PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAY WESLEY NEILL,

Petitioner-Appellant,

v.

GARY GIBSON, Warden, Oklahoma State Penitentiary,

Respondent-Appellee.

No. 00-6024

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CIV-97-1318-C)

James L. Hankins of Hankins Law Office, Enid, Oklahoma, for Petitioner- Appellant.

Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals (W.A. Drew Edmondson, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before TACHA, Chief Judge, BALDOCK, and LUCERO, Circuit Judges.

TACHA, Chief Judge.

Petitioner-appellant Jay Wesley Neill appeals the denial of habeas relief, see 28 U.S.C. § 2254, from four death sentences. This appeal presents, among other issues, the question of whether Oklahoma can constitutionally apply its statute permitting introduction of victim impact evidence during a capital sentencing proceeding at a trial for crimes occurring prior to that statute's enactment. We conclude Oklahoma can do so without violating the Ex Post Facto or Due Process Clauses. We, therefore, affirm the denial of relief on this, and the remainder of Neill's habeas claims.

I.	FACTS

A jury sentenced Neill to death after convicting him of four counts of first degree malice murder stemming from Neill's armed robbery of a Geronimo, Oklahoma bank in December 1984. Neill did not contest his guilt during the trial's first stage. The State's evidence established that Neill, then age nineteen, and his co-defendant, Grady Johnson, age twenty-one, were roommates involved in a homosexual relationship. In 1984, they were having serious financial difficulties. During the week before the bank robbery, the pair purchased two knives, obtained a gun permit, bought a .32 caliber handgun and ammunition, and made plane reservations to San Francisco for Friday afternoon, December 14. On that Friday, shortly after 1:00 P.M., Neill robbed the bank. During the robbery, Neill stabbed three bank employees to death. All three women died from multiple stab wounds to their head, neck, chest and abdomen. One woman was seven months pregnant. Neill also attempted to decapitate each woman with a knife.

Five customers entered the bank during the robbery. Neill forced all five to lie face down in the back room where the employees had been stabbed. He then shot each customer in the head, killing one and wounding the other three. Neill denied attempting to shoot the fifth, an eighteen-month-old child. The child's father testified, however, that he saw someone point a gun at his child's head and fire several times. The weapon, by this time, was out of ammunition.

Neill and Johnson then flew to San Francisco, where they spent some of the approximately $17,000 stolen from the bank on expensive jewelry and clothing, hotels, limousines and cocaine. FBI agents arrested the pair there three days after the robbery.

Prior to this trial, Neill gave a videotaped interview to a religious television program, "The 700 Club," and wrote several letters to an author writing a book about the murders. Neill also wrote letters and made telephone calls apologizing to several victims. In these communications,1 Neill admitted committing the crimes. Based on this evidence, the jury convicted Neill of four counts of first degree malice murder, three counts of shooting with intent to kill and one count of attempted shooting with intent to kill.

At sentencing, the State charged and the jury found, as to each murder, three aggravating factors: Neill had created a great risk of death to more than one person; he had committed the murders to avoid arrest and prosecution; and the murders were especially heinous, atrocious or cruel. The jury imposed four death sentences, as well as twenty years' imprisonment for each non-capital conviction.

The Oklahoma Court of Criminal Appeals affirmed Neill's convictions and death sentences, and denied post-conviction relief. See Neill v. State, 896 P.2d 537 (Okla. Crim. App. 1994), cert. denied, 516 U.S. 1080 (1996); Neill v. State, 943 P.2d 145 (Okla. Crim. App. 1997).

II.	STANDARDS OF REVIEW

Because Neill filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that Act governs this appeal. See Williams v. Taylor, 529 U.S. 362, 402 (2000). Neill, therefore, will not be entitled to habeas relief unless he can establish that the state court resolved his claims "contrary to," or based on "an unreasonable application of," clearly established Supreme Court precedent, 28 U.S.C. § 2254(d)(1), or "on an unreasonable determination of the facts in light of the evidence," id. § 2254(d)(2). We presume state court factual findings are correct, absent clear and convincing evidence to the contrary. See id. § 2254(e)(1).

Where the state court did not address the merits of a habeas claim, however, this court reviews the district court's decision de novo, reviewing any factual findings only for clear error. See, e.g., Thomas v. Gibson, 218 F.3d 1213, 1220 (10th Cir. 2000).

III.	DISCUSSION

A.	Application of Oklahoma's newly enacted victim impact legislation at Neill's retrial. In 1991, after Neill's first trial, the United States Supreme Court, reversing its earlier precedent, held that states could constitutionally admit victim impact evidence during capital sentencing proceedings. See Payne v. Tennessee, 501 U.S. 808, 824-27 (1991). Oklahoma, in 1992, enacted legislation permitting introduction of such evidence. See Okla. Stat. tit. 21, § 701.10(C); see also id. tit. 22, §§ 984, 984.1, 991a(D). Neill argues that applying this statute retrospectively to permit the State to introduce victim impact evidence at his 1992 retrial for these 1984 crimes violated the Ex Post Facto and Due Process Clauses. Specifically, Neill asserts that applying this statute at his retrial implicated the fourth category of ex post facto legislation recognized in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) -- "[e]very law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender." See also Carmell v. Texas, 529 U.S. 513, 521-22, 525, 534 (2000) (reaffirming validity of Calder's fourth ex post facto category). Although the state appellate court rejected this claim, it did not specifically address Calder's fourth category. See Neill, 896 P.2d at 553-54.

Neill relies on Carmell. That case, however, is distinguishable. In Carmell, the Supreme Court addressed the retrospective application of a Texas law providing that certain sex offenses could be established solely on the victim's testimony, when previously they would have required additional corroborating evidence. See 529 U.S. at 516. The Court, applying Calder's fourth category, see Carmell, 529 U.S. at 522, held retrospective application of this Texas statute violated the ex post facto prohibition because this legislation "changed the quantum of evidence necessary to sustain a conviction." Id. at 530; see also id. at 531, 532-33, 546. This change in the quantum of evidence "subverts the presumption of innocence." Id. at 532. In addition, the Court noted that the Texas statute did not simply regulate the mode by which the parties could place facts before the jury, but rather "govern[ed] the sufficiency of those facts for meeting the burden of proof." Id. at 545; see also id. at 546-47.

