184 F.3d 1206 (10th Cir. 1999)
VICTOR WAYNE HOOKS ,  Petitioner-Appellant ,v.RON WARD, Warden, Oklahoma  State Penitentiary ,  Respondent-Appellee .
No. 98-6196
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 16, 1999

1
Appeal from the United States District Court for the W.D. Okla. (D.C. No. CIV-96-732-M )[Copyrighted Material Omitted][Copyrighted Material Omitted]


2
Vicki Ruth Adams Werneke, Assistant Federal Public Defender (Janet Chesley,  Assistant Federal Public Defender and Patrick J. Ehlers, Jr., Assistant Public  Defender, with her on the briefs), Oklahoma City, Oklahoma, for Petitioner-Appellant.


3
Sandra D. Howard, Assistant Attorney General, Chief, Criminal Appeals ( W. A.  Drew Edmondson, Attorney General of Oklahoma, with her on the briefs),  Oklahoma City, Oklahoma, for Respondent-Appellee.


4
Before ANDERSON, TACHA and EBEL, Circuit  Judges.


5
EBEL, Circuit Judge, delivered the opinion of the court except as to part III. C.

EBEL, Circuit Judge

6
In May 1989, an Oklahoma jury convicted Victor Wayne Hooks of first  degree murder and first degree manslaughter for beating to death, respectively,  his common-law wife and the 24-week-old fetus she was carrying.  After a one-day sentencing  hearing, Hooks was sentenced to death on the murder conviction  and to 500 years' imprisonment on the manslaughter conviction.  On December 2,  1996, after direct and collateral appeals in the Oklahoma courts, Hooks filed a  petition for writ of habeas corpus in the United States District Court for the  Western District of Oklahoma pursuant to 28 U.S.C. § 2254.  The district court  denied Hooks' petition on all thirteen grounds advanced, and granted a certificate  of appealability ("COA") under 28 U.S.C. § 2253 as to Hooks' claims of  ineffective assistance of trial counsel and denial of a fair trial.  Hooks filed a  timely appeal in this court and requested that we grant a COA on several  additional issues raised before the district court.  We granted Hooks a COA on  Issues I (ineffective assistance of trial and/or appellate counsel), II (trial court  failure to instruct the jury on lesser included offenses), and V (constitutionality  of certain aggravating sentencing factors), as raised in Hooks' brief on appeal. We REMAND for the district court to consider the adequacy of the state's claim  of procedural bar on all but one of Hooks' claims of ineffective trial counsel.  As  to all other issues as to which a certificate of appealability has been granted, we  AFFIRM.

BACKGROUND

7
At approximately 7:00 p.m. on October 6, 1988, defendant Hooks showed  up at the home of Ms. Virginia Plumley, the mother of his putative common-law  wife, Shalimein Blaine, and told her that Shalimein had been beaten and raped. Hooks, father of Shalimein's then-one-year old daughter Vargus Shalimar and the  father of the fetus she was carrying, implored Ms. Plumley to check on her  daughter Shalimein -- who had just moved into an apartment less than a block  away from Ms. Plumley -- and to take her to the hospital.  When Ms. Plumley  asked Hooks what happened to Shalimein, he responded that he did not know.


8
After the badly beaten Shalimein had been taken down the stairs of her  apartment building and placed in Hooks' Cadillac, Ms. Plumley asked Hooks  again what had happened.  On the drive to the hospital Hooks told a number of  stories to the effect that Shalimein had taken a walk earlier in the evening, and  after about two hours had returned, knocked on the door or entered her upstairs  apartment, and fell into his arms beaten and bloodied.  At that point, Hooks said  that either he removed her clothes or she removed them herself so he could wash  her in the bathtub.  During the drive, Ms. Plumley noticed that Shalimein's hair  was shaven and her face "was swollen real bad."  Ms. Plumley told Hooks that  she thought Shalimein was dead, which made him "hysterical" and prompted him  to exclaim, "That's my baby, she's not dead," and "I'm going to kill" the people  who did this.


9
Ms. Plumley asked Hooks why he had shaved Shalimein's head.  He said  that he had not done it and that it must have been the person who raped and beat  her.  When they arrived at the hospital, Hooks carried Shalimein into the hospital,  asking everybody to get out of his way because "his baby had to have medical  attention."  After handing Shalimein over to hospital staff, Hooks called the  police (but Ms. Plumley testified that since the police arrived "about a minute or  two after" Hooks called, she believed someone else had called first).  As doctors  began efforts to revive Shalimein,1 the police  interviewed Hooks, Ms. Plumley,  and her daughter Amanda.


10
During the preliminary investigation by Oklahoma City Police Officer  Robert Ardle, Hooks told essentially the same story he had told Ms. Plumley. Then, while still at the hospital, Hooks signed a search warrant authorizing a  search of Shalimein's apartment.  In the apartment, officers found her hair in a  trash can, as well as blood on the bed, on the carpet near the bed, and on several  wash cloths and towels that had been thrown in a clothes hamper.  Outside  Shalimein's apartment, in a trash dumpster, police found bloody clothing and  wash cloths as well as a large clump of hair.


11
In the course of the investigation, Hooks was interviewed by Oklahoma  Police Detectives Eric Mullenix and Randy Scott at approximately 1:00 a.m. on  October 7th.  At first, Hooks told the detectives a version of the same story he  had told Ms. Plumley and Officer Ardle; however, after the detectives confronted  him with questions about the hair and blood found in the apartment and the  nearby dumpster, Hooks broke down crying and explained that he wanted to  come clean.  Hooks admitted that he and Shalimein had fought on the evening of  October 6, 1988.  He explained that their verbal fight over money escalated into a  physical one when Shalimein slapped him in the face.  Hooks admitted that he  struck Shalimein with his fist, and that when she fell to the floor by the bed, he  began kicking her in the stomach and the face "real hard."  Hooks admitted that  he beat her until she lay still on the floor with blood coming from her mouth and  nose.


12
At that point, Hooks explained that he picked her up, took her into the  bathroom, removed her clothes, and began trying to clean her up in the bathtub. In response to the detectives' inquiry about why they had found hair in the  dumpster, Hooks said that he had shaved some of her hair with a razor in an  effort to locate her head injuries.  He further explained that Shalimein was having  trouble breathing and that she eventually lost consciousness, at which point he  began cleaning up the apartment and the couple's one-year old daughter Vargus  Shalimar, who had gotten blood on her in the course of witnessing Hooks beat  her mother.  The detective then stopped the interview and asked if Hooks would  restate his new story on audio tape.  Hooks agreed.  That tape was played for  members of the jury, who were also provided with a written transcript in order to  follow along.


13
At trial, in an effort to show the graphic and violent nature of the beating  that caused Shalimein's death the state put on Oklahoma City Police Lieutenant  Tom Bevel, an expert in geometric blood stain pattern interpretation and crime  scene reconstruction.  Lieutenant Bevel testified that the blood stains found on the  blue jeans Hooks was wearing when he beat Shalimein to death were consistent  with the state's theory that Hooks "stomped" Shalimein.


14
The state also presented the testimony of Shanna K. (Allen) Dinh, a former  girlfriend of Hooks.  Ms. Dinh testified that she began a sexual relationship with  Hooks when she was 13 years-old -- approximately 10 years his junior -- and  earned money for Hooks through prostitution and nude dancing.  Ms. Dinh  testified that Hooks was a violent man, and that if one of his girls refused to  follow his orders she "got [her] butt kicked."  Further, she explained that  "whenever [Hooks] would get mad, he would look at us and say, 'One of these  days I'm going to end up killing one of you bitches.'"


15
Ms. Dinh testified that she had Hooks' child when she was 15 years-old;  and, that when she became pregnant for the second time with Hooks, "[a] beating  by Victor [Hooks]" caused a miscarriage.  She explained that Hooks had informed  her and all the other women with whom he was involved that "if anyone ever got  pregnant again [a second time], that he was going to kick it out of their ass."


16
As to Shalimein's second pregnancy (the one she was in when Hooks killed  her), Ms. Dinh testified that Hooks said "he didn't want no more babies and that  he was mad because she was pregnant again."  Moreover, Ms. Dinh testified that  she saw Hooks inflict violence on Shalimein "several" times, including one  beating approximately one month prior to the fatal beating, during which Hooks  hit Shalimein with a two-by-four, then "pushed her down on the couch, . . . spread  her legs open and . . . kick[ed] her in her vagina [with cowboy boots], saying that  he doesn't want this baby."     At trial, Hooks' attorney conceded that Hooks killed Shalimein, but argued  that he did so unintentionally.  Based on this theory, Hooks' counsel moved the  trial court to instruct the jury on the lesser included offenses of second degree  murder and first degree manslaughter as to Shalimein.  The judge refused, and  instead instructed the jury only on first degree murder.


17
After the foregoing events had been introduced over a two-day trial and the  court issued its instructions, an Oklahoma jury convicted Hooks of first degree  murder for intentionally causing Shalimein's death, and of first degree  manslaughter for causing the death of the unborn quick fetus she was carrying. After a one-day sentencing hearing, during which Hooks' counsel put on the  testimony of an Oklahoma County Deputy Sheriff, a clinical psychologist, and  Hooks' mother and sister, the jury fixed Hooks' sentence at death for Shalimein's  murder and at 500 years' imprisonment for the manslaughter of the unborn child. Regarding Shalimein's murder, the jury specifically found that three statutory  aggravating circumstances supported a death sentence: (1) Hooks had been  previously convicted of a felony involving the use or threat of violence to a  person; (2) the murder was especially heinous, atrocious, or cruel; (3) there  existed a probability that Hooks would commit criminal acts of violence that  would constitute a continuing threat to society.  On May 19, 1988, the trial judge  sentenced Hooks to death in accordance with the jury's recommendation.


18
Hooks' trial counsel filed a direct appeal in the Oklahoma Court of  Criminal Appeals.  On September 7, 1993, that court affirmed Hooks' conviction  and sentence.  Hooks v. State of Oklahoma, 862 P.2d 1273 (Okla. Crim. App.  1993) (Hooks I).  Hooks' new counsel then filed an application for state  postconviction relief, which was denied by the District Court of Oklahoma  County, Oklahoma, on December 9, 1994.  On September 18, 1995, the  Oklahoma Court of Criminal Appeals affirmed the denial of postconviction relief. Hooks v. State of Oklahoma, 902 P.2d 1120 (Okla. Crim. App. 1995) (Hooks  II).


19
On December 2, 1996, Hooks filed a petition for a writ of habeas corpus  pursuant to 28 U.S.C. § 2254 in the United States District Court for the District  of Western Oklahoma.  Hooks raised thirteen issues before the federal district  court, many of which directly alleged, or were tied to allegations of, ineffective  assistance of counsel.  Prior to ruling on Hooks' petition, the district court  conducted an evidentiary hearing on April 3- 4, 1997.  During the federal  evidentiary hearing, Hooks' counsel put on the testimony of Hooks' mother,  Clara Hooks; his ex-wife, Virginia Betts; Hooks himself; an expert in psychology  and neuropsychology, Dr. Michael Gelbort; Hooks' counsel on direct appeal,  Robert Boren and Patrick Lavelle; Hooks' trial counsel, Ron Evans; and an  expert in death penalty defense, David Ruhnke.  Hooks' counsel also introduced  into evidence an affidavit of Hooks' sister, Vargas Hooks.  After the evidentiary  hearing and briefing from both sides, the district court denied Hooks' petition on  all thirteen grounds.  Pursuant to 28 U.S.C. § 2253, the district court issued a  certificate of appealability ("COA") as to Ground I (ineffective assistance of trial  counsel) and Ground II (denial of right to a fair trial because of the court's  exclusion of the proffered expert testimony of two clinical psychologists)2.


