UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WANDA JEAN ALLEN,

Petitioner-Appellant,

v.

NEVILLE MASSIE,

Respondent-Appellee.

No. 98-6340

(D.C. No. CV-96-796-L)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before BRORBY, BRISCOE, and MURPHY, Circuit Judges.

Petitioner appeals the district court's denial of federal habeas corpus relief from her first degree murder conviction and death sentence. As grounds for relief, she asserts: (1) the trial court nullified her self-defense theory by failing to properly instruct and by excluding evidence, and the Oklahoma appellate court lacked authority to consider whether she was entitled to self-defense instructions; (2) prosecutorial misconduct deprived her of a fair trial; (3) trial counsel provided ineffective assistance; (4) the trial court's refusal to provide her with a state-funded investigator deprived her of due process; (5) the flight instruction presumed her guilt and deprived her of a fair trial; (6) the Oklahoma continuing threat aggravator is unconstitutional; (7) she was denied the due process protection of a state procedural mechanism; (8) two aggravating factors unconstitutionally overlapped; and (9) the cumulative effect of the trial errors deprived her of due process and a fair trial. The district court granted petitioner a certificate of appealability (COA) as to all of these issues.1 See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). Our jurisdiction arises under 28 U.S.C. §§ 1291 and 2253, and we affirm.

I. BACKGROUND

During a domestic disturbance, petitioner shot her homosexual lover, Gloria Leathers, in front of the police station. On the day of the murder, the two had been arguing at a Safeway store about Ms. Leathers' welfare check. At Ms. Leathers' request, the store manager called police. Petitioner gave Ms. Leathers the check and returned to their residence.

Ms. Leathers called her mother, who took her to the residence. Ms. Leathers also asked the police officers to follow them and watch while she removed her personal property. In the presence of police officers, Ms. Leathers removed some of her property, although petitioner and Ms. Leathers disputed ownership of other property. During this time, the confrontation continued. According to Ms. Leathers' mother, petitioner pleaded with Ms. Leathers to stay. Officer Lucas testified that he placed a hand rake belonging to Ms. Leathers in a basket of clothes in Ms. Leathers' mother's car. He did so because he believed the rake could be used as a weapon. He did not tell Ms. Leathers that he put it there.

The officers left after they were called to respond to a priority call. Ms. Leathers also left with her mother, and the two of them went to the police station to file a complaint regarding the disputed property. Petitioner followed them. At the police station, petitioner pleaded with Ms. Leathers to return. During this discussion, petitioner shot Ms. Leathers and then quickly left.

Petitioner testified at trial that after the police officers had left her home, Ms. Leathers had assaulted her with the rake, causing much bleeding. Petitioner believed that Ms. Leathers was going to strike her again with the rake at the police station. According to petitioner, she retrieved her gun from the glove box of her car after seeing Ms. Leathers with the hand rake. She allegedly fired the gun in self-defense.

Officer Lucas, however, testified that after the shooting the hand rake was still in the basket, which had tipped over, in the car, and at no time did he see Ms. Leathers with the rake at the residence. Investigator Wingert also testified that he found the hand rake in the basket when he searched the car after the shooting.

The jury rejected petitioner's self-defense theory and found her guilty of first degree murder. At the sentencing phase of the trial, the jury found two aggravating circumstances: (1) petitioner had a prior violent felony conviction and (2) she represented a continuing threat to society. The jury recommended the death penalty, and the trial court sentenced petitioner to death.

The Oklahoma Court of Criminal Appeals affirmed petitioner's murder conviction and death sentence. See Allen v. State, 871 P.2d 79 (Okla. Crim. App.), cert. denied, 513 U.S. 952 (1994). Petitioner then sought state post-conviction relief, which was denied by the trial court and affirmed on appeal. See Allen v. State, 909 P.2d 836 (Okla. Crim. App. 1995). Petitioner then commenced federal habeas proceedings.

II. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996

A. APPLICABILITY

Petitioner contends the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and its amended standards of review should not apply because she completed her direct criminal appeal and filed her post-conviction application before the effective date of AEDPA. Petitioner believes that application of AEDPA would have an impermissible retroactive effect. This court has held that AEDPA and its substantive standards of review apply when a federal habeas petition was filed after the effective date of AEDPA, regardless of when the state court proceedings occurred. See Moore v. Gibson, 195 F.3d 1152, 1163 (10th Cir. 1999); Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999), petition for cert. filed (U.S. Nov. 5, 1999) (No. 99-6954).

