.

State, 127 P.3d 1135, 1144 (Okla. Crim.

App. 2006) (stating that if the pretrial

hearing results in a finding of no intellectual disability, ‘‘[t]he issue of mental retardation shall not be relitigated at the capital

first degree murder trial’’).22

Resp. App. 28

990

941 FEDERAL REPORTER, 3d SERIES

Defense counsel thus acknowledged that

he was not alleging a failure to present

additional mitigation evidence involving

‘‘mental retardation.’’ He was instead confining the argument to additional evidence

of a lesser intellectual impairment that he

called ‘‘borderline mental retardation,’’

presumably a synonym for Dr. Callahan’s

preferred term ‘‘borderline intellectual

functioning’’:

Appellant is not here claiming only to

be borderline mentally retarded – his

claim of mental retardation is addressed

in Proposition I. However, given the

procedural posture of this case, counsel

could not have argued that Mr. Harris

was mentally retarded since the mentally retarded are exempt from the death

penalty. If counsel had simply taken the

previous testimony at face value and not

conducted an independent investigation

into Mr. Harris’ mental deficiencies,

then he would have had overwhelming

evidence that Mr. Harris was borderline

mentally retarded. On the other hand,

had defense counsel independently investigated his client’s mental condition

and determined that a sufficient basis

existed for a jury determination of the

mental retardation issue, it is likely that

such a hearing would have been held. In

such a case, either Mr. Harris would

have been determined to be retarded, or

not, by a jury. In this scenario, counsel

would have argued borderline mental retardation because had a jury determined

22. At oral argument, Mr. Harris contends the

opposite, insisting that he could have urged

mitigation based on an intellectual disability

even if the state trial court had found no

intellectual disability as a bar to execution.

But the OCCA did not have the benefit of this

argument. In the OCCA, Mr. Harris had disclaimed any argument that he could relitigate

the existence of an intellectual disability at the

penalty phase.

Mr. Harris to be mentally retarded, then

there would have been no capital sentencing at all.

Appellant’s Opening Br. at 16–17 n.15, No.

D-2005-117 (Okla. Crim. App. May 18,

2006).

Given Mr. Harris’s framing of the issue,

the OCCA never referred to an issue involving an intellectual disability. See Strelecki v. Okla. Tax Comm’n, 872 P.2d 910,

925 n.1 (Okla. 1993), clarified on reh’g

(Okla. Mar. 23, 1994) (‘‘[C]ourts are not

free to act as advocates and to raise claims

that should be raised by the parties.’’). The

court instead referred to ‘‘diminished mental capacity,’’ presumably as a synonym for

defense counsel’s term ‘‘borderline mental

retardation’’ or Dr. Callahan’s preferred

term ‘‘borderline intellectual functioning.’’

So the OCCA addressed only the lack of

mitigation evidence involving borderline

intellectual functioning (not an intellectual

disability).

[32, 33] Mr. Harris’s failure to present

the OCCA with his current argument

would ordinarily constitute nonexhaustion

of state-court remedies. See 28 U.S.C.

§ 2254(b)(1)(A). But exhaustion is unnecessary when it would be futile. Selsor v.

Workman, 644 F.3d 984, 1026 (10th Cir.

2011). And exhaustion now would be futile

because the OCCA would undoubtedly consider the claim waived. See Slaughter v.

State, 105 P.3d 832, 833 (Okla. Crim. App.

2005).23 Mr. Harris’s claim is thus subject

to a procedural default,24 and consideration

23. Mr. Harris has already pursued a direct

appeal and post-conviction proceedings in

which he could have (but failed to) raise this

argument.

24. The State contends that even if the claim is

unexhausted, the court could deny relief on

the merits under the AEDPA. It’s true that

unexhausted claims can be denied on the

merits. 28 U.S.C. § 2254(b)(2). But if the

OCCA had not decided the claim on the mer-

Resp. App. 29

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

of the merits would be available only if Mr.

Harris shows cause and prejudice. Banks

v. Workman, 692 F.3d 1133, 1144 (10th

Cir. 2012). Because Mr. Harris cannot

show cause and prejudice, we apply an

anticipatory procedural bar and decline to

consider this claim. See Pavatt v. Carpenter, 928 F.3d 906, 924 (10th Cir. 2019) (en

banc) (holding that the habeas petitioner’s

appellate argument was subject to an anticipatory procedural bar because the argument had not been fairly presented to the

OCCA).25

We also reject Mr. Harris’s claim that

his counsel was ineffective in presenting

mitigation evidence on borderline intellectual functioning.

The OCCA’s Reliance on Both

Prongs (Deficient Performance

and Prejudice)

On this claim, the OCCA concluded that

Mr. Harris had not shown either deficient

performance or prejudice. Harris v. State,

164 P.3d 1103, 1116–18 (Okla. Crim. App.

2007). On the prong of deficient performance, the court

noted that counsel had presented

some evidence that involved intellectual impairments,

discussed the virtually unchallengeable nature of strategic decisions, and

its, the AEDPA would not apply. See pp. 972–

73, 975, above.

25. Mr. Harris contends that the State failed to

preserve its current argument that defense

counsel had not acted deficiently in failing to

urge mitigation based on an intellectual disability. But we ordinarily consider an appellee’s arguments for affirmance even if they

had not been presented in district court. See

United States v. Mosley, 743 F.3d 1317, 1324

991

concluded that defense ‘‘[c]ounsel’s

choice of mitigating evidence did not

amount to ineffective assistance.’’

Id. at 1103, 1116, 1118. In this discussion,

the OCCA rejected the claim at least partly based on Mr. Harris’s failure to show a

deficiency in the representation.

On the prejudice prong, the OCCA referred to Mr. Harris’s argument ‘‘that that

the prejudice from this decision is evident.’’ Id. at 1118. The OCCA rejected this

argument, finding that the jurors at the

retrial had chosen the death sentence even

after hearing some of this mitigating evidence. Id.

ii.

Deficient Performance

Mr. Harris claims that defense counsel

should have presented additional mitigation evidence on his borderline intellectual

functioning. For this claim, Mr. Harris argues that the OCCA made an unreasonable

determination

fact

under

§ 2254(d)(2). According to Mr. Harris, the

OCCA unreasonably found that Mr. Harris’s attorney had strategically chosen to

bypass additional mitigation evidence. Mr.

Harris argues that if his attorney had conducted a reasonable investigation, he

would have learned of the evidence presented in the 2001 proceedings and would

have used a better expert witness to explain the evidence of borderline intellectual

functioning. The OCCA concluded that trial counsel’s performance was neither deficient nor prejudicial. Harris v. State, 164

& n.2 (10th Cir. 2014) (considering an argument for affirmance made by the government

for the first time on appeal even though the

argument conflicted with the government’s

position in district court); see also United

States v. Bagley, 877 F.3d 1151, 1154 (10th

Cir. 2017) (‘‘Though the government did not

raise this argument in district court, we can

affirm on alternative grounds when the district court record is adequately developed.’’).

Resp. App. 30

992

941 FEDERAL REPORTER, 3d SERIES

P.3d 1103, 1116–18 (Okla. Crim. App.

2007). These conclusions were reasonable

under § 2254(d)(2).

[34, 35] We begin with the OCCA’s determination that defense counsel’s selection of evidence had been strategic. Mr.

Harris argues that the OCCA made an

unreasonable factual determination because the state-court record shows that

defense counsel had not made a strategic

decision. For this argument, Mr. Harris

states that

nothing in the record supported the

OCCA’s determination that Mr. Harris’s attorney had made a strategic

decision and

1 after the penalty phase in the 2005

retrial, the attorney continued to list

Mr. Harris’s low IQ and inadequate

problem-solving skills as mitigating

factors.