20
On appeal, Hooks raises essentially all the claims denied by the district  court and requests that we grant a COA as to the claims the district court had  refused.  We granted a COA on the following issues: (1) whether Hooks received  ineffective assistance of counsel at trial, and/or on appeal; (2) whether Hooks  was denied his constitutional right to due process and a fair trial by the trial  court's failure to instruct the jury on lesser-included offenses to first degree  murder; and (3) whether the sentencing phase instructions regarding aggravating  factors were unconstitutional.3

DISCUSSION

21
I.     Applicability and standards under the Antiterrorism and Effective  Death Penalty Act of 1996 ("AEDPA").


22
Because Hooks filed his habeas petition after AEDPA's April 24, 1996  effective date, AEDPA governs our review of the instant habeas petition. Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th Cir. 1999).


23
Accordingly, we may not grant Hooks' application for a writ of habeas  corpus:


24
with respect to any claim that was adjudicated on the merits in State  court proceedings unless the adjudication of the claim--


25
(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


26
(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 proceeding.


27
28 U.S.C. § 2254(d).


28
II.    Whether Hooks received ineffective assistance of counsel at trial and  on appeal.

A. State Procedural Bar

29
As an initial matter, the appellee asserts state procedural bar because  Hooks failed to raise his claims of ineffective assistance of counsel on direct  appeal in the Oklahoma courts.  "On habeas review, this court does not address  issues that have been defaulted in state court on an independent and adequate  state procedural ground, unless the petitioner can demonstrate cause and  prejudice or a fundamental miscarriage of justice."  English v. Cody, 146 F.3d  1257, 1259 (10th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 749-50  (1991)).


30
On direct appeal, Hooks raised only one issue of ineffective assistance of  trial counsel.  All of his other claims of ineffective assistance of trial counsel  were first raised in his state postconviction proceeding.  His direct appeal claim  was denied on the merits, see Hooks I, 862 P.2d at 1283, and his other  ineffective  counsel claims raised in his application for postconviction relief were denied on  the grounds of "res judicata,"see Hooks II, 902 P.2d at 1122  & n.4.


31
As a matter of state law, Oklahoma generally bars review in postconviction  proceedings of ineffective assistance of trial counsel claims not raised on direct  appeal.  See Okla. Stat. Ann. tit. 22, § 1086; Brecheen v. Reynolds, 41  F.3d  1343, 1363 (10th Cir. 1994).  Such state procedural bar will foreclose federal  habeas review if it is independent and adequate.  See Messer v. Roberts, 74  F.3d  1009, 1015 (10th Cir. 1996).


32
In English, we traced the development of the law in this circuit regarding  state procedural bars for ineffective assistance of counsel claims.  See 146 F.3d  at 1259-61.  "In Brecheen, this court found inadequate the Oklahoma procedural  requirement that all ineffective assistance of trial counsel claims be raised on  direct appeal or forfeited."  Id. at 1259 (citing Brecheen, 41 F.3d at 1363-64). Brecheen relied on the Supreme Court's decision in Kimmelman v. Morrison,  477  U.S. 365 (1986), which recognized that the general rules of procedural bar  arising from the failure to raise a claim on direct appeal were not well-suited to ineffective assistance of counsel claims, "[b]ecause collateral review will  frequently be the only means through which an accused can effectuate the right to  counsel" due to the fact that "[a] layman will ordinarily be unable to recognize  counsel's errors and to evaluate counsel's professional performance" without the  assistance of a trained lawyer, which he is unlikely to receive until after the trial  and appeal are completed.  477 U.S. at 378.  In Brecheen we observed that:


33
The practical effect of [Oklahoma's procedural bar] is to force [an  accused] either to raise [an ineffective assistance of counsel] claim  on direct appeal, with new counsel but without the benefit of  additional fact-finding, or have the claim forfeited under state law. This Hobson's choice cannot constitute an adequate state ground  under the controlling case law because it deprives [an accused] of  any meaningful review of his ineffective assistance claim.


34
41 F.3d at 1364.  Thus, we concluded in Brecheen that the Oklahoma procedural  bar on ineffective assistance of trial counsel claims not raised on direct appeal  was inadequate and could not preclude federal habeas review.  See Brecheen,  41  F.3d at 1364.


35
Nearly four years after Brecheen, we revisited the issue in English. There,  the appellant-warden argued that Brecheen "is built on a faulty premise: a  perceived inability of habeas petitioners to develop factual issues on a direct  appeal to the Oklahoma Court of Criminal Appeals."  English, 146 F.3d at 1260. The warden claimed that "evidentiary hearings are available as part of the direct  appeal process in Oklahoma," thus Brecheen's rationale could no longer support  its result.  Id.  After a study of the caselaw, English clarified the rule in this  circuit:


36
Kimmelman, Osborn, and Brecheen do not establish a rigid  constitutional rule prohibiting Oklahoma from requiring the  presentation of ineffective assistance of trial counsel claims on direct  appeal.  Instead, those cases identify the importance of the Sixth  Amendment right to counsel and mandate that no state procedure for  resolving claims of ineffective assistance will serve as a procedural  bar to federal habeas review of those claims unless the state  procedures comply with the imperatives set forth in Kimmelman: (1)  allowing petitioner an opportunity to consult with separate counsel  on appeal in order to obtain an objective assessment of trial  counsel's performance and (2) providing a procedural mechanism  whereby a petitioner can adequately develop the factual basis of his  claims of ineffectiveness.


37
Id. at 1262-63 (footnotes omitted).


38
Petitioners in English asserted that the Oklahoma procedural bar was  inadequate because it failed to meet the second requirement articulated above,  i.e., to provide "a procedural mechanism whereby a petitioner can adequately  develop the factual basis of his claims of ineffectiveness."  Id.  Specifically, the  petitioners there claimed that:


39
(1) the rule which apparently grants the Oklahoma Court of Criminal  Appeals the power to remand a claim of ineffective assistance of  counsel to the trial court for additional factual development, Okla.  Stat. Ann. tit. 22, ch. 18, app., Rules of the Court of Criminal  Appeals, Rule 3.11 (hereinafter "Rule 3.11"), has been amended  frequently in the last decade; (2) the remand provisions of Rule 3.11  are far too narrow to adequately allow development of ineffective  assistance claims to comply with the second Kimmelman imperative;  (3) even if Rule 3.11 were sufficient to comply with the second Kimmelman imperative, the Oklahoma Court of Criminal Appeals  merely pays lip-service to the Rule and never remands for factual  development of ineffectiveness claims; and (4) the Oklahoma Court  of Criminal Appeals generally resolves ineffective assistance claims  in such a cursory manner that it is usually impossible to tell from the  opinion whether additional fact-finding was necessary to adequately  resolve the claim.


40
Id. at 1263-64.


41
Because it was unclear in English whether petitioners' ineffectiveness  claims could have been resolved on the record alone or whether they needed  further factual development, the court did not reach the issue of the adequacy of  the Oklahoma remand procedure under Rule 3.11.  Instead, we remanded to the  federal district court for "a determination of whether these claims embrace  matters in the trial record or whether they require enlargement of that record or  additional fact-finding."  Id. at 1264.


42
Applying these principles to Hooks, it is clear that Hooks failed to raise on  direct appeal all but one of the claims of ineffectiveness of trial counsel he now  asserts.4  In his direct appeal in Oklahoma  state court, Hooks was not represented  by the same lawyer who defended him at trial.  Thus, the first Kimmelman requirement is met.


43
Before addressing the second Kimmelman requirement, we must address a  preliminary argument advanced by Hooks.  Hooks claims that the Oklahoma  Court of Criminal Appeals did not rely on procedural bar in denying his other  claims of ineffective assistance of trial counsel raised in his application for  postconviction relief before the Oklahoma state courts, but rather, resolved all  those ineffectiveness claims on their merits by invoking the doctrine of resjudicata.  If a state court decides an issue on the merits, state procedural bars will  not preclude federal habeas review.  See Ylst v. Nunnemaker, 501 U.S. 797,  801-03 (1991).


44
In affirming the denial of postconviction relief to Hooks on his claims of  ineffective trial counsel, the Oklahoma Court of Criminal Appeals stated:


45
We note that Hooks's application for post-conviction relief alleges  thirteen instances of trial counsel ineffectiveness which he did not  directly raise and this Court did not explicitly consider when  analyzing this issue on direct appeal.  Yet, the fact remains that trial  counsel's ineffectiveness was brought to this Court's attention on  direct appeal.  Accordingly, we consider this issue [ineffectiveness  of trial counsel] -- and all instances of trial counsel ineffectiveness  which could have been raised but were not -- res judicata for  purposes of Hooks's post-conviction appeal.  But cf. U.S. v.  Galloway, 56 F.3d 1239, 1241-42 (10th Cir. 1995) (fact that  ineffective assistance of counsel claim is raised and adjudicated on  direct appeal will not procedurally bar an ineffectiveness claim in a  collateral proceeding where new instances of ineffectiveness are  advanced in support of that claim).

Hooks II, 902 P.2d at 1122 n.4.5

46
Focusing on the court's use of the term "res judicata," Hooks argues that  the Oklahoma Court of Criminal Appeals' decision affirming denial of  postconviction relief constitutes a ruling on the merits as opposed to a procedural  bar.  We disagree.


47
It is clear that the Oklahoma Court of Criminal Appeals views resjudicata for ineffective assistance of trial counsel claims as a procedural bar and not a  ruling on the merits.  See Slaughter v. State of Oklahoma, 969 P.2d 990, 995  (Okla. Crim. App. 1998) ("Petitioner claims he was denied the effective  assistance of both trial and appellate counsel . . . .  The issue of ineffective  assistance of counsel was raised and addressed on direct appeal.  Therefore,  further consideration of the issue is barred by res judicata.  Despite the procedural bar of res judicata, a claim of ineffective assistance of trial counsel  can be brought for the first time on post-conviction, but only if it requires fact-finding outside of  the direct appeal record . . . ." (emphasis added and citations  omitted)); Turrentine v. State of Oklahoma, 965 P.2d 985, 987-88 (Okla. Crim.  App.) ("In Propositions II and IV, [Petitioner] argues he was denied the effective  assistance of trial counsel . . . .  Despite the procedural bar of res judicata, a  claim of ineffective assistance of trial counsel can be brought for the first time on  post-conviction, but only if it requires fact-finding outside of the direct appeal  record." (emphasis added)), cert. denied, 119 S. Ct. 624 (1998).  Cf.United  States v. Galloway, 56 F.3d 1239, 1242-43 (10th Cir. 1995) (in banc), (holding  that "the fact that an ineffectiveness claim is raised and adjudicated on direct  appeal will not procedurally bar an ineffectiveness claim in a proceeding under  28 U.S.C. § 2255, where new reasons are advanced in support of that claim.")


48
Turning then to the second prong of Kimmelman, it is clear that Hooks'  claims of ineffective assistance of trial counsel required further development of  the record.  Consequently, we are presented with the question whether  Oklahoma's remand procedure is adequate.


