Wood v. Carpenter , 907 F.3d 1279 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 1, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
TREMANE WOOD,
Petitioner - Appellant,
v. No. 16-6001
(D.C. No. 5:10-CV-00829-HE)
MIKE CARPENTER, Interim Warden, (W.D. Okla.)
Oklahoma State Penitentiary,
Respondent - Appellee.
_________________________________
ORDER
_________________________________
Before TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
Judges.
_________________________________
This matter is before the court on the appellant’s Petition for Rehearing and
Request for En Banc Consideration. Upon consideration, the request for panel rehearing
is granted in part and to the extent of the changes made to the attached revised opinion.
The clerk is directed to file the revised opinion effective the date of this order. Panel
rehearing is otherwise denied.

Pursuant to Fed. R. App. P. 43(c)(2), Mike Carpenter is substituted for Terry
Royal as the respondent in this case.
In addition, the Petition was also circulated to all the judges of the court in regular
active service. As no judge on the original panel or the en banc court requested that a
pollbe called, the suggestion for en banc rehearing is denied. See Fed. R. App. P. 35(f).
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
2
FILED
United States Court of Appeals
Tenth Circuit
November 1, 2018
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
TREMANE WOOD,
Petitioner - Appellant,
v. No. 16-6001
MIKE CARPENTER, Interim Warden,
Oklahoma State Penitentiary,
Respondent - Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:10-CV-00829-HE)
Jessica L. Felker, Assistant Federal Public Defender (Jon M. Sands, Federal
Public Defender, with her on all briefs, and Amanda C. Bass, Assistant Federal
Public Defender, with her on reply and supplemental briefs), Office of the Federal
Public Defender, Phoenix, Arizona, for Petitioner.
Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General of
Oklahoma, with her on the briefs), Office of the Attorney General, Oklahoma
City, Oklahoma, for Respondent.
Before TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
Judges.
TYMKOVICH, Chief Judge.
An Oklahoma jury convicted Tremane Wood of first-degree felony murder
for the killing of Ronnie Wipf during a botched robbery. The jury found
Oklahoma had proved three aggravating circumstances associated with the
murder, and the mitigating circumstances did not outweigh them. The jury
accordingly sentenced Wood to death.
The conclusion of Wood’s trial was only the start of his case’s long legal
odyssey. Wood directly appealed his conviction to the Oklahoma Court of
Criminal Appeals, advancing, as relevant here, two primary arguments. First, he
claimed his trial counsel performed ineffectively at the sentencing stage. Second,
he argued the “heinous, atrocious, or cruel” aggravating circumstance could not
be constitutionally applied to this case given the dearth of evidence that Mr. Wipf
suffered before death. The OCCA ordered an evidentiary hearing on the
ineffectiveness issue, but ultimately affirmed Wood’s conviction and death
sentence.
Wood then filed an application for post-conviction relief in state court. He
claimed his appellate counsel performed ineffectively on direct appeal, including
at the evidentiary hearing. The OCCA again denied relief.
Wood next filed a habeas petition under 28 U.S.C. § 2254 in the Western
District of Oklahoma. The district court denied the petition. We granted Wood
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certificates of appealability on whether his trial and appellate counsel performed
ineffectively. 1
During the course of this appeal, we decided Pavatt v. Royal, 859 F.3d 920
(10th Cir. 2017), opinion amended and superseded on denial of rehearing on July
2, 2018 by Pavatt v. Royal, 2017 WL 9771976 (10th Cir. 2017), a challenge to
Oklahoma’s application of the heinous, atrocious, and cruel aggravator in that
case. Based on Pavatt, we granted an additional COA on whether the HAC
aggravating circumstance could be constitutionally applied to the facts of this
case.
For the reasons discussed below, we AFFIRM the district court’s denial of
the petition for habeas relief.
I. Background
We begin by explaining the underlying facts and the numerous previous
proceedings.
1
On August 15, 2016, Wood filed a Request to Merits Panel for Leave to
Certify Additional Issues for Appeal, in which he asked us to grant COAs on a
number of issues. We previously granted the request in part. See Order, July 21,
2017. We deny the remainder of the request—specifically, Wood’s request for a
COA on Claim Two (prosecutorial misconduct violated his right to a fair trial),
and Claim Four, Part (B)(2) (insufficient evidence supported the aggravating
circumstance of knowingly causing a great risk of death to more than one person).
After carefully reviewing the record, we conclude “jurists of reason” could not
disagree with the district court’s denial of relief on both claims. Buck v. Davis,
137 S. Ct. 759, 773–74 (2017).
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A. The Crime
On December 31, 2001, Tremane Wood rang in the new year at a brewery
in Oklahoma City. 2 Wood’s brother Zjaiton, 3 Zjaiton’s girlfriend Lanita, and
Wood’s ex-girlfriend Brandy joined him. At some point during the festivities,
Lanita and Brandy began talking with two fellow brewery patrons—Ronnie Wipf
and Arnold Kleinsasser. Wipf and Kleinsasser invited the women back to their
motel to continue celebrating. After conferring with Wood and Zjaiton, the
women agreed to leave with their new acquaintances.
But something nefarious was afoot. Before leaving, Wood, Zjaiton, and the
women concocted a plan. The women would pretend to be prostitutes and, once
Wipf and Kleinsasser secured the money to pay them, the Wood brothers would
show up at the motel and rob the two men.
The women put the plan into action. At the motel, Wipf and Kleinsasser
agreed to pay them $210 to have sex. The men had no cash on hand, however, so
they all drove to an ATM. Meanwhile, Wood and Zjaiton waited outside the
motel. Once the women, Wipf, and Kleinsasser arrived back at the room, Wood
and Zjaiton pounded on the door. Mr. Wipf opened the door and the brothers
2
To cite the record, this opinion follows the reference system from
Wood’s brief. See Aplt. Br. at 2.
3
For clarity, we refer to Tremane Wood as “Wood” and his brother Zjaiton
Wood as “Zjaiton.”
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barged in. Both were armed—Wood with a knife and Zjaiton with a gun. 4 The
women ran out the door and a fight ensued.
At first, Wood fought Mr. Wipf alone. But Zjaiton eventually joined the
fray and helped Wood fight Wipf. After Zjaiton had joined the fight, Kleinsasser
saw that Mr. Wipf was covered in blood. At some point during this brawl, Mr.
Wipf was fatally stabbed in the chest. Autopsy diagrams and pictures of Wipf’s
body reveal his face was bloody and bruised, and he had a deep cut on his right
hand.
B. Wood’s Murder Trial
Oklahoma charged Wood, Zjaiton, Lanita, and Brandy with numerous
crimes, including first-degree felony murder. The state sought the death penalty
against both Wood and Zjaiton, arguing that four aggravating circumstances
warranted the death sentence. One of those circumstances was that the murder
was especially heinous, atrocious, or cruel.
4
No one at trial specifically testified that Wood possessed the knife and
Zjaiton the gun. But the OCCA made this factual finding based on testimony
about each man’s physical appearance. Wood v. State, 2007 OK CR 17, 158 P.3d
467, 472 n.6. And under 28 U.S.C. § 2254(e)(1), we presume the state court’s
factual determinations are correct unless the petitioner rebuts them with clear and
convincing evidence. Wood has not attempted to do so.
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John Albert represented Wood at the guilt and sentencing phases of trial. 5
Eventually, the court severed Wood’s trial from the other defendants’. At the
guilt phase, the jury convicted Wood of first-degree felony murder. 6
At the sentencing phase, three witnesses testified on Wood’s behalf. Andre
Taylor, a family friend, testified that Wood was well liked, was not a bad person,
and loved his children.
Dr. Hand, a licensed psychologist, also testified. He first emphasized how
chaos defined Wood’s family life. To demonstrate this, he cited numerous
Department of Human Services (DHS) records in which Wood’s mother, Linda,
claimed her husband and Wood’s father, Raymond Gross, abused her. And Dr.
Hand explained that when Wood did get in trouble, he was usually following
Zjaiton’s lead. When cross examined, however, Dr. Hand stumbled a bit. The
prosecution asked him about Wood’s juvenile records, specifically those detailing
Wood’s previous assault charge. Though Dr. Hand recalled reviewing a large
stack of records, he could not recall those specific ones.
Lastly, Wood’s mother Linda testified. She painted a dark portrait of her
relationship with Gross. They had, she said, “a very abusive relationship. I had
been beaten many, many times in front of my children. Tied up. Dragged down
5
Lance Phillips also represented Wood. But because Phillips mainly
followed Albert’s directions, the parties focus on Mr. Albert’s representation.
6
The jury also convicted Wood of robbery with firearms and conspiracy to
commit a felony (robbery).
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the highway. My bones broke.” Tr., 04/05/2004, at 91. But Linda, too,
floundered a bit on cross examination. The prosecution attacked her allegations
of abuse, emphasizing how DHS had found most of them invalid.
The jury sentenced Wood to death.
C. Direct Appeal to the OCCA
Wood retained new lawyers for his direct appeal to the Oklahoma Court of
Criminal Appeals. Wood also applied for a Rule 3.11 evidentiary hearing to
develop additional evidence about his claim trial counsel performed ineffectively.
In support of the application, Wood put forward seventeen affidavits and over
1,200 pages of juvenile records.
The OCCA granted the application and remanded the case to the trial court,
instructing it to hold an evidentiary hearing and answer five factual questions. 7
The court then held a three-day hearing during which Wood presented twenty-
three witnesses. Ten witnesses testified about Wood’s life history, including his
mother, his father, and his brothers Andre and Zjaiton. Much of this testimony hit
on the same themes Linda and Dr. Hand had testified to at trial—albeit, in far
more detail.
7
The five questions were: (1) whether the evidence in the application was
reasonably available to trial counsel; (2) what, if any, records trial counsel or Dr.
Hand reviewed; (3) whether evidence that was available at trial but not used
would have affected the trial; (4) whether trial counsel’s failure to investigate was
sound trial strategy; and, (5) whether trial counsel’s failure to use available
evidence undermined confidence in the trial’s outcome.
-7-
But the evidentiary hearing did not merely recite the trial testimony with a
few extra details; new evidence did emerge. For example, Andre Wood testified
that Gross abused Wood as well as Linda. And Gross testified for the first time.