B. STANDARDS OF REVIEW

Petitioner argues that if this court applies AEDPA, it must decide what type of review AEDPA requires. Under AEDPA,

a state prisoner will be entitled to federal habeas corpus relief only if [s]he can establish that a claim adjudicated by the state courts "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 "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).] Further, "a determination of a factual issue made by a State court shall be presumed to be correct." [Id.] § 2254(e)(1). That presumption of correctness is rebuttable only "by clear and convincing evidence." Id.

Boyd v. Ward, 179 F.3d 904, 911-12 (10th Cir. 1999), petition for cert. filed (U.S. Dec. 6, 1999) (No. 99-7369).

This court has not interpreted these standards of review. The United States Supreme Court has granted certiorari on the issue. See Williams v. Taylor, 119 S. Ct. 1355 (1999); see also 67 U.S.L.W. 3608 (Apr. 6, 1999) (listing issues presented). Under any possible interpretation of the standards, we conclude the result of this appeal would be the same. See Smallwood v. Gibson, 191 F.3d 1257, 1265 n.2 (10th Cir. 1999).

For those claims not decided on their merits by the state courts and instead first decided by the federal district court, this court reviews the district court's conclusions of law de novo and factual findings, if any, for clear error. See LaFevers, 182 F.3d at 711. When the district court's findings are based only upon a review of the state record, this court conducts an independent review. See Smallwood, 191 F.3d at 1264 n.1.

III. SELF-DEFENSE THEORY

A. GIVING OF SELF-DEFENSE INSTRUCTIONS

Petitioner argues the Oklahoma Court of Criminal Appeals erred in sua sponte considering on direct criminal appeal whether the trial court should have given self-defense instructions. Because there was no dispute at trial whether the trial court should instruct on self-defense, petitioner contends this was not an issue preserved for appeal by the prosecution.

On direct criminal appeal, the Oklahoma Court of Criminal Appeals concluded that petitioner did not have a valid defense of self-defense. See Allen, 871 P.2d at 92. To support its conclusion, the court found, based solely on petitioner's version of the events, (1) that Ms. Leathers had withdrawn from the conflict at the time she left the residence and therefore petitioner was out of danger; (2) that when petitioner followed Ms. Leathers to the police station, petitioner became the pursuer, and she knew the possibility of a confrontation with Ms. Leathers was strong; and (3) that petitioner had an opportunity to escape from the police station since she had time to obtain a weapon from her vehicle. See id. at 92-93. Thus, the court held that because there was no evidence to support a self-defense theory, petitioner was not entitled to self-defense instructions. See id. at 93.

As petitioner points out, neither the parties nor the trial court questioned petitioner's entitlement to self-defense jury instructions. Petitioner, however, did argue on appeal that the given instructions were incomplete. Thus, the Oklahoma Court of Criminal Appeals considered whether the evidence warranted self-defense instructions as a first step in determining whether the instructions were incomplete.

In doing so, the court did not exceed its bounds. Under Okla. Stat. tit. 22, § 1051(a), the Oklahoma Court of Criminal Appeals may review "any decision" of the trial court "made in the progress of the case." See Hatch v. Oklahoma, 58 F.3d 1447, 1461 (10th Cir. 1995) (recognizing Oklahoma Court of Criminal Appeals has "rather sweeping discretion" and "broad powers" in appellate process); cf. Storer v. State, 180 P.2d 202, 206 (Okla. Crim. App. 1947) ("This court will closely scrutinize all the record in every case in which appeal is taken to see whether or not reviewing the record as a whole the defendant has been given a fair and impartial trial and whether his conviction has been in accordance with constitutional principles. This is done whether the question is properly preserved in the lower court for presentation on appeal or not."); Rollen v. State, 125 P. 1087, 1088 (Okla. Crim. App. 1912) (holding, sua sponte, that evidence did not justify self-defense instruction). The Oklahoma Court of Criminal Appeals' consideration of the issue did not deprive petitioner of any state-created entitlement to review of only the issues raised on appeal. See Hatch, 58 F.3d at 1460.

The Oklahoma appellate court's interpretation of its law regarding entitlement to self-defense instructions is binding on this court. See Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). The Oklahoma appellate court's decision therefore was reasonable. See 28 U.S.C. § 2254(d)(2).

