                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    August 26, 2013
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 STERLING B. WILLIAMS,

               Petitioner - Appellant,
          v.                                            No. 11-5048
                                            (D.C. No. 4:02-CV-00377-JHP-FHM)
                                                      (N.D. Oklahoma)
 ANITA TRAMMELL, Warden,
 Oklahoma State Penitentiary, *

               Respondent - Appellee.


                           ORDER AND JUDGMENT **


Before HARTZ, MURPHY, HOLMES, Circuit Judges.


      An Oklahoma jury convicted Applicant Sterling Williams of the

first-degree murder of LeAnna Hand and assault and battery with intent to kill her

roommate Elizabeth Hill. On the recommendation of the jury, Williams received




      *
      Pursuant to Fed. R. App. 43(c)(2), Anita Trammell, who was appointed
Warden of the Oklahoma State Penitentiary on February 28, 2013, is
automatically substituted for Randall G. Workman as Respondent in this case.
      **
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
a sentence of death for the murder and 99 years’ imprisonment for the assault and

battery.

      After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals

(OCCA), see Williams v. State, 22 P.3d 702, 733 (Okla. Crim. App. 2001), and

unsuccessfully pursuing postconviction relief in state court, see Williams v. State,

31 P.3d 1046, 1054 (Okla. Crim. App. 2001), Williams filed an application for

relief under 28 U.S.C. § 2254 in the United States District Court for the Northern

District of Oklahoma. He claimed, among other things, that the trial court had

violated Beck v. Alabama, 447 U.S. 625 (1980), by failing to instruct the jury on

either of the lesser-included offenses of second-degree murder and first-degree

manslaughter. The district court denied relief but granted a certificate of

appealability (COA) on Williams’s Beck claim. See 28 U.S.C. § 2253(c)(1)(A)

(requiring a COA to appeal the denial of a § 2254 application). Williams

obtained a COA from this court on two additional issues. He now appeals the

district court’s denial of relief (although limiting his Beck claims to his requested

second-degree-murder instruction) and renews his request for a COA on

additional issues.

      We hold that Williams was entitled to an instruction on second-degree

depraved-mind murder. Following this circuit’s precedent in Phillips v.

Workman, 604 F.3d 1202 (10th Cir. 2010), we decide that the OCCA applied a

rule contrary to that set forth in Beck, and we therefore owe its decision no

                                         -2-
deference under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). And, again following our precedent, primarily Phillips, we hold that

the evidence would permit a rational jury to acquit Williams of first-degree

murder and convict him of second-degree murder. Because our ruling on this

issue will require a new trial on the charge of first-degree murder, all other issues

that relate solely to that conviction are moot. That leaves only Williams’s request

for a COA on the claim that he received ineffective assistance of counsel at the

guilt phase, which we deny because reasonable jurists would not debate the

district court’s resolution of the claim.

I.    FACTUAL BACKGROUND

      We begin with the OCCA’s description of the pertinent events, as Williams

does not challenge that court’s factual findings and we must presume them to be

correct, see 28 U.S.C. § 2254(e)(1):

             ¶ 2 . . . In May of 1997, [Williams] worked as an independent
      contractor for Willard Enterprises Colorado Choice Meat Company.
      He had sold [LeAnna] Hand meat on prior occasions. On May 14,
      1997, [Williams] phoned Hand and said he had some free meat he
      was going to give away and that he would bring it by her home. At
      approximately 11:00 a.m., [Hand’s roommate Elizabeth] Hill was in
      her room dressing when she heard a knock at the front door. A
      moment later, she heard the answering machine on the telephone
      click on. Hill picked up the phone in her bedroom and discovered
      Hand’s mother on the line. Hill spoke for just a moment, then she
      heard Hand call her name from the other room. She opened her
      bedroom door and saw Hand struggling with [Williams]. Hill heard
      Hand fall to the floor and saw [Williams] standing over her body.
      Hill immediately shut her bedroom door and locked it. She tried to
      call 9-1-1 but could not get an open phone line. [Williams] then

                                            -3-
kicked down her bedroom door and knocked the phone out of her
hand. He told Hill to be quiet. Instead, she screamed and tried to
run out of the room. She escaped from her room, but [Williams]
tackled her in the hallway. He threw her to the ground, climbed on
top of her, and put both hands around her neck. Despite [Williams’s]
attempts to choke Hill, she fought back and was able to free herself
and run out of the front door of the duplex.