He admitted to once handcuffing Linda to his car as punishment for sleeping with
his nephew. He also confessed to pushing Linda in front of his sons. But Gross
denied other instances of abuse, such as knocking Linda’s teeth out or dragging
her on the ground after he handcuffed her. Similarly, Gross admitted he had
whipped his sons before, but insisted he never did so sadistically.
Trial counsel, Mr. Albert, also signed an affidavit and testified at the
hearing. In his affidavit, he acknowledged time constraints caused him to “not
prepare enough of a mitigation case to effectively represent and defend” Wood.
EH Vol. 1 Ex. M. In his testimony, Mr. Albert similarly admitted he failed to hire
an investigator. But he stressed that he had interviewed Wood, Linda, and
Zjaiton. And he emphasized that he and Dr. Hand had successfully employed this
same strategy in other cases.
Wood’s counsel at the evidentiary hearing also wanted to introduce
testimony from Dr. Kate Allen, a sociologist with a doctoral degree in family
sociology who had worked as a social worker and professor for thirty-five years.
The trial court granted the state’s objection to Dr. Allen testifying. She was not
qualified as an expert witness, the trial court concluded, and her testimony would
have been cumulative.
-8-
After hearing three days of testimony, the trial court entered findings of
fact answering the OCCA’s questions. The OCCA then permitted the parties to
submit ten-page supplemental briefs to challenge these findings. Wood’s counsel
did so, and the brief attacked the court’s answers to the five questions. The brief
did not, however, mention the exclusion of Dr. Allen’s testimony.
The OCCA ultimately affirmed Wood’s conviction and sentence.
D. Post-Conviction Appeal in the OCCA
Next, Wood moved for post-conviction relief in the OCCA on a number of
grounds. As relevant here, Wood alleged his appellate counsel performed
ineffectively on direct appeal, including during the Rule 3.11 evidentiary hearing.
The OCCA denied relief on all of these claims. 8
E. Wood’s Habeas Petition
Wood filed a 28 U.S.C. § 2254 petition in the Western District of
Oklahoma, raising ten issues. The district court denied relief on all of them.
Wood then sought certificates of appealability on numerous claims; we granted
COAs on two issues. First, whether Wood’s trial counsel performed ineffectively
at the sentencing stage by (1) failing to adequately, investigate, select, prepare,
and present mitigation lay witnesses, (2) failing to prepare and present the
8
Wood later filed a second application for post-conviction relief, but the
OCCA denied all the claims because Wood could have brought them in his first
application but failed to do so. These claims are not at issue here.
-9-
mitigation expert witness Dr. Hand, and (3) failing to investigate, obtain, and
present Linda Wood’s medical records, and Wood’s juvenile, school, medical,
mental health, and DHS records. And second, whether Wood’s appellate counsel
on direct appeal performed ineffectively by failing to challenge the exclusion of
Dr. Allen’s testimony in the supplemental brief.
Wood then requested leave to certify additional issues. We granted his
request for a COA on the claim appellate counsel performed ineffectively at the
evidentiary hearing for three additional reasons: (1) failing to obtain and use
documents that would have undercut Gross’s denials of abuse, (2) not alerting the
court about Mr. Albert’s subsequent disciplinary proceedings, and (3) failing to
point out the trial court’s factual errors in supplemental briefing to the OCCA.
After briefing concluded, Wood asked us to certify two additional issues in
light of our circuit’s decision in Pavatt v. Royal, 859 F.3d 920 (10th Cir. 2017),
opinion amended and superseded on denial of rehearing on July 2, 2018 by
Pavatt v. Royal, 2017 WL 9771976 (10th Cir. 2017). We granted a COA on one
of the issues—whether constitutionally sufficient evidence supported the
application of the heinous, atrocious, or cruel aggravating circumstance.
II. Standard of Review
When reviewing whether the federal district court erred in denying habeas
relief, we review its legal analysis de novo and its factual findings for clear error.
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Smith v. Duckworth, 824 F.3d 1233, 1241–42 (10th Cir. 2016). But in
proceedings under 28 U.S.C. § 2254, the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) significantly limits our review. Under AEDPA,
when a state court adjudicated a petitioner’s claim on the merits, we cannot grant
relief unless that adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal Law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceedings.
§ 2254(d)(1)–(2).
“Clearly established Federal Law” refers to the Supreme Court’s holdings,
not its dicta. See, e.g., Williams v. Taylor, 529 U.S. 362, 412 (2000). A state-
court decision is only contrary to clearly established federal law if it “arrives at a
conclusion opposite to that reached by” the Supreme Court, or “decides a case
differently” than the Court on a “set of materially indistinguishable facts.” Id. at
412–13. But a state court need not cite the Court’s cases or, for that matter, even
be aware of them. So long as the state-court’s reasoning and result are not
contrary to the Court’s specific holdings, § 2254(d)(1) prohibits us from granting
relief. See Early v. Packer, 537 US. 3, 9 (2002) (per curiam).
A state court’s decision unreasonably applies federal law if it “identifies
the correct governing legal principle” from the relevant Supreme Court decisions
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but applies those principles in an objectively unreasonable manner. Wiggins v.
Smith, 539 U.S. 510, 520 (2003). Critically, an “unreasonable application of
federal law is different from an incorrect application of federal law.” Williams,
529 U.S. at 410 (2000). “[E]ven a clearly erroneous application of federal law is
not objectively unreasonable.” Maynard v. Boone, 468 F.3d 665, 670 (10th Cir.
2006). Rather, a state court’s application of federal law is only unreasonable if
“all fairminded jurists would agree the state court decision was incorrect.” Frost
v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014).
Finally, a state-court decision unreasonably determines the facts if the state
court “plainly misapprehend[ed] or misstate[d] the record in making [its] findings,
and the misapprehension goes to a material factual issue that is central to
petitioner’s claim.” Byrd v. Workman, 645 F.3d 1159, 1170–72 (10th Cir. 2011).
But this “daunting standard” will be “satisfied in relatively few cases.” Id. That
is because the state court’s decision must be “based on an unreasonable
determination of the facts.” Id. 9
9
Complicating the § 2254(d)(2) inquiry is that under § 2254(e)(1), “[s]tate
court factual findings are presumed correct unless the petitioner shows by clear
and convincing evidence they are not.” Sharp v. Rohling, 793 F.3d 1216, 1228
n.10 (10th Cir. 2015) (citing 28 U.S.C. § 2254(e)(1)). The “interplay between
§ 2254(d)(2) and § 2254(e)(1) is an open question” in this circuit. Id. And it is
“unclear which standard imposes a greater burden on the petitioner.” Id.
We do not decide this open question in this case. Under either standard,
Wood cannot escape § 2254(d)(2)’s bar on relief for any of the arguments he
(continued...)
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AEDPA thus “erects a formidable barrier to federal habeas relief.” Burt v.
Titlow, 571 U.S. 12, 16 (2013). Congress crafted such a deferential standard to
ensure review under § 2254 serves only as “‘a guard against extreme malfunctions
in the state criminal justice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting
Jackson v. Virginia, 443 U.S. 307, 322 n.5 (1979)).
With the limited nature of our review in mind, we turn to Wood’s claims.
III. Analysis
Wood raises three general claims. First, that his trial counsel performed
ineffectively. Second, that his appellate counsel on direct appeal performed
ineffectively. And finally, that applying the HAC aggravator to the facts of this
case violated the Constitution.
A. Ineffective Assistance of Trial Counsel
We first summarize the trial-counsel-ineffectiveness standard before
turning to Wood’s claim his trial counsel performed ineffectively.
1. Legal Standards
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court laid
out the now-familiar framework for ineffective assistance of counsel claims.
Under it, Wood must demonstrate both that his counsel performed deficiently and
9
(...continued)
raises.
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that he suffered prejudice from this deficient performance. Strickland, 466 U.S.
at 687.
Counsel performs deficiently if his representation falls “below an objective
standard of reasonableness” under prevailing professional norms. Id. at 688–89.
At the sentencing stage of a capital trial, counsel has a duty to “thoroughly
investigat[e] and present[] mitigating evidence.” Cargle v. Mullin, 317 F.3d
1196, 1221 (10th Cir. 2003). Failing to do so can constitute deficient
performance. Id. And counsel’s deficient performance at the sentencing stage
prejudices the defendant if, but for counsel’s unprofessional errors, “there is a
reasonable probability that one juror would have chosen a sentence other than
death.” Matthews v. Workman, 577 F.3d 1175, 1190 (10th Cir. 2009).
Importantly, when we evaluate counsel’s performance we must do so
through a “most deferential” lens. Richter, 562 U.S. at 105. Though there are
ordinarily “countless ways to provide effective assistance,” it is still “‘all too
tempting’ to ‘second-guess counsel’s assistance after conviction or adverse
sentence.’” Id. at 106 (quoting Strickland, 466 U.S. at 689). We must resist this
temptation and instead make “every effort . . . to eliminate the distorting effects
of hindsight.” Strickland, 466 U.S. at 689. We thus “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id.
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“Surmounting Strickland’s high bar” is therefore “never an easy task.”
Richter, 562 U.S. at 105. Yet raising Strickland claims in a habeas petition makes
success all the more difficult. That is because, taken together, AEDPA and
Strickland render our review “doubly deferential.” Knowles v. Mirzayance, 556
U.S. 111, 123 (2009). We “take a ‘highly deferential’ look at counsel’s
performance, through the deferential lens of § 2254.” Cullen v. Pinholster, 563
U.S. 170, 190 (2011) (quoting Strickland, 466 U.S. at 689).
2. Discussion
We granted a COA on Wood’s claim his trial counsel performed
ineffectively at the sentencing stage by failing to (1) adequately investigate,
select, prepare, and present mitigation lay witnesses; (2) prepare and present the
mitigation expert witness Dr. Hand; and (3) investigate, obtain, and present Linda
Wood’s medical records, and Wood’s juvenile, school, medical, mental health,
and DHS records. We address each issue in turn.
a. Investigating, Selecting, and Preparing Lay Witnesses
We first consider Wood’s claim that his trial counsel performed
ineffectively by failing to investigate and present additional witnesses. The
OCCA denied relief on this claim, concluding Wood’s trial counsel did not
perform deficiently, and Wood suffered no prejudice. In concluding counsel did
not perform deficiently, the OCCA emphasized that “[e]vidence of [Wood’s]
chaotic home life and background was presented to the jury through both an
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expert and lay witness.” Wood v. State, 2007 OK 17, 158 P.3d 467, 481 (Okla.