B. INCOMPLETE INSTRUCTIONS

Petitioner argues the trial court violated her due process and equal protection rights by failing to inform the jury that the State had the burden of proving petitioner did not act in self-defense. In light of its determination that self-defense instructions were not warranted, the Oklahoma Court of Criminal Appeals held that the failure to give additional self-defense instructions was not error. See Allen, 871 P.3d at 94.

To attack a state court judgment based on erroneous jury instructions, a petitioner must show that the instructions rendered her trial fundamentally unfair, resulting in a conviction that violates due process. See Henderson v. Kibbe, 431 U.S. 145, 154 (1977). While it is proper for a state to place the burden on a defendant to prove an affirmative defense, it cannot require a defendant to prove a defense that negates an element of the charged crime. See Patterson v. New York, 432 U.S. 197, 206-07 (1977). Here, Oklahoma law requires the prosecution to prove, as an element of the crime, that defendant was not acting in self-defense. See Perez v. State, 798 P.2d 639, 640-41 (Okla. Crim. App. 1990). In other words, Oklahoma has assumed the burden of disproving self-defense.

In this regard, it appears that petitioner's best argument (one which she has not specifically expressed) is that the instructions may have led the jury to believe she had the burden of proving her conduct was justifiable (i.e., in self-defense) and thereby lawful. If this is the case, then the instructions would in fact have relieved the prosecution of proving an essential element of the crime of first degree murder (i.e., that the killing was unlawful). However, reviewing the instructions as a whole, the jury was properly informed that the prosecution bore the burden of proving each essential element, including unlawfulness, beyond a reasonable doubt. Stated differently, it does not appear that the instructions relieved the prosecution of the burden of proving the unlawfulness of the killing. Accordingly, the given instructions were sufficient to withstand constitutional challenge, and the Oklahoma Court of Criminal Appeal's decision was not contrary to Supreme Court precedent, see 28 U.S.C. § 2254(d)(1).

C. EXCLUSION OF EVIDENCE

Petitioner argues the trial court violated her due process rights by refusing to allow Ms. Leathers' mother to testify that Ms. Leathers previously had killed another woman in a confrontation, on the basis that the testimony was inadmissible hearsay. The Oklahoma Court of Criminal Appeals, on direct appeal, held that the refusal to admit this hearsay evidence was not error. See Allen, 871 P.2d at 92, 93-94 (citing state law).

"[S]tate court rulings on the admissibility of evidence may not be questioned in federal habeas proceedings unless they render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights." Duvall v. Reynolds, 139 F.3d 768, 787 (10th Cir.) (further quotation omitted), cert. denied, 119 S. Ct. 345 (1998). The materiality of the excluded evidence to the defense determines if the petitioner was deprived of a fundamentally fair trial. See Richmond v. Embry, 122 F.3d 866, 872 (10th Cir. 1997). Evidence is material if, in light of the record as a whole, the exclusion might have affected the trial's outcome by creating a reasonable doubt that would not have otherwise existed. See id. at 874.

While Ms. Leathers' mother's testimony would have provided additional evidence to that presented of Ms. Leathers' violent nature, petitioner has failed to show that the testimony might have affected the trial's outcome. Thus, the exclusion of this testimony did not render the trial fundamentally unfair. See Hatch, 58 F.3d at 1468.

IV. PROSECUTORIAL MISCONDUCT

Petitioner argues that numerous instances of prosecutorial misconduct resulted in a trial that was fundamentally unfair and a death sentence that violates the Eighth Amendment. Specifically, she challenges (1) the prosecution's motion in limine blocking admission of evidence regarding Ms. Leathers' violent tendencies and later guilt stage closing argument suggesting that petitioner lied about Ms. Leathers' violent tendencies; (2) the prosecution's misstatement of (a) Ms. Leathers' mother's testimony in guilt stage opening argument, (b) the evidence regarding the trajectory of the bullet in guilt stage closing argument, (c) the evidence regarding any blood found in petitioner's house or her car in guilt stage closing argument, and (d) the evidence concerning petitioner's prior manslaughter conviction in sentencing stage closing argument; (3) the prosecution's misstatement of the law by attempting to define reasonable doubt in voir dire; (4) the prosecution's diminishing of the jury's responsibility during sentencing stage closing argument; (5) the prosecution's comment petitioner cried during the trial; (6) the prosecution's assertion petitioner changed her story 150 times; and (7) the prosecution's improper name calling. The Oklahoma Court of Criminal Appeals, on direct criminal appeal, carefully considered all but one of the alleged instances of prosecutorial misconduct. It found either no fundamental error or that the comments were proper and supported by the evidence. See Allen, 871 P.2d at 95-97.