       ¶ 3 Hill was running to a neighbor’s home when the manager
of a nearby apartment complex, Carol Gorman, saw her and waved
her over. Gorman observed bloody hand prints on Hill’s neck.
Meanwhile, as soon as Hill ran out of the duplex, [Williams] also
left. He walked to his car parked in the driveway of the duplex and
drove away.

        ¶ 4 The police arrived at the scene to find Hand dead in her
living room. She had suffered a seven inch stab wound to her chest.
The knife cut through her ribs, through a portion of her left lung,
completely through her heart and into her right lung. The knife was
still in her body, tangled in her clothes. Near the victim the police
found a box from the Colorado Choice Meat Company, a roll of duct
tape, a baseball cap with the company logo, and a pair of gloves.
Nothing was missing from the duplex, including cash Hill had left on
her bed.

        ¶ 5 On the same day, [Williams] phoned his employer and said
he had just killed a girl and had to go to Chicago to hide out.
[Williams] withdrew money from his back [sic] account. [Williams]
also phoned his girlfriend, Consuela Drew, and told her he was going
to jail. An all points bulletin was issued containing a description of
[Williams’s] car. The next day, May 15, 1997, Ms. Drew again
spoke with [Williams] and told him to turn himself in to the police.
That same day [Williams] was stopped by authorities in Alexandria,
Louisiana. He had a serious cut to the index finger on his left hand,
and scratches on his neck, face and chest. [Williams] cooperated
with the officers and asked that the $121 dollars taken from him be
given to his children.

      ¶ 6 A t-shirt retrieved from [Williams] later tested positive for
Hand’s DNA. The knife found at the murder scene was found to
match a butcher block set of knives in [Williams’s] home.

                                   -4-
Williams, 22 P.3d at 708–09.

      Williams presented no evidence at the guilt phase of his trial. Much of the

OCCA’s account of these events is taken from the testimony of Hill, the only

person present in the home who testified at trial. Hill testified that she knew

there was a struggle between Williams and Hand in part because she heard Hand

call out her name in a distressed voice shortly before hearing a thump, which she

believed to be Hand’s body hitting the floor. Hill also provided details of her

own confrontation with Williams after he tackled her in the hallway. She recalled

that he placed both hands around her neck and squeezed hard enough that she

could not breathe. But she did not remember whether she fought back or how she

was able to escape. She testified that it was possible that Williams had let her go.

      Further suggesting a struggle between Williams and Hand was the

testimony of Dr. Robert L. Hemphill, the medical examiner who performed the

autopsy on Hand. Dr. Hemphill testified that he observed “‘defensive wounds’”

on Hand, which, he explained, often occur when a victim “is trying to ward off

blows being struck by a sharp instrument, [or] attempt[ing] to grab the hand that

has the instrument in it or to grab the instrument itself.” R., Vol. II (Tr. of Jury

Trial Proceedings, Vol. IV at 769 (State v. Williams, No. CF-97-2385 (D. Okla.

April 22, 1999) (internal quotation marks omitted)). He said that the fatal wound

was caused by a knife that entered the left side of Hand’s chest and was still

entangled in Hand’s clothing at the time of the examination; its blade measured

                                          -5-
eight inches in length by one-and-three-quarters inches at its widest point.

Dr. Hemphill estimated that the knife wound was approximately six to seven

inches deep and was inflicted by a single, rapid thrust of considerable force.

      Also, Mark Willard, Williams’s employer at Colorado Choice Meat

Company, testified that he received a phone call from Williams shortly after the

events at the home of Hand and Hill. Williams told Willard he had “just killed a

girl” but did not provide any additional details. Id. at 806. According to Willard,

Williams “seemed very upset,” id. at 807; he “sounded like he was crying” and

was “basically” sobbing, id. at 810.

II.   DISCUSSION

      A.     Second-Degree Depraved-Mind Murder Instruction

             1.    Standard of Review

      We first consider whether 28 U.S.C. § 2254(d) requires that we defer to the

OCCA’s adjudication of Williams’s Beck claim. Williams observes that

§ 2254(d)’s bar to habeas relief applies only to claims “adjudicated on the merits

in State court proceedings.” He then argues, “Because neither the OCCA nor the

federal district court properly adjudicated this claim on the merits, there is no

finding to give deference to.” Aplt. Br. at 18; see Davis v. Workman, 695 F.3d

1060, 1073 (10th Cir. 2012) (“Because there has been no state-court adjudication

on the merits of the claim, AEDPA’s § 2254(d) does not apply.”). We reject this

argument. “An adjudication on the merits occurs when the state court resolves

                                         -6-
the case on substantive grounds, rather than procedural grounds.” Matthews v.