Crim. App. 2007). Though the OCCA conceded that “other witnesses not called
at trial could have provided further detail to support the mitigation evidence,” it
nonetheless found “the trial court correctly concluded that the material testimony
from those credible witnesses not called at trial was nonetheless presented to the
jury.” Id. Further, the OCCA held Wood suffered no prejudice because he
“failed to show that the outcome of his case would have been different had the
credible evidence developed at the evidentiary hearing been presented during his
sentencing proceeding.” Id.
Wood argues AEDPA does not bar relief for a number of reasons. None
has merit.
First, Wood contends we can grant relief because the OCCA’s decision was
“based on an unreasonable determination of the facts.” § 2254(d)(2). More
specifically, he insists the OCCA’s finding that the “material testimony from
those credible witnesses not called at trial was nonetheless presented to the jury”
qualifies as an unreasonable factual determination. Wood, 158 P.3d at 481. But
the OCCA’s determination about what evidence was “material” is not a factual
finding at all.
In Williams, the Supreme Court explained that the prejudice inquiry is a
“mixed question of law and fact.” 529 U.S. at 371. And the Court recognized
that the “factual part of the mixed question” was whether evidence had, in fact,
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been “presented at trial.” Id. at 398. The “legal part” of the prejudice analysis, in
contrast, related to the “strength of the . . . evidence.” Id. 10 Accordingly, the
OCCA could have made a factual error if it concluded evidence had been
presented at trial when it, in fact, had not been. But Wood alleges no such error.
Instead, he claims the OCCA made an erroneous factual determination when it
categorized as immaterial the evidence developed at the evidentiary hearing but
not presented at trial. This categorization plainly relates to the “legal part” of the
prejudice analysis—the strength of the purportedly immaterial evidence, and
whether it would have affected the proceeding’s outcome. Simply put, since the
factual determination Wood claims is unreasonable is not a factual determination,
§ 2254(d)(2) is inapplicable.
Second, Wood contends the OCCA unreasonably applied Strickland by
concluding his trial counsel did not perform deficiently by failing to call more lay
witnesses, and that he suffered no prejudice from this failure. We need not
consider the OCCA’s deficient-performance analysis because we can resolve this
issue based solely on the OCCA’s conclusion on prejudice. After a careful
review of the record, we cannot conclude that “all fairminded jurists would agree”
the OCCA unreasonably applied Strickland when it concluded trial counsel’s
10
We realize Williams was repeating the Virginia Supreme Court’s
distinction between the “factual part of the mixed question” and the “legal part.”
Williams, 529 U.S. at 398 (citing Williams v. Warden of the Mecklenburg Corr.
Cent., 254 Va. 16, 24 (1997)). But the Court noted this approach was “correct[],”
thus endorsing the distinction itself. Id.
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failure to call additional lay witnesses did not prejudice Wood. Grant v. Royal,
886 F.3d 874, 909 (10th Cir. 2018). Indeed, the OCCA properly recognized that
the themes developed at the evidentiary hearing were also developed at Wood’s
sentencing, albeit in less detail. And while some testimony at the hearing could
be considered “new”— such as allegations Gross abused Wood and his brother,
not just Linda—this evidence still related to the same themes counsel developed
at trial: Wood’s formative years were, as Dr. Hand testified, defined by chaos,
and abuse allegations swirled around his home. The testimony developed at the
evidentiary hearing was thus cumulative of the evidence trial counsel actually
presented during the sentencing stage.
This is not to say Wood’s trial counsel offered a textbook mitigation
defense. We agree Wood’s mitigation case might have been stronger had some of
the witnesses from the evidentiary hearing testified during sentencing. But
because the evidence and themes developed at the hearing were substantially
similar to those developed at trial, the OCCA’s conclusion Wood suffered no
prejudice was objectively reasonable. Accordingly, AEDPA’s deferential
framework prevents us from disturbing the state court’s decision.
Third, Wood advances two arguments that relate to the fact the court at the
evidentiary hearing barred Dr. Allen from testifying as an expert witness. To
start, we doubt these contentions fit within the COA we granted on the issue,
which was limited to trial counsel’s alleged failure to investigate and call
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additional lay, not expert, witnesses. But even if these arguments do fall within
the COA, neither has any merit.
Wood first argues the OCCA unreasonably applied Strickland because it
failed to consider Dr. Allen’s testimony and report. Wood contends that
Strickland required the OCCA to consider the “totality of the evidence”
developed at the evidentiary hearing, which included this report and testimony.
466 U.S. at 695. But Dr. Allen did not testify at the evidentiary hearing because
the court concluded she was not qualified to do so. Accordingly, the OCCA could
not have considered this testimony because Dr. Allen never actually testified; the
evidence Wood faults the OCCA for not considering simply did not exist. And
while the court admitted Dr. Allen’s report into the record at the evidentiary
hearing, it did so only to ensure its decision not to allow her to testify could “be
fully reviewed at a later time.” Tr., 2/27/06, at 220. The OCCA thus could not
consider this report as evidence of trial counsel’s alleged ineffectiveness. It
instead could only have considered the report if Wood challenged the OCCA’s
exclusion of Dr. Allen’s testimony in his supplemental brief. But he did not do
so. The OCCA therefore did not need to (and in fact could not) consider Dr.
Allen’s report. 11
11
Wood also argues the OCCA’s decision is contrary to Wiggins v. Smith,
539 U.S. 510 (2003), for this same reason. Because the Strickland argument fails,
so too does the Wiggins argument.
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Wood also contends the trial court’s refusal to allow Dr. Allen to testify at
the Rule 3.11 hearing directly conflicts with Lockett v. Ohio, 438 U.S. 586 (1978)
(plurality), and Eddings v. Oklahoma, 455 U.S. 104 (1978). But we are reviewing
the OCCA’s decision affirming Wood’s sentence and conviction; we are not
reviewing any and every issue decided by the state trial court at an evidentiary
hearing. And the OCCA did not rule on whether the trial court properly barred
Dr. Allen from testifying because Wood failed to raise this error in his
supplemental brief. This claim therefore cannot serve as a basis for meeting
§ 2254(d)’s requirements.
b. Preparing and Presenting Dr. Hand
We also granted a COA on whether Wood’s trial counsel performed
ineffectively by failing to prepare and present Dr. Hand’s expert testimony.
Wood claims his counsel failed to obtain all of his juvenile records before trial
and, as a result, could not adequately prepare Dr. Hand before his testimony. In
Wood’s view, this had disastrous consequences. On cross examination, Dr. Hand
floundered when confronted with the juvenile records detailing Wood’s prior
assault charge: he admitted that, though he had reviewed many juvenile records,
he did not recall those specific ones. Thus, Wood insists his trial counsel
performed ineffectively by failing to obtain and utilize these records.
The OCCA again rejected Wood’s trial-ineffectiveness claim based on both
Strickland prongs: counsel did not perform deficiently and Wood endured no
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prejudice. In so concluding, the OCCA stated the district court’s finding that “the
defense psychological expert had possession of [Wood’s] background records,
including his relevant juvenile records” was “supported by the record.” Wood,
158 P.3d at 480. Wood argues AEDPA does not apply because this qualifies as
an unreasonable determination of fact under § 2254(d)(2). He highlights how the
OCCA found trial counsel did not have Wood’s Central Oklahoma Juvenile
Center (COJC) records, which detailed Wood’s academic and personal success
during his time at the Center. Thus, when the OCCA stated trial counsel had all
of Wood’s “relevant juvenile records,” it necessarily found the COJC records
were not “relevant.” This, Wood insists, qualifies as an unreasonable
determination of fact.
But whether the CJOC records were “relevant” is not a factual
determination. Evidence is considered relevant if it has a “tendency to make a
fact more or less probable” or is “of consequence in determining” something.
Fed. R. Evid. 401. Whether the CJOC records were relevant, then, relates to
whether the records supported Wood’s mitigation case. This is a quintessentially
legal determination. See Williams, 529 U.S. at 398.
Even if the OCCA’s comment on relevance did constitute a factual
determination, and even assuming this determination was unreasonable,
§ 2254(d)(2) would still bar relief. This is because “an ‘unreasonable
determination of the facts’ does not, itself, necessitate relief.” Byrd, 645 F.3d at
-21-
1170–72 (quoting Collier v. Norris, 485 F.3d 415, 423 (8th Cir. 2007)). Rather,
to receive relief under § 2254(d)(2) the OCCA’s adjudication of this claim must
have been “based on” the unreasonable determination. Id.
The OCCA did not base its prejudice conclusion on its finding about what
records were relevant. Rather, that conclusion was based on the fact that even if
all the “credible evidence developed at the evidentiary hearing” had “been
presented during [Wood’s] capital sentence proceeding,” the proceeding’s
outcome would not have been different. Wood, 158 P.3d at 481. In other words,
the OCCA based its prejudice conclusion on the strength, weakness, and
cumulativeness of the mountain of evidence presented at the evidentiary
hearing—namely, the twenty new witnesses who testified and the thousands of
documents produced. Its prejudice conclusion did not rest on its finding about
whether an exceedingly small subset of that evidence—the CJOC records—were
relevant. Consequently, the OCCA’s decision was not based on its finding that
the CJOC records were not “relevant.”
Thus, § 2254(d)(2)’s bar on relief is not satisfied on this basis.
c. Wood’s Juvenile Records and Linda’s Medical Records
AEDPA bars relief on the claim Wood’s counsel failed to investigate and
present all of Wood’s juvenile records for the reasons we just described: the
OCCA did not unreasonably determine the facts by concluding Wood’s counsel
possessed all the relevant juvenile records.