Petitioner presented the alleged misstatement of Ms. Leathers' mother's testimony claim for the first time in the federal district court. Respondent has never argued petitioner failed to exhaust state remedies for this claim or that it is procedurally barred. The federal courts may address the merits of the claim. See 28 U.S.C. § 2254(b)(2) (permitting federal court to deny relief on merits of unexhausted claim); Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir. 1999) (holding State must raise procedural bar or it is waived). The district court concluded that the testimony and the prosecution's statement were not materially different.

A prosecutor's improper comment or argument, not implicating any specific constitutional right, 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. "To view the prosecutor's statements in context, we look first at the strength of the evidence against the defendant and decide whether the prosecutor's statements plausibly could have tipped the scales in favor of the prosecution." Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (quotations omitted). "Ultimately, we must consider the probable effect the prosecutor's [statements] would have on the jury's ability to judge the evidence fairly." See id. (quotations omitted).

Review of the entire proceedings convinces us petitioner's trial was not fundamentally unfair. None of the comments, even if improper, were significant enough to influence the jury's decision. See Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998), cert. denied, 119 S. Ct. 1266 (1999). In light of the evidence of guilt and the weight of the aggravating circumstances, there is not a reasonable probability that the outcomes at either stage would have been different without the alleged misconduct. See Hoxsie v. Kerby, 108 F.3d 1239, 1244-45 (10th Cir. 1997).

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner alleges ineffective assistance of counsel at both stages of her trial. She argues counsel (1) failed to assure complete instructions on self-defense; (2) failed to present self-defense evidence; (3) failed to object to the introduction of aggravating evidence relating to her prior homicide conviction; and (4) failed to present mitigating evidence.

Claims of ineffective assistance of counsel are mixed questions of law and fact. See Wallace v. Ward, 191 F.3d 1235, 1247 (10th Cir. 1999). "To establish ineffective assistance of counsel, a petitioner must prove that counsel's performance was constitutionally deficient and that counsel's deficient performance prejudiced the defense. . . ." Boyd, 179 F.3d at 913 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To prove deficient performance, petitioner must overcome the presumption that counsel's conduct was not constitutionally defective. See id. at 914. Specifically, she "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation omitted). Thus, judicial scrutiny of counsel's performance is highly deferential. See id. For counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong. See Hoxsie, 108 F.3d at 1246.

To establish prejudice, petitioner must show that but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. If the alleged ineffective assistance of counsel occurred during the guilt stage, the question is whether there is a reasonable probability the jury would have had reasonable doubt regarding guilt. See id. at 695. In assessing prejudice, this court looks at the totality of the evidence, not just the evidence helpful to petitioner. See Cooks v. Ward, 165 F.3d 1283, 1293 (10th Cir. 1998), cert. denied, 120 S. Ct. 94 (1999).	When the alleged ineffectiveness occurs during the sentencing phase, this court considers if there is a "reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695; see also Cooks, 165 F.3d at 1296 (requiring court to consider strength of government's case and aggravating factors jury found as well as mitigating factors that might have been presented).

"This court may address the performance and prejudice components in any order, but need not address both if [petitioner] fails to make a sufficient showing of one." Foster v. Ward, 182 F.3d 1177, 1184 (10th Cir. 1999).

A. FAILURE TO REQUEST BURDEN OF PROOF INSTRUCTION

Petitioner argues that counsel's failure to request or object to the absence of an instruction informing the jury that the prosecution was required to establish beyond a reasonable doubt that petitioner was not acting in self-defense was deficient performance. She further argues that Oklahoma Court of Criminal Appeals' opinions reversing cases where self-defense burden of proof instructions were not given demonstrate prejudice. Petitioner raised this claim for the first time in federal district court. That court denied relief, concluding that because petitioner was not entitled to self-defense instructions, counsel's performance could not be deficient.