49
Because the record below is largely silent on the adequacy of Oklahoma's  Rule 3.11, the resolution of this issue on appeal will depend on which party has  the burden of proof to establish the adequacy or inadequacy of the state  procedures.  The Fifth Circuit places that burden on the petitioner.  See Stokes v.  Anderson, 123 F.3d 858, 860 (5th Cir. 1997) ("The petitioner bears the burden of  showing that the state did not strictly or regularly follow a procedural bar around  the time of his direct appeal [in cases similar to his]."), cert. denied, 118 S. Ct.  1091 (1998); see also Robison v. Johnson, 151 F.3d 256, 263 n.4 (5th Cir.  1998), cert. denied, 119 S. Ct. 1578 (1999); Martin v. Maxey, 98 F.3d 844, 847  (5th Cir.  1996); Amos v. Scott, 61 F.3d 333, 340-41 (5th Cir. 1995).  By contrast, two  federal district courts in California have placed the burden of proving the  adequacy of a state procedural bar on the state.  In declaring a California state  procedural bar inadequate to foreclose federal habeas review, the United States  District Court for the Eastern District of California stated in Karis v. Vasquez,  828 F. Supp. 1449 (E.D. Cal. 1993):


50
Without citation to authority, the respondents assert that the burden  of demonstrating that procedural default rules are not regularly and  consistently applied rests with petitioner.  I cannot agree. Procedural default is an affirmative defense which may be waived. Moreover, it is respondents who seek a dismissal, and ordinarily  under such circumstances the burden rests with the proponent of the  defense and of the motion.


51
Id. at 1463 n.21 (citations omitted).  See also Coleman v.  Calderon, No. C-89-1906-RMW, 1996 WL 83882, at *3 (N.D. Cal. Feb. 20, 1996)  (Unpublished  Order), aff'd on other grounds by 150 F.3d 1105 (9th Cir.), rev'd on other  grounds by 119 S. Ct. 500 (1998).


52
There is no doubt that "state-court procedural default . . . is an affirmative  defense," and that the state is "obligated to raise procedural default as a defense  or lose the right to assert the defense thereafter." Gray v. Netherland, 518 U.S.  152, 165-66 (1996).6  In addition, the state is  undoubtedly in a better position to  establish the regularity, consistency and efficiency with which it has applied Rule  3.11 in the past to allow direct appellants to develop a factual record challenging  the adequacy of trial counsel than are habeas petitioners, who often appear pro  se, to prove the converse.  Cf. 2 McCormick on Evidence § 337, at 431 (John W.  Strong ed., 4th ed. 1992) ("If proof of the facts is inaccessible . . . it is usually  fairer . . . to place the burden of proof and persuasion on the party claiming its  existence.").  Accordingly, we conclude that the state bears the burden of proving  the adequacy of a state procedural bar in order to preclude federal habeas  review.7


53
This is not to say, however, that a petitioner has no responsibility to put the  adequacy of the state procedural bar at issue before the state is required to come  forward with its proof.  Once the state pleads the affirmative defense of an  independent and adequate state procedural bar, the burden to place that defense  in issue shifts to the petitioner.  This must be done, at a minimum, by specific  allegations by the petitioner as to the inadequacy of the state procedure.  The  scope of the state's burden of proof thereafter will be measured by the specific  claims of inadequacy put forth by the petitioner.


54
Here, the state pled the defense of an adequate and independent state  procedural bar, as it was required to do.  However, Hooks thereafter failed to  meet his burden of placing in issue the adequacy of the procedural bar. Nevertheless, we believe Hooks' failure should be excused in this case in light of  the peculiar timing of the proceedings below.  Hooks filed his habeas petition in  federal district court on December 2, 1996 -- more than two years after Brecheen was decided and almost two years before English was decided.  The district court  denied Hooks' petition on March 30, 1998 -- three months before we issued our  opinion in English.  In this posture, we cannot say that either Hooks or the  district court was in error in relying upon the widely-understood holding in Brecheen that federal habeas review of ineffective assistance of counsel claims is  not barred by Oklahoma's rule that criminal defendants must raise all claims on  direct review or waive them.


55
Understandably, here neither party addressed the kind of factual inquiry  into the adequacy of Oklahoma's Rule 3.11 that was suggested by English. Accordingly, as we did in English, we think it most appropriate here to remand to  the district court for a determination of whether Oklahoma's state procedural bar  should preclude federal habeas review of Hooks' claims of ineffective assistance  of counsel not raised on direct appeal.


56
On remand, if Hooks believes Oklahoma's procedural bar to be inadequate,  he must place that issue before the district court in a clear way.  Respondent-Appellee then bears  the burden of proving the adequacy of Oklahoma's bar.  If  the district court finds Oklahoma's procedural bar to be adequate, the merits of  Hooks' ineffectiveness claims need not be reached.  If the court determines that  Oklahoma's procedural bar is inadequate, the district court then need only  reaffirm its previous rulings on the merits of Hooks' ineffectiveness claims and  the merits analysis will then be appealable to this court.


57
Although a determination of the adequacy of the state procedural bar  defense is a necessary prologue to our consideration of most of Hooks' claims of  ineffective trial counsel, we can reach the merits of one of his ineffective trial counsel claims because Hooks did raise on direct state appeal one such claim.8  In  addition, we can consider on the merits Hooks' claim of ineffective assistance of  appellate counsel because that claim was raised and decided on the merits in  Hooks' state postconviction proceedings.

B.  Merits

58
1.  Did Hooks' trial counsel render ineffective assistance in not allowing Hooks  to testify at trial?


59
On direct appeal, the Oklahoma Court of Criminal Appeals stated that  "Hooks contends that defense counsel was ineffective because Hooks was not  allowed to testify during either the first or second, stage of trial."  Hooks I, 862  P.2d at 1283.  Before the federal district court and before this court, Hooks has  pared his claim to an allegation that his trial counsel was ineffective only for  "fail[ing] to allow Mr. Hooks to testify in the second stage."


60
Under AEDPA's amendments to § 2254(d), we cannot grant the writ of  habeas corpus unless the state court 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).  Applying the general framework laid out in  Strickland v.  Washington, 466 U.S. 668 (1984), we conclude that the Oklahoma Court of  Criminal Appeals decision was neither "contrary to [nor] involved an  unreasonable application of Federal law, as determined by the Supreme Court of  the United States."  Thus we affirm the district court's denial of the writ on this  claim.


61
In order to prevail on a claim of ineffective assistance of counsel,  petitioner must demonstrate: "(1) that his counsel's performance fell below an  objective standard of reasonableness and (2) that the deficient performance was  prejudicial to his defense."  Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir.  1998) (citing Strickland, 466 U.S. at 688, 694 ).  In Hickman, we explained the  application of the Strickland standard:


62
To satisfy the first prong of this test, petitioner must overcome the  strong presumption that counsel's conduct falls within the wide  range of reasonable professional assistance.  We review petitioner's  ineffective assistance of counsel claim from the perspective of his  counsel at the time he rendered his legal services, not in hindsight. In addition, in considering counsel's performance, we focus on not  what is prudent or appropriate, but only what is constitutionally  compelled.  To satisfy the second prong, petitioner must show that  there is a reasonable probability that, but for counsel's  unprofessional errors, the result of the proceeding would have been  different.


63
160 F.3d at 1273 (citations and quotations omitted).  "In the specific context of a  challenge to a death sentence, the prejudice component of Strickland focuses on  whether the sentencer . . . would have concluded that the balance of aggravating  and mitigating circumstances did not warrant death."  Brecheen v. Reynolds, 41  F.3d 1343, 1365 (10th Cir. 1994) (quotation omitted).


64
In addressing this claim in Hooks' direct appeal, the Oklahoma Court of  Criminal Appeals identified the proper standard under Strickland.  SeeHooks I,  862 P.2d at 1283.  The court quoted a hearing conducted in the trial court's  chambers at the end of the prosecution's case during the first phase of trial that  clearly evidenced Hooks' understanding of his right to testify on his own behalf  and his personal decision not to testify.  Id.  The court then provided the  following analysis:


65
Whether a defendant will testify on his own behalf at a  criminal trial is a decision properly left to the accused.  See Rule  1.2(a) of the Rules of Professional Conduct, 5 O.S.Supp.1988, Ch. 1,  App. 3-A.  Assuming Hooks was influenced by defense counsel's  advice, which may have suggested that he not testify, such advice is  a matter of trial strategy and will not be considered ineffective  assistance of counsel.  See Camron v. State, 829 P.2d 47, 54 (Okl.  Cr. 1992).  Hooks has failed to establish defense counsel's  performance was deficient.  Even if we were to assume that defense  counsel's performance was deficient, he has failed to demonstrate  any possibility that, but for counsel's errors, the result of the trial  would have been different.  This assignment of error is denied.


66
Id.


67
While the state court opinion is a reasonable application of Strickland on  its face, it is further corroborated by the testimony adduced at the federal  evidentiary hearing in April 1997.  Testimony from the federal evidentiary  hearing illustrates that Hooks' trial counsel's performance was not legally  deficient.  Regarding Hooks' trial lawyer's decision not to call him as a witness  during the penalty phase of the trial, the following exchange took place:


68
"[Q.]     Why did you decide not to present . . . Hooks as a witness in  the second stage?


69
A.   I didn't think he would make a good witness.


70
. . .


71
[A.] Was he a good witness on -- was he ready to be a good  witness on May, whatever day, the 10th, that he would have  testified?  I didn't think so.  That was my call at the time.


72
I don't remember ordering him not to testify or telling him that  he would not be allowed to testify.  I don't remember him  insisting on testifying.


73
In light of Strickland's command that "[j]udicial scrutiny of counsel's  performance must be highly deferential," and its admonition not to indulge in the  temptation to "second-guess counsel's assistance after . . . adverse sentence," 466  U.S. at 689, we cannot say that Hooks' counsel performed below the prevailing  professional norms in advising Hooks not to testify at the sentencing phase of his  trial.


74
Further, the April 1997 federal evidentiary hearing corroborates the  Oklahoma Court of Criminal Appeals' conclusion, under Strickland's second  prong, that Hooks suffered no prejudice from his trial lawyer's advice not to  testify at the second stage of his trial.  Hooks argues that his testimony from the  evidentiary hearing established: (1) his love for his father and the disturbance he  felt from watching his father yell at and beat his mother; (2) the problems he had  after losing his father and brother through "traumatic events"; (3) the bias of  Shanna Allen, one of the prosecution's witnesses; and (4) "[m]ost importantly,"  his love for Shalimein.  As to his love for Shalimein, Hooks argues that his  testimony at the evidentiary hearing demonstrated: (1) his shock at killing her;  (2) that he did not "run away when he realized what he had done"; and (3) that he  was "sorry" for killing her.


75
However, Hooks' jury heard similar sentiments regarding his love for  Shalimein from Hooks himself, through the replay at trial of Hooks' taped  confession to police.  Therein, Hooks explained that he started arguing with  Shalimein over money, and that at some point she slapped him, which prompted  him to hit and then beat her.  Hooks explained his dismay once he realized what  he had done: "I fell back on the floor, I fell on the floor and I took the razor and  I said God what have I done.  And my baby was just lying there.  And I was fixin  break it off, cut my wrists."  Hooks continued:


76
Cut my wrists, my wrists.  Cause I had hate what happened and I was  fixing to cut my wrists.  But something just wouldn't let me do it so  go get her mother, go get some help.  She wasn't breathing I felt her  heart.  I (unintelligible) Shalimein get up, I was grabbing her,  holding her trying to make her get up, get up and she just kept  flopping down and it scared me so bad I just grabbed the baby and  run out of there. All I could think of was get help, get help. . . . I said come on get up  now and quit playing joke on me come on get up, you know I didn't  hurt you, come on we fight like this I'm sorry.  I was saying that. And I glanced back in there and she still laying there, then all of the  sudden I didn't feel no heart beating.  I took a mirror, you know  cause I watched it on T.V., they say that if you take a mirror and put  it in some, in front of somebody's uh mouth if, if they don't, if it  don't get foggy that means that they, something ain't right you  know.  And I hear heart beating and stop and then I put that mirror  in there and I didn't get no pulse and I mean I just ran into a state a  shock.  I didn't believe it.  I grabbed my baby I run over to her  mother's house.