Workman, 577 F.3d 1175, 1180 (10th Cir. 2009) (internal quotation marks

omitted). Williams presented his Beck claim to the OCCA, which rejected the

claim not on procedural grounds, but on the substantive ground that the second-

degree depraved-mind murder instruction was not warranted. See Williams,

22 P.3d at 712–14. Even if, as Williams asserts, the OCCA’s substantive analysis

“engaged in the wrong inquiry,” Aplt. Br. at 17, it nevertheless constituted a

rejection of his claim on the merits.

      Because the OCCA adjudicated Williams’s Beck claim on the merits, we

are precluded from granting relief unless the adjudication “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,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceeding,” id.

§ 2254(d)(2). Williams does not challenge the facts found by the OCCA. If,

however, the OCCA reached a legal conclusion that was contrary to or involved

an unreasonable application of Beck, we review de novo the issue of whether the

state trial court should have instructed the jury on second-degree depraved-mind

murder. See Phillips, 604 F.3d at 1213 (reviewing Beck claim de novo because

OCCA applied legal standard contrary to Beck).




                                          -7-
      The Supreme Court has explained that the “contrary to” and “unreasonable

application of” clauses of § 2254(d)(1) should be accorded independent meaning.

See Williams v. Taylor, 529 U.S. 362, 404–05 (2000). A decision is contrary to

Supreme Court precedent if (1) “the state court applies a rule that contradicts the

governing law set forth in [the Court’s] cases,” or (2) “the state court confronts a

set of facts that are materially indistinguishable from a decision of th[e] Court

and nevertheless arrives at a result different from [the Court’s] precedent.” Id. at

405–06. In contrast, a decision involves an unreasonable application of Supreme

Court precedent if the “state-court decision . . . correctly identifies the governing

legal rule but applies it unreasonably to the facts of a particular prisoner’s case.”

Id. at 407–08. We now turn to whether the OCCA reached a decision that was

contrary to or involved an unreasonable application of Beck.

      Under Beck, “a sentence of death [may not] be constitutionally imposed

after a jury verdict of guilt of a capital offense, when the jury was not permitted

to consider a verdict of guilt of a lesser included non-capital offense, and when

the evidence would have supported such a verdict.” 447 U.S. at 627 (emphasis

added) (internal quotation marks omitted). We have described the proper inquiry

under Beck as follows:

      Beck requires a court to consider whether there is sufficient evidence
      to warrant instructing the jury on a lesser included offense, not
      whether there is sufficient evidence to warrant conviction on the
      greater offense. A Beck claim is not the functional equivalent of a
      challenge to the sufficiency of the evidence for conviction; rather,

                                          -8-
      Beck focuses on the constitutionality of the procedures employed in
      the conviction of a defendant in a capital trial and is specifically
      concerned with the enhanced risk of an unwarranted capital
      conviction where the defendant’s life is at stake and a reasonable
      jury could have convicted on a lesser included offense. Given these
      concerns, the sufficiency of the evidence of the greater offense is
      distinct from the Beck inquiry into whether the evidence might allow
      a jury to acquit a defendant of the greater of the offenses and convict
      him or her of the lesser.

Hogan v. Gibson, 197 F.3d 1297, 1305 (10th Cir. 1999) (citations omitted).

      On three occasions we have held that the OCCA applied a rule that

contradicts Beck because it focused on the sufficiency of evidence to support the

capital offense instead of the sufficiency of evidence to support the lesser-

included offense. See Phillips, 604 F.3d at 1211–13; Taylor v. Workman, 554

F.3d 879, 888 (10th Cir. 2009); Hogan, 197 F.3d at 1308–12. (We note that of

these three, only Hogan predated the OCCA’s decision in this case.) In Hogan

the § 2254 applicant had killed the victim by stabbing her. See 197 F.3d at 1301.

After testifying that the victim initially attacked him with a knife, he requested a

first-degree manslaughter instruction, which the court denied. See id. at 1303.

He was convicted of first-degree murder and sentenced to death. See id. at 1302.

