F I L E D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

NOV 10 2003

PATRICK FISHER
Clerk

STEVEN DEWAYNE BROWN,

Petitioner-Appellant,
No. 01-6260
(D.C. No. 00-CV-1168-T)
(W.D. Okla.)

v.
STEPHEN W. KAISER,
Respondent-Appellee.

ORDER AND JUDGMENT

Before EBEL , HOLLOWAY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Petitioner Steven Dewayne Brown seeks to appeal the district courts order
denying his petition for habeas relief filed under 28 U.S.C. 2254. Following a
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

jury trial, petitioner was convicted in Oklahoma state court of assault and battery
with intent to kill his girlfriend, Lori Davis, and was sentenced to twenty years in
prison. His conviction was affirmed by the Oklahoma Court of Criminal Appeals
(OCCA) on direct appeal. Petitioner filed an application for post-conviction
relief, which the state district court denied. Petitioner appealed, but the OCCA
declined to accept jurisdiction over the appeal because petitioner failed to provide
a certified copy of the district courts order, as required by the OCCAs local
rules. Petitioner then filed a habeas petition in federal court, raising seven
claims.
The federal district court concluded that four of petitioners claims were
procedurally barred and that the other three did not warrant habeas relief.

Petitioner then filed a notice of appeal, an application for a certificate of

appealability (COA), and an opening brief raising six of the claims he raised in
district court. We granted petitioner a COA on the following claim: Whether
petitioners Fifth and/or Sixth Amendment rights were violated when the trial
court permitted the prosecutor to comment in his opening remarks on statements
petitioner made in two police interviews that were initiated by police after

The magistrate judge issued a lengthy report and recommendation to which

petitioner timely objected. After conducting a de novo review, the district court
concluded that the magistrate judges report and recommendation should be
adopted and habeas relief denied.

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petitioner had invoked his right to counsel. Order of July 17, 2002, at 1. We
also appointed counsel to represent petitioner on that claim and ordered the
parties to file supplemental briefs on several issues relating to the claim.
Having carefully reviewed the record, the parties briefs, and the pertinent
law, we conclude that petitioner is not entitled to habeas relief on the claim for
which we previously granted him a COA. We further conclude that petitioner has
not met the standard necessary to obtain a COA on any of the other claims he
seeks to appeal. We turn first to these latter claims.
Petitioner seeks a COA on the following claims: 1) he was convicted based
on perjured testimony, in violation of his due process rights; 2) he received
constitutionally ineffective assistance of both trial and appellate counsel; 3) the
evidence was insufficient to convict him; 4) the trial court failed to instruct the
jury properly not to talk about the case before deliberations; and 5) the trial court
erroneously admitted pictures of the victim that were highly prejudicial. Unless
and until we issue a COA on these claims, we have no jurisdiction to adjudicate
them on the merits.

Miller-El v. Cockrell , 537 U.S. 322, 336 (2003).

A COA will issue only if the requirements of [28 U.S.C.] 2253 have
been satisfied. . . . [Section] 2253(c) permits the issuance of a COA only where a
petitioner has made a substantial showing of the denial of a constitutional right.
Miller-El , 537 U.S. at 336 (quotation omitted). To make this showing, petitioner
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must demonstrate that reasonable jurists could debate whether (or for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.
Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted). Accordingly,
[w]e look to the District Courts application of AEDPA

[2]

to petitioners

constitutional claims and ask whether that resolution was debatable amongst
jurists of reason.

Miller-El , 537 U.S. at 336.

The district court determined that petitioner procedurally defaulted the first
three of the five claims listed above by failing to properly appeal them to the
OCCA. Petitioner raised these claims for the first time in his state application for
post-conviction relief. When the trial court denied the application, petitioner
attempted to appeal it to the OCCA, but he failed to follow Rule 5.2(C) of the
Rules of the Court of Criminal Appeals, which required him to attach to his brief
a certified copy of the district court order being appealed. Because of this failure,
the OCCA declined to accept jurisdiction over the merits of his appeal.

See

Duvall v. State , 869 P.2d 332, 333 (Okla. Crim. App. 1994) (The rule is clear
and applicable. An Appellant must affirmatively attach with his brief a copy of
the order of the district court. The district court order is the equivalent of the

The Antiterrorism and Effective Death Penalty Act.