77
. . .


78
I just didn't mean it to be like this that's all.  So help me God.


79
. . .


80
I wanta live.  I regret what I have done.  I'm not that kinda person  and Shalimein no matter what baby please, get well for me, good  Lord up above you know how I am.  Get well for Vargus, for me,  long as I know you all are all right I feel a lot better inside, because  only reason I'm making this statement is because no matter what I  say I can't bullshit myself I can't live knowing I done what I done.


81
While Hooks' taped confession might not have accomplished all that  Hooks claims he would have by testifying at trial, we believe the jury was  exposed to his claims that he loved Shalimein, that he never meant to kill her,  that he was anguished when he realized how badly he had beaten her, and that he  attempted to get help for her instead of running away.  In light of the fact that the  jury heard Hooks' "most important[]" message at trial, we conclude that he failed  to carry his burden here to demonstrate that in the absence of his trial attorney's  advice not to testify he would have testified and the jury would have "concluded  that the balance of aggravating and mitigating circumstances did not warrant  death." Strickland, 466 U.S. at 695.9 Accordingly, the Oklahoma Court of  Criminal Appeals decision rejecting Hooks' claim of ineffective assistance of  counsel for advising Hooks not to testify at sentencing was not contrary to, or an  unreasonable application of, clearly established federal law, as determined by the  Supreme Court.


82
2.  Did Hooks' appellate counsel render ineffective assistance by failing to raise  or adequately brief certain issues?


83
Hooks claims that the two lawyers who represented him in his state direct  appeal, Robert Boren ("Boren") and Patrick Lavelle ("Lavelle"), provided  ineffective assistance by (1) failing to raise "critical issues," and (2)  insufficiently researching and briefing the issues that they did raise.  He first  raised this claim in his application for state postconviction relief.  There, the  Oklahoma Court of Criminal Appeals held that Hooks' appellate counsel were  not constitutionally ineffective under Strickland.  Hooks II, 902 P.2d at  1123-24. We conclude that the state court's decision was neither contrary to, nor involved  an unreasonable application of, clearly established federal law, as determined by  the Supreme Court.


84
a.  Failure to raise a critical issue.


85
The only "critical issue" that Hooks claims Boren and Lavelle failed to  raise was a claim of prosecutorial misconduct arising from improper statements  made by District Attorney Macy during opening and closing arguments  comparing Hooks to Charles Manson, which Hooks claims "inflam[ed] and  prejudic[ed]" the jury.  "After thoroughly reviewing" this issue, the Oklahoma  Court of Criminal Appeals concluded that it did not "warrant relief."  Hooks II,  902 P.2d at 1124.  The federal district court "assumed without deciding that  Boren and Lavelle acted unreasonably and that their performance on appeal was  indeed deficient," but nevertheless concluded that "Hooks is not entitled to relief  . . . because he has failed to affirmatively demonstrate prejudice."


86
Ineffective assistance of appellate counsel claims are governed by the  standards of Strickland.  See United States v. Cook, 45 F.3d 388, 392  (10th Cir.  1995).  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.  Id.  "If  the omitted issue is without merit, counsel's failure to raise it does not constitute  constitutionally ineffective assistance of counsel."  Id. at 393 (quotation omitted).


87
In his half-page argument before this court, Hooks makes little effort to  develop the merits of his claim of prosecutorial misconduct underlying his claim  of ineffective assistance of appellate counsel.  However, divining his argument  from other portions of his appellate brief, we understand Hooks to claim that the  prosecutors acted outrageously by "paint[ing] a picture of Mr. Hooks as another  'Charles Manson,' asserting that Mr. Hooks had purposefully cut a cross into  Shalimein's forehead and 'Helter Skelter' was his favorite movie."  Hooks argues  that his jury was inflamed, and he was prejudiced, by prosecutorial attempts to  link "Hooks to the infamous mass murderer Charles Manson and the  circumstances of Shalimein's death to that of Sharon Tate."  Specifically, Hooks  contends that the following remarks by District Attorney Macy constituted  prosecutorial misconduct:


88
Shanna [Dinh, a prosecution witness] will further tell you that Helter  Skelter was Hooks' favorite movie, that he watched it a lot on VCR.  In  that movie Charles Manson shaved the head of his victim, Sharon Tate, cut  a cross in her forehead and killed her unborn child.  (opening statement of  Mr. Macy.)


89
[Hooks] took a razor and cut of[f] most of her hair and cut a cross in  her forehead and killed her baby, just as Charlie Manson did in  Helter Skelter.  (opening statement of Mr. Macy.)


90
What about the cross on the forehead and the shaving of the  head, so consistent with what Shanna [Dinh] told you about the  movie Helter Skelter and Charlie Manson.  (closing argument of Mr.  Macy.)


91
Hooks correctly points out that District Attorney Macy's opening remarks  contain inaccuracies.  First, Dinh never testified that Helter Skelter was Hooks'  favorite movie.  At trial, she said only:  "I watched [Helter Skelter] with him  once.  I don't know how many times he's watched it."  Second, District Attorney  Macy's accounts of Helter Skelter's depiction of the murder of Sharon Tate was  inaccurate.


92
District Attorney Macy's reference to Manson during his closing argument  did not make any inaccurate characterizations of witness testimony.  In closing,  District Attorney Macy did not claim that Dinh testified that Helter Skelter was  Hooks' favorite movie.  He merely made reference to a cross on Shalimein's  forehead and the fact that her hair had been shaved, then stated that those  elements were consistent with what Dinh had testified to regarding the film.  In  fact, Dinh stated at trial, "all the women in the movie had their heads shaved and  had a cross right here on their forehead."  As to the accuracy of these  characterizations of Shalimein's physical appearance, we note only that post-mortem  photographic evidence admitted at trial provides an arguable basis that  Shalimein had a small cross cut into her forehead and had a significant amount of  her hair shaved.


93
Because Hooks' trial lawyer did not object to District Attorney Macy's  remarks at trial,10 under Oklahoma law,  these claims would have been reviewed  on appeal only for fundamental error.  The Supreme Court has "recognized, it is  not enough that the prosecutors' remarks were undesirable or even universally  condemned.  The relevant question is whether the prosecutors' comments so  infected the trial with unfairness as to make the resulting conviction a denial of  due process."  Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citation and  internal quotations omitted).


94
Here, in light of the evidence presented at trial we cannot say that the  prosecutor's unnecessary and inaccurate references to Charles Manson and  "Helter Skelter" so prejudiced the jury as to have denied Hooks due process.  The  references were neither so far off the actual evidence nor so central to the  prosecutor's case that they were likely to have affected the jury's verdicts. Furthermore, we note that the jury here was specifically instructed to decide the  case only on the evidence introduced at trial.


95
Because Hooks has failed to establish that his claim of prosecutorial  misconduct is "clearly meritorious," his appellate lawyers were not  constitutionally ineffective for failing to raise it on direct appeal.


96
b.  Inadequate appellate brief.


97
As a general matter, Hooks claims that Boren and Lavelle were untrained  and inexperienced in death penalty appellate work.  Hooks complains that the  brief his state direct appeal lawyers filed was only "eighteen pages long and cited  only four federal cases."  Hooks specifically identifies three issues raised in his  direct appeal which he argues were insufficiently briefed for the Oklahoma Court  of Criminal Appeals.  First, he claims that his direct appeal brief inadequately  attacked the three aggravating circumstances which the jury found because the  brief failed to challenge the constitutionality of the aggravators.   Second, Hooks  claims that his appellate lawyers performed deficiently by failing to cite Beck v.  Alabama, 447 U.S. 625 (1980), in support of his claim that the trial court should  have instructed the jury on lesser included offenses.  Third, Hooks asserts his  appellate lawyers were constitutionally ineffective in not citing Strickland in  support of his claim that he received ineffective assistance of trial counsel when  his lawyer advised him not to testify at trial.  Even assuming that Hooks'  appellate counsel provided representation below the constitutionally required  level, Hooks cannot demonstrate prejudice because elsewhere in this opinion we  reject on the merits all three issues that Hooks claims his appellate lawyers  should have researched and briefed more thoroughly.  Therefore, his claim of  ineffective assistance of appellate counsel fails.


98
III.  Whether Hooks was denied his right to due process by the trial  court's refusal to instruct the jury on lesser included offenses.


99
Predicated on Beck v. Alabama, 447 U.S. 625 (1980) and Schad v.  Arizona, 501 U.S. 624 (1991), Hooks claims that he was denied his federal  constitutional right to due process of law when the state trial court refused to  instruct the jury on second degree murder and first degree manslaughter with  respect to Shalimein.  In his state direct appeal, Hooks made an analogous claim  based only on a state law that required the trial court to instruct the jury on lesser  included offenses supported by the evidence, which the Oklahoma Court of  Criminal Appeals denied.  See Hooks I, 862 P.2d at 1280.  In his state  application for postconviction relief, Hooks, for the first time, raised his federal  constitutional claim under Beck.  Based on "res judicata," the  Oklahoma Court of  Criminal Appeals refused to consider this claim because the court had previously  resolved Hooks' related state law claims regarding lesser included instructions. See Hooks II, 902 P.2d at 1122 & n.7.  While the Oklahoma Court of  Criminal  Appeals appeared to rely on state procedural bar in refusing to consider Hooks' Beck claim, the appellee has never asserted procedural bar as a defense on  federal habeas.  As such, we will consider Hooks' Beck claim on the merits, as  did the federal district court, which denied it based on a finding that there was  "not sufficient credible evidence, admitted and/or omitted, that would support a  finding that Hooks acted without deliberate intent on October 6, 1988."

A.  Standard of Review

100
At the outset, we must consider the appropriate standard of review.  As  noted, the Oklahoma courts never considered Hooks' federal constitutional claim  with regard to his requested instructions on lesser included offenses. Consequently, that claim was not "adjudicated on the merits in State court  proceedings," as contemplated by the new § 2254(d).  Without a state court  adjudication on the merits as to this claim, we cannot apply the § 2254(d)  standard of "contrary to" or "unreasonable application of" clearly established  Supreme Court law.  In the absence of a state court adjudication on the merits we  believe we must apply the standard of review that predated the recent  amendments to § 2254.  Prior to AEDPA, we reviewed de novo both pure  questions of law and mixed questions of law and fact.  See Hatch v. State of  Oklahoma, 58 F.3d 1447, 1453 (10th Cir. 1995).  Because the Oklahoma Court of  Criminal Appeals made some factual determinations that may bear on this issue,  we note that "a determination of a factual issue made by a State court, shall be  presumed to be correct."  28 U.S.C. § 2254(e)(1) (post-AEDPA).