The OCCA affirmed the conviction and sentence, holding “that a manslaughter

instruction was not necessary because there was sufficient evidence to support a

finding of premeditation.” Id. at 1305 (internal quotation marks omitted). We

described the OCCA’s reasoning as “squarely contrary to” and “a gross deviation

from, and disregard for, the Court’s rule in Beck.” Id. at 1305. Although the

                                         -9-
OCCA had “cited a standard consistent with Beck,” the analysis that followed

“never engag[ed] in the correct inquiry as to whether [the applicant] presented

sufficient evidence to warrant a first-degree manslaughter instruction.” Id. at

1306.

        We identified the same error in Taylor. The applicant had shot and injured

three people, then shot and killed another victim, but testimony supported the

claim that he was merely flailing the gun around without aiming when he shot the

victim who died. See Taylor, 554 F.3d at 882–83. The trial court submitted

instructions on first-degree murder and second-degree murder, but the second-

degree instruction was deficient because it improperly required that the defendant

have no intent to harm any particular individual. See id. at 886. The OCCA held

that this error was harmless because a second-degree instruction was unnecessary.

See id. It reasoned that the “facts suggest a design to effect the death of [the

victim] and therefore do not support a second degree murder instruction.” Id.

(internal quotation marks omitted). We ordered habeas relief. See id. at 894. We

explained that the OCCA had committed “essentially the same” error as it had

committed in Hogan when it failed to consider whether the jury could have

convicted of second-degree murder, instead determining that the evidence

supported first-degree murder. Id. at 887–88.

        In Phillips the OCCA had again affirmed the trial court’s refusal to give a

second-degree murder instruction. See 604 F.3d at 1208. The § 2254 applicant

                                         -10-
had stabbed the victim in the chest with a pocketknife, and the OCCA ruled that

the evidence did not support an instruction on second-degree depraved-mind

murder. See id. at 1207, 1211. We once more granted relief, because “[t]he

OCCA’s assessment of the lack of evidence supporting a second-degree murder

instruction appears to be based largely on its view that the evidence did support

[the applicant’s] conviction for first-degree malice aforethought murder.” Id. at

1212. We held that “[b]y relying upon the evidence that supported the conviction

for first-degree murder, the OCCA committed the same error we identified in

Hogan and Taylor” and therefore reached a decision that was contrary to Beck.

Id. at 1213.

      In this case the OCCA has repeated the error we identified in Hogan,

Taylor, and Phillips. The court ruled that the evidence did not support a second-

degree murder conviction. See Williams, 22 P.3d at 712. But it offered no

explanation why the evidence did not support such a conviction, except that the

evidence supported the first-degree conviction. Its analysis was as follows:

              ¶ 24 The evidence in the present case does not support the
      conclusion that [Williams] acted without any premeditated design to
      effect death. [Williams] took a butcher knife from his home, placed
      it in a box with a pair of gloves and a roll of duct tape and went to
      the deceased’s home to meet her at the appointed time. [Williams]
      and the deceased had met previously and would recognize each other
      on sight. The deceased was stabbed within five minutes of
      [Williams’s] arrival at her home. The butcher knife was driven
      approximately seven inches into the deceased’s body. The ensuing
      wound was the result of a rapid, hard thrust of the knife into the body
      with only the handle of the knife visible. This evidence is sufficient

                                        -11-
      for any rational trier of fact to find [Williams] acted with the
      premeditated intent to kill the deceased.

             ¶ 25 [Williams] disputes the conclusion of premeditation and
      argues the evidence showed no reason for the victims to feel
      threatened when he entered their home, therefore there was no
      evidence to suggest that he formed the intent to kill in advance.
      Premeditation sufficient to constitute murder may be formed in an
      instant, or it may be formed instantaneously as the killing is being
      committed. It may be inferred from the fact of the killing, unless
      circumstances raise a reasonable doubt whether such design existed.
      The evidence clearly supports a finding that when [Williams] stabbed
      the deceased, he did so with the intent to kill her, regardless of
      whether that intent was formed prior to or after arriving at her
      home. Accordingly, instructions on second degree depraved mind
      murder were not warranted, as that crime was not supported by the
      evidence.

Id. (emphasis added) (citations omitted). Thus, the court ruled that an instruction

on second-degree murder was not warranted because the evidence supported the

conviction of first-degree murder.

      The OCCA’s analysis in this case is strikingly similar to its analysis in

Phillips. In both cases the OCCA cited Beck and set forth the proper standard.