-22-
Beyond its general argument about the records we already addressed,
Wood’s briefing does not advance any specific arguments about Linda’s medical
records. We thus do not grant relief on this basis. 12
* * *
In sum, § 2254(d) prohibits us from granting relief on Wood’s claim his
trial counsel performed ineffectively. We therefore must affirm the district
court’s denial of the petition on that issue.
B. Ineffective Assistance of Appellate Counsel on Direct Appeal
Wood also contends his appellate counsel performed ineffectively on direct
appeal, including at the Rule 3.11 hearing, in five ways: (1) by not challenging, in
the supplemental brief, the trial court’s conclusion Dr. Allen could not testify at
the evidentiary hearing; (2) by failing to obtain and use documentary evidence of
Raymond Gross’s abuse that would have undermined his testimony; (3) by not
updating the record with evidence his trial counsel had been suspended from the
practice of law and held in contempt of court in a different state proceeding; (4)
12
Wood also claims the state trial court made many unreasonable factual
determinations in its findings of facts about the evidentiary hearing. See Aplt.
Br. at 61–64. But AEDPA requires us to review the OCCA’s opinion. See Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018) (explaining that under AEDPA, federal
courts ordinarily review the “reasoned opinion” by the “last state court to decide”
the “prisoner’s federal claim”). And § 2254(d)(2)’s bar on relief is only lifted if
the OCCA’s decision was “based on” an unreasonable factual determination. See
Byrd, 645 F.3d at 1172. We fail to understand how the OCCA based its denial of
Wood’s trial ineffectiveness claims on factual findings made by a different court
that the OCCA never mentioned in its opinion.
-23-
by not using the supplemental brief to correct the factual errors the evidentiary
hearing court made in its findings of facts; and (5) by neglecting to raise a claim
trial counsel performed ineffectively by failing to object to juror separation.
Strickland’s same deferential framework (which is doubly deferential when
coupled with AEDPA) applies to ineffectiveness claims based on appellate
counsel’s performance. Thus, to demonstrate ineffective assistance of appellate
counsel, a petitioner “must establish both (1) that his counsel's performance fell
below an objective standard of reasonableness, and (2) that there is a reasonable
probability that, but for counsel's unreasonable errors, the outcome of his appeal
would have been different.” Ellis v. Hargett, 302 F.3d 1182, 1186–87 (10th Cir.
2002) (citing Williams, 529 U.S. at 390–91 and Strickland, 466 U.S. at 688, 694).
Under this doubly deferential framework, Wood is not entitled to relief on
any of these five claims.
1. Challenging the Exclusion of Dr. Allen’s Testimony
As we already explained, the trial court barred Dr. Allen from testifying as
an expert at the evidentiary hearing because it concluded she was unqualified and
her testimony would have been cumulative. After the evidentiary hearing court
issued its findings of fact, it allowed the parties to submit ten-page supplemental
briefs raising any issues from the hearing. Wood’s supplemental brief failed to
challenge the exclusion of Dr. Allen’s testimony.
-24-
The OCCA again denied relief because counsel did not perform deficiently
and Wood was not prejudiced. In so concluding, Wood contends the OCCA
unreasonably applied Strickland. 13 We disagree. We need not consider the
OCCA’s deficient-performance analysis. Since the OCCA applied Strickland in
an objectively reasonable manner when it concluded Wood suffered no prejudice,
AEDPA precludes us from granting relief. See Strickland, 466 U.S. at 2069
(explaining courts need not “address both components of” the Strickland inquiry
if “the defendant makes an insufficient showing on one”).
It was reasonable for the OCCA to conclude appellate counsel’s failure to
challenge the exclusion of Dr. Allen’s testimony in the supplemental brief caused
Wood no prejudice. This is because Dr. Allen’s testimony would have been
substantially cumulative of other evidence already presented at both the hearing
and at trial.
Dr. Allen planned to testify about six topics: (1) Wood’s early childhood
development and the effect his parents’ rocky relationship had on him; (2) that
Wood suffered from an attachment disorder; (3) how Zjaiton took over parenting
Wood; (4) how Wood did well in structured situations but relapsed to his old bad
habits when he went home; (5) that Wood suffered from depression, PTSD, and
13
Oklahoma claims Wood did not make this argument in his habeas
petition and thus forfeited it. We need not consider forfeiture, though, because
even assuming Wood preserved this argument, it lacks merit.
-25-
anxiety; and (6) how Wood’s biracial heritage affected his development. At both
the evidentiary hearing and at trial, other witnesses’ testimony touched on these
same topics. Linda and Andre, for example, testified about Wood’s childhood
and how his parents’ abusive relationship affected it. Many witnesses, moreover,
testified about Zjaiton’s influence on Wood, and Wood’s success in structured
environments. And while no one testified that Wood suffered from PTSD
specifically, at trial Dr. Hand testified that Wood was paranoid and suffered from
depression and anxiety. It was therefore not objectively unreasonable for the
OCCA to find Dr. Allen’s largely cumulative testimony would likely not have
affected the proceeding’s outcome.
Wood’s argument to the contrary misconstrues the prejudice inquiry. He
focuses on how, had appellate counsel included this issue in the supplemental
brief, “it is likely Wood would have prevailed on the issue.” Aplt. Br. at 48
(emphasis added). In other words, Wood argues the OCCA would have concluded
that, under Oklahoma law, the evidentiary court erred by not permitting Dr. Allen
to testify. But the prejudice analysis turns on whether the result of the entire
“proceeding would have been different,” which here is the OCCA’s denial of
relief on direct appeal because trial counsel did not perform ineffectively by
failing to use the supplemental brief to challenge the exclusion of Dr. Allen’s
testimony. Cargle, 317 F.3d at 1202 (emphasis added). And for the reasons we
discussed above, Wood cannot make this showing.
-26-
2. Failing to Obtain and Use Documents Substantiating the
Abuse Allegations Against Gross
Wood next argues his appellate counsel was constitutionally ineffective at
the Rule 3.11 hearing because he failed to “undercut [Gross’s] minimization and
denial of abuse with readily available records.” Aplt. Supp. Br. at 8. More
precisely, Wood insists his appellate counsel should have questioned Gross during
his direct examination about the following documents: Gross’s divorce decree,
divorce records, protective orders issued against him, and his criminal history. 14
Yet counsel only introduced one of those documents into the record at the
evidentiary hearing—the divorce decree. By failing to discover and utilize these
other documents, Wood contends his counsel performed ineffectively.
The OCCA denied relief because counsel did not perform deficiently and
Wood suffered no prejudice. In so concluding, it emphasized that the divorce
decree contained only allegations. Likewise, the protective orders offered “no
proof that abuse occurred as they memorialize only [Linda’s] allegations in
support of her petition.” App. at 659. The OCCA therefore “fail[ed] to see how
the allegations of abuse contained in these documents would have bolstered
14
When determining if § 2254(d) applies and bars relief, our review is
“limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 179, 182 (2011). We therefore only
consider the evidence before the OCCA on Wood’s post-conviction appeal.
Linda’s medical records were not presented to the OCCA, so we cannot consider
them.
-27-
[Linda’s] testimony or changed the trial court’s findings of fact or the outcome of
the evidentiary hearing.” Id. at 651 (emphasis added).
The OCCA never used the words “deficient performance” or “prejudice.”
But the substance of its concluding statement reaches both Strickland prongs. If
the documents “would not have bolstered [Linda’s] testimony,” counsel could not
have performed deficiently by failing to impeach Gross with them. Id. And if
impeaching Gross with the documents would not have affected the direct appeal’s
outcome, then Wood suffered no prejudice from his counsel’s failure to do so.
The OCCA’s holding therefore reached two distinct conclusions—one on
deficient performance and one on prejudice. 15
Wood argues AEDPA does not bar relief because the OCCA unreasonably
applied Strickland in two ways.
He first claims the OCCA failed to, as Strickland requires, consider the
cumulative prejudicial effect of his counsel’s errors. But the OCCA had no need
to consider cumulative prejudice because it only concluded appellate counsel
performed deficiently in one instance. And in any event, the OCCA did consider
15
To be sure, the OCCA’s discussion is no model of clarity. It is possible
the OCCA failed to specify which Strickland prong it relied on and simply denied
relief. But even if we read the decision in that light, we would reach the same
result. For when a “state court did not specify whether” an ineffective assistance
of counsel claim failed “because there was no deficient performance under
Strickland or because [the defendant] suffered no Strickland prejudice,” AEDPA
applies to both Strickland prongs. See Premo v. Moore, 562 U.S. 115, 123
(2011).
-28-
cumulative prejudice—it was an inherent part of its prejudice analysis. We
address this argument more fully below in Part III.B.4.
Nor would “all fairminded jurists agree” the OCCA unreasonably applied
Strickland when it concluded that appellate counsel did not perform deficiently by
failing to discover and use these documents, and that this failure did not prejudice
Wood. We need not analyze the OCCA’s conclusion on deficient performance
because it did not unreasonably apply Strickland by concluding Wood suffered no
prejudice.
Before analyzing this argument, it is helpful to consider how this case’s
procedural history makes proving prejudice difficult. Counsel’s deficient
performance prejudices a defendant if there is “a reasonable probability that, but
for counsel’s unprofessional error(s), the result of the proceeding would have
been different.” Cargle, 317 F.3d at 1202 (emphasis added). Ordinarily, proving
prejudice is no easy task. Doing so is all the more difficult here, however,
because the relevant “proceeding” is Wood’s direct appeal of his conviction and
sentence. To conclude Wood was prejudiced by his appellate counsel’s failure to
use these documents at the evidentiary hearing, then, the OCCA had to conclude
there was a reasonable probability that, had counsel done so, the result of Wood’s
entire direct appeal would have been different. That is, questioning Gross about
these documents at the evidentiary hearing would have likely caused the OCCA
on direct appeal to conclude Wood’s trial counsel performed ineffectively.
-29-
It is therefore no exaggeration to say that these documents would need to
have a talismanic quality—or, put differently, be nearly outcome-determinative on
the trial-counsel-ineffectiveness claim—in order for Wood to have suffered
prejudice from his counsel’s failure to obtain and use them. After all, in rejecting
Wood’s trial-counsel-ineffectivess claim, the OCCA considered the avalanche of
evidence presented at the evidentiary hearing—testimony from twenty-three
witnesses and thousands of pages documents. Thus, if these documents would
have likely changed the OCCA’s thorough conclusion considering all this other
evidence, they would have to be extraordinarily powerful.