In contrast, Oklahoma's victim impact statute does not change the quantum of evidence necessary for the State to obtain a death sentence, nor does it otherwise subvert the presumption of innocence. See id. at 530-34; see also Thompson v. Missouri, 171 U.S. 380, 387 (1898). Further, the Oklahoma statute leaves for the jury to determine the victim impact evidence's sufficiency or effect. See Carmell, 529 U.S. at 545-47; see also Thompson, 171 U.S. at 387. Moreover, "[v]ictim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities." Payne, 501 U.S. at 825.

This case is more analogous to Thompson, upon which the district court relied to deny Neill habeas relief. In Thompson, the Court held that retrospectively applying a state statute permitting handwriting experts' testimony did not violate the Ex Post Facto Clause. See 171 U.S. at 380-82, 386-88.

"Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do not . . . alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed. . . . The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute. . . . [A]lterations which do not increase the punishment, nor change the ingredients of the offence, or the ultimate facts necessary to establish guilt, but -- leaving untouched the nature of the crime and the amount or degree of proof essential to conviction -- only remove existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure."

Id. at 385-86 (quoting Hopt v. Utah, 110 U.S. 574, 589-90 (1884)). Further, the Thompson Court indicated it could not

perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offence was committed . . . . The statute [at issue] did nothing more than remove an obstacle . . . that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact to be established . . . .

Id. at 387.

Neill argues, however, that Thompson is distinguishable from his case because, while expert handwriting testimony could benefit either the State or the defendant, Oklahoma's victim impact evidence benefits only the State and would always be detrimental to the capital defendant. See also Carmell, 529 U.S. at 533 & n.23, 546. In Carmell, the Court did discuss this factor, noting first that "[o]rdinary rules of evidence, for example, do not violate the [Ex Post Facto] Clause." Id. at 533 n.23. The Court further indicated that these "ordinary rules of evidence . . . are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case." Id.; see id. at 546 (noting changes lowering quantum of proof, and thus implicating Ex Post Facto Clause, will always inure to State's benefit, but witness competency laws "do not necessarily run in the State's favor"); see also Thompson, 171 U.S. at 387-88. But that factor alone is not dispositive. See McCulloch v. State, 39 S.W.3d 678, 684 (Tex. Ct. App. 2001). Rather, the Carmell Court noted that, "[m]ore crucially, such [ordinary rules of evidence], by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption." 529 U.S. at 533 n.23. Despite the fact that Oklahoma's statute permitting victim impact evidence benefits only the State,2 therefore, it does not violate the ex post facto prohibition here because it neither changes the quantum of proof nor otherwise subverts the presumption of innocence. See Carmell, 529 U.S. at 530-33 & 533 n.23. The "inhibition upon the passage of ex post facto laws does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed." California Dep't of Corr. v. Morales, 514 U.S. 499, 510 n.6 (1995) (further quotation omitted). Neill, therefore, is not entitled to habeas relief.

B.	Second-stage jury instruction. Oklahoma law provides that, if a capital sentencing jury cannot reach a unanimous verdict within a reasonable time, the trial court shall impose a life sentence, either with or without the possibility of parole. See Okla. Stat, tit. 21, § 701.11. The Eighth Amendment, however, does not require the trial court to instruct jurors on the consequences of their failure to agree. See Jones v. United States, 527 U.S. 373, 381 (1999). Neill argues the Constitution, nonetheless, did require such an instruction in this case because here the prosecutor affirmatively misinformed jurors that if they failed to reach a unanimous sentencing decision, there would be another retrial. See Trial tr. vol. V at 1315. Jones does indicate that, "[i]n theory, the . . . failure to instruct the jury as to the consequences of deadlock could give rise to an Eighth Amendment problem," noting "a jury cannot be 'affirmatively misled regarding its role in the sentencing process.'" 527 U.S. 381-82 (quoting Romano v. Oklahoma, 512 U.S. 1, 9 (1994)).

Because the Oklahoma Court of Criminal Appeals denied relief solely on state law grounds, see Neill, 896 P.2d at 557, this court reviews this constitutional claim de novo. See Thomas, 218 F.3d at 1220.

Although the prosecutor did, at one point, misstate Oklahoma law, his argument as a whole did not mislead the jury. Following his misstatement that the jury's failure to reach a unanimous sentencing decision would result in another retrial, the prosecutor argued that if defense counsel could get one juror to vote against the death penalty, that punishment could not be imposed. See Trial tr. vol. V at 1321. Defense counsel also argued to the jury that, if one of them believed death was not the appropriate punishment, that juror should hold out and the judge would eventually declare a deadlock and impose a life sentence without the possibility of parole. See id. at 1308, 1313. Further, the prosecutor ended his argument by asserting that there was no mistrial at sentencing and that if one juror "cannot agree [to a death sentence], then it's life without parole." Id. at 1327. In light of the entire record, then, the prosecutor's single misstatement did not mislead the jury concerning its sentencing role. An instruction on the consequences resulting from the jury's failure to reach a unanimous sentencing decision, therefore, was unnecessary. See Jones, 527 U.S. at 381-82.

For these same reasons, Neill's claims that his trial attorney was ineffective for failing to object to the prosecutor's misstatement, and to object to the prosecutor's argument generally concerning the possibility of another retrial, lack merit.3 See, e.g.,Werts v. Vaughn, 228 F.3d 178, 205 (3d Cir. 2000), cert. denied, 121 S. Ct. 1621 (2001); see also Washington v. Hofbauer, 228 F.3d 689, 699 (6th Cir. 2000) (noting that, before assessing whether defense counsel was ineffective for failing to object to prosecutorial misconduct, habeas court must first determine whether prosecutor in fact committed misconduct).