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judgment and sentence, which is required to confirm jurisdiction on this Court.)

(citations omitted).
The district court concluded that the OCCAs application of this procedural
bar was an adequate and independent state ground.

See Johnson v. Champion ,

288 F.3d 1215, 1227 n.3 (10th Cir. 2002) (holding OCCAs declination of
jurisdiction over appeal from denial of post-conviction relief based on petitioners
failure to comply with OCCA Rule 5.2 was adequate and independent state
ground). Petitioner did not attempt to excuse the procedural default through a
showing of cause and prejudice, and the district court concluded that his showing
of actual innocence was not sufficient.

See Coleman v. Thompson , 501 U.S. 722,

750 (1991) (holding that federal court cannot review claim procedurally defaulted
in state court absent showing of either cause and prejudice or a fundamental
miscarriage of justice);

Schlup v. Delo , 513 U.S. 298, 321 (1995) (holding that

fundamental miscarriage of justice standard requires petitioner to make threshold

showing of actual innocence).
In his pro se brief before this court, petitioner primarily argues the
underlying merits of the three defaulted claims, while largely ignoring the district
courts procedural bar ruling. Petitioner does, however, assert his actual
innocence, and he points to two affidavits purportedly from Lori Davis in support.
In the first affidavit, Lori states that the prosecutor and police threatened her with
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incarceration and loss of her children if she did not testify against petitioner, and
she states that she lied on the stand. In the second affidavit, she states that
petitioner has never tried to hurt her and she expresses her belief that the wrong
person was convicted. The district court concluded that these affidavits were not
sufficient to make a threshold showing of actual innocence, for which petitioner
had to show that it is more likely than not that no reasonable juror would have
convicted him in light of the new evidence,

Schlup , 513 U.S. at 327.

Accordingly, the court concluded, the claims are procedurally barred.

Our independent review shows that the district courts disposition of these
three claims on the basis of procedural bar is not debatable amongst reasonable
jurists and that the issues raised are not deserving of further proceedings. We
therefore decline to grant petitioner a COA on his claims that 1) his conviction
was obtained through the use of perjured testimony, in violation of his due
process rights; 2) he received constitutionally ineffective assistance of both trial
and appellate counsel; and 3) the evidence was insufficient to convict him.
Petitioners other three claims are not subject to procedural bar because he
raised them on direct appeal to the OCCA. That court summarily rejected on the
merits petitioners claim that the jury was not properly instructed not to talk about
the case before deliberations began. Oklahoma law requires the trial court to
instruct members of the jury at each adjournment not to talk among themselves or
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with others about the case before the case is submitted to them for deliberation.
See Okla. Stat. tit. 22, 854. The record shows that the trial court may not have
instructed the jury at each adjournment. On habeas review, however, we have no
power to correct errors of state law. Rather, this court may grant habeas relief
only if the state court error deprived the defendant of fundamental rights
guaranteed by the Constitution.

Sallahdin v. Gibson , 275 F.3d 1211, 1227 (10th

Cir. 2002).
The district court determined that petitioner could not establish a
constitutional violation resulting from the trial courts failure to admonish the
jury at each adjournment, absent a showing of prejudice. The only prejudice
petitioner alleged was that the jury sentenced him to the maximum prison term
available. The district court concluded that this allegation was insufficient to
establish the denial of a constitutional right. We conclude that this resolution of
petitioners claim is not debatable among reasonable jurists and that the issues are
not deserving of further proceedings. Therefore, we decline to issue petitioner a
COA on this claim.
The OCCA also rejected on the merits petitioners claim that the trial court
erred in admitting into evidence pictures of the battered victim that were highly
prejudicial. This claim also raises an issue of state law that is not ordinarily
remediable on habeas review. When, as in this case, no particular constitutional
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guarantees are implicated, such evidentiary objections merely raise questions of

state law and, therefore, are cognizable on habeas only if the alleged error was so
grossly prejudicial [that it] fatally infected the trial and denied the fundamental
fairness that is the essence of due process.

Revilla v. Gibson , 283 F.3d 1203,

1212 (10th Cir.) (quotation omitted; alteration in original),

cert. denied, 537 U.S.