But we do not regard a factual finding as

unreasonable if ‘‘ ‘[r]easonable minds reviewing the record might disagree’ about

the finding in question.’’ Wood v. Allen,

558 U.S. 290, 301, 130 S.Ct. 841, 175

L.Ed.2d 738 (2010) (quoting Rice v. Collins, 546 U.S. 333, 341–42, 126 S.Ct. 969,

163 L.Ed.2d 824 (2006) (alteration in original)).

Reasonable minds could conclude that

Mr. Harris’s attorney had strategically decided how to present the evidence. For

example, the record indicated that the attorney was aware of the evidence that had

been presented in the state-court proceeding. In a colloquy with the judge, the attorney said: ‘‘I’m not calling any shrinks, I’m

not calling any psychiatrists or all of the

other people that testified last time.’’ 2005

Tr., v. 5, at 150. The OCCA could reason26. Mr. Harris also incorporates other arguments regarding an unreasonable determination of fact. These arguments are addressed

elsewhere. For instance, Mr. Harris’s other

arguments about the scope of the investiga-

ably infer from this testimony that defense

counsel

had known of the evidence in the

2001 trial and

had deliberately declined to present

additional evidence of intellectual deficiencies.

See Wood v. Allen, 558 U.S. 290, 301–02,

130 S.Ct. 841, 175 L.Ed.2d 738 (2010)

(holding that evidence that counsel had

known about omitted evidence and chosen

not to present it to a jury could ‘‘fairly be

read to support’’ the state court’s judgment that counsel had acted strategically).26

In the alternative, Mr. Harris argues

that even if the OCCA had reasonably

found that counsel acted strategically, this

strategy would not have involved a reasonable investigation. This argument fails

because the OCCA reasonably applied Supreme Court decisions in finding that defense counsel had not performed deficiently. Wiggins v. Smith, 539 U.S. 510, 523,

123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

To assess this argument, we consider

the investigation underlying the strategy.

Wiggins v. Smith, 539 U.S. 510, 523, 123

S.Ct. 2527, 156 L.Ed.2d 471 (2003). Mr.

Harris argues that the investigation was

unreasonable because the attorney had

known of evidence, presented in the

2001 trial, that Mr. Harris was intellectually disabled and

engaged Dr. Draper (instead of another expert witness with better

qualifications) to discuss intellectual

impairments.

tion are better understood as arguments for

reversal under 28 U.S.C. § 2254(d)(1); we

thus consider these in our discussion of Mr.

Harris’s arguments under § 2254(d)(1).

Resp. App. 31

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

The OCCA concluded that Mr. Harris’s

attorney had decided not to highlight the

diagnoses and testing, choosing to focus

instead on Mr. Harris’s development

throughout his life. Harris v. State, 164

P.3d 1103, 1118 (Okla. Crim. App. 2007).

This conclusion was supported by the record: Dr. Draper testified about Mr. Harris’s intellectual development and his IQ

testing. And in closing argument, defense

counsel emphasized Dr. Draper’s testimony about Mr. Harris’s overall development.

Counsel used that testimony to argue that

an adult with greater development would

not have committed the murder.

This was not a case in which an attorney

failed to investigate or present any mitigation evidence on intellectual impairments.

Rather, the defense attorney pursued a

strategy focusing on childhood development rather than Mr. Harris’s mental

state after the crime. And in implementing

this strategy, the attorney used a witness

with expertise in personal development.

Applying the deferential AEDPA standard, we conclude that defense counsel’s

performance fell within the broad range of

acceptable strategies. See Doyle v. Dugger,

922 F.2d 646, 652 (11th Cir. 1991) (concluding that defense counsel was not deficient

for presenting only some of the available

evidence about the defendant’s mental

state).

iii.

Prejudice

[36] Mr. Harris urges prejudice from

his attorney’s failure to call an expert on

intellectual impairments, focusing on the

27. We assume, for the sake of argument, that

other evidence of intellectual impairments

would have been mitigating. In Tennard v.

Dretke, the Supreme Court recognized the inherently mitigating nature of evidence involving intellectual impairments. 542 U.S. 274,

287, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004).

But in Atkins v. Virginia, the Supreme Court

noted that ‘‘reliance on mental retardation as

993

‘‘inherently mitigating’’ nature of evidence

of intellectual impairments when the death

penalty is at stake. Supp. Mem. Br. of

Petitioner at 8 (quoting Tennard v. Dretke,

542 U.S. 274, 287, 124 S.Ct. 2562, 159

L.Ed.2d 384 (2004)). The OCCA found no

prejudice from defense counsel’s failure to

present additional mitigation evidence involving borderline intellectual functioning.

This finding was based on a reasonable

determination of facts and Supreme Court

precedent.27

We addressed an analogous issue in

Grissom v. Carpenter, 902 F.3d 1265 (10th

Cir. 2018). In Grissom, the petitioner

claimed that his trial attorneys had been

ineffective by failing to investigate and

present evidence of organic brain damage

because of ‘‘red flags’’ pointing to a potentially fruitful defense on mitigation. 902

F.3d at 1272–73. We affirmed the denial of

habeas relief, explaining that the petitioner

could not show prejudice partly because

his attorney had already presented a robust mitigation case and the omitted report had ‘‘largely reflect[ed] the mitigating

narrative already presented at trial.’’ Id. at

1279 (quoting Grissom v. State, 253 P.3d

969, 995 (Okla. Crim. App. 2011)).

This explanation is equally fitting here.

Although a cognition expert might have

better emphasized the extent of an intellectual impairment, defense counsel did

not present the kind of ‘‘paradigmatic

halfhearted mitigation case’’ that we’ve regarded as constitutionally defective. Littlejohn v. Royal, 875 F.3d 548, 563 (10th Cir.

2017), cert. denied, ––– U.S. ––––, 139 S.

a mitigating factor can be a two-edged sword

that may enhance the likelihood that the aggravating factor of future dangerousness will

be found by the jury.’’ 536 U.S. 304, 321, 122

S.Ct. 2242, 153 L.Ed.2d 335 (2002). That risk

was arguably present here because the State

had alleged an aggravating circumstance of

future dangerousness.

Resp. App. 32

994

941 FEDERAL REPORTER, 3d SERIES

Ct. 102, 202 L.Ed.2d 65 (2018). Instead,

defense counsel presented seven fact witnesses who testified about

Mr. Harris’s need for Pam’s help in

reading technical information, doing

paperwork, and calling hotlines,

additional mitigation evidence on borderline functioning. We thus conclude that the

OCCA reasonably applied Supreme Court

precedents in finding no prejudice from

the failure to present greater evidence of

borderline intellectual functioning.

Mr. Harris’s difficulties in school because he was a slow learner,

(d) Mitigation

Mental Illness 28

Mr. Harris’s dependable work,

verbal combat between Mr. Harris

and Pam,

Mr. Harris also argues that his attorney

was ineffective by failing to

Pam’s berating of Mr. Harris,

Involving

call an expert witness specializing in

mental health,

parental

highlight diagnoses of mental illness,

and

Mr. Harris’s loving relationship with

his siblings and daughters.

show how mental illness might have

contributed to the murder.

1 childhood suffering

abuse, and

Evidence

Defense counsel also presented Dr. Draper, who testified that Mr. Harris was

‘‘slow,’’ had trouble in school, and needed

help in working and functioning in society.

2005 Tr., v. 5, at 58. Dr. Draper added that

Mr. Harris’s IQ scores were low, reflecting

a high visual and spatial intelligence that

facilitated work as a transmission mechanic despite shortcomings in other intellectual abilities. Id. at 68.

This testimony was not qualitatively different than Dr. Callahan’s affidavit. Dr.

Callahan assessed Mr. Harris’s intellectual

status as ‘‘borderline intellectual functioning.’’ R. at 289. And like Dr. Draper, Dr.

Callahan explained that Mr. Harris had

strengths that allowed him to work despite

his intellectual deficits.

According to Mr. Harris, these shortcomings were prejudicial because the additional evidence might have convinced at least

one juror to vote for life in prison rather

than the death sentence. We reject this

argument.

Mental-Health Evidence in the

2005 Retrial

At the 2005 retrial, defense counsel presented some evidence of mental-health

problems. But Mr. Harris argues that defense counsel should have presented additional evidence from the 2001 trial and the

competency hearing.