Likewise, in both cases the OCCA made specific rulings that the evidence did not

support the lesser-included second-degree-murder instruction. Compare Williams,

22 P.3d at 712 (“The evidence in the present case does not support the conclusion

that [Williams] acted without any premeditated design to effect death.”), with

Phillips v. State, 989 P.2d 1017, 1035 (Okla. Crim. App. 1999) (“[T]he evidence

in the present case did not support a second degree murder instruction.”). But in

this case, as in Phillips, the OCCA based these findings “largely on its view that

                                        -12-
the evidence did support [the applicant’s] conviction for first-degree malice

aforethought murder.” 604 F.3d at 1212. 1 In affirming Williams’s

      1
          The relevant paragraphs of the OCCA’s opinion in Phillips read, in full:

             ¶ 58 Appellant further argues he was entitled to an instruction
      on second degree depraved mind murder under case law which states
      that the trial court is to instruct on every degree of homicide which
      the evidence tends to prove. A defendant is entitled to an instruction
      on every degree of homicide which is a lesser included offense of the
      primary charge and which is supported by the evidence. Here,
      second degree depraved mind murder was not a lesser included
      offense and the evidence did not support the giving of an instruction
      on second degree murder.

             ¶ 59 Murder in the second degree occurs when perpetrated by
      an act imminently dangerous to another person and evincing a
      depraved mind, regardless of human life, although without any
      premeditated design to effect the death of any particular individual.
      We have held that this statute is applicable where there is no
      premeditated intent to kill any particular person. Appellant argues
      that given the fact he stabbed the victim, only once, with a small
      pocket knife, and that he did so while he was angry with his father, a
      reasonable juror could have found that his acts were imminently
      dangerous and evinced a depraved mind but were committed without
      the design to effect death. Appellant specifically relies on testimony
      by the medical examiner that the type of wound suffered by the
      victim was survivable.

             ¶ 60 Appellant fails to note that the medical examiner testified
      that such a wound was survivable only if the victim got to a chest
      surgeon quickly enough. As discussed in Proposition I, we find the
      evidence showed Appellant acted with the specific intent to effect the
      death of the victim. Therefore, the evidence does not support the
      giving of a jury instruction on second degree depraved mind murder,
      even if it were a lesser included offense.

            ¶ 61 Appellant further argues he was entitled to the second
      degree depraved mind murder instruction as it was his theory of
                                                                        (continued...)

                                         -13-
conviction, the OCCA did not address whether evidence potentially supported a

second-degree-murder instruction, but instead surveyed the evidence of intent to

kill and simply observed that such intent “may be formed in an instant, or may be

formed instantaneously as the killing is being committed.” Williams, 22 P.3d at

712.

       1
           (...continued)
       defense. However, a defendant is only entitled to an instruction on a
       theory of defense if that theory is supported by the evidence and is
       tenable as a matter of law. If there is no evidence in the record to
       support an instruction, it should not be given. As discussed above,
       the evidence did not support giving the instruction.

             ¶ 62 Finally, Appellant argues that by failing to instruct the
       jury on second degree murder, the trial court failed to provide the
       jury with the option of convicting him of a non-capital offense as
       required by Beck v. Alabama, 447 U.S. 625 (1980). This same
       argument was raised and rejected in Valdez v. State, 900 P.2d 363,
       378–379 (Okl. Cr. 1995), cert. denied, 516 U.S. 967 (1995) wherein
       we stated:

                 Neither Beck v. Alabama nor Schad v. Arizona, 501 U.S.
                 624 (1991) require that a jury in a capital case be given
                 a third, non-capital option where the evidence absolutely
                 does not support that option. The evidence in this case
                 did not support a second degree murder instruction and
                 the jury was thus properly precluded from considering
                 that particular non-capital option.

              ¶ 63 Similarly, the evidence in the present case did not support
       a second degree murder instruction. Therefore, for the reasons
       discussed above, we find the trial court did not err in omitting an
       instruction on second degree depraved mind murder. This
       assignment of error is denied.

Phillips v. State, 989 P.2d 1017, 1034–35 (Okla. Crim. App. 1999) (emphasis
added) (brackets, citations, and internal quotation marks omitted).

                                           -14-
      We cannot distinguish this case from our binding precedent. Accordingly,

we do not defer to the OCCA’s decision. We review de novo whether a second-

degree depraved-mind murder instruction was required under Beck.

             2.    Merits

      To recapitulate, Beck instructs that “a sentence of death constitutionally

[may not] be imposed after a jury verdict of guilt of a capital offense, when the

jury was not permitted to consider a verdict of guilt of a lesser included non-

capital offense, and when the evidence would have supported such a verdict[.]”