Respondent argues this claim is unexhausted, but recognizes the federal district court may deny an unexhausted claim on its merits. See 28 U.S.C. § 2254(b)(2). Although this ineffective assistance of counsel claim is not exhausted, the Oklahoma Court of Criminal Appeals denied relief on the merits of the underlying claim based on its determination that no self-defense instructions were warranted. Cf. Hooks, 184 F.3d at 1215. Thus, we will consider this claim on its merits.

Without deciding whether counsel's performance was deficient, we conclude petitioner has not shown prejudice. See Foster, 182 F.3d at 1184-85. As indicated above, regardless of whether petitioner was entitled to self-defense instructions, the given instructions were sufficient to withstand constitutional challenge.

B. FAILURE TO PRESENT SELF-DEFENSE EVIDENCE

Petitioner argues that counsel made no effort to subpoena or call at trial police officers who investigated Ms. Leathers' previous homicide. Also, petitioner argues counsel failed to present evidence of Ms. Leathers' lengthy history of arrests for violent acts. On direct criminal appeal, the Oklahoma Court of Criminal Appeals determined petitioner could not show harm because her self-defense theory was not valid. See Allen, 871 P.2d at 98-99.

In light of our resolution of petitioner's self-defense issues, she could not be prejudiced by counsel's failure to present the self-defense evidence. The Oklahoma Court of Criminal Appeals' decision was not contrary to or an unreasonable application of Strickland. See 28 U.S.C. § 2254(d)(1).

C. FAILURE TO OBJECT TO ADMISSION OF EVIDENCE

Petitioner argues that counsel should have objected to the prosecution's retrying of her prior homicide conviction and comparison of the two homicides at sentencing. Instead, petitioner believes counsel should have taken advantage of the protections of Brewer v. State, 650 P.2d 54 (Okla. Crim App. 1982), which permits a defendant to stipulate to a prior violent felony, thereby precluding relitigation of that conviction.

Petitioner first presented this claim in federal district court, which denied relief on the merits. See 28 U.S.C. § 2254(b)(2). Even though this ineffective assistance claim is not exhausted, the Oklahoma Court of Criminal Appeals denied a claim based on Brewer on its merits on direct criminal appeal. Thus, we will consider the merits of the claim. Cf. Hooks, 184 F.3d at 1215.

Even if petitioner had stipulated her prior homicide involved violence, the evidence at issue was admissible to support the continuing threat aggravator. See discussion of issue IX infra at 25-26. Because counsel could not have prevented admission of the evidence, failure to object was not deficient performance. Also, petitioner has not shown prejudice.

D. FAILURE TO OBTAIN OR PRESENT MITIGATING EVIDENCE

Petitioner argues counsel failed to investigate her background and erred in presenting a picture of her as "normal." If counsel had conducted a minimal investigation, petitioner opines he would have learned that petitioner is not "normal," because she had a troubled childhood, is retarded, may have cerebral damage, suffered from head injuries, and has psychological problems. All of this, according to petitioner, indicates that she acted in a state of diminished capacity without an intent to kill and did not process information as a normal person would. Also, petitioner believes this evidence would have rebutted prosecutorial suggestions that she was not truthful.

On direct criminal appeal, the Oklahoma Court of Criminal Appeals found no merit to this claim after determining petitioner failed to present a sufficient reason why she did not inform her attorney of these facts. See Allen, 871 P.2d at 99. Additionally, the court held that the evidence concerning mental retardation and petitioner's violent nature as a child would have been more harmful than helpful and contrary to petitioner's mother's testimony. See id.

"[C]ounsel's duty to investigate all reasonable lines of defense is strictly observed in capital cases." Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997); see also Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th Cir. 1994) (in sentencing phase, attorney has duty to conduct reasonable investigation, which includes investigation into defendant's background; failure to conduct reasonable investigation may be deficient performance). In deciding whether there is a reasonable probability this evidence would have changed the outcome of the sentencing phase, this court keeps in mind the mitigating evidence actually presented, the strength of the State's case, and the aggravating factors the jury found. See Moore, 153 F.3d at 1098 (dicta); see also Capps v. Sullivan, 921 F.2d 260, 263 (10th Cir. 1990) (in assessing whether petitioner was prejudiced by counsel's deficient performance, court "must review counsel's performance and the trial record, consider the new evidence and alternative strategy which an allegedly competent attorney would have presented, and make a judgment whether, had the new material and strategy been used it remains confident the jury verdict would have been the same").