In closing argument, defense counsel

also used Dr. Draper’s testimony to emphasize Mr. Harris’s low intellectual ability

and poor problem-solving skills. Given the

evidence and closing argument, the OCCA

could reasonably attribute little value to

At the 2005 retrial, defense counsel

urged mitigation based on Mr. Harris’s

mental condition, alcoholism, drug abuse,

and strong emotions. But defense counsel

did not call an expert witness specializing

in mental health; most of the evidence

involving these mitigating factors came

from Dr. Draper.

28. As noted above, we use the term ‘‘mental

illness’’ to refer to various cognitive and behavioral deficits not included in the other

categories of intellectual impairments (intellectual disability and borderline intellectual

functioning). See note 20, above.

Resp. App. 33

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

Dr. Draper testified about three facets

of mitigation:

When Mr. Harris had been a child,

he suffered parental abuse and saw

his father abuse his mother.

As a teenager, Mr. Harris had obtained narcotics and alcohol from

his father, which led to a lifelong

pattern of substance abuse.

Mr. Harris had tried to commit suicide.

Dr. Draper added that eight to ten other

doctors had found ‘‘serious psychological

problems’’:

Q: You have been given various psychological tests that have been administered to Jimmy Dean Harris over the

years. Have there been reports in

there of any mental illnesses?

A: Well, there were. This was -- I think

these were tests that were administered after the incident.

Q: And approximately how many different doctors?

A: Well, there were probably eight or

ten. I listed those in my report; although, I did not pursue that area

with any diligence because that was

after the fact. The significance of

that is all of those found that he had

some serious psychological problems.

2005 Tr., v. 5, at 67–68. Dr. Draper also

testified that Mr. Harris was taking medication to control his mental illness:

Q: And have you seen any records of

medications given to him in the jail?

A: Yes. I think he’s taking some psychotropic drugs and some other medications for general health problems.

Q: And you’re not a physician, but you

do know that the drugs are for controlling mental illness?

995

A: Yes.

Id. at 68–69.

ii.

Other Existing Evidence of Mr.

Harris’s Mental Illness

In the prior proceedings, counsel for

both parties elicited additional evidence of

Mr. Harris’s mental illness.

For example, Dr. John Smith testified

that before the murder, Mr. Harris had

suffered from bipolar II disorder with psychosis. But Dr. Smith conceded that it was

difficult to pinpoint when Mr. Harris had

experienced the effects of drugs and alcohol.

An expert witness for the prosecution

testified that Mr. Harris had

1 suffered from a major depressive episode with associated psychotic features and

1 stabilized through medication.

And a jail counselor diagnosed Mr. Harris

with schizo-affective disorder. Dr. Smith

and the jail counselor described Mr. Harris after the murder as erratic, delusional,

psychotic, and suicidal.

Other evidence suggested that Mr. Harris was responsive to medication. Dr.

Smith described these medications and

opined that they had helped, allowing Mr.

Harris to attend the trial and testify with

focus.

iii.

Claim of Ineffective Assistance of

Counsel

Mr. Harris argues that defense counsel

was ineffective for failing to call a mentalhealth expert and present this evidence in

the penalty phase. The OCCA rejected this

claim without specifying whether the court

was relying on (1) the failure to show

deficient representation or (2) prejudice.

Harris v. State, 164 P.3d 1103, 1116–19

(Okla. Crim. App. 2007). Given this ambiguity, we apply 28 U.S.C. § 2254(d) on

both prongs (deficient performance and

prejudice). Premo v. Moore, 562 U.S. 115,

123, 131 S.Ct. 733, 178 L.Ed.2d 649

(2011).29

Resp. App. 34

996

941 FEDERAL REPORTER, 3d SERIES

Deficiency Prong

Mr. Harris contends that the OCCA unreasonably determined the facts and applied Supreme Court precedents.

(i) Unreasonable Factual Determinations

[37] Mr. Harris argues that the OCCA

based its decision on two unreasonable determinations of fact:

that defense counsel had presented

evidence of a mental illness and

that defense counsel had strategically decided to downplay the evidence

of mental illness.

The OCCA also stated that defense

counsel had strategically decided to downplay the evidence of mental illness. Mr.

Harris argues that this statement entailed

an unreasonable factual determination. See

28 U.S.C. § 2254(d)(2). For this argument,

he points to three facts:

Defense counsel asked Dr. Draper

whether Mr. Harris’s medications

were for a mental illness, but defense counsel was unable to obtain a

response.

Defense counsel then tried to call an

expert witness regarding Mr. Harris’s medications, but the trial court

sustained an objection based on inadequate notice.

Despite the inability to obtain a response or call an expert witness on

medications, defense counsel continued to list Mr. Harris’s ‘‘mental condition’’ as a mitigating factor.

We reject both arguments.

Mr. Harris first points out that the

OCCA said that ‘‘[w]hile Harris’s specific

diagnoses of mental illness [had not been]

presented to the jury,’’ jurors had been

told that he was diagnosed as mentally ill.

Harris v. State, 164 P.3d 1103, 1118 (Okla.

Crim. App. 2007). According to Mr. Harris,

this statement constituted an unreasonable

determination of fact because the State

had denied the existence of any evidence of

a mental illness.

Mr. Harris argues that these three facts

show that defense counsel had tried to

prove a mental illness through an expert

witness but couldn’t because counsel had

violated evidentiary and disclosure requirements.

We reject Mr. Harris’s argument. The

OCCA observed that the jury ‘‘had been

told’’ of a diagnosis. Id. This observation

was accurate, for Dr. Draper had testified

about a prior diagnosis of ‘‘serious psychological problems.’’ 2005 Tr., v. 5, at 67–68;

see p. 995, above. The OCCA’s statement

was thus reasonable based on the evidence

presented.

[38] A state appellate court’s finding

may be reasonable even if we would have

decided the issue differently. Grant v.

Trammell, 727 F.3d 1006, 1024 (10th Cir.

2013). The test is whether the state appellate court had evidentiary support for its

view. Id.

29. On this claim, Mr. Harris contends that

the district court should have conducted an

evidentiary hearing. But the reasonableness of

the OCCA’s conclusion must be based on the

existing state-court record. See Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388,

179 L.Ed.2d 557 (2011) (holding ‘‘that review

under § 2254(d)(1) is limited to the record

that was before the state court that adjudicat-

ed the claim on the merits’’); Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012)

(stating that habeas review under § 2254(d)(2)

is also confined to the record in state court).

Thus, the district court could not consider

evidence newly presented in federal court to

determine whether the OCCA had unreasonably applied federal law or determined the

facts.

Under this test, the OCCA finding was

reasonable. When defense counsel called

Resp. App. 35

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

an expert witness to testify about Mr.

Harris’s medications, the judge asked the

relevance. The attorney explained: ‘‘It goes

to mitigation, that he has something wrong

with him and we don’t know what it is.’’

2005 Tr., v. 5, at 152. The attorney added

that ‘‘[a]ll he is going to do is say these are

his medications and one, two, three, and

four are mental health medicines the other

ones are for something else. And that’s all

he is going to say.’’ Id. at 149.

The OCCA could reasonably find that

defense counsel was trying to present limited evidence on mental health, informing

the jury of a mental illness without enough

detail to spark concern about continued

dangerousness. The attorney couldn’t ultimately execute this strategy, but the

OCCA could view the strategy itself as

reasonable. We thus conclude that the

OCCA acted reasonably in viewing defense

counsel’s effort as strategic.

(ii) Unreasonable Application of Supreme Court Precedents

[39] The OCCA also reasonably applied Supreme Court precedents on the

deficiency prong. The ultimate failure of

the attorney’s effort does not undermine

the reasonableness of the OCCA’s conclusion. United States v. Haddock, 12 F.3d

950, 956 (10th Cir. 1993).