447 U.S. at 627 (internal quotation marks omitted). The Beck inquiry can be

divided into two components. See Phillips, 604 F.3d at 1210. First, Williams

“must establish that the crime on which the trial court refused to instruct was

actually a lesser-included offense of the capital crime of which he was

convicted.” Id. That component is not controverted. It is undisputed that

second-degree depraved-mind murder is a lesser-included offense of the capital

offense of which Williams was convicted. As the OCCA observed in its opinion

on Williams’s direct appeal, “All lesser forms of homicide are necessarily

included and instructions on lesser forms of homicide should be administered if

they are supported by the evidence.” Williams, 22 P.3d at 711 (brackets and

internal quotation marks omitted).

      Second, Williams “must show that the evidence presented at trial could

permit a rational jury to find him guilty of the lesser included offense and acquit

                                        -15-
him of first degree murder.” Phillips, 604 F.3d at 1210 (internal quotation marks

omitted). As we have explained, “Beck requires a court to consider whether there

is sufficient evidence to warrant instructing the jury on a lesser included offense,

not whether there is sufficient evidence to warrant conviction on the greater

offense.” Hogan, 197 F.3d at 1305 (citation omitted). Thus, “[o]ur question is

not whether the evidence pointing to the lesser offense was weak” or “whether a

jury was more likely to convict on first or second degree grounds.” Phillips, 604

F.3d at 1213 (ellipses, brackets, and internal quotation marks omitted). Rather,

“[d]ue process demands that a jury be permitted to consider a lesser-included

offense of first-degree murder before imposing death so long as the evidence

would have supported such a verdict.” Id. (internal quotation marks omitted).

We now turn to whether the evidence presented at Williams’s trial would have

supported a verdict of second-degree depraved-mind murder.

      Second-degree depraved-mind murder is committed “[w]hen [a homicide is]

perpetrated by an act imminently dangerous to another person and evincing a

depraved mind, regardless of human life, although without any premeditated

design to effect the death of any particular individual.” Okla. Stat. tit. 21,

§ 701.8(1) (1976). As we explained in Phillips:

      The elements of second-degree depraved mind murder are: (1) the
      death of a human; (2) caused by conduct which was imminently
      dangerous to another person; (3) the conduct was that of the
      defendant; (4) the conduct evinced a depraved mind in extreme


                                         -16-
      disregard of human life; and (5) the conduct was not done with the
      intention of taking the life of any particular individual.

604 F.3d at 1211. Thus, a defendant may be convicted of this offense only if he

lacked the premeditated intention of killing any particular person, see Williams,

22 P.3d at 712, and an instruction on the offense “demands evidence that the

defendant did not intend to kill the victim,” Jones v. State, 134 P.3d 150, 154

(Okla. Crim. App. 2006).

      We hold that an instruction on second-degree depraved-mind murder was

warranted because the evidence supported a conviction for that offense. We think

our decision in Phillips controlling on the issue. The § 2254 applicant in that

case had approached the victim at a gas station and stabbed him in the chest with

a pocket knife without provocation after the victim had backed up and asked the

applicant to leave him alone. See 604 F.3d at 1205. The force of the blow

knocked the victim onto a nearby car. See id. The blade penetrated the victim’s

chest two to three inches deep, slicing a 1.2 centimeter incision in the anterior

surface of his heart, and he bled to death at the scene. See id. at 1205, 1207.

After the stabbing the applicant walked inside the convenience store, at which

point the store clerk observed him become “‘real emotional.’” Id. at 1214; see id.

at 1205. He then left the store, walked past the victim (who was lying on the

ground still conscious but unable to speak), and taunted the victim with a racial

slur. See id. at 1205. Later the same day, the applicant expressed regret to a


                                         -17-
bartender, repeatedly saying “‘I’m sorry.’” Id. at 1214. The applicant presented

no evidence during the guilt phase of trial, see id. at 1207, and the trial court

refused his request to instruct the jury on second-degree murder, see id. at 1211.

      Reviewing de novo the OCCA’s decision affirming the trial court, we

“conclude[d] that a jury could rationally find [the applicant] guilty of the lesser

offense and acquit him of the greater.” Id. at 1213–14. We explained that “the

facts here show that [the applicant] may have been severely emotionally disturbed

and raise doubts whether he had the requisite mental state for first-degree

murder.” Id. at 1213. We pointed to medical testimony that the knife wound

could potentially have been survivable if treated quickly and that the more typical

injury from such a wound “would be to a lung, which is more easily treated.” Id.

at 1214. We also noted evidence that the applicant became emotional and

expressed regret shortly after the incident. See id. at 1214. The mere fact that the

applicant had forcefully stabbed the victim in the chest was inadequate to

conclusively negate an inference that he had not intended to kill the victim.

