F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

FEB 15 2000

UNITED STATES COURT OF APPEALS

PATRICK FISHER

TENTH CIRCUIT

Clerk

DORSIE LESLIE JONES, JR.,

Petitioner-Appellant,
No. 98-6370

v.
GARY GIBSON, Warden, Oklahoma
State Penitentiary; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-85-2789-T)

Vicki Ruth Adams Werneke, Assistant Federal Public Defender, Death Penalty
Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for
Petitioner-Appellant.
Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A.
Drew Edmondson, Attorney General of Oklahoma, with her on the brief),
Oklahoma City, Oklahoma, for Respondents-Appellees.
Before TACHA , BALDOCK , and EBEL , Circuit Judges.
TACHA , Circuit Judge.

A jury found petitioner guilty of first degree murder and two counts of
assault and battery with a dangerous weapon and sentenced him to death for the
murder conviction and to twenty and fifteen years imprisonment for the other two
convictions. The Oklahoma Court of Criminal Appeals affirmed the convictions
and sentences.

See Jones v. State , 648 P.2d 1251 (Okla. Crim. App. 1982),

cert.

denied , 459 U.S. 1155 (1983). That court also affirmed the state trial courts
denial of petitioners first application for post-conviction relief.

See Jones v.

State , 704 P.2d 1138 (Okla. Crim. App. 1985).

On November 18, 1985, petitioner filed a petition for writ of habeas corpus
in federal district court. After directing petitioner to exhaust state court remedies
on various claims, the district court administratively closed the case without
prejudice to reopening. Petitioner filed a second state application for
post-conviction relief. The state trial court denied relief, and the Oklahoma Court
of Criminal Appeals affirmed,

see Jones v. State , No. PC-91-0756 (Okla. Crim.

App. Mar. 28, 1995) (unpublished order). Thereafter, petitioner filed a revised
federal habeas petition, and the district court reopened the case. The court denied
habeas relief and granted a certificate of probable cause.
On appeal, petitioner asserts the following grounds for relief: (1) there is
insufficient evidence in the record to support the unconstitutionally applied
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heinous, atrocious, or cruel aggravating circumstance; (2) his right to remain

silent and his right to confrontation were violated; (3) the prosecutor improperly
questioned him, leading the jury to believe he would be released if found not
guilty by reason of insanity; and (4) his appellate counsel provided ineffective
assistance. We affirm.
STANDARD OF REVIEW
Because petitioner filed his initial federal habeas petition long before the
effective date of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), AEDPA does not apply to this appeal.

See Lindh v. Murphy , 521 U.S.

320, 322-23 (1997). Under pre-AEDPA law, this court affords a presumption of
correctness to state court factual determinations.
110 F.3d 1508, 1513 & n.7 (10th Cir. 1997);

See Williamson v. Ward ,

see also Demosthenes v. Baal ,

495 U.S. 731, 735 (1990) (per curiam) (holding federal courts may overturn state
court factual determinations only upon concluding they are not fairly supported by
record). This court reviews the district courts conclusions of law de novo and its
factual findings for clear error.

See Foster v. Ward , 182 F.3d 1177, 1183 (10th

Cir. 1999) . When the district courts findings are based merely on a review of

the state record, we do not give them the benefit of the clearly erroneous standard
but instead conduct an independent review.

Smallwood v. Gibson , 191 F.3d

1257, 1264 n.1 (10th Cir. 1999). We may grant relief to a state prisoner only if
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state court error deprived him of fundamental rights guaranteed by the

constitution of the United States.

Brown v. Shanks , 185 F.3d 1122, 1124 (10th

Cir. 1999) (quotations omitted).

FACTS
On August 14, 1979, petitioner was drinking beer with Betty Strain at the
Wichita Lounge in Lawton, Oklahoma. Royce Linker, who worked at the bar,
noticed a gun protruding from the top of petitioners boot. She asked him to
cover the gun with his pant leg. Petitioner told her to shut up or he would blow
her head off.

See Tr. vol. 2 at 402. He also stated that he came to kill everyone

in the bar, and she would be first.

See id. at 428, 432-33, 498. Immediately

thereafter, petitioner pointed the gun at Ms. Linker, who ducked and crawled
behind the bar to hide. Petitioner fired the gun, and the bullet hit Ms. Strain,
who fled from the bar.

See id. at 404.

Petitioner then turned to Stanley Buck, Sr. and his son Stanley Buck, Jr.
and asked them what they were doing.

See id. at 500. They indicated that they

were shooting pool. Petitioner shot both of them.

See id. at 440, 502-03.