C.	Denial of impartial jury. A capital defendant may challenge for cause any juror who will automatically vote to impose a death sentence upon a first degree murder conviction. See Morgan v. Illinois, 504 U.S. 719, 729 (1992). Relying on Morgan, Neill argues that the trial court and his defense attorney failed to question three individuals who sat on Neill's jury -- Hyde, Loggins, and Hannabass -- concerning whether each could consider imposing a sentence less than death if the jury did convict Neill of first degree murder. On appeal to this court, Neill asserts three theories warranting habeas relief on this claim: 1) having any one of these three individuals on the jury violated Morgan; 2) the trial court's failure to pose this question sua sponte deprived Neill of due process and a fundamentally fair trial; and 3) defense counsel was constitutionally ineffective for failing to make this inquiry.

1. Procedural posture. Because Neill did not challenge these three jurors until his state post-conviction application, the Oklahoma Court of Criminal Appeals held he had waived these claims. See Neill, 943 P.3d at 147-48. That state procedural bar is adequate to preclude habeas review of Neill's Morgan and due process claims. See Hale v. Gibson, 227 F.3d 1298, 1328 (10th Cir. 2000) (Oklahoma's procedural bar, applicable to most claims not raised on direct appeal, except ineffective-assistance claims, is adequate and independent default rule), cert. denied, 121 S. Ct. 2608 (2001). Neill does not assert either cause and prejudice excusing this default, nor that this court's refusal to consider these claims would result in a fundamental miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750 (1991). Neill's procedural default, therefore, precludes federal habeas review. See id.

The State's procedural bar, however, is not adequate to preclude habeas review of Neill's ineffective-assistance claim because the same attorney represented Neill both at trial and on direct appeal. See English v. Cody, 146 F.3d 1257, 1263 (10th Cir. 1998); see also Walker v. Gibson, 228 F.3d 1217, 1231-32 (10th Cir. 2000), cert. denied, 121 S. Ct. 2560 (2001). Accordingly, the State concedes that the merits of that claim are properly before this court. See Appellee's Br. at 22-23.

2. Ineffective assistance of trial counsel. This court's inquiry is thus limited to whether trial counsel was ineffective for failing to ask these three jurors if they would automatically vote to impose a death sentence upon Neill's first degree murder conviction. To succeed, Neill must establish both that counsel's performance was deficient and Neill's defense was thereby prejudiced. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Because the state appellate court did not address this claim's merit, this court's review is de novo. See Thomas, 218 F.3d at 1220; see also Smith v. Gibson, 197 F.3d 454, 461 (10th Cir. 1999) (reviewing ineffective assistance claims, which present mixed questions of law and fact, de novo), cert. denied, 531 U.S. 839 (2000).

Generally, "[a]n attorney's actions during voir dire are considered to be matters of trial strategy," which "cannot be the basis" of an ineffective assistance claim "unless counsel's decision is . . . so ill chosen that it permeates the entire trial with obvious unfairness." Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997); see also Hale, 227 F.3d at 1317-18; Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir.), cert. denied, 531 U.S. 938 (2000). Further,

[l]awyers experienced in the trial of capital cases have widely varying views about addressing the delicate balance between the disqualification of jurors whose personal beliefs prevent them from ever imposing the penalty of death under Witherspoon v. Illinois, 391 U.S. 510, 520-23 . . . (1968), and those who would automatically recommend that sentence if they found the defendant guilty. Morgan . . ., 504 U.S. 719 . . . . The difficulty of the task is greater where[, as here,] there has been widespread publicity and public comment about the crime, the investigation and pre-trial proceedings . . . .

United States v. McVeigh, 118 F. Supp. 2d 1137, 1152 (D. Colo. 2000) (28 U.S.C. § 2255 proceeding).

Here, defense counsel indicated to Neill, prior to trial, that he intended to concentrate specifically on voir dire matters and he hoped thereby to create reversible error. See Post-conviction application, app. E at 4, 14, 16. Further, either defense counsel or the prosecutor asked all other prospective jurors whether they would consider imposing a sentence less than death. Trial counsel, therefore, was well aware of the need for this inquiry. Nevertheless, the record is insufficient to permit this court to determine whether defense counsel's failure to ask only these three jurors whether they would automatically vote for a death sentence was strategic and, if so, whether that strategy was reasonable.

Regardless, Neill has failed to establish any resulting prejudice. See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000) (noting court may consider Strickland's prejudice component without first addressing adequacy of counsel's performance). To do so, Neill must show "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. Because "[i]f even one" juror who would automatically vote for a death sentence "is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence," Morgan, 504 U.S. at 729, we address whether any of these jurors would have automatically voted to impose a death sentence, see McVeigh, 118 F. Supp. 2d at 1152 (noting, in addressing similar ineffective-assistance claim, that "[t]he primary focus is on the jurors' willingness to consider a life sentence after finding the defendant guilty of the crimes charged"); see also Hale, 227 F.3d at 1320 (addressing claim that defense counsel was ineffective for failing to remove biased jurors during voir dire by requiring petitioner to show jurors were in fact biased).

To that end, Neill proffers his investigators' affidavits indicating that, four years after the trial, Juror Loggins "felt that the death penalty was the only appropriate punishment for murder, under any circumstances," Post-conviction application, app. H at 4, 12, and Juror Hyde "felt that if you take a life, you deserve the same sentence," id. at 16, 17. The district court, however, did not abuse its discretion in refusing to consider these affidavits, deeming them inadmissible hearsay.4 See United States v. Davis, 60 F.3d 1479, 1484 (10th Cir. 1995) (direct criminal appeal) (noting district court has discretion to refuse to consider jury consultant's affidavit containing hearsay concerning what jurors had told her); see also Western Spring Serv. Co. v. Andrew, 229 F.2d 413, 419 (10th Cir. 1956) (holding, in civil action, that attorney's affidavit concerning what juror told attorney was hearsay, entitled to no consideration).