The documents fall below this high bar. We agree that all these documents
cast doubt on Gross’s minimizations of abuse. But other testimony at both the
evidentiary hearing and Wood’s sentencing proceeding served this same purpose.
That is, Gross’s minimization of the abuse allegations during his testimony at the
evidentiary hearing was already undercut by other testimony at both the
evidentiary hearing and at sentencing. Simply stated, these documents did not
contain a newfound smoking gun—rather, they were filled with the same abuse
allegations against Gross many others had already made.
For one thing, introducing these documents would have been cumulative of
Andre Wood’s and Linda Wood’s testimony at the Rule 3.11 hearing. There, both
of them directly countered Gross’s minimizations of abuse. Andre recalled Gross
knocking Linda’s front teeth out and seeing his “dad sitting there slapping [his]
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mom around or punching her in the face.” Tr., 2/23/06, at 159. He often thought
Gross “was going to kill” his mother. Id. And he described how his mother
withstood “beatings that most grown men couldn’t walk away from.” Id.
Likewise, at the evidentiary hearing Linda recalled the litany of times Gross
abused her. She described seeking help from a battered women’s shelter four or
five times due to Gross’s abuse. And she cited the numerous scars Gross left her
with. She has false teeth because Gross “hit [her] in the mouth.” Id. at 142. A
scar on her head came from Gross whacking her “with the butt of a gun.” Id. at
143. And Gross once broke her nose by “slam[ming] it into the hood of a car.”
Id.
Further, asking Gross about the allegations in these documents would also
have been cumulative of Linda’s and Dr. Hand’s testimony at the sentencing
itself. During the sentencing phase, Linda told the jury how she and Gross had “a
very abusive relationship.” Tr., 04/05/2004, at 91. Indeed, she recounted being
“beaten many, many times in front of my children. Tied up. Dragged down the
highway. My bones broke.” Id. And Dr. Hand testified that he “reviewed a file
of the Department of Human Services’ records that include[d] referrals for abuse
and neglect that go back to when” Wood was five years old. Id. at 43.
Thus, introducing these documents would not have broken new ground. To
be sure, the documents Wood cites support the charges of abuse against Gross.
Linda’s petition for a protective order, for example, alleged that her “husband hit
-31-
me [four] times with his fist in my face.” PCA Ex. 9A. And Gross’s criminal
history revealed he had been charged with pointing a gun at Linda to threaten and
intimidate her. PCA Ex. 12A. The allegations in these documents thus sprinkle
extra credibility on Andre and Linda’s testimony. But they are not substantially
more powerful than the testimony actually presented at both the Rule 3.11 hearing
and the sentencing. Accordingly, the OCCA did not unreasonably apply
Strickland when it held Wood was not prejudiced by appellate counsel’s failure to
obtain and use these documents.
Wood also claims the OCCA unreasonably determined the facts by
“ignor[ing] the independent corroboration of abuse contained in Gross’s criminal
records.” Aplt. Sup. Br. at 10. We fail to understand how ignoring evidence can
be considered a factual determination. But in any event, the OCCA based its
denial of relief on the “documents Wood provide[d].” App. at 659 (emphasis
added). The OCCA therefore expressly considered all the documents Wood
pointed it to, including Gross’s criminal records. True, the OCCA specifically
referenced some of the documents, such as the divorce petition, but did not
mention the criminal records. This does not matter. “The Supreme Court has
never required state courts to be verbose for AEDPA purposes.” Curiel v. Miller,
830 F.3d 864, 870 (9th Cir. 2016).
Finally, Wood argues that, by describing the allegations of abuse in the
divorce records and restraining order as “practically meaningless,” the OCCA
-32-
“failed to consider whether a reasonable probability existed that their use by
appellate counsel might have changed the trial court’s factual findings.” Aplt.
Sup. Br. at 10. We agree the OCCA did not consider the effect impeaching Gross
would have had on the evidentiary hearing’s factual findings. But this was
because the OCCA’s prejudice inquiry rightly turned on what effect impeaching
Gross would have had on the OCCA’s decision on direct appeal, not on factual
findings at an evidentiary hearing.
To conclude, we emphasize that the OCCA on Wood’s post-conviction
appeal had these documents detailing Gross’s abuse before it, along with all the
other testimony about Gross’s abuse that was developed at the evidentiary hearing
and sentencing. Viewing the documents in this context, the OCCA stated they
were “insufficient to convince us that appellate counsel was ineffective.” App. at
659. Having closely reviewed these documents and the record from the
evidentiary hearing ourselves, we cannot conclude the OCCA’s conclusion was
unreasonable under § 2254(d).
3. Failure to Update the Record with Mr. Albert’s Suspension
and Disciplinary Proceedings
Third, Wood argues his appellate counsel performed ineffectively by failing
to update the record with his trial counsel’s subsequent disciplinary proceedings.
These proceedings flowed from Mr. Albert’s abuse of alcohol and cocaine, which
began in March and April of 2005, about a year after Wood’s trial and sentencing,
-33-
but about a year before the Rule 3.11 evidentiary hearing. State ex rel. Okla. Bar
Ass’n v. Albert, 2007 OK 31, 163 P.3d 527, 539. Just days after the Rule 3.11
hearing, at which Mr. Albert testified, an Oklahoma County court held him in
contempt for failing to enter a substance-abuse treatment program. During those
proceedings, the court repeatedly admonished Mr. Albert for lacking candor.
Eventually, the Oklahoma Supreme Court suspended Mr. Albert from the practice
of law .
The OCCA concluded appellate counsel’s failure to update the record did
not render his performance ineffective. In its view, “evidence of trial counsel's
involvement in a contempt proceeding in unrelated cases and his suspension from
the practice of law two years after Wood's conviction does not prove that trial
counsel was ineffective during Wood’s trial.” App. at 656.
Again, Wood argues AEDPA’s bar on relief does not apply for a number of
reasons. None has merit.
First, he contends the OCCA unreasonably applied Strickland because it
failed to consider the cumulative prejudicial effect of the many alleged errors.
But the OCCA did not need to consider cumulative prejudice because it found no
deficient performance. And the OCCA did, in fact, consider cumulative
prejudice, as we explain in Part III.B.4.
Second, he argues the OCCA unreasonably applied Strickland when it
concluded Wood was not prejudiced by his counsel’s failure to update the record.
-34-
He emphasizes that Mr. Albert’s contempt proceeding “bore directly upon
[Albert’s] truthfulness and occurred within two weeks of when he testified at
Wood’s Rule 3.11 hearing.” Aplt. Supp. Br. at 12. As a consequence, had the
OCCA known about these disciplinary actions, Wood argues it would have
doubted Mr. Albert’s testimony because (1) he may have been abusing drugs and
alcohol when he testified at the evidentiary hearing, and (2) he likely lacked
candor during the hearing, just as he had in the disciplinary proceedings. Yet the
OCCA concluded this evidence “would have made no difference on the outcome
of appeal.” App. at 656. This, Wood insists, was an unreasonable application of
Strickland.
We disagree. The OCCA reasonably applied Strickland when it concluded
Wood endured no prejudice from his counsel’s failure to update the record with
Albert’s suspension. The reason for this is simple: Albert’s testimony and
affidavit helped Wood’s argument that Albert performed deficiently, so
undercutting Albert’s credibility by introducing his subsequent disciplinary
troubles could have hurt Wood’s case.
At the evidentiary hearing, appellate counsel introduced an affidavit Mr.
Albert signed in which he largely fell on his sword. In it, Mr. Albert admitted he
“did not review the records properly in order to present a meaningful mitigation
case, and that due to my lack of proper review, in hindsight, I see that I was not
effective.” EH Vol. 1 Ex. M. And Mr. Albert similarly conceded that he “relied
-35-
upon Tremane Wood to properly explain and develop the mitigation portion of the
defense, and in hindsight, I see that I could have achieved a better and effective
result for Tremane Wood had I been more involved.” Id.
When he testified at the evidentiary hearing, Mr. Albert affirmed the
admissions in his affidavit. He acknowledged he “could have achieved a better”
result for Wood had he been more prepared at sentencing. Tr., 2/27/06, at 248.
And Mr. Albert explained that he had “too many cases” while representing Wood,
and he had consequently “decided to quit doing death penalties” after Wood’s
case. Id. at 247. All in all, Mr. Albert acknowledged he “could have done better”
in the case. Id. at 251.
So Mr. Albert’s affidavit and testimony largely strengthened Wood’s
argument that Albert performed ineffectively at trial. Undercutting Mr. Albert’s
credibility by bringing up these disciplinary issues could have thus washed away
his helpful testimony and hurt Wood’s case. Given this, the OCCA’s conclusion
Wood suffered no prejudice was reasonable.
We recognize that Mr. Albert’s upcoming disciplinary proceedings could
have influenced his testimony. That is, Mr. Albert could have been defensive
during the evidentiary hearing and held back even more helpful testimony because
he feared it would be used as evidence in the disciplinary case against him. Had
counsel let the OCCA know about these disciplinary proceedings, Wood asserts
-36-
the OCCA would have presumed Mr. Albert was downplaying his ineffectiveness
and, in turn, would have been more likely to conclude he performed ineffectively.
We agree this chain of events is theoretically possible. But we cannot
conclude the OCCA unreasonably applied Strickland by concluding this scenario
was not reasonably probable. When determining if § 2254(d) applies and bars
relief, our review is “limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen, 563 U.S. at 182. 16 And the fact of
the matter is, Wood presented no evidence during the post-conviction proceeding
that Mr. Albert was defensive or not fully forthcoming at the evidentiary hearing
because he was worried about an adverse finding affecting his disciplinary
proceeding. Without such evidence, it was not objectively unreasonable for the
OCCA to conclude this scenario was not reasonably probable.
Third, Wood points to allegations that Mr. Albert had begun “consuming
large amounts of alcohol during the work day in early 2004, when he was
representing Wood in the penalty phase.” Aplt. Sup. Br. at 13 (citing PC Not. of
Suppl. Auth., Att. ¶¶ 3, 6 11/19/07). Surely, says Wood, his appellate counsel
performed ineffectively by failing to alert the OCCA—which was considering
whether Mr. Albert performed ineffectively at trial—of these allegations that Mr.