There is inconsistency between the testimony of Mr. Buck, Jr. and

Ms. Linker regarding who was shot first. Like the federal district court, we
assume Mr. Buck, Sr. was shot first.

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Petitioner asked Mr. Buck, Sr., after the first shot, if he was dead and then shot
him again. He died as a result of the gunshot wounds.
Petitioner testified at trial that on the day of the murder he had probably
taken the prescription drug Ativan and had drunk two shots of whiskey and one
beer. His defense was that the interaction of the drug and alcohol rendered him
unconscious of his acts and therefore temporarily insane. He testified that he did
not know if he had done the things about which the other witnesses had testified.
See id. at 647.
The jury rejected petitioners insanity defense and found him guilty of
murder. At the sentencing stage, the jury found two aggravating circumstances:
the murder was especially heinous, atrocious, or cruel and petitioner knowingly
created a great risk of death to more than one person.
DISCUSSION
I. HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR
Petitioner argues there is insufficient evidence to support the
unconstitutionally applied heinous, atrocious, or cruel aggravating circumstance.
The trial court instructed the jury as follows:
You are further instructed that the term heinous, as that term
is used in these instructions means extremely wicked or shockingly
evil, and that atrocious means outrageously wicked and vile; and
cruel means designed to inflict a high degree of pain, utter
indifference to, or enjoyment of, the suffering of others; pitiless.
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O.R. at 173. After petitioners conviction, the Supreme Court held that this
instruction was unconstitutional as applied.

See Maynard v. Cartwright , 486 U.S.

356, 360 (1988); see also Cartwright v. Maynard , 822 F.2d 1477, 1485-91 (10th
Cir. 1987). Subsequently, the Oklahoma Court of Criminal Appeals narrowed the
aggravator, holding that it only applies to those murders which are preceded by
torture or serious physical abuse.

See Stouffer v. State , 742 P.2d 562, 563 (Okla.

Crim. App. 1987); see also Phillips v. State , 989 P.2d 1017, 1039 (Okla. Crim.
App. 1999). This narrowed construction is constitutionally permissible.
Duvall v. Reynolds , 139 F.3d 768, 792-93 (10th Cir.),

See

cert. denied , 119 S. Ct. 345

(1998).
The Oklahoma Court of Criminal Appeals, in reviewing the denial of
petitioners second post-conviction application, properly applied this narrowed
construction.

See Walton v. Arizona , 497 U.S. 639, 653-54 (1990) (holding state

appellate court may properly determine whether evidence supports a properly

limited aggravator); see also Richmond v. Lewis , 506 U.S. 40, 47 (1992) (stating
state appellate court can rely on adequate narrowing construction in curing error
caused by unconstitutionally vague aggravating factor);

Davis v. Executive Dir. of

Dept of Corrections , 100 F.3d 750, 767, 772 (10th Cir. 1996) (determining state
court may properly cure error by correctly applying narrowed construction).
Reweighing the evidence under the narrowed construction, the Oklahoma
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appellate court determined the murder was especially heinous, atrocious, or cruel.
The court stated petitioner was wholly indifferent to the pain inflicted upon the
victim and [t]he unarmed victim lay wounded and pleaded for his life, yet the
[petitioner] coldly and deliberately shot him at point blank range and then
continued to mock the victim as he bled to death.

Jones , No. PC-91-0756, slip

op. at 4 (quoting Jones , 648 P.2d at 1259). The court concluded the deceased was
tortured and knew death was eminent.

Id. On habeas, the federal district court

concluded there was sufficient evidence in the record to support finding this
aggravator under a narrowed construction of the instruction, even though no
evidence in the record supported the Oklahoma Court of Criminal Appeals
finding the victim pleaded for his life.
Petitioner argues the evidence does not support the Oklahoma Court of
Criminal Appeals determination that the murder was especially heinous,
atrocious, or cruel, because no evidence supports that courts finding [t]he
unarmed victim lay wounded and pleaded for his life.

Id. On federal habeas

review of the state appellate courts determinations, this court reviews the state
courts application of the narrowed construction under the rational factfinder
standard of Jackson v. Virginia , 443 U.S. 307 (1979).

See Davis , 100 F.3d at

767-68 (citing Richmond , 506 U.S. at 47); see also Lewis v. Jeffers , 497 U.S. 764,

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783 (1990).

We will uphold the state appellate courts determination so long as

a rational factfinder could have found the elements identified by the

constructionhere that the crime involved torture or physical abuse.

Hatch v.

Oklahoma , 58 F.3d 1447, 1469 (10th Cir. 1995). A challenge to the sufficiency
of the evidence under

Jackson presents a question of law.