Even assuming this court could consider these affidavits, cf. Walker, 228 F.3d at 1233, they fail to show prejudice, cf. Hale, 227 F.3d at 1319 (noting, in addressing claim that trial counsel was ineffective for failing to remove jurors with preconceived belief defendant was guilty, that "[t]o show a juror was biased," petitioner must show more than that the juror "had a preconceived notion of guilt;" he "must show that the juror had such a fixed opinion that he or she could not judge impartially"). Neill's affidavits attribute to these jurors single, brief, conclusory statements, without providing the context in which these jurors made these statements, nor the time frame during which they were to have held these beliefs. Moreover, "[c]onsideration of statements made by trial jurors after they experienced the entire trial and sentencing hearing and after deliberating on the verdicts are not reasonably probative of . . . whether [jurors] could consider the evidence with open minds and follow the court's instructions on the law . . . ." McVeigh, 118 F. Supp. 2d at 1153.

Apart from these affidavits, Neil points to Juror Hannabass's response to the question posed to him during voir dire as to whether he could consider imposing a death sentence. Juror Hannabass answered "I can do it. I would like to." Trial tr. vol II. at 470-71. Neither defense counsel nor anyone else further questioned this juror concerning his ability to consider imposing a sentence less than death. Nonetheless, this ambiguous voir dire response, without more, is insufficient to establish that Juror Hannabass would have automatically voted to impose a death sentence, upon Neill's first degree murder conviction. Cf. Moore v. Gibson, 195 F.3d 1152, 1170 (10th Cir. 1999) (holding trial judge, in finding juror impartial and thus qualified to serve, and aided by judge's assessment of juror's credibility, may resolve any ambiguity in juror's voir dire response in State's favor), cert. denied, 530 U.S. 1208 (2000).

For these same reasons, neither the investigators' affidavits nor the voir dire transcript are sufficient to have required the district court to conduct an evidentiary hearing. See Walker, 228 F.3d at 1231. Neill, therefore, is not entitled to habeas relief on this ineffective-assistance claim.

D.	Prosecutorial misconduct.

1. Procedural default. Because Neill did not assert any prosecutorial misconduct until his state post-conviction application, the Oklahoma appellate court deemed him to have waived these claims. See Neill, 943 P.2d at 147-48. That procedural bar is adequate to preclude federal habeas review. See, e.g., Hale, 227 F.3d at 1328. Neill does not specifically assert any cause and prejudice excusing this default, nor does he argue that this court's refusal to address these claims on their merit will result in a fundamental miscarriage of justice.5 See Coleman, 501 U.S. at 750. His procedural default, therefore, bars habeas review of these claims. See id.

The state appellate court also deemed Neill to have waived his claims alleging trial counsel was ineffective for failing to object to this prosecutorial misconduct, because Neill had also failed to raise those claims until his state post-conviction application. See Neill, 943 P.2d at 147-48. Because Neill had the same attorney at trial and on direct appeal, however, this procedural bar is not adequate to preclude habeas review of Neill's ineffective-trial-counsel claims. See English, 146 F.3d at 1263. We, therefore, address the merits of these ineffective-assistance claims. Because the state appellate court did not address their merit, however, our review is de novo. See Thomas, 218 F.3d at 1220; see also Smith, 197 F.3d at 461.

2. Trial counsel's ineffective assistance. Neill argues his trial attorney was constitutionally ineffective for failing to object to the prosecutor's improper remarks made during second-stage closing argument. Neill must again establish both trial counsel's deficient performance and resulting prejudice. See Strickland, 466 U.S. at 687.

First, during closing argument, the prosecutor addressed each of Neill's five proposed mitigating factors, arguing none of them justified a sentence less than death under Oklahoma law. While Neill has the right to have the jury consider any constitutionally relevant mitigating evidence he presents, see, e.g., Buchanan v. Angelone, 522 U.S. 269, 276 (1998), citing cases, "[t]he prosecutor is permitted to comment upon and to argue the appropriate weight to be given mitigating factors," Walker, 228 F.3d at 1243; see also, e.g., Fox, 200 F.3d at 1299-1300. Further, the trial court instructed jurors that it was their duty to determine what circumstances were mitigating. See, e.g., Walker, 228 F.3d at 1243. The prosecutor's argument, therefore, was not improper and Neill's trial attorney could not have been constitutionally ineffective for failing to object to it. See, e.g., Werts, 228 F.3d at 205.

Secondly, in response to defense counsel's argument that the responsibility to impose, or to prevent, a death sentence rested with each individual juror, the prosecutor argued that "an undue and unfair burden has been placed . . . squarely on your shoulders that if any of you do not hold out then it's gonna be your responsibility and you're gonna be the one that has caused Jay Neill to be executed. That's not our law." Trial tr. vol. V at 1314. Later, the prosecutor informed jurors that they were "only one step in the process." Id. at 1326.

Caldwell v. Mississippi, 472 U.S. 320, 323, 328-29, 341 (1985), precludes improperly diminishing capital jurors' sense of responsibility for imposing a death sentence. This includes remarks inaccurately describing the jury's role under state law. See Romano, 512 U.S. at 9. Considered in the context of the entire trial, see Walker, 228 F.2d at 1243, however, the prosecutor's remarks did not mislead jurors as to their role in sentencing Neill to death. See, e.g., Pickens v. Gibson, 206 F.3d 988, 999-1000 (10th Cir. 2000). Moreover, the prosecutor had earlier argued that the jurors were there to decide whether to give Neill the death penalty. See Walker, 228 F.3d at 1243. And the trial court instructed jurors that it was their "duty to determine the penalty to be imposed." O.R. at 130; see Walker, 228 F.3d at 1243. Because these challenged remarks, considered in the context of the entire trial, did not violate Caldwell, trial counsel was not ineffective for failing to object. See, e.g., Werts, 228 F.3d at 205.