101
The appellee argues "that the trial court's failure to give the requested  instructions did not violate Beck," because (1) "Beck is inapplicable to  Oklahoma's statutory scheme," and (2) "the evidence did not support the giving  of the lesser included instructions."


102
The threshold question thus is whether the rule of Beck v. Alabama applies  to Hooks, in light of the discretion afforded in Oklahoma to the jury at the  sentencing phase of this trial.  Because we answer this question in the  affirmative, we go on to consider whether the evidence adduced at trial supported  either second degree murder or first degree manslaughter as to Shalimein Blaine. Because we answer this question in the negative, we affirm.

B.  Applicability of Beck v. Alabama

103
In Beck, the Supreme Court held that "a sentence of death [may not]  constitutionally 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 (quotation omitted).  Beck involved a challenge to an Alabama  procedure that forbade the state trial judge in a capital case "from giving the jury  the option of convicting the defendant of a lesser included offense," and that  required the jury to "fix the punishment at death" if it found the defendant guilty. Id. at 628 & n.3.  The Court noted that "if the unavailability of a lesser included  offense instruction enhances the risk of an unwarranted conviction, Alabama is  constitutionally prohibited from withdrawing that option from the jury in a  capital case."  Id. at 638. Concluding that the Alabama procedure "interjects  irrelevant considerations into the factfinding process, diverting the jury's  attention from the central issue of whether the State has satisfied its burden of  proving beyond a reasonable doubt that the defendant is guilty of a capital  crime," the Court held that a death sentence could not be imposed under these  conditions.  Id. at 642, 645.


104
Since Beck, the Supreme Court has discussed its holding in a handful of  cases raising Beck issues.  Two years after Beck was decided, the Court  explained: "Our opinion in Beck stressed that the jury was faced with a situation  in which its choices were only to convict the defendant and sentence him to death  or find him not guilty.  The jury could not take a third option of finding that  although the defendant had committed a grave crime, it was not so grave as to  warrant capital punishment."  Hopper v. Evans, 456 U.S. 605, 609 (1982).  In Hopper, the Supreme Court reiterated that lesser included instructions were only  mandated when supported by the evidence, see id. at 611, and therefore the  Court  upheld a conviction under the same Alabama law that was at issue in Beck because, under the facts of that case, there was no evidence to support a lesser  included instruction.  See id. at 612-13.


105
In Spaziano v. Florida, 468 U.S. 447 (1984), the Supreme Court held that a  defendant was not "entitled to the benefit of both lesser included offense  instruction[s] [under Beck] and an expired period of limitations on those offenses." Id. at 454.  Spaziano refused to waive his statute of limitations defense as to the  lesser-included offenses, thus the trial court instructed only on capital murder. See id. at 450.  After the jury found him guilty and the trial court sentenced him  to death (disregarding the jury's advisory recommendation for life  imprisonment), Spaziano challenged the trial court's decision to force him into a  choice between availing himself of his right to instructions on lesser included  offenses and his right to defend against them on the basis of expired statutes of  limitations.  The Supreme Court responded as follows:


106
The Court in Beck recognized that the jury's role in the  criminal process is essentially unreviewable and not always rational. The absence of a lesser included offense instruction increases the  risk that the jury will convict, not because it is persuaded that the  defendant is guilty of capital murder, but simply to avoid setting the  defendant free.  In Beck, the Court found that risk unacceptable and  inconsistent with the reliability this Court has demanded in capital  proceedings.  The goal of the Beck rule, in other words, is to  eliminate the distortion of the factfinding process that is created  when the jury is forced into an all-or-nothing choice between capital  murder and innocence.  Requiring that the jury be instructed on  lesser included offenses for which the defendant may not be  convicted, however, would simply introduce another type of  distortion into the factfinding process.


107
Id. at 455-56 (citations omitted).  Thus, the Court concluded that "the defendant  [should] be given the choice" between the benefit of lesser included offense  instructions and asserting statute of limitations defenses as to those offenses.  Seeid. at 456.


108
In Schad v. Arizona, the Supreme Court stated that "[o]ur fundamental  concern in Beck was that a jury convinced that the defendant had committed  some violent crime but not convinced that he was guilty of a capital crime might  nonetheless vote for a capital conviction if the only alternative was to set the  defendant free with no punishment at all."  501 U.S. at 646 (1991).  There, the  Court upheld a conviction where the jury had been instructed on both first degree  murder and the lesser included offense of second degree murder, but was not  instructed on the lesser included offense of simple robbery, which also was  arguably warranted under the evidence.  The Court ruled that the Beck requirement was satisfied so long as the jury had the option of at least one lesser  included offense which was supported by the evidence.  See id. at 647-48.


109
Last year, in Hopkins v. Reeves, 118 S. Ct. 1895 (1998), the Court held  that Nebraska was not constitutionally required to give an instruction on the non-capital charge  of second degree murder when the defendant was charged with the  capital count of felony murder because, under Nebraska law, second degree  murder is not a lesser included offense of felony murder.  The reason Nebraska  holds that second degree murder is not a lesser included offense of felony murder  is because the former requires an intent to cause death, whereas the latter does  not.  The Court explained that since second degree murder requires proof of an  element (intent to cause death) that is not required as an element of the crime of  felony murder it is not a lesser included offense (even though "proof of a  culpable mental state with respect to the killing" is a required element for  imposition of the death penalty for the capital offense of felony murder under Tison v. Arizona, 481 U.S. 137 (1987) and Enmund v. Florida, 458 U.S. 782  (1982)).  See Hopkins, 118 S. Ct. at 1902.


110
As a result, the Supreme Court upheld a conviction for felony murder (and  the subsequent death penalty that was imposed by a separate three-judge panel)  even though the jury at the guilt phase was given no option to find the defendant  guilty of a non-capital crime.  The Court held that under Nebraska law there was  no lesser included offense to felony murder and that Beck did not entitle a  defendant to an instruction on a non-capital offense if it was not genuinely a  lesser included offense under state law.  See id. at 1900-03


111
In distinguishing Beck, the Supreme Court said the following:


112
[T]he Court of Appeals again overlooked significant distinctions  between this case and Beck.  In Beck, the death penalty was  automatically tied to conviction, and Beck's jury was told that if it  convicted the defendant of the charged offense, it was required to  impose the death penalty.  See Beck v. Alabama, 447 U.S., at 639, n.  15, 100 S. Ct., at 2390 n. 15.  This threatened to make the issue at  trial whether the defendant should be executed or not, rather than  "whether the State ha[d] proved each and every element of the  capital crime beyond a reasonable doubt."  See id., at 643, n. 19, 100  S. Ct.,  at 2392, n. 19.  In addition, the distortion of the trial process  carried over directly to sentencing, because an Alabama jury  unwilling to acquit had no choice but to impose the death penalty. There was thus a significant possibility that the death penalty would  be imposed upon defendants whose conduct did not merit it, simply  because their juries might be convinced that they had committed  some serious crime and should not escape punishment entirely.


113
These factors are not present here.  Respondent's jury did not  have the burden of imposing a sentence.  Indeed, with respect to  respondent's insanity defense, it was specifically instructed that it  had "no right to take into consideration what punishment or  disposition he may or may not receive in the event of his conviction  or ... acquittal by reason of insanity."  App. 24.  In addition, the  three-judge panel that imposed the death penalty did not have to  consider the dilemma faced by Beck's jury;  its alternative to death  was not setting respondent free, but rather sentencing him to life  imprisonment. [FN7]


114
[FN7]. We are not, of course, presented with a case that differs  from Beck only in that the jury is not the sentencer, and we express  no opinion here whether that difference alone would render Beck inapplicable.  The crucial distinction between Beck and this case, as  noted, is the distinction between a State's prohibiting instructions on  offenses that state law recognizes as lesser included, and a State's  refusing to instruct on offenses that state law does not recognize as  lesser included.


115
Hopkins, 118 S. Ct. at 1901-02.


116
Picking up on these distinctions noted in Hopkins, this court, in United  States v. McVeigh, 153 F.3d 1166 (10th Cir. 1998), cert. denied, 119 S. Ct. 1148  (1999), rejected McVeigh's Beck claim, in part because "[t]his case is unlike Beck . . . because the jury here was not compelled to impose the death penalty on  McVeigh if it convicted him of the charged offenses; rather, it had the  opportunity to reject the death penalty during the sentencing phase."  Id. at 1197  (citing Hopkins, 118 S. Ct. at 1901-02).


117
Although the McVeigh court did, thereby, point out a difference between  the claims there presented and the holding of Beck, this distinction should not be  elevated to a holding that Beck does not apply in any case where the convicting  jury later had the discretion to sentence the defendant to life, instead of death. Rather, a careful reading of McVeigh reveals that the real holding in that case  was that the lesser included instructions sought by McVeigh were not  constitutionally required because the offenses that he wanted submitted to the  jury were not lesser included offenses as a matter of federal law.  The McVeigh court, thereby, disposed of McVeigh's Beck claim by relying on Hopkins,  which  instructed that a defendant facing a capital charge has no constitutional right to  an instruction on a non-capital offense if such offense is not a lesser included  offense of the capital charge.


118
The subsequent language in McVeigh pointing out a distinction between  McVeigh's claim for a lesser included instruction and the defendant's claim for a  lesser included instruction in Beck was not necessarily dispositive, nor was it  necessary once it was concluded that the other offenses on which McVeigh  wanted the jury instructed were not lesser included offenses.


119
Indeed Tenth Circuit cases prior to McVeigh had consistently applied a Beck analysis in situations where conviction of a capital offense did not  automatically result in the death penalty.  In fact, all of our pre-McVeigh death  penalty cases that arose out of Oklahoma involved a procedure whereby,  following conviction of a capital offense, the jury still had to weigh aggravating  and mitigating circumstances before selecting the death penalty.  Nevertheless, in  each of those cases we applied a full Beck analysis and continued to state, even  under those procedures, that a capital defendant had a constitutional right to a  lesser included offense instruction if there was evidence supporting a lesser  included offense.  None of these cases suggested that the subsequent sentencing  discretion to give life imprisonment rather than death in any way mitigated or  abrogated the Beck duty to instruct on lesser included offenses if the evidence  warranted it.  See Duvall v. Reynolds, 139 F.3d 768, 785-87 (10th Cir.)  (denying Beck claim on the merits because "evidence did not support an instruction on  murder in the second degree or manslaughter in the first degree"), cert. denied,  119 S. Ct. 345 (1998); Hatch v. State of Oklahoma, 58 F.3d 1447, 1454 (10th  Cir. 1995) (denying Beck claim on the merits because "there is not evidence,  which, if believed, could reasonably have led to a verdict of guilt of a lesser  offense" (internal quotation omitted)); Parks v. Brown, 840 F.2d 1496, 1499-1502 (10th  Cir. 1987), rev'd on other grounds, 860 F.2d 1545 (10th Cir. 1988)  (en banc), rev'd on other grounds sub nom. Saffle v. Parks, 494 U.S. 484 (1990)  (same).11  Although none of those cases  explicitly addressed the argument that  subsequent sentencing discretion might abrogate a Beck duty, the fact that they  continued to apply Beck, notwithstanding their acknowledgment of the  subsequent sentencing discretion to avoid the death penalty following conviction  of a capital offense, suggests that pre-McVeigh Tenth Circuit precedent had  already established that a defendant does not lose his rights under Beck to a  lesser included offense instruction merely because the jury retained sentencing  discretion to impose a punishment less than death.  If those cases are so  construed, then McVeigh's alternative rationale for decision to the contrary could  not be construed as precedential because one panel cannot disregard prior Tenth  Circuit precedent.  See United States v. Foster, 104 F.3d 1228, 1229 (10th Cir.  1997).