Mr. Harris contends that his attorney

failed to present expert testimony on the

nature, extent, and significance of the

mental illness. Again, however, the OCCA

acted reasonably in rejecting this contention. As we discuss below, the excluded

evidence constituted a ‘‘double-edged

sword’’ with substantial aggravating potential. See p. 998, below. Given this potential

for aggravation, the OCCA justifiably concluded that defense counsel had acted reasonably.

997

Prejudice

[40] Even if Mr. Harris could satisfy

the deficiency prong, the claim would have

foundered on the prejudice prong. Mr.

Harris argues that his counsel’s failure to

present mitigation evidence of mental illness (1) opened the door to evidence of

malingering and (2) bypassed powerful

mitigation evidence that would have explained Mr. Harris’s violent actions and

why, with proper treatment, he would be

unlikely to repeat this crime.

[41] In analyzing the prejudice prong,

we consider not only the mitigation evidence that defense counsel should have

presented but also what the prosecution

would have presented in response. Wilson

v. Trammell, 706 F.3d 1286, 1306 (10th

Cir. 2013). To identify that evidence, we

can consider the 2001 trial as a useful

guide. At that trial, the prosecution had

used Dr. John Call, who testified that

a ‘‘strong possibility’’ existed that

Mr. Harris was a psychopath and

psychopaths were more violent than

other individuals.

2001 Tr., v. 16, at 75–78.

This testimony was supported by Mr.

Harris’s own expert at the 2001 trial, Dr.

Smith. Dr. Smith regarded Mr. Harris as

bipolar and acknowledged that bipolar individuals share traits with psychopaths.

After acknowledging the sharing of these

traits, Dr. Smith refused to rule out Dr.

Call’s diagnosis of Mr. Harris as a psychopath or as someone with antisocial personality disorder, admitting the presence of

‘‘elements’’ of these conditions in Mr. Harris’s history and in his current psychological status. 2001 Tr., v. 18, at 182. Dr. Smith

thus admitted that Mr. Harris presented a

substantial risk of violence. Id. at 183. On

cross-examination, Dr. Smith added that

Mr. Harris had antisocial traits:

Resp. App. 36

998

941 FEDERAL REPORTER, 3d SERIES

Q: But you don’t disagree with the diagnosis that [Mr. Harris] has an antisocial personality disorder?

A: As long as you mix it with a mixed

personality disorder with narcissistic,

obsessive-compulsive, and antisocial

traits. I do believe he does have that.

Id. at 192. Dr. Smith also acknowledged

that Mr. Harris had each clinical trait associated with antisocial personality disorder.

Given this prior testimony, the OCCA

could reasonably conclude that further

mitigation testimony involving mental illness would have opened the door to evidence of psychopathy with antisocial

personality disorder. ‘‘[C]ourts have

characterized antisocial personality disorder as the prosecution’s ‘strongest possible evidence in rebuttal.’ ’’ Littlejohn v.

Royal, 875 F.3d 548, 564 (10th Cir.

2017) (quoting Evans v. Sec’y, Dep’t of

Corr., 703 F.3d 1316, 1327 (11th Cir.

2013)), cert. denied, ––– U.S. ––––, 139

S. Ct. 102, 202 L.Ed.2d 65 (2018).

We addressed a similar issue in Littlejohn v. Royal, 875 F.3d 548 (10th Cir.

2017), cert. denied, ––– U.S. ––––, 139 S.

Ct. 102, 202 L.Ed.2d 65 (2018). There the

petitioner presented evidence of organic

brain disorder. The State responded with

evidence of a diagnosis involving antisocial

personality disorder, and the defense expert admitted that the petitioner had displayed traits consistent with the diagnosis.

Id. at 565. Given the nature of antisocial

personality disorder, we concluded that the

evidence of an organic brain disorder was

likely to be aggravating rather than mitigating. Id.

The same is true here. Like organic

brain damage, mental illness can be mitigating; but the OCCA could reasonably

view this possibility as outweighed by the

30.

Mr. Harris points out that

risk of rebuttal evidence of psychopathy

and antisocial personality disorder.

Mr. Harris argues that the jury at the

2005 retrial heard testimony about his violent past with no explanation involving his

mental illness. But the OCCA could reasonably find that the aggravating nature of

the omitted evidence had outweighed the

mitigation value.

By focusing on Mr. Harris’s development rather than his mental illness, defense counsel also kept other possibly

aggravating evidence from the jury. For

instance, the presence of an untreatable

condition could have suggested future

dangerousness. Littlejohn, 875 F.3d at

565. And Dr. Smith admitted that

1 he could not be confident that Mr.

Harris would refrain from violence

while on medication,

1 Mr. Harris had probably been properly medicated during his 2001 competency trial (when he attacked a

detention officer), and

1 Mr. Harris had probably not been in

a psychotic state when he committed

the murder.

With these admissions, Dr. Smith could

not say whether Mr. Harris’s mental illness was connected to the crime.

Finally, Mr. Harris argues that his counsel’s actions opened the door to evidence of

malingering. Even if defense counsel had

presented additional mental-health evidence, however, the State could still have

presented evidence of malingering. Indeed,

at the 2001 trial, a prosecution witness had

testified that Mr. Harris was exaggerating

the symptoms of any mental illness. So the

OCCA could reasonably consider evidence

of malingering as available irrespective of

defense counsel’s strategy.

In sum, the OCCA acted reasonably in

concluding that the omissions were not

prejudicial.30

find the aggravator of future dangerous-

the jury at the 2001 trial had declined to

Resp. App. 37

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

II.

Jury Instructions and Closing Arguments on Mitigation Evidence

[42] In capital cases, the Eighth and

Fourteenth Amendments ordinarily prevent the trial court from barring consideration of any of the defense evidence on

mitigation. Lockett v. Ohio, 438 U.S. 586,

604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)

(plurality opinion).31 Mr. Harris argues

that the State violated this right in two

ways:

The trial court instructed the jury

too narrowly on the evidence that

could be considered mitigating.

2. In closing argument, the first prosecutor exploited this instruction by

telling the jury that it should consider mitigation evidence only if it diminished Mr. Harris’s moral culpability.

These errors, according to Mr. Harris, created a reasonable likelihood that one or

more jurors believed themselves unable to

consider some of Mr. Harris’s mitigation

evidence.

The Standard of Review

The OCCA rejected this claim. Because

Mr. Harris did not object to the instruction

ness after hearing evidence of mental

illness and

1 the jury at the 2005 retrial did find this

aggravator without hearing that evidence.

But other possible explanations may account

for the juries’ different findings on future dangerousness. For example, the 2001 jury was

erroneously instructed on the availability of

housing in a minimum-security prison, and

the jury at the 2005 retrial heard new evidence about Mr. Harris’s violent actions. Given these differences, we decline to speculate

about why either jury found as it did.

31.

The Lockett plurality stated:

[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital

999

or the closing argument, the OCCA reviewed for plain error. Harris v. State, 164

P.3d 1103, 1113 (Okla. Crim. App. 2007).

Applying the plain-error standard, the

OCCA relied on its precedent to find the

jury instruction constitutional. E.g.,

Williams v. State, 22 P.3d 702, 727 (Okla.

Crim. App. 2001), cited with approval in

Harris, 164 P.3d at 1113 n.40. The OCCA

thus focused on the prosecutors’ arguments, considering how they might have

affected the jury’s ability to consider mitigation evidence. In considering this effect,

the OCCA found that

1 the first prosecutor’s argument had

been improper and

1 the second prosecutor’s argument

and the jury instruction had rendered the first prosecutor’s argument harmless.

Harris, 164 P.3d at 1113–14.

We treat the OCCA’s decision under the

plain-error standard as an adjudication on

the merits. Hancock v. Trammell, 798

F.3d 1002, 1011 (10th Cir. 2015); see pp.

972–73, above. We thus review this decision under 28 U.S.C. § 2254(d). Hancock,

798 F.3d at 1011–12; see pp. 972–73,

above.32

case, not be precluded from considering, as

a mitigating factor, any aspect of a defendant’s character or record and any of the

circumstances of the offense that the defendant proffers as a basis for a sentence less

than death.