Neill also complains that the prosecutor violated Caldwell by suggesting to jurors that their decision to impose a death sentence was just a recommendation. In addition, Neill challenges the prosecutor's remarks again urging jurors not to "put the undue burden on your shoulder that you're the cause of the person losing their life or you're the cause of starting this down the track. You've done nothing . . . ." Trial tr. vol. V at 1325. Because defense counsel objected to these comments, see id. at 1315, 1325-26, however, Neill's ineffective assistance claim fails.

Lastly, Neill challenges as inflammatory the prosecutor's remarks concerning Neill's homosexuality. The prosecutor, challenging Neill's proffered mitigating factor that he was acting under an extreme emotional disturbance when he committed these crimes, as a result of his fear of losing his relationship with Johnson, noted Neill was "a vowed homosexual. He had a gay lover he didn't want to lose." See id. at 1283. The prosecutor then compared Neill's situation to the breakup of a heterosexual relationship or marriage, arguing neither instance justified murder. See id. These comments on Neill's homosexuality were accurate, in light of the evidence, and were relevant to both the State's case and Neill's defense theory. See Clayton v. Gibson, 199 F.3d 1162, 1174 (10th Cir. 1999) (upholding prosecutor's accurate and relevant comments), cert. denied, 531 U.S. 838 (2000). Trial counsel, therefore, was not ineffective for failing to object. See, e.g., Werts, 228 F.3d at 205.

The prosecutor made additional remarks aimed at Neill's homosexuality. Because defense counsel did object to those remarks, see Trial tr. vol. V at 1285-86, however, he was not constitutionally ineffective.

E.	Ineffective representation at sentencing.

Neill argues his defense attorney ineffectively represented him during the capital sentencing proceeding by failing to investigate and present additional mitigating evidence. Although the Oklahoma Court of Criminal Appeals held Neill had waived this claim by failing to raise it on direct appeal, see Neill, 943 P.2d at 147-48, the State does not continue to assert that procedural default here. Again, because Neill had the same attorney at trial and on direct appeal, and because the trial record alone would not have been sufficient to resolve this issue, the state procedural bar is, in any event, not adequate to preclude federal habeas review. See English, 146 F.3d at 1264; see also, e.g., McGregor v. Gibson, 219 F.3d 1245, 1252-53 (10th Cir. 2000), overruled on other grounds on reh'g en banc, 248 F.3d 946 (10th Cir. 2001). Because the state appellate court did not address this claim's merit, however, we consider it de novo. See Thomas, 218 F.3d at 1220.

Neill must establish both that trial counsel's representation at sentencing was deficient, and he was thereby prejudiced. See Strickland, 466 U.S. at 687. We need address here only whether any alleged deficiency prejudiced Neill. See, e.g., Smith, 528 U.S. at 286 n.14. In the context of a capital sentencing proceeding, the relevant prejudice inquiry is "whether there is a reasonable probability" that, absent these alleged errors, the jury "would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695. In making this determination, we consider the strength of the State's case, the aggravating circumstances the jury found, the mitigating evidence defense counsel did present, and the additional mitigating evidence the defense might have presented. See, e.g.,Walker, 228 F.3d at 1234.

The jury found that Neill had robbed a bank, killing four, wounding three others and attempting to shoot an eighteen-month-old child. The jury further found the existence of three aggravating factors as to each of the four murders. Overwhelming evidence supported these findings. In mitigation, Neill admitted committing these crimes, with the exception of shooting at the child, and expressed his remorse. In addition, Neill testified concerning his background, including his childhood medical problems, his physically abusive father and stepfather, Neill's newly found Christian faith, his relationship with Johnson, and Neill's hope that his testifying would facilitate his and the victims' healing. He also assured jurors that he would not pursue any appeals if they sentenced him to life without parole instead of death. Pamela Matthews, who was the first person in the bank after the robbery and who discovered the victims, also testified concerning Neill's communications with her, his remorse, and her forgiving him.

Neill now argues that trial counsel should have investigated and presented additional available mitigating evidence from Neill's friends and family indicating that he was, among other things, clean cut, loving, well behaved, easygoing, nonviolent, caring, funny, outgoing, with lots of friends and girlfriends, compassionate, intelligent, loved, devoted to his family, hardworking, and sincere in his apologies for the crimes. Neill further asserts defense counsel should have obtained a psychiatric evaluation, which would have shown that Neill had previously suffered a number of head injuries resulting in unconsciousness and he had deficits in his reasoning, judgment and problem-solving abilities, which would have been exacerbated by his emotional stress at the time these crimes occurred.

In light of the State's strong case and the number of aggravators the jury found, there is no reasonable probability that, had trial counsel presented this additional mitigating evidence, the jury would have imposed a sentence less than death. See, e.g., Walker, 228 F.3d at 1234; Hale, 227 F.3d at 1316-17; Smith, 197 F.3d at 463-64.

F.	Trial court's refusal to define further life sentence without possibility of parole. The trial court instructed jurors that they could consider imposing sentences of death, life imprisonment, or life imprisonment without the possibility of parole. Neill challenges the trial court's refusal to instruct further as to the meaning of life without parole. The state appellate court held Neill had waived this claim by failing to raise it on direct appeal. See Neill, 943 P.2d at 149-50. Although the State continues to assert this procedural default, we instead address this claim's merit, because the denial of relief can be "more easily and succinctly affirmed" on that basis. Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir.), cert. denied, 531 U.S. 982 (2000).