See Moore v. Gibson ,

195 F.3d 1152, 1176 (10th Cir. 1999).

Under Oklahoma law, the torture or serious physical abuse required by the
properly narrowed aggravator may include infliction of great physical anguish or
Before arguing insufficiency of the evidence, petitioner complains the
Oklahoma Court of Criminal Appeals did not conduct a proper reweighing
because it neither reweighed the valid aggravating circumstances against the
mitigating evidence nor determined if the effect of the invalid aggravator was
harmless beyond a reasonable doubt as required by
Clemons v. Mississippi ,
494 U.S. 738 (1990). Instead, according to petitioner, the court reweighed using
a sufficiency of the evidence test, a test not approved by any court. Petitioner
also maintains the federal district court made these same mistakes. As
respondents properly point out, Clemons provides for reweighing of the remaining
valid aggravators and mitigators or harmless error analysis when an aggravator
has been invalidated or improperly defined, and, thus, eliminated from
consideration. See id. at 741, 745. Here, the Oklahoma Court of Criminal
Appeals recognized the heinous, atrocious, or cruel aggravator was improperly
defined, and cured the error by properly narrowing the aggravator and
determining whether the evidence supported a finding of that aggravator as
properly narrowed. See Richmond , 506 U.S. at 47. Thus, on federal habeas
corpus review, the issue is whether the Oklahoma Court of Criminal Appeals
correctly determined a rational factfinder could find sufficient evidence to
support the constitutionally narrowed aggravator.
See id. (quotation omitted);
Walton , 497 U.S. at 653-54. If the evidence supports the properly narrowed
aggravator, Clemons reweighing or harmless error analysis would serve no
function and thus is not needed.

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extreme mental cruelty.

See Phillips , 989 P.2d at 1039; Cheney v. State , 909 P.2d

74, 80 (Okla. Crim. App. 1995). Conscious physical suffering of the victim must
occur before death and any extreme mental distress must result from the
petitioners intentional acts.

See Cheney , 909 P.2d at 80.

Any mental torture must produce mental anguish in addition to that which
necessarily accompanies the underlying killing.

See id. The analysis focuses on

the acts of the petitioner and the level of tension created.

984 P.2d 813, 830 (Okla. Crim. App. 1999);

See Martinez v. State ,

Cheney , 909 P.2d at 80 . Oklahoma

law, however, is unclear as to the length of time a victim must be terrorized

before there is mental torture.

Compare Turrentine v. Oklahoma , 965 P.2d 955,

976 (Okla. Crim. App. 1998) (The length of time which the victim suffers mental
anguish is irrelevant.) (further quotation omitted),
364, 373 (Okla. Crim. App. 1991) (same),

and Berget v. State , 824 P.2d

with Washington v. State , 989 P.2d

960, 975 (Okla. Crim. App. 1999) (The mental torture element is confined to
cases in which the victim is terrorized for a significant period of time before
death.) (further quotation omitted),

Turrentine , 965 P.2d at 976 (same),

and

Cheney , 909 P.2d at 81 (same). There is no mental anguish, however, when death
probably occurs instantaneously.

See Booker v. State , 851 P.2d 544, 548 (Okla.

Crim. App. 1993). Evidence that the victim was conscious and aware of the
attack supports a finding of torture.

See Le v. State , 947 P.2d 535, 550 (Okla.

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Crim. App. 1997); see also Hooks v. Ward , 184 F.3d 1206, 1240 (10th Cir. 1999)
(noting Oklahoma law requires murder victim to be conscious during at least part
of attack); Spears v. State , 900 P.2d 431, 443 (Okla. Crim. App. 1995)
(conscious[ness] . . . is the critical inquiry in determining whether a murder was
especially heinous, atrocious or cruel);

Neill v. State , 896 P.2d 537, 556 (Okla.

Crim. App. 1994) (permitting finding of aggravator when mental torment occurred
before shooting).
We agree with both petitioner and the federal district court that the record
does not support the Oklahoma Court of Criminal Appeals finding that petitioner
pleaded for his life. Nonetheless, we conclude the evidence is sufficient to
support a finding of torture or extreme mental cruelty under the properly
narrowed aggravator. Several factors indicate mental cruelty.
First, petitioner threatened to kill everyone in the bar. We can assume
Mr. Buck, Sr., heard petitioners threat. Petitioner raised his voice when making
the threat. See Tr. vol. 2, at 430. Mr. Buck, Jr., testified to hearing petitioner
arguing with Ms. Linker about the gun protruding from the boot.
498. Mr. Buck, Sr. presumably witnessed the shooting of Ms. Strain.