16
We therefore cannot and do not consider Mr. Albert’s updated affidavit,
which was submitted for the first time in federal district court.
-37-
Albert was abusing alcohol around the time of Wood’s trial and sentencing. The
OCCA’s conclusion to the contrary, he says, unreasonably applied Strickland.
We disagree. To be sure, evidence of alcohol abuse can be, and often is,
strong evidence of attorney misconduct. But the evidence Wood cites is not
particularly powerful. Wood cites factual findings from another disciplinary
proceeding in which various individuals claimed that in January 2004, Mr. Albert
began drinking beers in the afternoon on some workdays and, in turn, missed
some afternoon court appearances.
Critically, though, none of this testimony is connected in any way to
Wood’s trial. Indeed, no one claims Mr. Albert drank alcohol before meeting
with Wood, was intoxicated during Wood’s trial, or that alcohol interfered in any
way with Mr. Albert’s representation of Wood. And strikingly, despite the fact
that one of the main charges in the document is that Mr. Albert missed court
appearances because of his drinking, Wood cites no evidence Mr. Albert missed
any court appearances in his case. Simply put, these allegations of alcohol abuse,
while troubling, lack any link to Wood’s case.
And on direct appeal, moreover, Wood’s theory of the case did not turn on,
or indeed even relate to, Mr. Albert performing ineffectively because he abused
alcohol. Rather, Wood argued that for whatever reason—alcohol or otherwise—
Mr. Albert failed to present a thorough mitigation defense by calling additional
witnesses. The OCCA disagreed, and concluded Mr. Albert did not perform
-38-
deficiently. And even if he had, it held Wood suffered no prejudice because the
extra evidence Wood could have offered would not have affected the proceeding’s
outcome. We do not see why allegations of alcohol abuse would have affected
this conclusion.
In sum, allegations of alcohol abuse are a serious charge. But the charge is
militated if it has no reasonable relationship to the defendant’s case. Because
these allegations lack any connection to Mr. Albert’s representation of Wood, the
OCCA’s conclusion no prejudice flowed from counsel’s failure to update the
record with this information is not an unreasonable application of Strickland.
Fourth, Wood claims the OCCA contravened Strickland by applying the
wrong prejudice standard. In concluding Wood suffered no prejudice, the OCCA
said “Wood [could] not show that the outcome of his appeal would have been
different.” App. at 656. But, Wood protests, Strickland defines the prejudice
inquiry differently—as whether there is “a reasonably probability” the
proceeding’s outcome would have been different, Strickland, 466 U.S. at 694, not
whether it “would have been,” App. at 656. The OCCA therefore applied the
wrong prejudice standard, says Wood, rendering its decision contrary to
Strickland.
Wood admits he never raised this argument below and thus forfeited it, but
he asks us to use our discretion to consider it. But even if we exercised our
discretion to consider the argument, it lacks merit. Elsewhere in its opinion, the
-39-
OCCA recited the correct prejudice standard. App. at 655 (“Under [Strickland],
Wood must not only overcome the presumption of competence but show that there
is a reasonable probability that, but for counsel’s unprofessional error, the result
of the proceeding would have been different.”). And under AEDPA’s deferential
framework, we “presum[e] that state courts know and follow the law.” Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). We therefore do not think the
OCCA’s occasional use of shorthand to describe the prejudice standard renders its
decision contrary to Strickland. See id.
4. Failure to Challenge Factual Findings in the Supplemental
Brief
Next, Wood argues his appellate counsel performed ineffectively by failing
to challenge the trial court’s factual errors at the evidentiary hearing in his
supplemental brief. He advances two arguments as to why § 2254(d) does not
prevent us from granting relief.
He first contends the OCCA unreasonably applied Strickland because it
failed to consider the cumulative prejudicial effect of his counsel’s alleged
errors. 17 In short, he points to Strickland’s requirement that courts “consider the
17
To be clear, Wood’s argument is not based on the cumulative-error
doctrine, under which courts considers the prejudicial effect of “distinct
categories of error[s].” Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003);
see United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002) (explaining how
the cumulative-error analysis “aggregates all errors found to be harmless and
analyzes whether their cumulative effect on the outcome of the trial is such that
(continued...)
-40-
totality of counsel’s errors in assessing whether a defendant was thereby
prejudiced.” Aplt. Supp. Br. at 5. Yet he claims the OCCA only considered the
prejudicial effect of each alleged error in isolation. Put differently, in Wood’s
view the OCCA considered whether each alleged error, standing alone, prejudiced
him. This unreasonably applied Strickland, he says, because the OCCA had to
consider whether the combined effect of these errors prejudiced Wood.
But courts need only consider the cumulative prejudicial effect of counsel’s
alleged errors if they first conclude counsel performed deficiently in numerous
ways. See Ellis v. Raemisch, 872 F.3d 1064, 1090 (10th Cir. 2017). So if the
OCCA found “only one possible instance of deficient performance,” then it had
no need to consider cumulative prejudice. Id.
Here, the OCCA did not need to consider cumulative prejudice because it
concluded appellate counsel did not perform deficiently. On the claim related to
counsel’s failure to challenge Dr. Allen’s exclusion in the supplemental brief, the
OCCA concluded counsel did not perform deficiently. See App. at 661 (noting
that appellate counsel employed a “reasonable strategy” in selecting what, and
what not, to raise in the supplemental brief). Similarly, on the claim about
counsel’s failure to obtain and use documents substantiating Gross’s abuse, the
17
(...continued)
collectively they no longer can be determined to be harmless”). Instead, he
claims the OCCA unreasonably applied Strickland by failing to consider the
cumulative prejudicial impact of numerous alleged errors by his counsel.
-41-
OCCA concluded counsel did not perform deficiently and Wood also suffered no
prejudice. And on the claim relating to Mr. Albert’s disciplinary records and
alcohol use, the OCCA likewise found nothing to show counsel was “ineffective
during Wood’s trial.” App. at 652. Finally, on the claim that counsel failed to
challenge the trial court’s factual findings, the OCCA held counsel did not
perform deficiently. The OCCA therefore did not need to consider cumulative
error. Ellis, 872 F.3d at 1090. Its decision consequently cannot be contrary to, or
an unreasonable application of, Strickland for failing to engage in this analysis.
Even if the OCCA did need to consider cumulative prejudice, Wood would
still not be entitled to relief. At least in the AEDPA context, considering the
cumulative prejudicial effect of counsel’s numerous errors is an inherent part of
the prejudice inquiry. By Strickland’s own terms, concluding the petitioner
suffered no prejudice involves considering the totality of the circumstances,
including whether “counsel’s unprofessional errors” likely affected the
proceeding’s outcome. Strickland, 466 U.S. at 703 (emphasis added). And when
we analyze state-court decisions through AEDPA’s deferential lens, we must
“presum[e] that state courts know and follow the law” and give “state-court
decisions . . . the benefit of the doubt.” Woodford, 537 U.S. at 24. As a result,
where, as here, a state court analyzes numerous errors separately and concludes
each one did not prejudice the defendant, we presume this analysis considers the
prejudicial impact of all the alleged errors together. Put differently, giving the
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state-court decision the benefit of the doubt requires assuming that when the court
says numerous alleged errors did not prejudice the defendant, it has considered
both the individual and cumulative prejudicial effect of each alleged error.
At bottom, Wood asks us to impose an opinion-writing requirement on state
courts. Under his reasoning, when a state court concludes multiple alleged errors
did not prejudice the defendant, its opinion must have a separate section or
sentence explicitly stating that, cumulatively, these errors were not prejudicial. If
it does not, the court unreasonably applied Strickland. This rule is at war with the
Supreme Court’s constant refrain that AEDPA does not empower federal courts to
“impose mandatory opinion-writing standards on state courts.” Johnson v.
Williams, 568 U.S. 289, 300 (2013); see also Lafler v. Cooper, 566 U.S. 156, 183
(2012) (Scalia, J., dissenting) (noting that while a “state court’s analysis was
admittedly not a model of clarity . . . federal habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice system,’ not a license to
penalize a state court for its opinion-writing technique”) (quoting Richter, 562
U.S. at 102); cf. Richter, 562 U.S. at 99 (“Opinion-writing practices in state
courts are influenced by considerations other than avoiding scrutiny by collateral
attack in federal court.”). 18
18
This rule is also supported by Johnson v. Williams, 568 U.S. 289,
300–11 (2013). In that case, the Court held that when a state court “fails to
address separately” a claim a party raised, federal courts “must presume that the
(continued...)
-43-
We accordingly give the OCCA’s thorough decision the benefit of the
doubt and conclude that when it decided none of these four errors caused Wood
any prejudice, it considered both the individual and cumulative effect of the
alleged errors.
Wood offers a second possible reason why AEDPA does not preclude us
from granting relief: the OCCA unreasonably applied Strickland by concluding
appellate counsel acted strategically by failing to correct the evidentiary hearing
court’s factual findings in the supplemental brief. In support, he cites Cargle v.
Mullin, 317 F.3d 1196 (10th Cir. 2003). That case held that to determine if
appellate counsel performed ineffectively by failing to raise issues in a brief,
courts should “look to the merits of the omitted issue.” Id. at 1202. The OCCA,
Wood contends, never considered the merits of the issues his appellate counsel
omitted from the supplemental brief, rendering its analysis unreasonable. We
agree the OCCA never explicitly considered the merits of these issues. But this
does not entitle Wood to relief. AEDPA does not empower us to “impose
mandatory opinion-writing standards on state courts.” Johnson, 568 U.S. at 300.
18
(...continued)
federal claim was adjudicated on the merits.” 568 U.S. at 300–11. This same
reasoning applies here. If giving state-court decisions the “benefit of the doubt,”
Woodford, 537 U.S. at 24, requires presuming state courts addressed claims they
failed to even mention, it follows that we should also presume that when a state
courts says multiple errors caused the defendant no prejudice, the court
considered both the individual and cumulative effect of those errors.