1021 (2002). The district court concluded that petitioner did not show that the
admission of the photographs made his trial fundamentally unfair. Because
reasonable jurists would not find this determination debatable and the issues
raised do not deserve further proceedings, we decline to issue petitioner a COA
on this issue as well.
Petitioners final claim, on which we previously granted a COA, concerns
comments the prosecutor made in his opening remarks about statements petitioner
made to the police in three different interviews. Petitioner claims that the
prosecutors comments impermissibly infringed his Fifth Amendment right to
counsel.
The evidence showed that at about 1:30 a.m. on July 9, 1996, petitioner and
Lori Davis went to a party in an apartment complex in Oklahoma City. They had
been arguing on and off throughout the day, and during the party, they went
outside to talk privately. Neither returned. Hours later, petitioner called the
police and told them he and Lori had been attacked by gang members and he had
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managed to escape; Lori had not. Petitioner said he did not know what happened
to Lori, and he asked the police for assistance in locating her. Petitioner met the
police officers at his sisters house and accompanied them to the apartment
complex to look for Lori. After searching several locations in the complex
suggested by petitioner, the officers found Lori, stabbed and badly beaten, lying
under some plywood boards that had been propped against an abandoned guard
shack. Emergency personnel rushed Lori to the hospital and the police took
petitioner to the station for questioning.
Petitioner was questioned three times by police while at the station and jail.
The first interview, which was conducted and videotaped by Detective Hull,
terminated when petitioner asked to speak to a lawyer. The second interview was
initiated by Officer Sanders, though conducted largely by Detective Hull. It, too,
was videotaped. It terminated when petitioner again stated his desire to speak to
a lawyer. The third interview, which took place in the jail, was initiated by
Detective Hull after he was told by another officer that petitioners sister had
called and said petitioner wanted to speak to him. This interview was terminated
by Detective Hull because he had other appointments. When Detective Hull
returned the next day to continue the interview, petitioner told him that his sister
had retained a lawyer for him and the lawyer had said not to speak to police
without him. Petitioner was not questioned thereafter.
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[A]n accused has a Fifth and Fourteenth Amendment right to have counsel
present during custodial interrogation.

Edwards v. Arizona , 451 U.S. 477, 482

(1981). If the accused requests counsel during a custodial interrogation, the

interrogation must cease until an attorney is present.

Miranda v. Arizona , 384

U.S. 436, 474 (1966). Once the accused invokes his right to counsel, a valid
waiver of that right cannot be established by showing only that he responded to
further police-initiated custodial interrogation even if he has been advised of his
rights. Edwards , 451 U.S. at 484. Only if counsel is made available to the
accused or the accused himself initiates further communications, exchanges, or
conversations with the police can authorities continue to interrogate an accused
once he has invoked his right to counsel.

Id. at 484-85. If the authorities

continue the interrogation without counsel or a valid waiver, any statements the
accused makes will be inadmissible.

Id. at 487.

Long before trial, petitioners counsel filed a motion to suppress the

statements petitioner made during the second and third interviews on the grounds
that the statements were not voluntary and had been obtained in violation of his
Fifth Amendment right to counsel. The trial court denied the motion, and in his
opening statement at trial, the prosecutor told the jury what petitioner had said in
each of the three interviews.

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Specifically, the prosecutor said that petitioner told Detective Hull in the
first interview that he and Lori were attacked by thirteen gang members. One of
the gang members pulled out a switchblade and whispered something in Loris
ear. She then screamed at petitioner to run away because they had a gun.
Petitioner ran to the local 7-11 store, where he called 911 to report the attack. He
then called a cab and went to his sisters house, where he again called the police
hoping to find Lori.
The prosecutor told the jury that the police investigated a number of the
things that petitioner told them in the first interview, but none of them checked
out. Detective Hull then interviewed petitioner a second time and confronted him
with the inconsistencies in his story.
So [Detective Hull] interviews the Defendant and again it gets
intense and youre going to see it on the video tape. And this time he
tells him, he confronts him with the evidence that hes tried to
corroborate his story with that just doesnt match up.
And at this point, another story is brought out. And he says
that yeah, there was several people there. They were the people at
the party. And they came out and they held me and they gave her a
knife to stab me with. And I was defending myself and thats how
these injuries, thats how Lori was injured. It explains it to some
extent, but it doesnt explain the stab wounds to her back, doesnt
explain the signs of rape that were present when they got there,
doesnt explain why her body was away from the scene.
At this point Detective Hull terminates the interview and he
goes to check on the victim. Its not good, shes non-responsive.
There had been signs of rape, but they do not think that there was a
rape at this particular point. And he goes and interviews the
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Defendant a third time after the Defendant has reinitiated contact