See id. at 495,

Cf. Neill ,

896 P.2d at 556 (finding extreme mental anguish where victims heard co-workers
savagely murdered and realized they could be next). According to Mr. Buck, Jr.
his father looked awful scared as petitioner put the gun to his fathers head and
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neck and pushed him toward the back of the bar. Tr. vol.

2 at 500-03. At this

time, Mr. Buck, Sr. probably was anticipating, with some uncertainty, harm or
death to both his son and to himself.

See Neill , 896 P.2d at 556 (Mental anguish

includes the victims uncertainty as to his ultimate fate.);

cf. Turrentine ,

965 P.2d at 977 (finding evidence insufficient to support mental torture element,
but noting, in dicta, [h]aving her mother killed in front of her, and possibly her
brother and then waiting her turn, seems sufficient to warrant a finding of mental
torture).
Also, petitioner shot Mr. Buck, Sr. without provocation.

Cf. Phillips , 989

P.2d at 1040 (considering unprovoked manner of killing as factor in finding

aggravator); Berget , 824 P.2d at 374 (same). Furthermore, between the first and
second bullets, petitioner mocked and taunted Mr. Buck, Sr. As Mr. Buck, Sr. lay
on the ground making sounds,

petitioner said [a]rent you dead? Youre dead

and shot Mr. Buck, Sr. again. Tr. vol. 2 at 440;

cf. Phillips , 989 P.2d at 1040

(considering killers attitude as evidenced by taunts and verbal threats as factors

in finding aggravator).
It is possible the Oklahoma Court of Criminal Appeals construed these
noises as Mr. Buck, Sr.s plea for his life. Nonetheless, the evidence does not
support this. See Tr. vol. 2 at 568 (testimony that after first shot Mr. Buck, Sr.
was gasping for breath and blood and stuff came out of his mouth);
see also id.
at 617 (testimony of medical examiner that if victim was trying to get air he
would have made noises).

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We recognize that Mr. Buck, Sr. probably lost consciousness thirty seconds
to two minutes after the first gunshot.

See Tr. vol. 2 at 614-15. In so

recognizing, we do not intend to suggest that anything other than instantaneous

death constitutes torture sufficient to prove this aggravator.

Cf. McCarty v. State ,

977 P.2d 1116, 1134 (Okla. Crim. App. 1998) (finding death was not
instantaneous). This is not a case where the victim was rendered unconscious
prior to any physical injury or mental torture. The manner of killing involved
cruelty beyond the act of the killing itself due to the threats and taunts and
Mr. Buck, Sr.s reasonable fear of harm to himself and to his son. Thus, we do
not need to engage in pure speculation and guesswork to conclude Mr. Buck,
Sr. experienced conscious mental torture before death.

Perry v. State , 893 P.2d

521, 535 (Okla. Crim. App. 1995).

Considering the unprovoked killing of Mr. Buck, Sr., the likelihood that he
suffered both mental torture before the first shot and between the two shots,
petitioners attitude as evidenced by his taunts and verbal threats, and the pitiless
nature of the shootings, we conclude there was sufficient evidence to support the
heinous, atrocious, or cruel aggravator.
Petitioner believes the Oklahoma Court of Criminal Appeals did not have
the trial records when it performed its review of the properly narrowed
aggravator. The federal district court noted that it did not appear that the
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Oklahoma appellate court had reviewed the trial transcript during its reweighing
and instead had looked only at the facts recited in the direct appeal opinion. This
appears to be correct, upon comparison of the direct appeal opinion,
648 P.2d at 1259, and the second post-conviction opinion,

Jones ,

Jones ,

No. PC91-0756, slip op. at 4. Although it is unclear whether the Oklahoma

Court of Criminal Appeals considered the transcript, the court said it reweighed.
While it is preferable for the Oklahoma appellate court to reweigh based on a
fresh review of the record, we cannot say that constitutional error occurs when a
state appellate court reweighs based upon its direct criminal appeal opinion, as
that opinion presumably reflected the record before that court on direct criminal
appeal.
II. VIOLATION OF CONSTITUTIONAL RIGHTS
A. Fifth Amendment Violations
Petitioner argues the prosecutor violated his Fifth Amendment right to
silence by (1) cross-examining petitioner about his refusal to discuss the shooting
incident during his sanity evaluation and (2) presenting the psychiatrist who
examined petitioner to testify regarding his refusal to discuss the incident.
Respondents argue, as they did in the district court, that this claim is procedurally
barred. We agree.

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Petitioner raised this claim in his first post-conviction application, and the
Oklahoma Court of Criminal Appeals found it to be procedurally defaulted.