Trial counsel presented five mitigation witnesses who presented a similar picture of petitioner's background, which was contrary to much of the evidence petitioner claims should have been presented. In his affidavit, counsel stated that he interviewed the witnesses after learning about them from petitioner and her mother. He admitted that he did not pursue information about petitioner's foster care or the fact that her foster mother had placed her in a state facility. He did not interview or contact the foster mother. Although counsel was not aware that petitioner had a low IQ or had had psychological testing, counsel stated that he knew petitioner had suffered a head injury. Counsel did not search for medical or psychological records or seek expert testing of petitioner. Counsel maintained that it was difficult to investigate due to time limits and lack of investigative help and financial support.

Without deciding whether counsel's performance was deficient, we conclude petitioner has not proven a reasonable probability that additional mitigation evidence would have changed the jury's verdict. See Foster, 182 F.3d at 1189; see also id. at 1184 (permitting court to address only performance or prejudice component if petitioner fails to make sufficient showing of that component). This court has determined, on numerous occasions, that evidence of a low IQ and/or brain damage does not outweigh evidence supporting the conviction and multiple aggravating circumstances. Id. (citing cases). Also, petitioner's troubled childhood, including a history of violent behavior, could have cut in favor of the continuing threat aggravator. Thus, if the mitigating evidence petitioner points to had been presented, it would not have been sufficient to offset, explain, or justify Ms. Leathers' murder. See Nguyen, 131 F.3d at 1349. The Oklahoma Court of Criminal Appeals' decision was not an unreasonable application of Strickland. See 28 U.S.C. § 2254(d)(1).

VI. STATE FUNDED INVESTIGATOR

Petitioner argues that the trial court's denial of her request for a state-funded investigator to assist her counsel violated her due process rights. Counsel requested an investigator, without further elaboration, based on petitioner's inability to pay for an investigator and counsel's inability to prepare a proper defense without an investigator.2 Petitioner maintains the lack of an investigator hampered her ability to establish her self-defense theory. With an investigator, petitioner believes she could have obtained evidence regarding Ms. Leathers' killing of another. In addition, petitioner argues that the trial court's failure to grant the motion for an investigator caused her to have ineffective representation.

On direct criminal appeal, the Oklahoma Court of Criminal Appeals determined petitioner failed to establish prejudice from the lack of appointment of an investigator, because she failed to give specific reasons why an investigator was needed, a self-defense theory or lesser charge of manslaughter were without merit, and there was overwhelming evidence of guilt. See Allen, 871 P.2d at 89.

An indigent defendant must have "a fair opportunity to present [her] defense." Ake v. Oklahoma, 470 U.S. 68, 76 (1985). It is undisputed petitioner is indigent. There, however, was no due process violation because petitioner offered "little more than undeveloped assertions that the requested assistance would be beneficial." Caldwell v. Mississippi, 472 U.S. 320, 323-24 n.1 (1985). By failing to provide specific reasons for her request for an investigator, petitioner "failed to meet [her] burden of showing that investigative assistance was necessary to an adequate defense." Rogers, 173 F.3d at 1287. The Oklahoma Court of Criminal Appeals' decision was not contrary to Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Also, in light of the above resolution of the self-defense and ineffective assistance of counsel issues, any denial of investigative assistance was harmless.

Petitioner's argument that the trial court's failure to provide her with an investigator caused her to receive ineffective assistance of counsel is conclusory and unsupported. Moreover, assuming the trial court's alleged Ake error could have rendered counsel's performance constitutionally deficient, any deficiency in performance was not prejudicial. See White v. Johnson, 153 F.3d 197, 208 (5th Cir. 1998) (dicta), cert. denied, 119 S. Ct. 1048 (1999).

To the extent petitioner suggests that counsel was ineffective for failing to provide a proper request for an investigator, the argument is also conclusory. Even if counsel's request was deficient, petitioner has failed to show the outcome would have been different with investigative assistance.

VII. FLIGHT INSTRUCTION

Petitioner argues the flight instruction presumed her guilt and therefore denied her due process and a fair trial. She raised this argument for the first time on state post-conviction review. The Oklahoma Court of Criminal Appeals held that it was waived. See Allen, 909 P.2d at 838-39 & 838 n.2. The federal district court, however, reviewed the claim on its merits and concluded, based on Nguyen, 131 F.3d at 1356-57, which considered an identical instruction, that petitioner's constitutional rights were not violated.