Lockett, 438 U.S. at 604, 98 S.Ct. 2954 (emphasis in original) (footnote omitted). A majority of the Supreme Court later adopted this

view in Eddings v. Oklahoma, 455 U.S. 104,

113–15, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

32. As noted above, the OCCA stated that the

first prosecutor’s argument was improper but

harmless. Harris v. State, 164 P.3d 1103,

1113–14 (Okla. Crim. App. 2007). But the test

(discussed in the text) determines whether a

constitutional violation took place, not whether an error was harmless. See Calderon v.

Coleman, 525 U.S. 141, 146, 119 S.Ct. 500,

Resp. App. 38

1000

941 FEDERAL REPORTER, 3d SERIES

[43] This review comprises two parts.

We first ask ‘‘whether there is a reasonable likelihood that the jury has applied

the challenged instruction in a way that

prevents the consideration of constitutionally relevant evidence.’’ Underwood v.

Royal, 894 F.3d 1154, 1169 (10th Cir. 2018)

(quoting Boyde v. California, 494 U.S. 370,

380, 110 S.Ct. 1190, 108 L.Ed.2d 316

(1990)), cert. denied, ––– U.S. ––––, 139 S.

Ct. 1342, 203 L.Ed.2d 583 (2019). We then

ask whether a reasonable likelihood exists

that ‘‘arguments by the prosecutor TTT

reinforced an impermissible interpretation

of [the challenged jury instruction] and

made it likely that jurors would arrive at

such an understanding.’’ Id. (quoting

Boyde, 494 U.S. at 384, 110 S.Ct. 1190).

The Jury Instruction

[44] Mr. Harris challenges Instruction

Number 8, which stated in part: ‘‘Mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate

or reduce the degree of moral culpability

or blame.’’ R. at 1607. Mr. Harris argues

that this instruction improperly prevented

the jury from considering all available mitigation evidence.

under the facts and circumstances of

this case.’’

2. Another jury instruction had identified many mitigating circumstances,

and some did not involve moral culpability.

3. The trial court had also instructed

the jury that it ‘‘may decide that

other mitigating circumstances exist,

and if so, [the jury] should consider

those circumstances as well.’’

Id. Given these instructions, we concluded

in Hanson that a jury would not ‘‘have felt

precluded from considering any mitigation

evidence, including the testimony of the

four testifying witnesses.’’ Id.

The same three instructions were given

here. So under Hanson, we conclude that

the OCCA reasonably determined that the

jury would have understood its ability to

consider all of Mr. Harris’s mitigation evidence. Hanson, 797 F.3d at 851; see

Simpson v. Carpenter, 912 F.3d 542, 578

(10th Cir. 2018).

Mr. Harris argues that the OCCA has

expressed concern about the way

that Oklahoma prosecutors have

used the jury instruction and

ordered revision of the jury instruction to minimize future abuses.

We rejected this argument in Hanson v.

Sherrod, where we considered the constitutionality of the same instruction. 797

F.3d 810 (10th Cir. 2015). When faced with

this argument, we addressed the instructions as a whole. Id. at 851 (quoting Boyde

v. California, 494 U.S. 370, 378, 110 S.Ct.

1190, 108 L.Ed.2d 316 (1990)). Viewing

them as a whole, we noted that three other

jury instructions had suggested that the

jury would recognize its ability to consider

all of the defendant’s mitigation evidence:

1. The trial court had instructed the

jury that it was to decide which ‘‘circumstances [were] mitigating TTT

Harris v. State, 164 P.3d 1103, 1114 (Okla.

Crim. App. 2007). But we have twice rejected the same argument, reasoning that

the OCCA’s concern over the wording of

the instruction did not suggest that it was

unconstitutional. Hanson v. Sherrod, 797

F.3d 810, 851 (10th Cir. 2015); Grant v.

Royal, 886 F.3d 874, 934–35 (10th Cir.

2018). Given these prior decisions, we conclude that the OCCA’s concern over the

instruction did not render its constitutional

holding unreasonable.

142 L.Ed.2d 521 (1998) (stating that Boyde’s

test of ‘‘reasonable likelihood’’ is used to de-

termine whether a constitutional error took

place, not to determine harmlessness).

Resp. App. 39

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

neous interpretation of the prosecutor’s closing argument.

The Prosecutors’ Closing Arguments

Mr. Harris argues that even if the jury

instruction itself had been constitutional,

one of the prosecutors improperly exploited the jury instruction to urge disregard of

Mr. Harris’s mitigation evidence, violating

the Eighth and Fourteenth Amendments.

The OCCA rejected this argument. The

court acknowledged that the first prosecutor’s arguments had been improper; however, the court considered the impropriety

harmless because the jury instructions on

mitigating circumstances were proper and

the second prosecutor had invited the jury

to consider all of the mitigating circumstances. Harris v. State, 164 P.3d 1103,

1113 (Okla. Crim. App. 2007).33 In the

OCCA’s view, the ‘‘second prosecutor invited jurors to consider all Harris’s mitigation evidence, weigh it against the aggravating circumstances, and find that the

death penalty was appropriate.’’ Id. Mr.

Harris contends that the OCCA acted unreasonably in finding facts and applying

Supreme Court precedents. We disagree

because

the OCCA could reasonably view this

part of the closing argument as an

invitation to consider all of the evidence on mitigation and find it overridden by the horrific nature of the

crime and

1001

Applicability of 28 U.S.C. § 2254(d)

The threshold issue is whether § 2254(d)

applies. It ordinarily would apply if the

OCCA adjudicated the merits of Mr. Harris’s constitutional claim. See pp. 972–73,

975–76, above. The OCCA wasn’t explicit.

It characterized the first prosecutor’s closing argument as improper, but didn’t say

whether this impropriety rose to the level

of a constitutional violation. Regardless of

the basis for characterizing the argument

as improper, the OCCA ultimately regarded the impropriety as harmless. Harris,

164 P.3d at 1113–14.

The district court characterized the

OCCA’s reasoning as an adjudication on

the merits, triggering § 2254(d). D. Ct.

Dkt. 77 at 49. In his appeal briefs, Mr.

Harris doesn’t question this characterization. We thus decline to sua sponte revisit

the district court’s application of § 2254(d).

See Grant v. Royal, 886 F.3d 874, 931–32

n.20 (10th Cir. 2018) (concluding that the

Court should not sua sponte reject the

applicability of the AEDPA on a claim

involving the prosecutor’s improper exploitation of a jury instruction defining the

proper use of mitigating evidence).

Unreasonable

Fact

Determination

Mr. Harris has not shown that the

OCCA based its decision on an erro-

[45] In his rebuttal argument, the second prosecutor told the jury:

33. At oral argument, the State defends the

first prosecutor’s arguments, stating that they

invited the jury to consider mitigation evidence and to give it little weight. For example, the first prosecutor acknowledged that

the jury

1 could consider ‘‘sympathy or sentiment

for the defendant’’ and

1 needed to determine the importance of

the mitigating circumstances.

2005 Tr., v. 6, at 909. And this prosecutor

acknowledged the jury’s need to balance the

mitigating and aggravating circumstances. Id.

at 940–41. But the OCCA found that the first

prosecutor’s arguments had been improper:

One prosecutor did consistently argue in

closing that jurors should not consider Harris’s second stage evidence as mitigating,

since it did not extenuate or reduce his guilt

or moral culpability. This argument improperly told jurors not to consider Harris’s

mitigating evidence.

Harris v. State, 164 P.3d 1103, 1113 (Okla.

Crim. App. 2007).

Resp. App. 40

1002

941 FEDERAL REPORTER, 3d SERIES

I’m asking you to make a decision that I

believe is based upon principal [sic], to

examine the evidence, determine whether you believe beyond a reasonable

doubt one or both of these aggravators

are in existence, and I submit to you,

and then to make a determination of

whether these—these mitigation issues

that [Mr. Harris’s attorney] has brought

up really override the day of terror, and

a day that took a couple of weeks to

think through.