See

Jones , 704 P.2d at 1140. Petitioner again raised this claim in his first federal
habeas petition and also intertwined it with an ineffective assistance of appellate
counsel claim. The federal district court directed petitioner to exhaust the
ineffective assistance claim. Petitioner, however, failed to raise this claim in the
second state post-conviction application either alone or specifically as part of his
ineffective assistance of appellate counsel claim. In his revised federal habeas
petition, petitioner again argued the claim should be heard on its merits because
appellate counsel was ineffective. The federal district court considered the claim
on the merits for that reason. Respondents, however, urge that this court not
consider the merits of the claim because petitioner has failed to assert in state
court his ineffective assistance of appellate counsel claim.

See Murray v.

Carrier , 477 U.S. 478, 489 (1986) (deciding claim of ineffective assistance of
counsel should be presented to state courts as independent claim before it may be
asserted as cause for procedural default).
We conclude the merits of the ineffective assistance of appellate counsel
claim are unexhausted because petitioner did not argue ineffective assistance of
appellate counsel with respect to this claim in his second post-conviction
application. See OSullivan v. Boerckel , 526 U.S. 838, 119 S. Ct. 1728, 1731,
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1732 (1999); see also Smallwood , 191 F.3d at 1267 (Although petitioner raised
an ineffective assistance of counsel claim . . ., he based it on different reasons
than those expressed in his habeas petition[, and therefore] failed to exhaust his
ineffective assistance of counsel claim[].);

Demarest v. Price , 130 F.3d 922,

938-39 (10th Cir. 1997) (finding ineffective assistance claim unexhausted when
petitioner made general allegations in state court and specific allegations in
federal habeas petition). The state courts, however, would now find this
unexhausted claim procedurally barred on independent and adequate state
grounds. See Smallwood , 191 F.3d at 1267 (citing

Coleman v. Thompson ,

501 U.S. 722, 735 n.* (1991)). This court, therefore, will consider this
procedurally defaulted claim only if petitioner can show cause for his default and
resulting prejudice or a fundamental miscarriage of justice if the federal courts
fail to consider the claim.

See English v. Cody , 146 F.3d 1257, 1259 (10th Cir.

1998) (citing Coleman , 501 U.S. at 749-50).

Petitioner cannot show cause. He presents no reason for failing to raise
this ineffective assistance of appellate counsel claim in his second post-conviction
application, despite being directed to do so by the district court, and despite the
Oklahoma Court of Criminal Appeals consideration of other claims of ineffective

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assistance of appellate counsel raised for the first time in that application.

Also,

this courts failure to review this claim will not result in a fundamental
miscarriage of justice, because petitioner cannot show actual innocence in light of
his admitting the shootings.

See Smallwood , 191 F.3d at 1269. Accordingly, we

conclude this claim is procedurally barred.

B. Right to Confront States Witness
Petitioner argues he should have been allowed to cross-examine Ms. Linker
about criminal charges pending against her, her mental health history, and her
relationship with the decedent in order to show her bias. On the morning of the
first day of trial, the trial court granted the States motion in limine preventing
petitioner from questioning Ms. Linker about (1) charges pending against her for
DUI, feloniously carrying a firearm after former conviction of a felony, and
burglary; (2) her mental health history, other than her mental capacity at the time
of the shootings; and (3) a previous sexual relationship with Mr. Buck, Sr.

See

Tr. vol. 1 at 1-9. At that time, counsel objected. He indicated that the pending
charges were relevant because they suggested the district attorney had made a

Petitioner argues that respondents did not file a cross-appeal and therefore
any procedural bar argument has been waived. This court has never required a
respondent to file a cross-appeal in order to continue to assert that a claim is
procedurally barred. Rather, this court has even held that it may consider
procedural bar sua sponte.
See Hatch , 58 F.3d at 1453.

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promise of leniency to Ms. Linker.

See id. At trial, during cross-examination of

Ms. Linker, petitioners counsel asked her if she had ever carried a firearm and if
she had carried one on the night of the murder. She asserted her Fifth
Amendment right against self-incrimination to the first question and answered
no to the second.

See id. vol. 2 at 468-69. Counsel did not ask Ms. Linker

about any pending criminal charges or contest the ruling on the motion in limine
regarding these charges. Counsel attempted to ask Ms. Linker about her previous
mental history. The State objected, and the trial court reminded counsel about the
motion in limine.