This court has previously determined that the trial court need not further define life without the possibility of parole. See Mayes v. Gibson, 210 F.3d 1284, 1294 (10th Cir.), cert. denied, 531 U.S. 1020 (2000). Additionally, while Neill relies on Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality), that decision concerned capital cases where a defendant's future dangerousness is at issue, see, e.g., O'Dell v. Netherland, 521 U.S. 151, 153 (1997); Mayes, 210 F.3d at 1294. Here, however, the State did not charge Neill with the continuing threat aggravator.

G.	Cumulative error. Because there was no constitutional error, Neill has also failed to establish any cumulative error warranting habeas relief. See, e.g., Clayton, 199 F.3d at 1180.

IV.	CONCLUSION

Having considered the record and the parties' arguments, we AFFIRM the denial of habeas relief.6

00-6024, Neill v. Gibson

LUCERO, Circuit Judge, dissenting.

Because the prosecutor's blatant homophobic hatemongering at sentencing has no place in the courtrooms of a civilized society, and Neill's appellate counsel's failure to raise the issue on direct appeal constitutes clear and plain prejudicial neglect, I respectfully dissent. Correctly or incorrectly, we have encapsulated the applicable Strickland jurisprudence into the term "dead-bang winner." See United States v. Cook, 45 F.3d 388, 395 (1995) (citing Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989)).1 Whether we apply this more stringent standard, or an orthodox Strickland approach, we have before us a "dead-bang winner."

While thinly disguising his intent by denying that a person's "sexual preference" is an "aggravating circumstance," the prosecutor deviously and despicably incited the jury with the following statement:

If I could ask each of you to disregard Jay Neill and take him out of the person but consider these things in a generic way. I want you to think briefly about the man you're setting [sic] in judgment on . . . and believe me, . . . you have every thing in this case, the good, the bad, everything that the law allows to aid you in this decision. But just generic, just put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I'd like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. The person you're sitting in judgment on -- disregard Jay Neill. You're deciding life or death on a person that's a vowed [sic] homosexual. . . . But these are areas you consider whenever you determine the type of person you're setting [sic] in judgment on. . . . The individual's homosexual. He's in love with Robert Grady Johnson.

(V Trial Tr. at 1285–86, 87.) I sternly reject the prosecutor's disavowal and the "he brought it up" post hoc rationalization that this somehow justifies the use of hate as an appropriate adversarial tool.

Moreover, the record evidence calls into question whether Neill was sentenced to death by an impartial jury, which further erodes my confidence in the jury's sentence. I would grant habeas relief and vacate Neill's sentence.

I

The majority declines to reach the issue of the prosecutor's homophobic comments, concluding (1) that Neill's counsel at trial was not constitutionally ineffective because he objected to the remarks and (2) without examining, or even quoting, the prosecutor's remarks, that Neill's counsel on direct appeal was not ineffective "[b]ecause none of the[] prosecutorial misconduct claims have merit." (Majority Op. at 19 n.5.) While the objection mitigates the ineffectiveness of Neill's counsel's performance at Neill's trial,2 nothing limits review of that same lawyer's effectiveness in failing to raise the issue during his subsequent representation of Neill on direct appeal.3

The Sixth Amendment requires that criminal defendants receive effective assistance of counsel both at trial and during a direct appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 396 (1985) ("A first appeal as of right . . . is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney."). Claims of ineffective assistance of appellate counsel are reviewed under the test in Strickland v. Washington, 466 U.S. 668, 687 (1984), and must demonstrate that "appellate counsel's performance was deficient and that the deficient performance prejudiced [appellant's] defense." Smith v. Massey, 235 F.3d 1259, 1274 (10th Cir. 2000). When the claim of appellate counsel's ineffectiveness is based on the omission of an issue on appeal, our review is "highly deferential," Moore v. Gibson, 195 F.3d 1152, 1180 (10th Cir. 1999), cert. denied, 530 U.S. 1208 (2000), and we cannot fault appellate counsel for failing to raise every conceivable issue on appeal, Cook, 45 F.3d at 394–95 (noting that appellate counsel properly weeds out weak issues on appeal so as not to detract a judge's attention from stronger issues).

Nevertheless, appellate counsel renders ineffective assistance by "omitting a 'dead-bang winner,' even though counsel may have presented strong but unsuccessful claims on appeal." Id. at 395 (citing Page, 884 F.2d at 302). A "dead-bang winner" "is an issue which was obvious from the trial record . . . and one which would have resulted in a reversal on appeal." Id. Subsequent cases have offered other formulations of the necessary showing to support a claim of ineffective assistance of counsel based on omitting issues on appeal. See Johnson v. Gibson, 169 F.3d 1239, 1251 (10th Cir. 1999) (whether the omitted claims were "clearly meritorious"); Jackson v. Shanks, 143 F.3d 1313, 1321 (10th Cir. 1998) (whether the omitted claims were "obvious winners"); Banks v. Reynolds, 54 F.3d 1508, 1515 n.13 (10th Cir. 1995) (whether the issue "is obvious from the trial record and [is] one which probably would have resulted in a reversal on appeal" (emphasis added)). Whatever the exact nature of the "dead-bang winner" test, it requires a close look at the merits of the omitted claim. See, e.g., Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999) ("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."); Banks, 54 F.3d at 1515 ("When a habeas petitioner alleges that his counsel was ineffective for failing to raise an issue on appeal, we examine the merits of the omitted issue."). I fail to understand how the majority can summarily conclude that a claim of ineffective assistance of appellate counsel lacks merit absent even a cursory examination of the underlying basis for the claim. See Hawkins v. Hannigan, 185 F.3d 1146, 1152 (10th Cir. 1999) ("When a habeas petitioner alleges that his appellate counsel rendered ineffective assistance by failing to raise an issue on direct appeal, we first examine the merits of the omitted issue."); cf. Zant v. Stephens, 462 U.S. 862, 885 (1983) ("[T]he severity of the [death] sentence mandates careful scrutiny in the review of any colorable claim of error.").4

Turning, then, to the nature of the prosecutor's comments, I think they are susceptible of only one possible interpretation: among other factors, Neill should be put to death because he is gay. The prosecutor urged the jury to consider "some things that . . . depict the true person, what kind of person" Neill is. (V Trial Tr. at 1286.) According to the prosecutor, the "true person," the "kind of person" Neill is can be summed up in four words: "He is a homosexual." (Id.)