      As in Phillips, here we have a confrontation with an unarmed victim,

culminating in a single stab wound to the chest. In each case the fatal wound was

inflicted by a forceful blow with a knife, which damaged the victim’s heart and

caused death within minutes. Moreover, in each case the assailant became

emotional and expressed regret shortly after the killing. And both applicants

presented no evidence at the guilt phase of trial but relied wholly on doubt raised

                                         -18-
by the state’s evidence of his mental state. In light of these similarities, our

conclusion in Phillips compels the same conclusion here.

      We recognize that the knife was bigger and the wound was deeper in this

case than in Phillips. But the operative fact is the defendant’s state of mind when

he committed the homicide, not the depth of the fatal wound. See Jones, 134 P.3d

at 154 (“The essential difference between First and Second Degree Murder is

intent to kill.”). We cannot say that the severity of the wound in this case,

standing alone, is enough to distinguish this case from Phillips.

      Indeed, an inference of an unintentional killing may be more reasonable

here than in Phillips. First, eyewitnesses observed the assailant in Phillips

approach the victim with a knife and forcefully shove him in the chest. See 604

F.3d at 1205, 1214. In contrast, no witness testified to seeing Williams stab

Hand. Although the medical examiner opined that the knife was thrust forcefully

into Hand, Hill testified that she heard a struggle, and a forceful movement with a

knife could have occurred in that circumstance absent an intent to deal a fatal

blow. Supporting this possibility is the evidence that whatever it was that

Williams had planned, that is not what happened. He brought with him not only

the knife but also duct tape and gloves that he never used. The struggle with

Hand, which began promptly after his arrival at the duplex, was apparently




                                         -19-
unforeseen. Perhaps the knife was to be used to coerce Hand into something

else. 2

          Williams’s treatment of Hill also could suggest the absence of an intent to

kill. Although Hill testified that Williams placed both his hands around her neck

and squeezed hard enough that she could not breathe, there is evidence that he

relented and allowed her to go. Hill said that she did not recall how she escaped

and that Williams might have let her go. And a neighbor testified that he saw

Williams leave the duplex before Hill did, not what one would do if intent on

eliminating the witness who remained inside. 3

          2
              The dissenting opinion in the OCCA pointed out:

                Williams entered the victim’s house with her consent,
          purportedly to deliver meat. Indeed, his possession of a steak box
          containing a knife, gloves, and duct tape suggests an entry was
          prompted by criminal intent—Rape, Kidnapping or Murder. The
          prosecution’s theory was that he planned to rape the victim. The
          evidence indicates that during Williams’s struggle to subdue the
          victim, he fatally stabbed her once in the chest. Did he intend to kill
          her? Perhaps. By contrast, his single stab could have been a
          defensive reaction to her struggle, intended to subdue her further,
          prevent his own injury, or facilitate his flight from the scene.

Williams v. State, 22 P.3d 702, 734 (Okla. Crim. App. 2001) (Chapel, J.,
dissenting) (footnote omitted).
          3
        We need not quarrel with the OCCA’s apparent factual findings that Hill
“saw Hand struggling with [Williams],” that she “fought back and was able to
free herself,” or that, “as soon as Hill ran out of the duplex, [Williams] also left.”
Williams v. State, 22 P.3d 702, 708–09 (Okla. Crim. App. 2001). Although we
must presume the state court’s factual findings to be correct, see 28 U.S.C.
§ 2254(e)(1), we are permitted in our de novo review of Williams’s Beck claim to
                                                                           (continued...)

                                            -20-
      Finally, the record in this case lacks the evidence of racial animus toward

the victim that was presented in Phillips. See 604 F.3d at 1205.

      The state cites Bryson v. Ward, 187 F.3d 1193, 1208 (10th Cir. 1999), as

support for the proposition that evidence of intent may be so strong that an

instruction on second-degree murder is inappropriate. But that case is easily

distinguishable because of the evidence of planning. We wrote:

             The evidence overwhelmingly established that Bryson and
      Marilyn Plantz plotted to kill the victim for approximately one month
      prior to the murder. They contacted a number of people in an effort
      to get someone either to kill the victim or to help them carry out the
      murder. They also devised a variety of murder schemes and
      attempted to carry out several of those plans prior to the actual
      murder. The evidence, therefore, overwhelmingly establishes that
      this murder was intentional and premeditated.