See id. at 470. Although Ms. Linker testified she had dated

Mr. Buck, Sr., counsel did not ask her about the nature of her relationship with
him. See id. at 490.
1. Procedural Bar/Waiver
Respondents argue this claim is procedurally barred. Petitioner first raised
this claim in his first state post-conviction application. The Oklahoma Court of
Criminal Appeals found it to be barred.

See Jones , 704 P.2d at 1140. Petitioner

also raised the claim in his second post-conviction application. The Oklahoma
appellate court discussed the merits of the claim under the ineffective assistance
of appellate counsel argument, determining (1) the trial court erred in not
allowing defense counsel to cross-examine Ms. Linker on the pending charges in
order to show her possible bias; (2) counsel failed to preserve the issue during
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cross-examination of Ms. Linker; and (3) any error in not allowing petitioner to
impeach Ms. Linker was harmless because her testimony was cumulative to
Mr. Buck, Jr.s testimony.

See Jones , No. PC-91-0756, slip op. at 6-7.

On federal habeas corpus review, the district court concluded that (1) any
error concerning pending charges or Ms. Linkers relationship with Mr. Buck, Sr.
was waived, because counsel should have contested the ruling on the motion in
limine during cross-examination of Ms. Linker; and (2) any error regarding any of
the three areas was harmless because trial counsel effectively and thoroughly
cross-examined Ms. Linker and because the excluded material was not relevant to
petitioners defense.
Petitioner did waive any claims with respect to Ms. Linkers pending
charges and her relationship with the decedent. Under Oklahoma law, a motion in
limine is advisory.

See Cheatham v. State , 900 P.2d 414, 427 (Okla. Crim. App.

1995). To preserve an issue, a defendant must make an offer of proof during trial
or attempt to introduce evidence at trial.

See Mitchell v. State , 884 P.2d 1186,

1197-98 (Okla. Crim. App. 1994). Petitioner did not make an offer of proof
during trial, and his attempt to introduce evidence was limited to only the mental
health issue.
Despite the waiver, the Oklahoma Court of Criminal Appeals decided this
claim on its merits when it addressed the claim of ineffective assistance of
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appellate counsel raised in the second post-conviction application. Thus, state

procedural bar does not preclude federal habeas review.
189 F.3d 1188, 1192 (10th Cir. 1999);

Cf. Crease v. McKune ,

Hooks , 184 F.3d at 1215 (citing

Ylst v.

Nunnemaker , 501 U.S. 797, 801-03 (1991)).

2. Merits
The Sixth Amendment right to confrontation includes the right to
cross-examination.

See Davis v. Alaska , 415 U.S. 308, 315 (1974). [T]he

exposure of a witness motivation in testifying is a proper and important function

of the constitutionally protected right of cross-examination.

Id. at 316-17; see

also Delaware v. Van Arsdall , 475 U.S. 673, 678 (1986). Whether the jury would
have been influenced by any possible bias of Ms. Linker is pure speculation.
Nonetheless, the jury was entitled to have the benefit of a full cross-examination
as to her possible bias in order to determine what weight to give her testimony.
See Davis , 415 U.S. at 317;

Alford v. United States , 282 U.S. 687, 693 (1931)

(holding that where witness was in prosecutors custody due to pending charges,
petitioner was entitled to show by cross-examination that his testimony was
affected by fear or favor);

see also Davis , 415 U.S. at 318 n.6 (recognizing

Alford involved federal criminal trial, but noting constitutional dimension of

holding applies to state criminal conviction);

Bui v. DiPaolo , 170 F.3d 232,

241-42 (1st Cir. 1999) (stating petitioners entitlement to cross-examine witnesses

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increases in sensitivity in direct proportion to witnesss importance to states

case), petition for cert. filed

(U.S. June 14, 1999) (No. 98-9840). Thus, reviewing

de novo, see Hatch , 58 F.3d at 1467, we conclude the trial court improperly
curtailed cross-examination in violation of petitioners right to confrontation.
Our analysis does not end here. Harmless error analysis applies to
Confrontation Clause cases.

See Van Arsdall, 475 U.S. at 680, 684. When a

federal court considers a Confrontation Clause violation in a habeas proceeding,

the relevant harmless error analysis is whether, assuming that the damaging
potential of the cross-examination were fully realized, a reviewing court might
nonetheless say that the error,

id. at 684, had substantial and injurious effect or

influence in determining the jurys verdict,

Brecht v. Abrahamson , 507 U.S. 619,

623, 637-38 (1993) (quotation omitted). This courts harmless error review is de
novo. See Tuttle v. Utah , 57 F.3d 879, 884 (10th Cir. 1995).
In reviewing for harmless error, this court examines the entire record to
determine the errors possible effect on the jury.
144 F.3d 641, 649 (10th Cir.),

Crespin v. New Mexico ,

cert. denied , 119 S. Ct. 378 (1998). Whether an

error is harmless depends on (1) the importance of the witnesss testimony in the
prosecutions case; (2) whether the testimony was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the testimony of the witness

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on material points; (4) the extent of the actual cross-examination; and (5) the
overall strength of the States case.