-44-
And we presume that state courts know and follow the law. See Woodford, 537
U.S. at 24. With this presumption, we conclude the OCCA did not unreasonably
apply Strickland by failing to explicitly consider the merits of the omitted issues
when it concluded appellate counsel’s failure to include these issues in the
supplemental brief did not render his performance deficient. 19
5. Failure to Object to Juror Separation
Wood claims his appellate counsel performed ineffectively in a fifth and
final way: by failing to raise a claim that his trial counsel performed ineffectively
by failing to object to the jurors leaving the courtroom after the court charged
them and before they began deliberations.
At both the guilt and sentencing phase of trial, after the court charged the
jurors, it permitted them to leave the courtroom to move their cars. Wood claims
this violates Oklahoma Statute Title 22 § 857, which requires a court officer to
keep the jurors together after the court charges them. 20 If trial counsel objects to
19
Because we can only consider the record before the OCCA, we do not
consider appellate counsel’s affidavit, which was submitted for the first time in
the district court. Cullen, 563 U.S. at 182.
20
The full statute states:
After hearing the charge, the jury may either decide in
court, or may retire for deliberation. If they do not agree
without retiring, one or more officers must be sworn to
keep them together in some private and convenient
place, and not to permit any person to speak to or
(continued...)
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jurors separating in violation of § 857, the error is presumed to prejudice the
rights of the defendant, “and the burden falls to the [s]tate to prove otherwise.”
Johnson v. State, 2004 OK CR 23, 93 P.3d 41, 47. If the state fails to prove “no
prejudicial injury resulted” from the separation, this “vitiates the verdict.” Page
v. State, 332 P.2d 693, 695 (Okla. Crim. App. 1958). But if trial counsel failed to
object to the separation, this “waives any potential error.” Elliot v. State, 753
P.2d 920, 922–23 (Okla. Crim. App. 1988).
Wood’s trial counsel failed to object to the jurors separating on both
occasions. Yet on direct appeal, Wood’s appellate counsel did not argue trial
counsel performed ineffectively for this reason. Wood claims his appellate
counsel’s failure to do so rendered his performance constitutionally ineffective.
Even on de novo review, Wood is not entitled to relief. “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.” Neill v. Gibson, 278 F.3d 1044, 1057
(10th Cir. 2001). The omitted issue’s merits determine both deficient
performance and prejudice. Cargle, 317 F.3d at 1202. To rule on Wood’s
20
(...continued)
communicate with them, nor do so themselves, unless it
be by order of the court, or to ask them whether they
have agreed upon a verdict, and to return them into court
when they have so agreed, or when ordered by the court.
Okla. Stat. tit. 22, § 857 (emphasis added).
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ineffective assistance of appellate counsel claim, then, we must assess the merits
of the ineffective assistance of trial counsel claim his counsel failed to raise.
We conclude the trial-counsel-based claim lacks merit, so the appellate-
counsel-based claim fails. In Warner v. State, 2006 OK CR 40, 144 P.3d 838,
875, jurors separated to move their cars after deliberation had begun. The OCCA
held this “infrequent and short” separation “did not constitute a separation of the
jury during deliberations within the meaning of § 857.” 144 P.3d at 875. Indeed,
the OCCA recognized that jurors briefly separating to move their cars “was a
common occurrence for juries in Oklahoma County that deliberated into the
evening.” Id. Warner therefore demonstrates that under Oklahoma law, jurors
separating to move their cars does not qualify as a separation under § 857.
Wood’s trial counsel consequently did not perform ineffectively for failing to
object to the jurors separating to move their vehicles, since no violation of § 857
had occurred. In turn, Wood’s appellate counsel did not perform ineffectively by
failing to raise this non-meritorious claim.
* * *
In sum, Wood is not entitled to relief on the claim his appellate counsel
performed ineffectively on direct appeal. 21
21
We realize that, because Wood contended AEDPA’s bar on relief no
longer applied, he spent much of his briefing arguing the merits of both his trial
and appellate counsel ineffectiveness claims assuming we would apply de novo
(continued...)
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C. The HAC Aggravator
In light of Pavatt v. Royal, 859 F.3d 920 (10th Cir. 2017), 22 we granted a
COA on whether constitutionally sufficient evidence was presented to the jury to
prove beyond a reasonable doubt that the capital aggravating circumstance that
murder of Mr. Wipf was especially heinous, atrocious, or cruel. As an initial
matter, Oklahoma argues we should deny relief because Wood failed to exhaust
this argument, forfeited it, abandoned it, and § 2254(d) limits our ability to grant
relief. We need not address these arguments, however, because even assuming
this issue is properly presented to us and we could consider the issue under de
novo review, we deny relief.
To understand Wood’s claim based on Pavatt, some background is
necessary. We first explain the two ways in which a petitioner can challenge the
evidence supporting the imposition of an aggravator. We then turn to Pavatt and
apply its approach to the facts of this case. 22
21
(...continued)
review. Because AEDPA prevents us from granting relief, we need not consider
those arguments.
22
This opinion was amended and superseded on the denial of rehearing by
Pavatt v. Royal, 2017 WL 9771976 (10th Cir. 2017). Our analysis accordingly
focuses on the amended Pavatt opinion.
22
Pavatt will be reheard en banc. See Pavatt, 14-6117, Order, July 13,
2018. Even so, Oklahoma contends that “Pavatt was incorrect to conclude that an
aggravator may be found invalid as applied to the facts of a particular case.”
(continued...)
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1. Background Law
Under Oklahoma law, a jury may only impose the death penalty when it
unanimously finds at least one statutory aggravating circumstance beyond a
reasonable doubt, and also concludes the mitigating circumstances do not
outweigh the aggravating circumstances. See Ross v. Ward, 165 F.3d 793, 799
(10th Cir. 1999). When a jury finds an aggravating circumstance exists, capital
defendants can challenge the aggravator in two ways.
First, a defendant can bring a sufficiency of the evidence claim under
Jackson v. Virginia 443 U.S. 307, 316 (1979). It violates the Fourteenth
Amendment’s guarantee of due process if a jury sentences a defendant to death
based on an aggravator, even though there was insufficient evidence for any
rational juror to have concluded the aggravator was met. Pavatt, at * 6–8.
Because state law defines aggravators, this question turns on state law. Id.
22
(...continued)
Aplt. Second Supp. Br. at 7. Lewis v. Jeffers, Oklahoma says, forecloses this type
of as-applied challenge—at least where a state court applied a constitutionally
acceptable narrowing construction of the aggravator by giving the jury the
“serious physical abuse” instruction our circuit approved in Hatch v. State of Okl.,
58 F.3d 1447, 1468 (10th Cir. 1995), overruled on other grounds by Daniels v.
United States, 254 F.3d 1180, 1568 n.1 (10th Cir. 2001) (en banc). But we need
not address Oklahoma’s argument based on Lewis or, more broadly, consider
whether Pavatt was correctly decided. Instead, we simply assume Pavatt’s
analytical approach to the constitutionality of aggravating circumstances is
correct, and conclude Wood is not entitled to relief under it.
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Second, petitioners can challenge an aggravating circumstance as
unconstitutionally vague. It violates the Eighth and Fourteenth Amendments for
death sentences to be arbitrarily imposed. See Lewis v. Jeffers, 497 U.S. 764, 774
(1990). As a consequence, if an aggravating circumstance is so vague it could
apply to any and every murder, then sentencing a defendant to death because that
aggravator was met violates the Constitution. See, e.g., Godfrey v. Georgia, 446
U.S. 420, 227–28 (1980).
The Supreme Court applied this reasoning in Maynard v. Cartwright when
it held the same Oklahoma HAC aggravating circumstance at issue here was
unconstitutionally vague. 486 U.S. 356, 359–61 (1988). Even so, after Maynard
our circuit has repeatedly upheld death sentences based on the HAC aggravator.
We do so when the aggravator’s vagueness has been “cure[d]” by “a narrowing
construction.” Hatch v. State of Okl., 58 F.3d 1447, 1468 (10th Cir. 1995),
overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1568 n.1
(10th Cir. 2001) (en banc). As we previously explained, Oklahoma courts have
narrowed the HAC aggravator so it could only apply if “the murder involve[d]
‘torture of the victim or serious physical abuse.’” Hatch, 58 F.3d at 1468
(quoting Stouffer, 742 P.2d at 563). And a victim only suffers serious physical
abuse if he or she endures “conscious physical suffering” before death. Meldock
v. Ward, 200 F.3d 1314, 1321 (10th Cir. 2000) (quoting Cheney v. State, 909 P.2d
74, 80 (Okla. Crim. App. 1995)).
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In Pavatt, we nonetheless held the OCCA unconstitutionally construed the
HAC aggravator in that case. Pavatt explained that our prior acceptance of that
aggravator, when it was narrowly construed, did not “immunize [the OCCA’s]
decision[] from review of whether it ha[d] departed from that acceptable
construction.” Pavatt, at *11. “[E]ven when a State has previously applied a
constitutionally valid narrowing construction of an aggravator,” Pavatt concluded,
a “death penalty imposed under the aggravator must still be based on a
construction that in a ‘principled way’ can distinguish the case from the many in
which the penalty was not imposed.” Id. at *12 (quoting Godfrey, 446 U.S. at
433).
Pavatt then asked whether, by applying the HAC aggravating circumstance
to the facts of that case, the OCCA construed the aggravator in a manner that
complied with the Constitution. Id. at *11–12. It held the OCCA had not. Id. at
*12. That was because the OCCA failed to construe the aggravator “so that it
distinguishes in a principled way” the differences between “crimes deserving
death and the many cases in which the death penalty is not imposed.” Id. In
other words, Pavatt held that if the HAC aggravator could apply to that case, then
it could apply to “[v]irtually any murder in which the victim did not die
instantly,” “the act of murder did not immediately render the victim
unconscious[,] and the wounds could have caused pain.” Id. Thus, Pavatt held
that by applying the HAC aggravator to the facts of that case, the OCCA “did not
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apply a constitutionally acceptable interpretation of Oklahoma’s HAC
aggravator.” Id.