120
Similarly, Tenth Circuit cases after McVeigh have continued to apply a Beck analysis to the issue of whether a defendant is entitled to a lesser included  offense instruction notwithstanding the fact that the jury in those cases retained  discretion at the sentencing stage to give a penalty less than death.  See Walker v.  Attorney General for the State of Oklahoma, 167 F.3d 1339, 1349-50 (10th Cir.  1999) (evidence did not support a lesser included offense instruction); Stouffer v.  Reynolds, 168 F.3d 1155, 1170-71 (10th Cir 1999) (same).   The closest that any published Tenth Circuit case has come to reading McVeigh as abrogating Beck's requirements when a jury has discretion to give  a  sentence less than death is Johnson v. Gibson, 169 F.3d 1239 (10th Cir. 1999). However, the issue there was only whether defendant's counsel was inadequate  for failing to raise a Beck claim on the direct state appeal, thereby establishing  cause and prejudice to excuse state procedural bar such that the issue could be  considered on federal habeas.  In analyzing whether counsel's performance was  deficient we asked whether the omitted claim was "clearly meritorious" or a  "dead-bang winner."  See id. at 1251.  Citing McVeigh for the  proposition that Beck is satisfied so long as the jury retains sentencing discretion to impose  something less than the death penalty, we concluded that the Beck issue was not  such a "dead-bang winner," thus the claim was procedurally barred.  See id. That  stops short of giving McVeigh the expansive reading sought by the appellee here. Instead, it only recognizes that the Beck interpretation advanced in McVeigh had  sufficient viability that it was not deficient for Johnson's attorney to give Beck such a narrow reading.12


121
In order to avoid potential confusion on this issue, we now explicitly  disapprove the language in McVeigh suggesting that Beck does not apply when  a  jury has sentencing discretion to issue a penalty less than death.  Our careful  review of this issue convinces us that such a reading of Beck and its progeny  would be in error, and that a proper reading of Beck entitles a defendant in a  capital case to a lesser included instruction when the evidence warrants it,  notwithstanding the fact that the jury may retain discretion at sentencing to issue  a penalty less than death.


122
Several considerations convince us of the continuing force of Beck, even  in jurisdictions that permit sentencing discretion.  First, much of the language of Beck and its progeny is directed toward the enhanced reliability at the guilt phase  of a capital case accomplished by giving lesser included instructions supported  by the evidence.  While Beck drew heavily for analogy from the line of cases in  which the Court "invalidated procedural rules that tended to diminish the  reliability of the sentencing determination," the Beck Court added that "[t]he  same reasoning must apply to rules that diminish the reliability of the guilt determination."13  Beck, 447 U.S.  at 638 (emphasis added).  Throughout Beck,  the Court focuses on the reliability of the conviction.  See, e.g., id. at  637 ("For  when the evidence unquestionably establishes that the defendant is guilty of a  serious, violent offense . . . the failure to give the jury the 'third option' of  convicting on a lesser included offense would seem inevitably to enhance the risk  of an unwarranted conviction." (emphasis added)).


123
This emphasis on the reliability of the conviction decision, as opposed to  the sentencing consequences, continues in the Supreme Court cases following Beck.  In Hopper, the Court noted that "our holding [in Beck] was that  the jury  must be permitted to consider a verdict of guilt of a noncapital offense 'in every  case' in which 'the evidence would have supported such a verdict.'" 456 U.S. at  610.  The Court further clarified that because lesser included instructions were  required by due process "only when the evidence warrants such an instruction,  [t]he jury's discretion is . . . channelled so that it may convict a defendant of any  crime fairly supported by the evidence."  Id. at 611 (first emphasis in original,  second added); Spaziano, 468 U.S. at 455 ("The absence of a lesser included  offense instruction increases the risk that the jury will convict, not because it is  persuaded that the defendant is guilty of capital murder, but simply to avoid  setting the defendant free."); Schad, 501 U.S. at 646 ("Our fundamental concern  in Beck was that a jury convinced that the defendant had committed some violent  crime but not convinced that he was guilty of a capital crime might nonetheless  vote for a capital conviction if the only alternative was to set the defendant free  with no punishment at all." (emphasis added)).


124
Second, we are persuaded of the continuing viability of Beck even in  jurisdictions that afford juries sentencing discretion following conviction of a  capital offense because the Supreme Court and this court have continued to apply Beck to cases that have arisen in jurisdictions which permit sentencing discretion  after a finding of guilt of first degree murder.14  Thus, in Spaziano, the Court  addressed petitioner's Beck claim on the merits, despite the fact that the Court  was well aware that Florida's sentencing scheme permitted the jury to  recommend life instead of death.15  In Schad, the Court dealt head-on with the  merits of petitioner's Beck claim, despite noting that after Schad was convicted  of first degree murder, the judge sentenced him to death following sentencing  hearing.  See Schad, 501 U.S. at 629.  And just last year, in Hopkins,  the Court  addressed the merits of petitioner's Beck claim, despite explicitly acknowledging  that the sentencing panel had the "alternative" of sentencing him to "life  imprisonment."  118 S. Ct. at 1902 & n.7.


125
Third, any assumption that discretion at the sentencing stage can make up  for the lack of an option to convict of a lesser included offense supported by  evidence at the guilt phase is a suspect assumption.  For several reasons, the  sentencing phase is an imperfect place for a jury to manifest doubt it may have  had concerning an element of the offense of conviction.  First, at the sentencing  phase, much evidence that would have been inadmissible at the guilt phase is  permitted to go before the jury.  The effect of this sentencing phase evidence  could be to cause the jury to forget any doubt it harbored at the guilt phase. Second, instructions at sentencing typically force the jury to focus on the  evidence of aggravating and mitigating factors presented at sentencing, thus  directing the attention of the jury away from any residual doubt about the  elements of conviction.  Finally, we note that jurors might experience a  psychological difference at the sentencing stage, tending to cause them to place  behind them any doubts they may have harbored at the conviction stage.  In sum,  a jury that gets to stage two based on an unreliable determination at stage one  may not be able to convey accurately its doubt about guilt through its sentencing  determination.

C.  Application of Beck v. Alabama

126
Recognizing the continuing force of Beck, we now address Hooks' claim  that he was entitled to jury instructions on lesser included noncapital offenses. With respect to causing Shalimein's death, at trial Hooks proposed two jury  instructions on first degree manslaughter16 and one jury instruction on second degree murder17.  The trial judge refused to accept any of Hooks' proposed  instructions on first degree manslaughter or second degree murder, stating: "I  don't think the evidence in this case warrants an instruction on Manslaughter in  the First Degree or Murder in the Second Degree."18


127
In his direct state appeal, relying only on state law and not on Beck, Hooks  claimed that "the trial court erred in refusing to instruct the jury on the offense of  first degree manslaughter and second degree murder."  Hooks I, 862 P.2d at  1280.  Examining the evidence, the Oklahoma Court of Criminal Appeals  concluded that there was no evidence to support either a first degree  manslaughter instruction or a second degree murder instruction.  See id.  In his  application for post-conviction relief, where he raised his constitutional lesser  included argument under Beck for the first time, the Oklahoma Court of Criminal  Appeals stated that it had "thoroughly considered and rejected" Hooks' lesser  included claim on direct appeal, and thus it refused to consider it on the grounds  of "res judicata."  See Hooks II, 902 P.2d at 1122 & n.  7.19


128
Considering the Beck claim on federal habeas, the district court below held  that "[t]here is not sufficient credible evidence, admitted and/or omitted, that  would support a finding that Hooks acted without deliberate intent on October 6,  1988."  While we ultimately affirm the district court's conclusion that Hooks is  not entitled to a writ of habeas corpus, because of the standard under 28 U.S.C.  § 2254, we must first examine how the Oklahoma courts treated Hooks' lesser  included claim.


129
While the Oklahoma Court of Criminal Appeals never considered Hooks'  lesser included claim under Beck on the merits, we note the relevance of its  decision on direct appeal when considering a claim under state law for the lesser  including instructions that neither requested lesser included offense instruction  was supported by the evidence.  The Oklahoma Court of Criminal Appeals stated: "In the absence of any competent evidence supporting either first degree  manslaughter or second degree murder, we find no error in the trial court's  refusal to so instruct."  Hooks I, 862 P.2d at 1280.  We understand the basis of  this conclusion to be a mixed one of fact and Oklahoma state law.  "Under 28  U.S.C. § 2254(e)(1), we must afford a presumption of correctness to any factual  findings underlying the conclusion that the evidence was insufficient to justify  lesser included offenses instructions."  Boyd v. Ward, 179 F.3d 904, 915 (10th Cir.1999).20 As best we can discern, the Oklahoma  Court of Criminal Appeals reached its conclusion according to the following  logic: (1) in order to warrant instructions on the lesser included offenses that  Hooks requested there must be evidence introduced at trial tending to establish an  absence of intent to commit murder; (2) under Oklahoma law, "'[a] design to  effect death [i.e., premeditation] is inferred from the fact of killing, unless the  circumstances raise a reasonable doubt whether such design existed,'" Hooks I,  862 P.2d at 1280 (quoting 21 Okla. Stat. tit. 21, § 702), and; (3) Hooks failed to  elicit at trial evidence of circumstances sufficient to "raise a reasonable doubt"  that Shalimein's death was premeditated.  The first two steps are matters of state  law on which we do not comment.  The third step is a factual finding entitled to a  presumption of correctness, with regard to which we will find otherwise only if  Hooks "rebut[s] the presumption of correctness by clear and convincing  evidence."  28 U.S.C. § 2254(e)(1).  We believe that Hooks has met his burden to  rebut this general factual finding by the Oklahoma Court of Criminal Appeals.


130
We agree with Hooks that there was sufficient evidence adduced at his trial  to put the issue of intent in doubt.  From the outset of trial Hooks admitted that  he caused Shalimein's death, and sought only to challenge the state's assertion  that he did so intentionally.  This is clear from Hooks' counsel's opening  statement:


131
There's only going to be one issue as far as the first stage of this  trial.  And that's what was going through Victor's mind as he was  doing these things, because we don't dispute the fact that he beat his  wife to death.  We don't dispute that he did it.


132
There's some things that you need to look at to decide whether he  did it with malice aforethought, though.  There are some things that  you need to look at very hard to decide if he intended to kill her,  because, ladies and gentlemen, I submit to you that's the issue in this  case.


133
I think at the close of the evidence, after you've heard all the  evidence . . . you will see or you'll certainly have a reasonable doubt  that there was no intention on Victor's part to kill a woman that he  loved.


134
And hopefully -- and I've never said this before to a jury -- but  hopefully you'll find Victor guilty; you'll find him guilty of what he  is guilty of.  He's guilty of manslaughter for beating his wife to  death.


135
At trial, Detective Eric Mullenix testified that Hooks, during the course of  his confession, stated that he and Shalimein had a heated argument which  escalated into the beating when Shalimein slapped Hooks.  Further, Deputy Scott  Cannon testified that Hooks told him "that he went off on her," indicating that  Hooks beat Shalimein in a rage.  This evidence of a spontaneous beating, in light  of the testimony that Hooks often beat Shalimein,21 and his other girlfriends,22 calls into doubt whether Hooks intended to kill Shalimein on this particular  occasion, or instead merely intended to inflict another one of his ruthless  beatings that had theretofore never caused the death of one of his girlfriends.