See Van Arsdall , 475 U.S. at 684.

Ms. Linker was an important witness,

see Tr. vol. 1 at 6 (both parties

agreed that Ms. Linker was one of two main witnesses), whose testimony was not
merely cumulative. Her testimony and the testimony of the other main witness,
Mr. Buck, Jr., were inconsistent at times. Thus, the first two areas of inquiry
suggest the error was not harmless.
The remaining areas of inquiry, however, suggest the error was harmless.
Defense counsel carefully cross-examined Ms. Linker regarding the events
occurring at the shooting. The jury was able to observe her demeanor and assess
her credibility with respect to her description of these events. As the federal
district court noted, defense counsel pointed out inconsistencies between
petitioners testimony at the preliminary hearing and her testimony at trial, and
inconsistencies between her testimony and the testimony of other witnesses in an
attempt to impeach her.

Cf. Tapia v. Tansy , 926 F.2d 1554, 1557 (10th Cir. 1991)

(determining defense counsel thoroughly examined witness and impeached him

with prior inconsistent statements). Certainly her credibility could have been
scrutinized more closely if the jury had heard testimony that she hoped for a
favorable disposition of her pending charges.

See Wright v. Dallman , 999 F.2d

174, 180 (6th Cir. 1993). Nothing in the record indicates, beyond mere
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speculation, however, that a promise for favorable disposition of pending charges

actually had been made.

See Tr. vol. 1 at 2 (defense counsels suggestion jury

had right to draw conclusions regarding promises State made or intended to make
where carrying a firearm after former conviction of a felony had not gone to
preliminary hearing in nine months and State had requested two continuances of
that preliminary hearing after petitioners preliminary hearing).
Also, the jury had some impeachment evidence before it. The State
presented evidence that Ms. Linker had a previous first degree manslaughter
conviction. See Tr. vol. 2 at 420; see also Davis , 415 U.S. at 316 (determining
evidence of prior criminal conviction is general way to discredit witness).
Ms. Linker testified that she had dated Mr. Buck, Sr.

See Tr. vol. 2 at 490.

Finally, the evidence of petitioners guilt was strong. By contrast, the

evidence of his insanity was not. Petitioners expert witnesses merely testified
that it was reasonable to infer petitioner was temporarily insane and not aware of
what he was doing at the time of the shootings. Other witnesses testified
petitioner was calm and rational. The evidence excluded by the limitation on
cross-examination was not material to the presentation of petitioners defense.
Considering the evidence as a whole, we conclude the error in limiting
cross-examination was harmless. It is unlikely the restriction on
cross-examination had a substantial effect or influence on the jurys verdicts.
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C. Cumulative Error
Petitioner argues the federal district court erred in failing to consider the
combined effect of the right to confrontation and Fifth Amendment errors after it
found the errors to be harmless individually. Petitioner did not make this
argument in his revised habeas petition. Thus, this court need not consider it.
See Oyler v. Allenbrand , 23 F.3d 292, 299 n.8 (10th Cir. 1994). In any event, this
argument is without merit because petitioner procedurally defaulted his Fifth
Amendment claim and the right to confrontation violation was harmless.
III. PROSECUTORIAL MISCONDUCT
Petitioner asserts the prosecutor violated his right to a fair trial by
questioning him about the consequences if the jury were to find him not guilty by
reason of insanity. Specifically, the prosecutor asked petitioner if he knew that he
would go free if the jury found him temporarily insane.

See Tr. vol. 2 at 676-78;

see also id. vol. 3 at 770-71 (prosecutors questioning of petitioners mental

health expert witness whether petitioner goes free if witness gives insanity
opinion). Petitioner maintains the prosecutor was trying to insert societal alarm
into the jurys deliberations.
Petitioner first raised this claim in his first application for post-conviction
relief. The Oklahoma Court of Criminal Appeals determined petitioner waived
the claim because he did not raise it on direct appeal. Petitioner also raised this
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claim in his second application for post-conviction relief. The Oklahoma Court
of Criminal Appeals discussed the issue on its merits when considering
ineffective assistance of appellate counsel. The court determined any error was
harmless, pointing to the overwhelming evidence of guilt and the lack of
persuasive evidence concerning the defense of insanity.