2. Application of Pavatt to the Facts of this Case
Under Pavatt, Wood is not entitled to relief. Wood advances two
arguments. First, he argues that, like the victim in Pavatt, Mr. Wipf endured only
the suffering that necessarily accompanies every murder. Wood accordingly
contends the OCCA contravened the Constitution by construing the HAC
aggravator so that it could apply to the facts of this case. Second, even if the
evidence establishes that Mr. Wipf suffered, Wood argues no evidence shows
he—as opposed to Zjaiton—inflicted that suffering.
Both arguments fail. To understand why, it is helpful to first summarize
the trial testimony detailing Mr. Wipf’s death and the altercation that occurred
before it. Three pieces of evidence are key.
First, Kleinsasser, Mr. Wipf’s friend who was in the hotel room, testified
that he witnessed a fight between Wood, Zjaiton, and Wipf, during which Mr.
Wipf became covered in blood and screamed in pain. Kleinsasser testified that
two men “burst[] in the door,” one with a gun and one with a knife. Tr., 3/31/04
at 131. Other evidence proved Wood had the knife and Zjaiton the gun. “[A]s
soon as they opened the door,” Kleinsasser recalled, Mr. Wipf “started struggling
with” Wood. Id. at 135. Wood and Wipf “were struggling and fighting,” and
Wipf was “screaming in pain or terror.” Id. at 136. Meanwhile, Zjaiton pointed
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the gun at Kleinsasser and demanded the money. Id. at 133. Eventually, Zjaiton
joined Wood in fighting Mr. Wipf, and the three men moved towards the
bathroom.
Kleinsasser testified that Wood then walked away from Mr. Wipf and
towards him. Wood thumped Kleinsasser on the head with the handle of the knife
and demanded more money. When Kleinsasser said he had no more, Wood
walked back over to Mr. Wipf.
As Wood, Zjaiton, and Mr. Wipf exited the bathroom, Kleinsasser saw Mr.
Wipf’s whole body “covered in blood.” Id. at 139. Before he ran out of the
room, Kelinassar saw Wood, Zjaiton, and Wipf “fighting amongst themselves” in
a “big fight” just in front of the bed. Id. at 140–41. Mr. Wipf continued to
scream as Kleinsasser ran out of the room.
Second, the state’s autopsy report and photographs of Mr. Wipf’s body
reveal he had many cuts and bruises besides the fatal stab wound. The autopsy
report shows Mr. Wipf had a significant number of cuts on his right eye, chin, and
on his right hand. The state’s photographs confirm this in gruesome detail.
Third, the medical examiner, Dr. Jordan, reviewed the autopsy drawing of
the injuries and the photographs of Mr. Wipf’s body. He explained that the
injuries around Wipf’s eyes were “very fresh” contusions and abrasions. Tr.,
4/2/2004 at 8. And the cuts on Wipf’s hand, he said, were consistent with
“defensive wounds”—which, the examiner agreed, are “something like if you are
-53-
about to be struck with a knife and hold your hand up to defend yourself.” Id. at
15. On cross examination, however, Dr. Jordan conceded the cuts on Wipf’s face
could also have been caused by him falling down and not bracing himself. On
redirect, Dr. Jordan again iterated that Mr. Wipf’s non-lethal injuries “[c]ould
have been caused by being in a fight.” Id. at 19–20.
Wood first argues this evidence demonstrates Mr. Wipf’s death involved
only the amount of suffering that necessarily accompanies every murder. We
disagree. Sufficient evidence exists that prior to his death, Mr. Wipf endured far
more suffering than every murder victim experiences. An eyewitness testified
that Mr. Wipf was engaged in a fistfight with two men. And the photographs
reveal that Wipf suffered serious injuries during the fight—the Wood brothers
badly beat and bruised his face, and his hand had deep cuts on it. All this
evidence demonstrates that before Mr. Wipf died, he endured serious pain and
suffering. This is unsurprising since he was involved in a two-on-one fistfight in
which both of his opponents were armed. Contrary to Wood’s argument, then, we
conclude Mr. Wipf’s death did not involve merely the kind of suffering that
necessarily accompanies every murder. Accordingly, applying the aggravator to
these facts does not mean the aggravator could apply to every murder.
Wood focuses on the fact that no one saw Wood stab Mr. Wipf. He
therefore theorizes that Mr. Wipf was stabbed after Kleinsasser left the room and
died instantaneously. In his view, this makes his case indistinguishable from
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Pavatt. In that case, the evidence did not show it probable that the victim
survived long enough after he was shot with a shotgun to suffer. Pavatt, at *11.
So too here, says Wood, no evidence demonstrates Mr. Wipf survived after being
stabbed; he may well have died instantly like the victim in Pavatt.
Even if we assume that Mr. Wipf was, in fact, stabbed after Kleinsasser
fled the room and died instantaneously, Mr. Wipf endured conscious physical
suffering before being stabbed. Indeed, Kleinsasser directly testified to the brutal
beating Mr. Wipf endured from the Wood brothers. And although the medical
examiner testified that the cuts on Wood’s face could have been by caused by Mr.
Wipf falling down after being stabbed, the examiner gave no such testimony
about the deep cut on his hand. Thus, that Mr. Wipf endured conscious physical
suffering before the fatal wound was inflicted distinguishes this case from
Pavatt. 23
23
Wood argues that only the stabbing itself could have caused Mr. Wipf to
endure serious physical abuse. See Aplt. Second Supp. Mem. Br., at 4 (arguing
the “only possible serious physical abuse occurred as a result of the lethal stab
wound”).
First, he highlights how Oklahoma’s brief in response to his request to
grant additional COAs stated that the cuts on Mr. Wipf’s body “were not serious.”
Resp. to Pet. Supp. Request to Merits Panel for Leave to Certify Additional Issues
for Appeal, at 17. In Wood’s view, with this short statement Oklahoma conceded
that Mr. Wipf could not have endured conscious physical suffering before he was
stabbed. We disagree. Viewed in the proper context, we think Oklahoma’s
admission that the cuts of Mr. Wipf’s hands were not “serious” was only meant to
state the obvious—those cuts were not fatal. We therefore will not strain to read
(continued...)
-55-
Wood cites a number of cases which, he contends, demonstrate the beating
Mr. Wipf endured before his death does not constitute serious physical abuse.
None of the cases, however, persuade us.
In Stouffer v. State, for example, the OCCA held sufficient evidence did not
support the HAC aggravator because there was “no reason to believe from the
evidence that [the victim] was conscious after” she was shot. 742 P.2d 562, 564
(Ok. Cr. App. 1987). In other words, in that case there was no evidence the
23
(...continued)
this short, cherry-picked sentence to be much more consequential than it seems on
its face.
Second, Wood emphasizes that before the jury, “the prosecution relied only
[on] the single fatal stab wound as the basis for the HAC aggravating
circumstance.” Aplt. Second Supp. Mem. Br., at 7. His argument seems to be
that because this was the only theory presented to the jury, it is also the only
theory we can consider when determining whether there was sufficient evidence
for the HAC aggravator to be constitutionally imposed.
To start, Wood cites no authority that suggests we can only consider the
theory the prosecution explicitly argued. More critically, though, we think our
analysis must turn on what evidence was before the jury—and, in turn, what
theories of conscious physical suffering that evidence could support. After all,
Pavatt focused on the OCCA’s analysis and how it construed the aggravator in
light of the evidence presented at trial. See Pavatt, at *12. And here, the OCCA
based its conclusion that sufficient evidence supported the aggravator’s
imposition on all the evidence at trial, including “[p]hotographs depicting Wipf’s
injuries from being beaten.” Wood, 158 P.3d at 476. Its analysis did not solely
focus on the prosecution’s theory. The Jackson v. Virginia inquiry, too, focuses
on what a “rational trier of fact could have found” based on the evidence, not
whether reasonable jurors could have believed the prosecution’s specific theory.
See 443 U.S. at 320 (emphasis added). Thus, we think our inquiry should turn on
what theories the evidence could support, rather than what the prosecution argued
to the jury.
-56-
victim endured serious physical abuse because she died instantaneously. Here, in
contrast, even assuming Mr. Wipf immediately died from his stab wound, he
nonetheless endured serious physical abuse before his death when Wood and
Zjaiton brutally beat him.
Two other cases Wood relies on, Cudjo v. State, 925 P.2d 895 (Okla. Crim.
App. 1996), and Hawkins v. State, 891 P.2d 586 (Okla. Crim. App.), are equally
inapplicable. In both cases, the OCCA concluded insufficient evidence supported
the application of the HAC aggravator because there was no evidence the victim
experienced any suffering “beyond the scope of the act of killing itself.” Cudjo,
925 P.2d at 901–02 (emphasis added); see also Hawkins, 891 P.2d at 596–97 (“No
evidence of serious physical abuse, that is, gratuitous violence inflicted on the
victim beyond the act of killing, is present in this case.” (emphasis added)). But
in this case, Mr. Wipf did not only suffer when the knife was fatally thrust into
his chest. To the contrary, before his killing he was brutally beaten by two men.
Accordingly, Cudjo and Hawkins are not on point.
Wood’s second argument likewise fails. He argues that even if Mr. Wipf
experienced conscious physical suffering prior to his death, nothing demonstrates
he, rather than Zjaiton, caused this suffering. This argument ignores
Kleinsasser’s testimony. Indeed, Kleinsasser testified that Wood and Wipf
immediately began fighting when the Wood brothers entered the room. And
Kleinsasser further detailed how Wood, sometimes accompanied by Zjaiton, was
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fighting Mr. Wipf while Wipf screamed in pain. This eyewitness testimony
establishes that Wood, perhaps with Zjaiton at times, caused Wipf to endure
conscious physical suffering before his death.
In sum, applying Pavatt’s approach does not entitle Wood to relief. 24
IV. Conclusion
Wood is not entitled to relief on any of his claims. We therefore AFFIRM
the district court’s denial of habeas relief.
24
While it is unclear whether Wood also argues insufficient evidence
supports the HAC aggravator’s application under Jackson v. Virginia, that
argument would also fail. As we discussed above, the record is replete with
evidence that Mr. Wipf endured conscious physical suffering before his death—in
the form of receiving a brutal beating from Wood that left his body bloody and
bruised. Given this, a rational juror could have concluded sufficient evidence
supported the aggravating circumstance’s application.
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