136
We are further convinced that the evidence at trial was sufficient to "raise  a reasonable doubt [as to] whether" Hooks had "a design to effect death," by the evidence in support of the state's theory that Hooks beat Shalimein in order to  induce a miscarriage of the child she was carrying.  During the state's case-in-chief, the  prosecution elicited testimony that Hooks had previously induced a  miscarriage by beating one of his other girlfriends,23 and that he had previously  attempted to force Shalimein to miscarry by beating her.24  Moreover, the  testimony of Fred Jordan, the state's forensic expert and then-Chief Medical  Examiner for the State of Oklahoma, on direct examination, emphasized the  extent of the beating to Shalimein's abdominal area, indicating that Hooks  focused on the part of Shalimein's anatomy carrying his unborn baby.  We  believe that this evidence could have supported a conclusion that Hooks intended  to induce a miscarriage, but not kill Shalimein, and therefore it raises a  reasonable doubt as to whether Hooks had a design to effect Shalimein's death.


137
Finally, Hooks' attempts to help Shalimein after the beating (e.g. cleaning  Shalimein up in the bathtub, getting her mother for help, and driving her to the  hospital),  his "distraught" condition, and his statements to law enforcement  personnel evincing his dismay at what he had done indicate that he might not  have possessed the intent to kill her.  The record is replete with testimony  indicating that Hooks frantically sought help in getting Shalimein to the hospital  after he beat her. (Testimony of Virginia Plumley and Amanda Blaine). Moreover, there were many statements admitted at trial indicating that Hooks was  distraught after realizing the extent of the beating he had inflicted and its fatal  result.  (Testimony of Virginia Plumley, emergency medical physician Greg  Johnston, Oklahoma City Police Officer Robert Ardle, and Oklahoma City Police  Detective Randy Scott).  While we acknowledge that Hooks' after-the-fact  actions and emotions might indicate only remorse and regret, and not a lack of  intent to kill Shalimein, the latter reading is also a possible interpretation.  Thus  the preceding evidence did raise a reasonable doubt as to Hooks' intent to kill  Shalimein and it provides an adequate evidentiary basis for a potential lesser  included instruction.


138
Appellee argues that "[b]oth heat of passion manslaughter and second  degree murder requires that there be no intent to kill," and here the evidence was  sufficient to establish Hooks' intent to kill Shalimein.  This argument, however,  rests on inverted logic, because in order to resolve a Beck claim, a court must  focus on whether credible evidence admitted at trial warranted a lesser included  offense, not whether the evidence was sufficient to prove the greater one.  SeeLe  v. State of Oklahoma, 947 P.2d 535, 546 (Okla. Crim. App. 1997) (rejecting the  state's theory that a first degree heat of passion manslaughter "instruction is  improper wherever there is evidence of intent."  The court continued: "under that  theory a heat-of-passion instruction would never be appropriate where there was  evidence of malice murder.  The question is whether, in addition to evidence of  intent, there was evidence that [defendant] killed [the victim] with adequate  provocation, in a heat of passion, without the design to effect death."), cert.  denied, 118 S. Ct. 2329 (1998).


139
While we hold that the Oklahoma Court of Criminal Appeals erroneously  concluded that the evidence admitted at trial was insufficient to raise a  reasonable doubt as to Hooks' intent to kill, for the reasons below, we hold that  under Oklahoma law, Hooks was not entitled to any of the instructions that he  tendered.

1.  Second degree murder

140
Under Oklahoma law, second degree murder encompasses both (i) reckless  "depraved mind" murder25 and  (2) felony murder.26  As Hooks' requested  stage  one jury instruction number 6 makes clear, Hooks asked for a second degree  murder instruction with regard only to felony murder.  On the other hand, in his  federal habeas petition before the district court and before this court, Hooks has  argued only that a "depraved mind" second degree murder instruction was  warranted.   Thus, although Hooks requested an instruction on felony murder  (second degree) before the trial court, because he has not predicated his federal  habeas Beck claim on an entitlement to a felony murder instruction, he has  abandoned that argument and we will not consider it.  And, while Hooks argues  on federal habeas that he was entitled to an instruction on "depraved mind"  murder, because he failed to request an instruction on "depraved mind" second  degree murder at trial, we cannot consider it on federal habeas review.


141
This court has never explicitly addressed the effect of failing to request a  jury instruction for a lesser included offense on a subsequent Beck claim in the  context of a federal habeas action.27 Today we hold that a state prisoner seeking  federal habeas relief may not prevail on a Beck claim as to a lesser included  instruction that he or she failed to request at trial.


142
As the Eleventh Circuit has recognized:  "Other circuits have held that  when a defendant fails to request a lesser included offense instruction in a capital  case, the district court does not err in failing to instruct on the lesser included  offense."  See United States v. Chandler, 996 F.2d 1073, 1099 (11th Cir. 1993)  (federal death penalty case in which defendant at trial made no request for a non-capital lesser  included offense instruction) (citing Kubat v. Thieret, 867 F.2d  351, 365-66 (7th Cir. 1989); Look v. Amaral, 725 F.2d 4, 8-9 (1st Cir. 1984)). Given principles of comity, we believe this rule applies with even greater force  when we sit in review of a state conviction in a § 2254 action.


143
Beck requires that we reverse a conviction when the jury was prohibited by  the sovereign, in this case the state of Oklahoma, from considering a verdict of  guilt of a non-capital lesser included offense.  While courts have applied the Beck rule equally to state legislative prohibitions, e.g. Beck, and court rulings  refusing proffered jury instructions on lesser included offenses, when a defendant  fails to request an instruction on a non-capital lesser included offense we cannot  say that the sovereign has denied the jury the right to consider a conviction on a  lesser included offense.  In such cases, we think it is the defendant him- or  herself that precludes the jury from considering a non-capital option, and we  recognize that he or she may have valid strategic reasons for doing so.


144
As the Supreme Court has observed, "[a]lthough the Beck rule rests on the  premise that a lesser included offense instruction in a capital case is of benefit to  the defendant, there may well be cases in which the defendant will be confident  enough that the State has not proved capital murder that he will want to take his  chances with the jury."  Spaziano, 468 U.S. at 456.  Likewise the First Circuit  has recognized that "[d]efense counsel may well have felt that, on the evidence,  the jury would be more likely to convict on manslaughter than to acquit, but if  given a choice only between a murder conviction and acquittal that an acquittal  was more likely.  Nothing in Beck or elsewhere prevents a defendant from  making such a strategic choice."  Look, 725 F.2d at 9.  Thus, unlike run-of-the-mill jury  instruction claims where defendant neglects to object at trial to a given  or refused instruction, which we review for plain error, in the context of  instructions on lesser included offenses, we see particular strategy reasons why a  defendant might not want to present the jury with a compromise opportunity.


145
Moreover, in the related context of whether a federal criminal defendant is  entitled to a lesser included offense under Fed. R. Crim. P. 31(c),28 this court has  often held in noncapital cases involving direct appeals that a trial court does not  err in refusing to give a lesser included instruction -- even one supported by the  evidence -- if the defendant neglects to make a proper request for one at trial. See United States v. Young, 862 F.2d 815, 820 (10th Cir. 1988) ("Given the  right  facts, simple possession may well be a lesser included offense of possession with  intent to manufacture.  But here the defendant failed to request the instruction. That alone bars him from claiming error on this point."  (emphasis added)); United States v. Duran, 127 F.3d 911, 914-15 (10th Cir. 1997), cert. denied,  118  S. Ct. 1389 (1998); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.  1983); United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir. 1980); United  States v. Coppola, 526 F.2d 764, 773 (10th Cir. 1975); but see United States v.  Cooper, 812 F.2d 1283, 1286 (10th Cir. 1987) (upholding conviction on a lesser  included offense that was instructed to the jury sua sponte by the court holding: "The trial judge must give instructions to the jury as required by the evidence and  the law where the parties so request or not, and to do so although objections are  made."); United States v. Arreola, 422 F.2d 869, 869 (10th Cir. 1970) (applying  plain error to a claim that trial court erred in failing to give a lesser included  instruction though none was requested).  Likewise, a majority of other circuits  have considered a "proper request" for a lesser included instruction to be an  "essential" requirement under the federal rules.  See David E. Rigney,  Annotation, Propriety of Lesser-Included-Offense Charge To Jury In Federal  Criminal Case -- General Principles, 100 A.L.R. Fed. 481, 492-96, § 5 (1990)  (citing cases from the First, Second, Fourth, Seventh, Eighth, Ninth, Tenth, and  District of Columbia Circuits).


146
Finally, we believe this rule -- precluding on federal habeas Beck review  with regard to lesser included offenses as to which the defendant requested no  instruction in state court -- properly accounts for principles of federal-state  comity and affords state courts and their judgments proper respect.  Where a state  has in place a system by which a criminal defendant has a right to an instruction  on lesser included offenses supported by the evidence, as Oklahoma does, and the  defendant chooses not to request an instruction -- thereby failing to alert the  court to the propriety of such an instruction -- Beck does not require reversal on  federal habeas.29


147
In sum, while Hooks requested an instruction at trial on second degree  felony murder, he does not advance that argument before this court; thus we offer  no opinion as to that claim.  And, we are precluded from considering Hooks'  contention that he was entitled to an instruction on second degree depraved mind  murder because Hooks did not request such an instruction at trial.

2.  First degree manslaughter

148
Hooks also argues that under Beck, he was entitled to an instruction on  first degree manslaughter.  Under the Oklahoma criminal code in effect at the  time of Hooks' crime and trial, first degree manslaughter was defined, in  pertinent part, as: "Homicide . . . [w]hen perpetrated without a design to effect  death, and in a heat of passion, but in a cruel and unusual manner, or by means of  a dangerous weapon; unless it is committed under such circumstances as  constitute excusable or justifiable homicide."  Okla. Stat. Ann. tit. 21, § 711(2)  (West 1983).   Hooks' requested stage one jury instruction number 5 includes all  the elements of first degree manslaughter and was duly presented to the trial  court.30


149
Hooks argues that an instruction on first degree manslaughter was  warranted because the evidence adduced at trial could have supported a finding  that Hooks did not intend to kill Shalimein.  The appellee argues that heat of  passion manslaughter "affirmatively require[s] that there be no intent to effect  death.  Thus, the presence of an intent to kill does not simply support the States's  theory, it prevents a conviction under [first degree manslaughter]."  Appellee's  statement appears to be an accurate reflection of Oklahoma law; as the Oklahoma  Court of Criminal Appeals explained in Brown v. State of Oklahoma, 777 P.2d  1355 (Okla. Crim. App. 1989):


150
Most jurisdictions hold that first degree or voluntary manslaughter  involves an intent to kill accompanied by the "extenuating  circumstance . . . that the defendant, when he killed the victim, was  in a state of passion engendered in him by an adequate provocation  (i.e., a provocation which would cause a reasonable man to lose his  normal self-control)."  W. LaFave & A. Scott, Jr., Substantive  Criminal Law § 7.10, at 252 (1986) (footnote omitted).  However, Oklahoma, like South Dakota, falls within the minority view which requires that the homicide be perpetrated "without a design to effect  death" to constitute first degree or voluntary manslaughter.  Id. at  254.  See 21 O.S. 1981, § 711(2).