with him. And at this point the Defendant tells him that
....
At this point [Detective Hull] is told by the Defendant that his
father told him to tell the truth and he does. And he says we were the
only two out there and I lost it. Fortunately for Steven Dewayne
Brown, July 9th was a day full of unusual happenings, the most
important of which is that tiny 17-year-old girl survived kicks to the
head from his boots, stabs to the back from a knife and shes here
today to testify. . . .
Tr., Vol. 2, at 15-16. During the course of these remarks, defense counsel
objected twice, but the trial court overruled the objections based on its previous
denial of the suppression motion.
On the second day of testimony, after Officer Sanders testified, defense
counsel renewed his motion to suppress based in part on the officers testimony,
and he asked for a Jackson v. Denno hearing.

The court conducted the hearing

outside the presence of the jury and concluded that all petitioners statements in
the second and third interviews, and any other evidence derived from those
interviews, should be suppressed because both interviews violated petitioners
Fifth Amendment right to counsel. The court precluded any further mention of
the second and third interviews, but it made no ruling on defense counsels
motion for a mistrial based on the prosecutors opening comments. The trial

Jackson v. Denno , 378 U.S. 368 (1964).

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proceeded, and the jury was shown the videotape of the first interview. No
evidence of petitioners statements during the second and third interviews was
introduced at trial, and the prosecutors did not mention those interviews in their
closing arguments.
On direct appeal to the OCCA, petitioner argued that the officers
solicitation of inculpatory statements from him after he had invoked his right to
counsel violated his Fifth and Fourteenth Amendment rights. Petitioner
contended that the trial court should not have allowed the prosecutor to comment
on petitioners statements, because that was a further violation of his rights, and
that the court should have granted the motion for mistrial based on those
comments.
In its brief on direct appeal, the State argued that an improper comment in
an opening statement cannot constitute reversible error under Oklahoma law
unless it was made in bad faith and was prejudicial to the defendant. The State
contended that the comments here were not made in bad faith and that, in light of
the other evidence against petitioner, they were not prejudicial. In its summary
decision on appeal, the OCCA ruled on petitioners claim as follows:
With regard to Proposition II, we find the States reference during
opening statements to the police interviews was not made in bad faith
and did not result in prejudice.
See Ledbetter v. State , 1997 OK CR

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5, 933 P.2d 880, 900-01;

1322, 1328.

Shultz v. State , 1991 OK CR 57, 811 P.2d

Dct. Rec., Doc. 11, Ex. C., at 2.

In Ledbetter , the defendant asserted a claim of prosecutorial misconduct
based on the prosecutor having stated a substantial fact in his opening statement
that he later failed to prove at trial. 933 P.2d at 900. The OCCA rejected the
defendants claim, noting that a prosecutor may in good faith tell the jury what
he expects to prove, only to have that evidence evaporate during the
case-in-chief.

Id. The OCCA held that [a]bsent evidence a misstatement was

deliberate, we refuse to engage in speculation such an act arises to the level of

prosecutorial misconduct.
shown no prejudice.

Id. The OCCA also concluded that the defendant had

Id. Likewise, in Shultz , the defendant alleged prosecutorial

misconduct based on the prosecutor having made statements in his opening that he
failed to prove at trial. 811 P.2d at 1328. The OCCA rejected the claim, holding
that [f]ailure to prove all remarks in opening statement in the absence of a
showing [of] bad faith and prejudice, is not grounds for reversal.

Id.