2005 Tr., v. 6, at 982–83. In our view, the

OCCA could reasonably construe this

statement as an invitation to weigh all of

the mitigation evidence against the aggravation evidence and decide that the death

sentence was appropriate.

The prosecutor did contend that the defense’s arguments on mitigation would not

‘‘override the day of terror.’’ The term

‘‘override’’ refers to the act of weighing

one item against another. See Override,

Oxford English Reference Dictionary 1038

(Judy Pearsall & Bill Trumble eds., 2d ed.

rev. 2006) (providing a primary definition

of ‘‘override’’ as ‘‘have a claim precedence

or superiority over’’). Given this meaning

of ‘‘override,’’ the OCCA could reasonably

conclude that the second prosecutor had

urged the jury to consider all of the mitigation evidence and to find that it paled in

comparison to the terrible nature of the

crime itself. Under this interpretation, the

second prosecutor’s rebuttal argument

would not have restricted the universe of

circumstances that could be considered

mitigating. Grant v. Royal, 886 F.3d 874,

938 (10th Cir. 2018), cert. denied, ––– U.S.

––––, 139 S. Ct. 925, 202 L.Ed.2d 659

(2019).

Mr. Harris notes that the second prosecutor also referred to moral culpability:

‘‘Do not reward this man for the things

that he claims are somehow supposed to

not make this as blameful, if you will, these

things that he says somehow lessen his

blame, lessen his moral responsibility.’’

2005 Tr., v. 6, at 983. According to Mr.

Harris, this statement reflects further efforts to restrict mitigating circumstances

to those bearing on moral culpability. This

argument bears defects that are both procedural and substantive.

The argument is procedurally defective

because

1 in the state-court appeal, defense

counsel never criticized the second

prosecutor’s reference to moral culpability and

1 in our appeal, defense counsel did

not criticize this statement in their

opening brief.

Defense counsel instead referred to this

excerpt only in their reply brief, when the

State no longer had an opportunity to respond. Making the argument in the reply

brief was too late. See Byrd v. Workman,

645 F.3d 1159, 1166 n.8 (10th Cir. 2011).

Even if we were to consider the second

prosecutor’s reference to moral culpability,

however, it would not render the OCCA’s

interpretation unreasonable. The second

prosecutor was responding to what defense counsel had argued. Defense counsel

had argued that Mr. Harris was not a coldblooded terrorist and was reacting to setbacks involving divorce and unemployment. The second prosecutor characterized

this argument as an effort to minimize

blame and moral culpability. With this

characterization, the prosecutor attributed

the statement about blame and moral culpability to defense counsel, arguing that

‘‘the [defense counsel] says [these things]

somehow lessen [Mr. Harris’s] blame, lessen his moral responsibility.’’ 2005 Tr., v. 6,

at 983. The prosecutor himself was not

suggesting that the universe of mitigating

circumstances should be limited to those

that diminish blame or moral culpability;

he was saying that defense counsel’s argu-

Resp. App. 41

1003

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

ment involved an effort to downplay blame

and moral culpability. We thus do not regard the OCCA’s interpretation of the rebuttal argument as objectively unreasonable.

Even if the OCCA had unreasonably

interpreted the rebuttal argument, however, § 2254(d)(2) would prevent the district

court from reaching the merits. Under

§ 2254(d)(2), the habeas court can consider

the merits only if the petitioner shows that

the OCCA based its decision on the factual

error. 28 U.S.C. § 2254(d)(2); see Lott v.

Trammell, 705 F.3d 1167, 1177 (10th Cir.

2013) (stating that ‘‘the burden rests on

[the petitioner] to establish that the

OCCA’s analysis was ‘based on an unreasonable determination of the facts’ ’’ (quoting 28 U.S.C. § 2254(d)(2))).

In deciding that the first prosecutor’s

improper arguments were harmless, the

OCCA gave two reasons:

1. The second prosecutor told the jury

to consider all of Mr. Harris’s mitigating circumstances and find that

the death penalty was appropriate

based on the greater strength of the

aggravating circumstances.

2. The trial court properly instructed

the jury on the definition of mitigation evidence, Mr. Harris’s evidence,

and the jurors’ duties.

Harris v. State, 164 P.3d 1103, 1113 (Okla.

Crim. App. 2007).

[46] Mr. Harris challenges the first

reason, but not the second. Let’s assume,

for the sake of argument, that the first

reason was objectively unreasonable. Given this assumption, the OCCA’s second

reason would remain valid and provide sufficient support for the OCCA’s finding of

harmlessness:

[E]ven if a state court’s individualized

factual determinations are overturned,

what factual findings remain to support

the state court decision must still be

weighed under the overarching standard

of section 2254(d)(2).

Lambert v. Blackwell, 387 F.3d 210, 235–

36 (3d Cir. 2004). Indeed, the OCCA has

elsewhere found improper closing arguments harmless when the jury was properly instructed. E.g., Miller v. State, 313

P.3d 934, 977 (Okla. Crim. App. 2013); Ake

v. State, 663 P.2d 1, 9 (Okla. Crim. App.

1983), rev’d on other grounds, 470 U.S. 68,

105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). So

even if the OCCA had unreasonably interpreted the second prosecutor’s closing argument, Mr. Harris would have failed to

show that the decision itself had been

based on this factual error.

***

In sum, Mr. Harris has not satisfied his

burden of showing that the OCCA based

its decision on an unreasonable factual determination. The OCCA could reasonably

interpret the second prosecutor’s argument as an invitation to consider all of the

mitigation evidence and find it overridden

by the aggravating circumstances. The

second prosecutor did mention moral culpability, but Mr. Harris did not address

this statement in the state-court appeal or

in his opening appellate brief. And the

second prosecutor referred to moral culpability only when he paraphrased defense

counsel’s argument. In these circumstances, Mr. Harris has not overcome

§ 2254(d)(2).

Unreasonable Application of Supreme Court Precedent

[47] Mr. Harris also argues that the

OCCA’s decision entailed an unreasonable

application of Supreme Court precedent.

See 28 U.S.C. § 2254(d)(1). We reject this

argument.

Like Mr. Harris and the OCCA, we view

the first prosecutor’s comments as improper. The first prosecutor told the jury that a

Resp. App. 42

1004

941 FEDERAL REPORTER, 3d SERIES

mitigating circumstance was something

that ‘‘extenuates or reduces the degree of

moral culpability or blame of [Mr.] Harris

for murdering Merle Taylor.’’ 2005 Tr., v.

6, at 929. The prosecutor then pointed to

each alleged mitigating circumstance and

asked if it reduced or extenuated Mr. Harris’s moral culpability. Id. at 929–40. The

prosecutor then proposed a two-part test:

One, is it true? Is what they have listed

here true? Did it really happen? And,

two, if it is true, does it make a difference? Does it extenuate or reduce his

culpability for the murder of Merle Taylor? Because it’s got to be both.

Id. at 930 (emphasis added). Through

these statements, the prosecutor effectively told the jury that the mitigation evidence mattered only if it tended to reduce

Mr. Harris’s culpability, creating a risk

that one or more jurors believed that they

could not consider constitutionally relevant

evidence of mitigation. See Underwood v.

Royal, 894 F.3d 1154, 1169 (10th Cir.

2018), cert. denied, ––– U.S. 139 S. Ct.

1342, 139 S.Ct. 1342 (2019).

We thus inquire whether ‘‘the OCCA

could reasonably conclude that it was not

reasonably likely that the [first] prosecutor’s comment[s] precluded the jury from

considering mitigation evidence, in light of

the jury instructions and the other unchallenged comments of the prosecution.’’