As the prosecutor knew, emphasizing that Neill was gay likely had a tremendous negative impact on jurors. See, e.g., Stockton v. Murray, 41 F.3d 920, 927 (4th Cir. 1994) (the defendant's "alleged homosexual activities . . . had the potential to seriously prejudice the jury"); United States v. Ham, 998 F.2d 1247, 1252 (4th Cir. 1993) ("We accept without need of extensive argument that implications of . . . homosexuality . . . unfairly prejudice a defendant." (footnote omitted)); United States v. Gillespie, 852 F.2d 475, 479 (9th Cir. 1988) ("Evidence of homosexuality is extremely prejudicial."); Cohn v. Papke, 655 F.2d 191, 194 (9th Cir. 1981) (introduction of evidence of homosexuality creates a "clear potential that the jury may have been unfairly influenced by whatever biases and stereotypes they might hold with regard to homosexuals"); Developments in the Law—Sexual Orientation and the Law: II. Gay Men and Lesbians and the Criminal Justice System, 102 Harv. L. Rev. 1519, 1552 (1989) ("[H]omophobia and anti-gay prejudice permeat[e] popular culture."); cf. United States v. Bautista, 145 F.3d 1140, 1152 (10th Cir. 1998) ("[T]estimony of [the victim's] homosexuality was irrelevant and potentially highly prejudicial. We fail to discern how the victim's sexual orientation is relevant to the charge of second- degree murder . . . ."); Sexual Orientation Fairness Subcomm., Judicial Council of Cal., Sexual Orientation Fairness in California Courts 25–26 (2001), available at http://www.courtinfo.ca.gov/programs/access/documents/report.pdf (reporting the results of a study finding that "56 percent of gay and lesbian court users in a contact in which sexual orientation became an issue reported observing or experiencing a range of negative experiences . . . . Specifically, 36 percent heard negative comments about someone else; 29 percent heard negative remarks arising from a case; 23 percent heard negative comments about themselves; 26 percent experienced or heard ridicule, snickering, or jokes about lesbians and/or gay men; and 25 percent heard other negative remarks.").

The State seeks to explain away the prosecutor's comments by claiming that Neill's "sexual orientation was relevant to the issues in the case because it was the problems arising from the relationship with Johnson that provided the motivation for the robbery and murders." (Appellee's Br. at 42.) It is true that Neill did not attempt to hide the nature of his romantic relationship and that he argued that problems in the relationship were a factor contributing to his criminal activity. However, the State's contention suffers from a fundamental misunderstanding of the purpose of Neill's mitigating evidence. Neill introduced evidence of the emotional and financial stresses in his relationship to show that the robbery was the act of a desperate man, not that of a depraved killer. The prosecutor was within his rights in criticizing the nature of Neill's mitigating evidence, as when he stated "Any of you been in a relationship that broke up? Did that justify or warrant you going out and killing four people and shooting three others? . . . The fact that you're losing a lover does not put you in the emotional state where it would justify this." (V Trial Tr. at 1283.) However, references to the fact that Neill was "a vowed [sic] homosexual" (id.) and had a "gay lover" (id.) add nothing to the critique and only serve to highlight the irrelevant and prejudicial fact of Neill's sexual orientation. The prosecutor's comments a few pages later in the transcript are totally unresponsive to Neill's mitigation evidence and are designed solely to inflame the jury's prejudices:

But just generic, just put in the back of your mind what if I was sitting in judgment on this person without relating it to Jay Neill, and I'd like to go through some of the things that to me depict the true person, what kind of person he is. He is a homosexual. The person you're sitting in judgment on -- disregard Jay Neill. You're deciding life or death on a person that's a vowed [sic] homosexual.

(Id. at 1286.)

As an additional justification for the prosecutor's comments, the State notes that it was Neill himself who "introduced the issue of his sexual orientation." (Appellee's Br. at 42.) To my mind that argument is no different from claiming that a Jewish defendant opens the door to a prosecutor's anti-Semitic arguments by wearing a yarmulke in the presence of jurors.

At their core, the prosecutor's statements are tantamount to urging the jury to return the death sentence because a defendant fits within any other group that has been the target of prejudice and discrimination. See generally Debra T. Landis, Annotation, Prosecutor's Appeal in Criminal Case to Racial, National, or Religious Prejudice as Ground for Mistrial, New Trial, Reversal, or Vacation of Sentence—Modern Cases, 70 A.L.R.4th 664 (1989) (discussing the issue and citing cases). Directing the jurors to focus on Neill's homosexuality when deciding his punishment was an obviously improper appeal to their prejudices. See American Bar Association Standards for Criminal Justice 3-5.8(c) (3d ed. 1993) ("The prosecutor should not make arguments calculated to appeal to the prejudices of the jury."). A civilized system of criminal justice can have no place for such actions. See, e.g., Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality) ("It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.").

The prejudicial impact of bigoted comments at the penalty phase of a capital trial was aptly described by the Nevada Supreme Court. In Dawson v. State, 734 P.2d 221, 223 (Nev. 1987), the prosecutor made arguably irrelevant and racist remarks during Dawson's sentencing. The court vacated the defendant's death sentence, observing that "[i]n a capital sentencing proceeding before a jury, the jury is called upon to make a 'highly subjective, unique, individualized judgment regarding the punishment that a particular person deserves.'" Id. (quoting Turner v. Murray, 476 U.S. 28, 33–34 (1986) (further internal quotation omitted)). This special role of the jury in the penalty phase and the irrevocable nature of a death sentence result in a different calculation of prejudice in capital cases. "Because of the delicate task which the trier of fact has in weighing the mitigating circumstances against the aggravating circumstances, the kind and level of prejudice which might not require reversal of a conviction may be sufficient to require reversal of a death penalty." Id. at 224.