Based on the OCCAs statement that there was no evidence of bad faith and
no prejudice to petitioner here and on its citation to

Ledbetter and Schultz , it

appears that the OCCA treated petitioners claim as one that challenged the
prosecutors comments only because they described evidence the prosecutor later
failed to establish. In analyzing this claim, the OCCA applied a standard that
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required petitioner to show both bad faith on the part of the prosecutor and
prejudice to the outcome of the trial.
Under AEDPA, we cannot grant habeas relief on a claim that the state court
adjudicated on the merits unless we conclude that the state court adjudication
either
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. 2254(d). This limitation on our review is often referred to as
AEDPA deference.
Here, we are primarily concerned with the provisions of 2254(d)(1). The
Supreme Court has held that the sections contrary to and unreasonable
application of clauses have independent meaning.

Bell v. Cone , 535 U.S. 685,

694 (2002). The Court also has explained that [a] state-court decision is
contrary to our clearly established precedents if it applies a rule that contradicts
the governing law set forth in our cases or if it confronts a set of facts that are
materially indistinguishable from a decision of this Court and nevertheless arrives
at a result different from our precedent.

Early v. Packer , 537 U.S. 3, 8 (2002)

(per curiam) (quotations omitted). The state court need not cite Supreme Court
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cases nor even be aware of them, so long as neither the reasoning nor the result
of the state-court decision contradicts them.

Id. On the other hand, a state-court

decision involves an unreasonable application of clearly established federal law

when it correctly identifies the governing legal principle from our decisions but
unreasonably applies it to the facts of the particular case,

Bell , 535 U.S. at 694.

The focus of [this] inquiry is on whether the state courts application of clearly
established federal law is objectively reasonable[;] . . . an unreasonable
application is different than an incorrect one.

Id.

The magistrate judge, whose analysis of this claim the district court
adopted, concluded that the OCCAs analysis of petitioners claim was neither
contrary to, nor an unreasonable application of, Supreme Court precedent. In
reaching this conclusion, the magistrate judge analyzed petitioners claim under
the following federal constitutional standard: whether there was a violation of
the criminal defendants constitutional rights which so infected the trial with
unfairness as to make the resulting conviction a denial of due process. Dct.
Rec., Doc. 23 at 9 (quoting

Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994)).

Claims of prosecutorial misconduct that do not infringe a specific

constitutional right are properly analyzed under this fundamental unfairness
standard, with an eye to determining whether the defendant was denied due
process. This, however, is not such a claim. Petitioner contends that the
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prosecutors comments infringed a specific constitutional right: his Fifth

Amendment right to counsel. When specific guarantees of the Bill of Rights are
involved, this Court has taken special care to assure that prosecutorial conduct in
no way impermissibly infringes them.

Donnelly v. DeChristoforo , 416 U.S. 637,

643 (1974); see also Darden v. Wainwright , 477 U.S. 168, 181-82 (1986)
(applying fundamental unfairness standard because prosecutors comment did not
implicate other specific rights of the accused such as the right to counsel or the
right to remain silent). [W]hen the [prosecutorial] impropriety complained of
effectively deprived the defendant of a specific constitutional right, a habeas
claim may be established without requiring proof that the entire trial was thereby
rendered fundamentally unfair.

Mahorney v. Wallman , 917 F.2d 469, 472 (10th

Cir. 1990) (citing, among others,

DeChristoforo , 416 U.S. at 643; Darden , 477

U.S. at 181-82).
The proper constitutional standard under which petitioners claim should be
analyzed is whether his Fifth Amendment right to have counsel present during
custodial interrogation was impermissibly infringed when the prosecutor
described to the jury what petitioner told the police in two custodial interviews
that were initiated by police after petitioner had invoked his right to counsel.
Application of this standard requires determining whether the prosecutors
comments prejudiced petitioners Fifth Amendment right to counsel, not his right
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to a fair trial.

Cf. Torres v. Mullin , 317 F.3d 1145, 1158 (10th Cir. 2003)

(Where prosecutorial misconduct directly affects a specific constitutional right

. . . a habeas petitioner need not establish that the entire trial was rendered unfair,
but rather that the constitutional guarantee was so prejudiced that it effectively
amounted to a denial of that right.);