Respondent correctly argues that this claim is procedurally barred. "When a federal habeas petitioner has defaulted [her] federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred absent a showing of cause and prejudice or of a fundamental miscarriage of justice." Walker v. Attorney Gen., 167 F.3d 1339, 1344 (10th Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)), cert. denied, 120 S. Ct. 449 (1999). Petitioner admits she cannot show prejudice because Nguyen has adversely decided this issue. Also, petitioner cannot make a showing of factual innocence required for a fundamental miscarriage of justice in light of her admission that she shot Ms. Leathers. See Schlup v. Delo, 513 U.S. 298, 321 (1995).

VIII. CONTINUING THREAT AGGRAVATING CIRCUMSTANCE

Petitioner argues that Oklahoma's continuing threat aggravating circumstance is unconstitutionally overbroad. This court has rejected this argument. See, e.g., Foster, 182 F.3d at 1194; Castro v. Ward, 138 F.3d 810, 816-17 (10th Cir.), cert. denied, 119 S. Ct. 422 (1998); Nguyen, 131 F.3d at 1353-54. The prior resolution is binding, see Foster, 182 F.3d at 1194, and, contrary to petitioner's argument, en banc consideration of Nguyen is not warranted.

IX. DENIAL OF PROCEDURAL MECHANISM

Petitioner argues that she was denied the due process protection of a mandatory in camera hearing to determine if her prior manslaughter conviction had involved violence or a threat of violence. See Brewer, 650 P.2d at 63. On direct criminal appeal, the Oklahoma Court of Criminal Appeals held that the restraints of Brewer were not applicable because the State was required to prove the continuing threat aggravator. See Allen, 871 P.2d at 100.

This court will not disturb the Oklahoma appellate court's interpretation of its own procedural rule and conclusion that the rule was not violated. See Mullaney, 421 U.S. at 691. Petitioner's alleged violation of state law does not warrant habeas relief because she was not deprived of a fundamentally fair trial. See Boyd, 179 F.3d at 917.

X. OVERLAPPING AGGRAVATING FACTORS

Petitioner argues that the jury's finding of both the previous conviction of a violent felony and continuing threat aggravators based on the same conduct is unconstitutional. Petitioner further argues that the evidence presented to support her continuing threat aggravator completely subsumed the evidence offered to support the prior violent felony aggravator. On direct criminal appeal, the Oklahoma Court of Criminal Appeals held that the two do not overlap. See Allen, 871 P.2d at 100-01.

Contrary to petitioner's argument, United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), reh'g en banc, 87 F.3d 1136, 1137 (10th Cir. 1996), is factually distinguishable from the case at bar. Unlike McCullah, one of the aggravators here does not completely subsume the other. See id. at 1111. The prior violent felony aggravator focuses on the nature of petitioner's past criminal conduct, while the continuing threat aggravator focuses on possible future conduct. See Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999), cert. denied, 120 S. Ct. 415 (1999); Cooks, 165 F.3d at 1289. Also, petitioner's prior manslaughter conviction established the existence of the prior violent felony aggravator, whereas that felony along with other independent evidence all supported finding the existence of the continuing threat aggravator. Because this case is distinguishable from McCullah, and is foreclosed by Johnson and Cooks, petitioner's claim does not warrant habeas relief.

XI. CUMULATIVE ERROR

Petitioner argues the cumulative effect of the trial errors resulted in an unfair trial, a denial of due process, and a death sentence that violates the Eighth Amendment. The federal district court correctly determined that there was no cumulative error. See Moore, 153 F.3d at 1113 ("Cumulative error analysis applies where there are two or more actual errors; it does not apply to the cumulative effect of non-errors."); see also Newsted v. Gibson, 158 F.3d 1085, 1097 (10th Cir. 1998) ("A non-error and a non-prejudicial error do not cumulatively amount to prejudicial error."), cert. denied, 119 S. Ct. 1509 (1999).

XII. EVIDENTIARY HEARING

Petitioner requests remand for an evidentiary hearing on her ineffective assistance of counsel claim. An evidentiary hearing is not warranted, because the existing factual record is sufficient to resolve the claim. See Foster, 182 F.3d at 1184.

The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Wade Brorby

Circuit Judge