Grant v. Royal, 886 F.3d 874, 939 (10th

Cir. 2018), cert. denied, ––– U.S. ––––, 139

S. Ct. 925, 202 L.Ed.2d 659 (2019). Under

this inquiry, a court could grant habeas

relief only if ‘‘no fairminded jurist would

agree with the OCCA’s conclusion that the

jury was not precluded from considering

the evidence offered by [the petitioner] in

mitigation.’’ Simpson v. Carpenter, 912

F.3d 542, 582 (10th Cir. 2018). In our view,

fair-minded jurists could have agreed with

the OCCA’s conclusion in light of the jury

instructions and the second prosecutor’s

rebuttal argument.

[48] When the petitioner argues that a

prosecutor exploited a jury instruction to

improperly restrict what could be mitigating, we consider the extent to which the

jury was properly instructed. See, e.g.,

Grant, 886 F.3d at 939; Hanson v. Sherrod, 797 F.3d 810, 852 (10th Cir. 2015). The

jury at the 2005 retrial received virtually

all of the jury instructions that we have

regarded as curative. For example, the

trial court instructed the jury that

‘‘the determination of what circumstances are mitigating is for you to

resolve under the facts and circumstances of this case’’ and

1 evidence had been introduced on a

long list of mitigating circumstances

(many of which bore no relationship

to moral culpability).

See pp. 1000–01, above. In detailing the

mitigating circumstances, the trial court

reminded the jury of evidence that Mr.

Harris

1 had a ‘‘sister and a brother who love

him’’ and ‘‘daughters who love[d] and

need[ed] him,’’

1 had a ‘‘low I.Q.,’’

1 had been addicted to drugs and alcohol, and

1 had lost his mother to cancer when

he was young.

R. at 1608–10. These instructions served to

broaden the first prosecutor’s language,

suggesting to the jury that it could consider all of the mitigation evidence regardless

of whether it related to moral culpability.

Hanson, 797 F.3d at 851; see Brown v.

Payton, 544 U.S. 133, 144, 125 S.Ct. 1432,

161 L.Ed.2d 334 (2005) (‘‘[F]or the jury to

have believed it could not consider Payton’s mitigating evidence, it would have

had to believe that the penalty phase

served virtually no purpose at all.’’).

Resp. App. 43

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

In similar circumstances, we have often

held that prosecutors’ improper arguments

on mitigation evidence are ameliorated by

the jury instructions. E.g., Grant v. Royal,

886 F.3d 874, 939–42 (10th Cir. 2018); Underwood v. Royal, 894 F.3d 1154, 1171–73

(10th Cir. 2018); Simpson v. Carpenter,

912 F.3d 542, 581–82 (10th Cir. 2018);

Cuesta-Rodriguez v. Carpenter, 916 F.3d

885, 911–12 (10th Cir. 2019); Johnson v.

Carpenter, 918 F.3d 895, 907–08 (10th Cir.

2019); Harmon v. Sharp, 936 F.3d 1044,

1074–77 (10th Cir. 2019). For example, in

Cuesta-Rodriguez v. Carpenter, the trial

court instructed the jury on numerous mitigating circumstances, told the jury that it

was to determine what was mitigating, and

stated to the jury that it could consider

sympathy for the defendant. Cuesta-Rodriguez, 916 F.3d at 911–12. Given these instructions, we held that the OCCA had

reasonably applied Supreme Court decisions in rejecting a similar constitutional

claim. Id. at 912. All of these instructions

were given here.

Mr. Harris contends that in one of our

prior cases, Grant v. Royal, the trial court

had given two instructions that were omitted here:

1. that the jury instructions contained

all of the law and rules for the jury

to follow and

2. that the prosecutor’s closing arguments were arguments only and for

purposes of persuasion.

We reject these contentions.

Mr. Harris contends that the Grant panel found it ‘‘critically ameliorative’’ that the

trial court had told the jury that the instructions contained all of the law and

rules to be followed. Appellant’s Reply Br.

at 32. Though the Grant panel did consider

this instruction, along with others, the panel did not suggest that this instruction was

‘‘critical’’ to the outcome. Instead, the

Grant panel simply mentioned this instruc-

1005

tion ‘‘[i]n addition’’ to others. Grant, 886

F.3d at 941. Indeed, many of our opinions

recognize the ameliorative impact of other

jury instructions with no indication that

the jury had been told that the instructions

constituted all of the law and rules to be

followed. E.g., Simpson, 912 F.3d at 581–

82; Cuesta-Rodriguez, 916 F.3d at 911–12;

Johnson, 918 F.3d at 907–08.

But even if this instruction had been

critical, it was given to Mr. Harris’s jury.

Just after voir dire, the trial court instructed Mr. Harris’s jury that its responsibility was ‘‘to follow the law as stated in

the instruction that [the trial court] will

give [the jury].’’ 2005 Tr., v. 2, at 427. The

trial court returned to the subject later,

explaining what would likely happen if the

jury were to ask questions during its deliberations. 2005 Tr., v. 6, at 984. The court

explained that it would likely answer that

the jury has ‘‘all the law and evidence

necessary to reach a verdict.’’ Id. The

court explained that this answer would

mean that all of the necessary information

is in the jury instructions or the evidence.

Id. at 984–85. Thus, Mr. Harris’s jury was

ultimately told that all of the applicable

law was in the instructions.

Mr. Harris also observes that the jury in

Grant had been told that the prosecutor’s

remarks constituted only argument and

were offered only for persuasion. 886 F.3d

at 941–42. Mr. Harris says that this instruction was ‘‘critical’’ in Grant. Appellant’s Reply Br. at 32. We are not sure

why Mr. Harris regards this instruction as

critical, for the Grant panel attached no

particular importance to this instruction.

In any event, Mr. Harris’s jury was instructed to confine itself to the evidence

and reminded that ‘‘[n]o statement or argument of the attorneys [was] itself evidence.’’ 2005 Tr., v. 2, at 428.

Along with the ameliorating jury instructions, some of the second prosecutor’s

Resp. App. 44

1006

941 FEDERAL REPORTER, 3d SERIES

arguments also mitigated the risk from the

first prosecutor’s improper arguments. For

example, the second prosecutor told the

jury to weigh the defense’s evidence

against the aggravating evidence to see if

the mitigation evidence outweighed the aggravating evidence.34 And both prosecutors

spent considerable time rebutting the defense’s mitigation evidence even when it

had not involved moral culpability. The

prosecutors attacked this evidence not only

because it bore no relationship to moral

culpability but also on grounds that the

evidence lacked reliability or trustworthiness. For example, the first prosecutor

attacked the reliability of Mr. Harris’s evidence on an intellectual impairment. From

this attack, the jury could ‘‘logically infer

from this presentation that the evidence

actually did legally qualify as mitigating

evidence, and that the question before

them’’ involved the accuracy, credibility,

and weight of this evidence. Grant v. Royal, 886 F.3d 874, 943 (10th Cir. 2018) (emphasis in original).

tion.’’ Simpson v. Carpenter, 912 F.3d 542,

578 (10th Cir. 2018). And there the prosecutor had not said anything to encourage

consideration of all mitigating factors. Id.

at 580; see note 34, above.

Given the ameliorating jury instructions

and the closing arguments as a whole, fairminded jurists could agree with the

OCCA’s conclusion that the jury had understood its ability to consider Mr. Harris’s mitigation evidence. We thus conclude

that the OCCA did not unreasonably apply

Supreme Court precedent.

III.

Victim-Impact Testimony

Mr. Harris also contends that the prosecution improperly elicited victim-impact

testimony. Though some of the testimony

was unconstitutional, the constitutional violation was harmless.