Paxton v. Ward , 199 F.3d 1197, 1218 (10th

Cir. 1999) (considering whether prosecutors comments had substantial

prejudicial effect on specific constitutional rights alleged).
The legal standard the OCCA applied to petitioners claim did not comport
with this constitutional standard. The OCCAs decision was, therefore, contrary
to clearly established federal law and we owe it no deference under AEDPA.
Rather, we make our own independent analysis of petitioners claim. Even if we
were to conclude that the prosecutors comments gave rise to constitutional error,
however, that would not end our inquiry, for we may not grant habeas relief
unless we also conclude that the constitutional error was not harmless.
The State contends that the OCCA performed a type of harmless error
analysis akin to that of

Brecht v. Abrahamson , 507 U.S. 619 (1993), when it

concluded, as part of its analysis of substantive constitutional error, that the

prosecutors remarks were not prejudicial. The State further argues that we must
give AEDPA deference to this harmless error determination. Petitioner argues
that we owe no deference to this purported harmless error determination for two
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reasons. First, petitioner argues that the prejudice analysis the OCCA performed
applied a standard different from that enunciated in

Brecht . Second, petitioner

argues that, even if the standard the OCCA applied was akin to that of

Brecht , we

owe its determination no deference because the OCCA should have applied the
more stringent harmless error standard enunciated in

Chapman v. California , 386

U.S. 18 (1967). Because we agree with petitioners second point, we need not
consider his first.
Under clearly established federal law, the OCCA on direct review should
have applied the Chapman harmless error standard, which requires the State to
establish that the error was harmless beyond a reasonable doubt.

Id. at 24; see

also Brecht , 507 U.S. at 630. The State does not contend that the OCCA applied
this standard, and it is clear from the OCCAs opinion and the cases cited therein
that it did not. The OCCAs failure to assess the harmlessness of the
constitutional error using the

Chapman standard was contrary to clearly

established federal law under 2254(d)(1).

1192, 1195 (10th Cir. 2002) (en banc),

See Herrera v. Lemaster , 301 F.3d

cert. denied , 123 S. Ct. 1266 (2003).

When, as here, no proper harmless error analysis took place in state court
because that court did not apply the

Chapman standard mandated by the Supreme

Court[,] . . . the habeas court is to apply the harmless error standard set out in
Brecht . Id. at 1200.
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Under the Brecht standard, a constitutional error will not warrant habeas
relief unless we conclude that it had substantial and injurious effect or influence
in determining the jurys verdict. 507 U.S. at 637 (quotation omitted). If the
evidence is so evenly balanced that we are in grave doubt about whether the error
meets this standard, we must hold that the error is not harmless.
McAninch , 513 U.S. 432, 436-37 (1995).

ONeal v.

We make this harmless error

determination independent of the OCCAs prejudice/harmless error

determination,

based upon our review of the entire state court record,

Herrera ,

301 F.3d at 1195.

Based upon our careful review of the record, including the videotape of
petitioners first interview with police in which he described the alleged attack by
gang members and his subsequent actions, we conclude that any error by the trial
court in allowing the prosecutor to comment on statements petitioner made in the
If, as the State suggests, we were to give deference to the OCCAs
Brecht
analysis, assuming that it did one, we would be abdicating more of our
independent review than AEDPA contemplates. In ruling that a less stringent
harmless error standard than Chapman should apply on federal habeas review, the
Supreme Court was guided by four considerations: the States interest in finality,
comity, federalism, and the desire not to degrade[] the prominence of the trial
itself through [l]iberal allowance of the writ.
Brecht , 507 U.S. at 635
(quotation omitted). These are the same considerations that animated Congress in
passing AEDPA. See Williams v. Taylor , 529 U.S. 420, 436 (2000) (AEDPAs
purpose [was] to further the principles of comity, finality, and federalism.);
Herrera , 301 F.3d at 1198. Because we are already applying the less stringent
standard of Brecht , we need not go further and defer to the OCCAs
Brecht
determination rather than make our own.
4

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second and third police interviews did not have a substantial or injurious effect in
determining the jurys verdict. Accordingly, petitioner is not entitled to habeas
relief on his claim that the prosecutors comments violated his Fifth Amendment
right to counsel.
Petitioners request for a COA on the five additional claims is DENIED,
and the appeal is DISMISSED as to all but petitioners claim for violation of his
Fifth Amendment right to counsel. On petitioners claim for violation of his Fifth
Amendment right to counsel, the judgment of the United States District Court for
the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy
Circuit Judge

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