Finally, I note the ineffectiveness of Neill's counsel on appeal for failing to raise the prosecutorial misconduct claim is highlighted by several additional facts: the prosecutor's comments were "obvious from the trial record . . . [and] 'leaped out upon even a casual reading of [the] transcript,'" Cook, 45 F.3d at 395 (quoting Matire v. Wainwright, 811 F.2d 1430, 1438 (11th Cir. 1987)); Neill's counsel—who represented Neill both at trial and on appeal—was present in the courtroom when the comments were made; and Neill's counsel knew that Neill's homosexuality was potentially prejudicial, as exemplified by his asking some (but not all) members of the jury about their attitudes toward homosexuals during voir dire. (See, e.g., I Trial Tr. at 149–62, 190, 199, 210, 223; II Trial Tr. at 258, 268.)

I cannot sanction—because I have no confidence in—a proceeding tainted by a prosecutor's request that jurors impose a death sentence based, even in part, on who the defendant is rather than what he has done. For the reasons described, I believe Neill's appellate counsel omitted a "dead-bang winner" on appeal, and Neill has thus shown cause and prejudice excusing his procedural default.

II

My confidence in Neill's sentence is further undermined by the likelihood that he was denied an impartial jury due to the failure of both the court and his trial counsel to inquire on voir dire whether three members of the jury were predisposed to impose the death penalty. Neill proffers affidavits prepared by the Oklahoma Indigent Defender System ("OIDS") reporting statements made by two of the jurors, Rusella Loggins and Glen Nelson Hyde, III, during interviews with OIDS investigators. Loggins told an investigator that she believed death was the only appropriate punishment for murder under any circumstances. Hyde, the jury foreman, told another investigator that when a person takes a life, he or she deserves the same sentence. Neill also points to a third juror's voir dire response in which he stated that he would "like" to impose a death sentence. (II Trial Tr. at 471.)

I agree with the majority that we are constrained to review Neill's biased jury claim through the lens of ineffective assistance of counsel. Such claims are evaluated under the familiar two-pronged approach of Strickland, 466 U.S. at 687. Under that analysis, Neill must show his "counsel's performance fell below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different." Nguyen v. Reynolds, 131 F.3d 1340, 1347 (10th Cir. 1997) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)). "[C]ounsel's actions during voir dire are presumed to be matters of trial strategy." Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000). Consequently, claims of ineffective assistance of counsel at voir dire cannot succeed "unless counsel's decision is shown to be so ill chosen that it permeates the entire trial with obvious unfairness." Nguyen, 131 F.3d at 1349.

Against that background is the requirement that persons the state wishes to execute be convicted and sentenced by impartial juries. In particular, the Supreme Court held in Morgan v. Illinois, 504 U.S. 719, 729 (1992), that "a capital defendant may challenge for cause any prospective juror who [will automatically impose the death penalty]. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence." Further, the Court noted that although "[t]he Constitution . . . does not dictate a catechism for voir dire, . . . part of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Id. (citations omitted). We have echoed the Court's concern about adequate voir dire in death penalty cases. United States v. Chanthadara, 230 F.3d 1237, 1269 (10th Cir. 2000) ("[B]ecause the jurors are vested with greater discretion in capital cases, the examination of prospective jurors must be more careful than in non- capital cases."); Hale v. Gibson, 227 F.3d 1298, 1318 (10th Cir. 2000) ("[D]ue process requires a voir dire examination of a potential juror's views on the death penalty."). I read Morgan, Chanthadara, and Hale as not only permitting, at a party's request, a thorough voir dire of potential jurors' views of the death penalty, but actually requiring that such questioning take place as a matter of due process.

Neill's counsel's performance was deficient based on the requirement of an adequate voir dire. Despite receiving a response that indicated that Juror Hannabass "would like to" sentence Neill to death, "[n]either defense counsel nor anyone else further questioned this juror concerning his ability to consider imposing a sentence less than death." (Majority Op. at 17.) This deficiency was exacerbated by the fact that the entire trial revolved around the penalty phase. Neill's trial counsel basically conceded guilt (a reasonable decision considering the overwhelming evidence against Neill). That situation should have made Neill's counsel especially vigilant concerning jurors' attitudes about the death penalty as it was certain that they would be called upon to decide whether death was the appropriate punishment. Under those circumstances, failing to ask jurors their views on the death penalty could not have been a viable strategy.

In addition, I question the majority's contention that "the record is insufficient to permit this court to determine whether defense counsel's failure to ask only these three jurors whether they would automatically vote for a death sentence was strategic." (Majority Op. at 15.) To the contrary, the record in this case clearly indicates that it was counsel's strategy to question jurors about their views on the death penalty. In letters to Neill, his counsel stated that he would "concentrate" on voir dire (Post-Conviction Application App. E at 4) and that he was aware of Morgan and would "just ask enough [at voir dire] to preserve error for review" (id. at 14). In addition, someone, "either defense counsel or the prosecutor[,] asked all . . . prospective jurors" other than the three who are the subjects of the proffered affidavits "whether they would consider imposing a sentence less than death." (Majority Op. at 14.) The unexplained failure to question these jurors—which flies in the face of everything in the record—can be viewed as nothing other than objectively deficient performance by Neill's counsel.

As for the prejudice prong, the majority concludes that the proffered affidavits are both hearsay and too conclusory to merit habeas relief. While I agree that standing alone the affidavits do not merit vacating Neill's sentence,5 when combined with the prosecutor's homophobic remarks, they further undermine confidence in the jury's verdict and lend additional support to my conclusion that Neill's death sentence cannot stand.

III

I would grant habeas relief and vacate Neill's sentence.