A. The Constitutional Limit on Victim-Impact Testimony

Mr. Harris underscores the repeated nature of the first prosecutor’s improper

comments. But we’ve upheld the reasonableness of a similar conclusion by the

OCCA even when the prosecutor had

made at least ‘‘nine separate statements

which either generally defined mitigating

evidence as reducing moral culpability or

blame or specifically compared [the petitioner’s] mitigating factors to that defini-

[49] Mr. Harris’s contention stems

from the interplay between two Supreme

Court opinions: Booth v. Maryland and

Payne v. Tennessee. In Booth v. Maryland, the Supreme Court held that the

introduction of victim-impact testimony at

a capital-sentencing proceeding violated

the Constitution. 482 U.S. 496, 509, 107

S.Ct. 2529, 96 L.Ed.2d 440 (1987). In

Payne v. Tennessee, the Supreme Court

overruled part of Booth, holding that ‘‘evidence and argument relating to the victim

34. Mr. Harris insists that the second prosecutor did not suggest to the jury that it consider

any of the mitigation evidence. According to

Mr. Harris, the absence of such a suggestion

distinguishes Simpson v. Carpenter and Grant

v. Royal. We disagree. As noted above, the

OCCA reasonably concluded that the second

prosecutor had invited the jury to consider all

of the evidence, both mitigating and aggravating. See pp. 1002–04, above. But this factor

was not present in Simpson. There we described the prosecutor’s improper arguments

as ‘‘pervasive,’’ ‘‘extensive,’’ and ‘‘recurring.’’

912 F.3d 542, 581, 588 (10th Cir. 2018), petition for cert. filed (U.S. July 24, 2019) (No. 195298). Nowhere did we rely on arguments

inviting the jury to weigh the mitigation evidence. See id. at 585–87. The same is true in

Grant. 886 F.3d 874, 943 (10th Cir. 2018)

(‘‘To be sure, unlike Hanson, there were no

further statements from the prosecution —

i.e., Ms. Elliott — in rebuttal closing that

could reasonably suggest that ‘the prosecutor

encouraged the jury to consider all sorts of

mitigating evidence.’ ’’ (quoting Hanson v.

Sherrod, 797 F.3d 810, 852 (10th Cir. 2015))).

Resp. App. 45

HARRIS v. SHARP

Cite as 941 F.3d 962 (10th Cir. 2019)

and the impact of the victim’s death on the

victim’s family are [ ]admissible at a capital

sentencing hearing.’’ 501 U.S. 808, 830 n.2,

111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

But the Payne Court did not overrule

Booth’s recognition that the Constitution

forbids ‘‘the admission of a victim’s family

members’ characterizations and opinions

about the crime, the defendant, and the

appropriate sentence.’’ Id. Thus, Booth

continues to ban the families of murder

victims from requesting a particular sentence. Bosse v. Oklahoma, 580 U.S. ––––,

137 S. Ct. 1, 2, 196 L.Ed.2d 1 (2016) (per

curiam).

The Victim-Impact Testimony

and the Issue of Harmlessness

[50] In Mr. Harris’s case, two of Mr.

Taylor’s family members requested the

death penalty. Mr. Harris argues that allowing this testimony violated the Constitution. The OCCA rejected this argument.

Harris v. State, 164 P.3d 1103, 1110 (Okla.

Crim. App. 2007). The OCCA was wrong:

Introduction of this testimony was unconstitutional under Booth and Payne, and

the OCCA’s decision was contrary to clearly established Supreme Court precedent.

Dodd v. Trammell, 753 F.3d 971, 996 (10th

Cir. 2013).

[51, 52] The remaining question is

whether the constitutional error was prejudicial or harmless. On this question, we

engage in de novo review. Lockett v.

Trammell, 711 F.3d 1218, 1238 (10th Cir.

2013). We regard the improper testimony

as prejudicial only if it had a substantial

and injurious effect or influence in determining the jury’s verdict. Id.

Mr. Taylor’s son testified for the State,

asking for the death penalty: ‘‘On behalf of

myself, my entire family, I respectfully ask

that you impose the maximum allowable

punishment and, in my mind, the only

1007

acceptable punishment, and sentence [Mr.]

Harris to death.’’ 2005 Tr., v. 4, at 891. Mr.

Taylor’s widow also testified, asking the

jury to impose the death penalty: ‘‘It

grieves me that my husband went to his

grave not knowing why he had to die. My

sons, grandchildren, and I ask you to sentence [Mr.] Harris to death.’’ Id. at 901.

In her closing argument, the first prosecutor did not refer to the family members’

requests for the death penalty. She instead

urged the jury: ‘‘Do not be guilted into

making your decision because TTT the Taylors are going to be upset, frankly. Make

your decision because it is right, it is just,

it is what is appropriate.’’ 2005 Tr., v. 6, at

935. Similarly, the second prosecutor did

not explicitly mention the family members’

requests for the death penalty. But this

prosecutor did quote extensively from the

family members’ testimony, urging the

jury not to reward Mr. Harris by sparing

his life. Right after asking the jury one

more time not to ‘‘reward [Harris],’’ the

second prosecutor continued, ‘‘Toby Taylor

[the son] and Carolyn Taylor [the widow]

said this.’’ Id. at 979. The prosecutor then

summarized the family members’ testimony on how they were affected by the murder.

Structural or Harmless Error

[53] The threshold issue is whether a

habeas court can review for harmlessness

when the trial court improperly allows victim-impact testimony. Mr. Harris opposes

review for harmlessness and urges us to

treat the requests for the death penalty as

structural error, contending that

Oklahoma prosecutors regularly elicit family requests for the death penalty and

the OCCA has improperly tolerated

Resp. App. 46

1008

941 FEDERAL REPORTER, 3d SERIES

this pattern of improper conduct.35

But we have rejected the same arguments

in Underwood v. Royal, holding that erroneous introduction of victim-impact testimony is reviewable for harmlessness. 894

F.3d 1154, 1177 (10th Cir. 2018). We are

bound by this precedent. Leatherwood v.

Allbaugh, 861 F.3d 1034, 1042 n.6 (10th

Cir. 2017). Given this precedent, we consider whether the error was harmless.36

Harmlessness

[54] We regard the erroneous introduction of victim-impact testimony as

harmless.

[55] For harmlessness, we consider

whether the constitutional error ‘‘had substantial and injurious effect or influence in

determining the jury’s verdict.’’ Brecht v.

Abrahamson, 507 U.S. 619, 623, 113 S.Ct.

1710, 123 L.Ed.2d 353 (1993) (quoting Kot35. Until 2017, the Oklahoma Court of Appeals

had interpreted Payne to overrule Booth in its

entirety. Bosse v. State, 360 P.3d 1203, 1226

(Okla. Crim. App. 2015). The Supreme Court

expressly rejected the OCCA’s view in Bosse v.

State, reiterating that Payne had left intact

Booth’s prohibition against a family member’s

request for a particular sentence. Bosse v.

Oklahoma, 580 U.S. ––––, 137 S. Ct. 1, 2, 196

L.Ed.2d 1 (2016) (per curiam). On remand,

the OCCA overruled its prior cases and held

that the Constitution forbids victim-impact

testimony recommending a particular sentence. Bosse v. State, 400 P.3d 834, 855 (Okla.

Crim. App. 2017).

36. The Supreme Court has noted that an unusual case might involve a pattern of prosecutorial misconduct so egregious that habeas

relief might be appropriate even without prejudice. Brecht v. Abrahamson, 507 U.S. 619,

638 n.9, 113 S.Ct. 1710, 123 L.Ed.2d 353

(1993). But when the 2005 retrial took place

in an Oklahoma courtroom, Oklahoma’s highest criminal court had held that the Constitution did not forbid victim testimony requesting a particular sentence. E.g., Murphy v.

State, 47 P.3d 876, 885 (Okla. Crim. App.

2002), overruled in part on other grounds by

Blonner v. State, 127 P.3d 1135, 1139 (Okla.

Crim. App. 2006). We had said the opposite.

teakos v. United States, 328 U.S. 750, 776,

66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). On

one occasion, we concluded that improper

victim-impact testimony had a substantial

and injurious effect or influence. Dodd v.

Trammell, 753 F.3d 971, 997 (10th Cir.

2013). There we relied on three factors:

The prosecution had elicited a

‘‘drumbeat’’ consisting of six to seven witnesses requesting the death

penalty.

2. The jury had rejected the State’s

arguments for aggravating circumstances involving a ‘‘heinous, atrocious, or cruel’’ murder or the existence of a ‘‘continuing threat.’’

3. The case for the defendant’s guilt

had not been cle

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.