Id. There was no such overwhelming evidence here.

      Having identified an error under Beck in failing to allow the jury to

consider the noncapital offense of second-degree depraved-mind murder, we must

grant relief. When, as here, the defendant requested an instruction on the lesser

offense, “[a] Beck error can never be harmless.” Taylor, 554 F.3d at 893 (internal

quotation marks omitted).

      3
          (...continued)
reach the legal determination that the evidence would have supported rational jury
findings contrary to the state court’s factual findings, see Gilson v. Sirmons, 520
F.3d 1196, 1234 (10th Cir. 2008) (“[A] state court’s determination of whether the
evidence presented at trial was sufficient under the Beck standard to justify a
lesser-included instruction is not a finding of historical fact, but rather a legal
determination reached after assessing a body of evidence in light of the elements
of the alleged lesser-included offense.”).

                                        -21-
         B.    Ineffective Assistance of Counsel at Guilt Phase

         Our decision on the Beck issue moots all the claims for which Williams

seeks an expanded COA except one: ineffectiveness of trial counsel in failing to

subject the state’s case to meaningful adversarial testing at the guilt phase. Were

Williams to prevail on this claim, he would be entitled to relief on his conviction

for assault and battery, which our ruling on the Beck issue leaves undisturbed.

We therefore consider whether the claim warrants a COA. A COA will issue

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). Moreover, the OCCA rejected this claim on

the merits, see Williams, 22 P.3d at 728–30, and “AEDPA’s deferential treatment

of state court decisions must be incorporated into our consideration of a habeas

petitioner’s request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir.

2004).

         To establish a claim of ineffective assistance of counsel, Williams had to

demonstrate that his counsel’s performance fell below “an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and “that

                                          -22-
there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694. Williams argues

that his counsel failed to subject the state’s case to meaningful adversary testing

at the guilt phase, because (1) counsel’s short opening statement “was nothing

more than a general ‘hello’ and request to ‘pay attention’ to the evidence”; (2)

counsel repeatedly referred to Hand’s death as a “murder” during a cross-

examination; (3) counsel effectively conceded guilt during his closing argument;

and (4) counsel presented no guilt-phase evidence. Appellant’s Mot. for

Modification of COA at 10–11, Williams v. Workman, No. 11-5048 (10th Cir.

May 26, 2011) (internal quotation marks omitted). He further contends that

counsel’s complete failure to subject the state’s case to adversarial testing triggers

a presumption of prejudice. See United States v. Cronic, 466 U.S. 648, 659

(1984) (no specific showing of prejudice necessary when “counsel entirely fails to

subject the prosecution’s case to meaningful adversarial testing”).

      The OCCA rejected this claim on the merits. In particular, it stated that

defense “[c]ounsel’s decision to limit his first stage opening statement and

closing argument was a reasonable strategy decision to maintain credibility with

jurors for sentencing.” Williams, 22 P.3d at 730. The decision to limit closing

argument made particular sense in light of the denial of a lesser-included-offense

instruction on the murder charge. Conviction of first-degree murder was

therefore almost inevitable, and focusing on sentencing was appropriate.

                                         -23-
       The district court ruled that the OCCA had reasonably applied the

appropriate Supreme Court precedents. It explained that Williams is not entitled

to the Cronic presumption of prejudice, because counsel had not conceded guilt

and had “cross-examined the State’s first stage witnesses, made objections to the

State’s evidence, and made opening and closing arguments.” R., Vol. 2 at

309–10. And it further concluded that Williams had failed to demonstrate

prejudice under Strickland, opining that in light of the overwhelming evidence of

guilt, the challenged actions of counsel had unlikely altered the outcome of the

guilt phase. No reasonable jurist would debate the court’s determination that the

OCCA’s decision was not an unreasonable application of Supreme Court

precedent. We therefore deny a COA.

III.   CONCLUSION

       We REVERSE the district court’s denial of Williams’s application for a

writ of habeas corpus on his conviction for first-degree murder and REMAND

with instructions to conditionally grant the application, subject to the state’s right

to retry Williams within a reasonable time. We DENY Williams’s request for an

expanded COA.

                                                ENTERED FOR THE COURT


                                                Harris L Hartz
                                                Circuit Judge




                                         -24-