See Jones ,

No. PC-91-0756, slip op. at 8-9. The federal district court determined the state
trial court erred in allowing these questions, but any error did not violate
petitioners constitutional rights.
Allegations of prosecutorial misconduct are mixed questions of law and
fact. See Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994). A prosecutors
improper remark will require reversal of a state conviction only where the remark
sufficiently infected the trial so as to make it fundamentally unfair, and, therefore,
a denial of due process.

See Donnelly v. DeChristoforo , 416 U.S. 637, 643, 645

(1974); see also Darden v. Wainwright , 477 U.S. 168, 181 (1986). Inquiry into
the fundamental fairness of a trial can be made only after examining the entire
proceedings. See Donnelly , 416 U.S. at 643. An improper appeal to societal
alarm typically does not amount to a denial of due process.

See Brecheen v.

Reynolds , 41 F.3d 1343, 1356 (10th Cir. 1994).

Under Oklahoma law, if a defendant is found guilty by reason of insanity,
he will remain in custody until the court determines that he is not presently
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mentally ill or dangerous to the public peace or safety.

See Okla. Stat. tit. 21,

152(4); id. tit. 22, 1161. Thus, the prosecutors questions and comments were
improper under state law. Federal habeas relief is not available for state law
errors, however; rather, it is limited to violations of federal constitutional rights.
See, e.g. , Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). A review of the entire
proceedings does not support petitioners argument that the prosecutors conduct
so infected the trial with unfairness that the resulting convictions and sentences
were a denial of due process. In light of the strong evidence of guilt, and the
weakness of petitioners defense, there is not a reasonable probability that the
outcome would have been different without the alleged misconduct.

See

Smallwood, 191 F.3d at 1276; cf. United States ex rel. Alerte v. Lane

, 725

F. Supp. 936, 943-44 (N.D. Ill. 1989) (concluding petitioner was denied a fair
trial where prosecutor repeatedly exploited fear petitioner would go free if found
not guilty by reason of insanity, where petitioners insanity defense was not based
on temporary insanity, where evidence of sanity was not overwhelming, and
where judge did not intervene or give curative instructions),
898 F.2d 69 (7th Cir. 1990).

appeal dismissed ,

Contrary to petitioners suggestion,

Munn v. State , 658 P.2d 482, 488
(Okla. Crim. App. 1983), does not establish constitutional error. The court in
Munn vacated the death sentence and remanded for modification of the sentence
to life imprisonment where (1) improper cross-examination by the prosecutor
(continued...)
5

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IV. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Petitioner argues his appellate counsel was ineffective for failing to raise
the Fifth Amendment and right to confrontation claims. Petitioners ineffective
assistance of appellate counsel claim is governed by

Strickland v. Washington ,

466 U.S. 668 (1984). To establish constitutionally ineffective assistance of

counsel, petitioner must show both that his counsels performance was deficient
and that the deficient performance prejudiced his defense.

See id. at 687. When

considering a claim of ineffective assistance of appellate counsel for failure to

raise an issue, we look to the merits of the omitted issue. If the omitted issue is
without merit, counsels failure to raise it does not constitute constitutionally
ineffective assistance of counsel.

Hooks , 184 F.3d at 1221 (quotation and

citation omitted).
As discussed above, the ineffective assistance of appellate counsel claim
with respect to the Fifth Amendment claim is procedurally barred. Because, also

(...continued)
inferred that if the defendant was found not guilty by reason of insanity he would
be released from commitment and (2) the death penalty was disproportionate.
The court considered both factors in vacating the death sentence. Also, the court
expressly noted the improper cross-examination was not fundamental error
regarding guilt, but may have affected the sentence.
See id.
5

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as discussed above, there is no merit to the confrontation claim, appellate counsel

was not ineffective.

We AFFIRM the district courts denial of habeas corpus relief.

As a last thought, petitioner suggests that his twenty-year incarceration

alone may be violative of the Eighth Amendment. This is the first time petitioner
has made this argument, and this court need not address it.
See Oyler , 23 F.3d at
299 n.8. Even if we were to address the claim, we conclude it is without merit
because delays occurred in part due to petitioners failure to exhaust state court
remedies. Cf. Stafford v. Ward , 59 F.3d 1025, 1028 (10th Cir. 1995) (concluding
lengthy delays were caused largely by petitioner who sought repeated stays to
pursue legal remedies; recognizing Supreme Court has not endorsed this legal
theory). See generally Knight v. Florida , 120 S. Ct. 459, 459 (1999) (denying
certiorari on similar issue; opinion of Stevens, J., pointing out denial is not ruling
on merits).
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