151
Id. at 1358 (emphasis added).  Thus, under Oklahoma law, in order to mitigate  murder to first degree manslaughter, a defendant had to perpetrate the homicide  (1) without intent to cause the death, and (2) in a heat of passion.31


152
The appellee's argument on appeal focuses on the intent element.  In this  case, we agree with Hooks that evidence both introduced at trial and proffered  but excluded at trial32 could support a  finding that the homicide was committed  "without the design to effect death."  See supra, pp. 1232-33.  However, because  we  find that the admitted and proffered evidence at trial was insufficient to establish  "adequate provocation" under Oklahoma law, we conclude that the evidence did  not warrant an instruction on first degree heat-of-passion manslaughter, and  Hooks was consequently not denied his right to due process under Beck and its  progeny when the trial court refused to instruct the jury on first degree  manslaughter.


153
Not surprisingly, heat of passion is an element of heat-of-passion first  degree manslaughter in Oklahoma.  See Okla. Stat. Ann. tit. 21, § 711(2); Brown,  777 P.2d at 1357.  The elements of heat of passion are: "[1] proof of adequate  provocation, [2] the existence of a strong passion or an emotion such as anger,  rage or resentment, [3] the lack of reasonable opportunity for the cooling of the  passion and [4] a causal connection between the provocation, the passion and the  homicide."  Allen v. State of Oklahoma, 821 P.2d 371, 374 (Okla. Crim. App.  1991); Oklahoma Uniform Jury Instruction Criminal Number [OUJI-CR No.]  456 (1982).  Under the Oklahoma Uniform Jury Instructions in effect at the time  of Hooks' trial and appeal:


154
"Adequate provocation" refers to any improper conduct of the  deceased toward the defendant(s) which naturally or reasonably  would have the effect of arousing a sudden heat of passion within a  reasonable person in the position of the defendant(s).  Generally,  actions which are calculated to provoke an emotional response and  ordinarily cause serious violence are recognized as adequate  provocation.  Actions that do not ordinarly [sic] provoke serious  violence do not constitute adequate provocation.  In determining  whether the deceased's conduct was adequate provocation, the  conduct is judged as a person of reasonable intelligence and  disposition would respond to it.  Mere words alone, or threats,  menaces, or gestures alone, however offensive or insulting, do not  constitute adequate provocation.  However, words, threats, menaces,  or gestures, when considered in connection with provoking conduct  of the deceased, may constitute adequate provocation.  Personal  violence or aggression by the deceased of a nature sufficiently  violent to cause or threaten to cause pain, bloodshed, or bodily harm  to the defendant(s) may be adequate provocation.


155
OUJI-CR No. 457 (emphasis added); see also Valdez v. State of Oklahoma,  900  P.2d 363, 377 & nn.57-59 (Okla. Crim. App. 1995) (quoting and discussing  OUJI-CR No. 457 with approval).


156
From the trial record, the only provocation for the beating Hooks inflicted  upon Shalimein was a verbal argument between Hooks and Shalimein which  culminated in Shalimein slapping Hooks.  Detective Mullenix testified that  during the course of his confession Hooks explained that he and Shalimein  argued and exchanged "harsh words," before Shalimein "slapped him in the  face."  At that point, Detective Mullenix continued: "He said that he then struck  her with his fist and that she fell on to the floor by the bed.  He said that he then  kicked her in the stomach and then in the face."  The written transcript of Hooks'  taped confession given in the early morning hours following the beating paints a  similar picture.  With this factual setting in mind we turn to whether such  provocation was "adequate" to cause a heat of passion -- i.e., whether Shalimein  engaged in "improper conduct . . . which naturally or reasonably would have the  effect of arousing a sudden heat of passion within a reasonable person in the  position of the defendant."  OUJI-CR No. 457.  First, we observe that the verbal  argument was inadequate provocation.  See id. ("Mere words alone, or threats,  menaces, or gestures alone, however offensive or insulting, do not constitute  adequate provocation.").  Thus, the only potential "adequate provocation" for  Hooks' rage must arise from Shalimein's slap or the slap in the context of the  argument.  However, as to that slap, Hooks told police that "she slapped me, not  intentionally to hurt me or nothing like that."  The full confession makes it clear  that the real provocation, and the real reason Hooks beat and stomped Shalimein  to death, was his anger that she would not help him out financially.  In light of  the Oklahoma cases we have reviewed,33 we find that Shalimein's conduct would  not naturally and reasonably provoke Hooks' violent response in a "person of  reasonable intelligence and disposition," OUJI-CR No. 457.  Thus, the evidence  adduced at trial was insufficient to warrant an instruction on first degree heat-of-passion  manslaughter under Oklahoma law.  Accordingly, Hooks was not  deprived of his right to due process under Beck and its progeny, and we affirm  the district court's denial of the writ of habeas corpus on this claim.


157
IV.    Whether sentencing stage instructions regarding aggravating  circumstances were unconstitutional.


158
Under Oklahoma law, in order to impose a sentence of death, a jury must  unanimously find (1) at least one of the statutory aggravating circumstances  beyond a reasonable doubt, and (2) that the/those aggravating circumstance(s)  is/are not outweighed by mitigating circumstances.  See Okla. Stat. Ann. tit. 21  § 701.11.  After the sentencing hearing, Hooks' jury found three aggravating  circumstances beyond a reasonable doubt:


159
1.   The defendant was previously convicted of a felony involving  the use or threat of violence to the person.


160
2.   The murder of Shalimein Blaine was especially heinous,  atrocious or cruel.


161
3.   The existence of a probability that the defendant would  commit criminal acts of violence that would constitute a  continuing threat to society.


162
On direct appeal, Hooks challenged only the sufficiency of the evidence  supporting the three aggravating circumstances.  The Oklahoma Court of  Criminal Appeals found that sufficient evidence supported each aggravating  circumstance, and thus denied Hooks' assignment of error.  See Hooks I, 862  P.2d at 1282-83.  In his application for postconviction relief, Hooks challenged  the constitutionality of each of the aggravators.  The Oklahoma Court of Criminal  Appeals considered the issue barred by the doctrine of "res judicata" because it  had previously rejected Hooks' sufficiency claims related to the aggravators.  SeeHooks II, 902 P.2d at 1122 & n.8.34


163
On federal habeas, Hooks renews his challenge to the constitutionality of  three of the aggravating factors.  The district court rejected Hooks' claims  regarding the constitutionality of the aggravating factors.  Because Hooks' claims  that the aggravators are unconstitutional were not "adjudicated on the merits in  State court proceedings," the new standard articulated in § 2254(d) does not  govern our review.  Instead we apply our pre-AEDPA standard, and review these  questions of law de novo.  See Castro v. State of Oklahoma, 71 F.3d 1502,  1510  (10th Cir. 1995).


164
A.  Continuing Threat Aggravating Circumstance


165
Hooks claims that Oklahoma's continuing threat aggravating circumstance  violates the Eighth Amendment because it fails to narrow the class of convicted  murderers that are sentenced to death and because it is unconstitutionally vague. See Tuilaepa v. California, 512 U.S. 967, 972 (1994).


166
This court reaffirmed its position that "the continuing threat aggravator as  applied in the Oklahoma sentencing scheme does not violate the Eighth  Amendment."  Ross v. Ward, 165 F.3d 793, 800 (10th Cir. 1999) (citing Castro  v. Ward, 138 F.3d 810, 816 (10th Cir.), cert. denied, 119 S. Ct. 442 (1998); Nguyen v. Reynolds, 131 F.3d 1340, 1352-54 (10th Cir. 1997), cert. denied,  119  S. Ct. 128 (1998)).  Hooks acknowledges that "this Court rejected a similar  argument raised in Nguyen"; however, he states that he "respectfully disagrees  with the panel's decision in that case and requests this Court revisit the issue." Hooks advances a number of grounds that he claims the Nguyen court overlooked  in its Eighth Amendment analysis.  However, he fails to acknowledge our  decision in Castro, which disposed of almost identical claims in reaffirming Nguyen.  See Castro, 138 F.3d at 816.  As the Ross court  noted as to this issue,  "we are bound by these decisions."  Ross, 165 F.3d at 800 (citing Foster, 104  F.3d at 1229 ("a three-judge panel cannot disregard or overrule circuit  precedent")).  Given this circuit's precedent, the district court properly found that  Hooks' constitutional rights were not violated by Oklahoma's use of the  continuing threat aggravating circumstance, and we affirm.


167
B.  Double Counting -- "Prior Violent Felony" Aggravating Circumstance


168
Hooks claims that his right to due process was violated because the jury  relied upon the same evidence to find two separate aggravating circumstances.35 The district court properly recognized that "'[d]ouble counting' of one fact to  support two aggravating circumstances unconstitutionally skews the weighing  process."  As the Tenth Circuit has explained: "[D]ouble counting of aggravating  factors, especially under a weighing scheme, has a tendency to skew the weighing  process and creates the risk that the death sentence will be imposed arbitrarily  and thus, unconstitutionally."  United States v. McCullah, 76 F.3d 1087, 1111  (10th Cir. 1996).


169
Here, Hooks does not challenge the fact that at the time of sentencing he  had a prior conviction for robbery with a firearm, nor does he dispute that his  prior conviction qualifies as a prior violent felony under Okla. Stat. Ann. tit. 21  § 701.12(1).  Instead, his argument is that evidence of his prior violent felony  conviction was used to support both the "prior violent felony" aggravating factor  and the "continuing threat" aggravating factor in violation of McCullah.  However, Hooks points to no evidence to support his assertion that "[i]n this case  there can be no doubt the jury used Mr. Hooks's robbery conviction to find both  the 'continuing threat' and 'previous conviction for a felony involving violence'  aggravating circumstance."


170
In rejecting Hooks' double-counting claim, the district court found that  "while Hooks' prior conviction alone supported the 'previous conviction of a  felony' aggravator, there was other evidence, aside and apart from the robbery  conviction, to support the 'continuing threat to society' aggravator."  The district  court alluded to evidence presented to the jury demonstrating Hooks' sexual  predatory nature and his propensity for violence, independent of his prior violent  felony conviction.  Here, unlike in McCullah, the two aggravating factors that  Hooks claims were double counted, did not "by definition" overlap.  As the  district court found, "[e]ach of these two aggravators was supported by  independent evidence"; therefore, we affirm.


171
C.  Heinous, Atrocious, or Cruel Aggravating Circumstance


172
Hooks claims that the "heinous, atrocious, or cruel" aggravating  circumstance, as it was described to, and applied by, the jury, was  unconstitutional because it did not narrow the class of convicted murderers  eligible for sentences of death.  Hooks' jury received the following guidance on  the meaning of "heinous, atrocious, or cruel":


173
As used in these instructions, the term "heinous" means  extremely wicked or shockingly evil; "atrocious" means outrageously  wicked and vile; "cruel" means pitiless, or designed to inflict a high  degree of pain, utter indifference to, or enjoyment of, the sufferings  of others.


174
The phrase "especially heinous, atrocious, or cruel" is directed to  those crimes where the death of the victim was preceded by torture of the  victim or serious physical abuse.


175
(Instructions of the Court, Stage Two, No. 5.)


176
While Hooks claims that this instruction failed properly to narrow the class  of death eligible first-degree murderers, this court recently rejected an almost  identical claim with regards to an almost identical instruction in Duvall v.  Reynolds, 139 F.3d 768, 792-94 (10th Cir. 1998).


177
As this court observed in Duvall, "the Oklahoma Court of Criminal  Appeals adopted a limiting construction of the 'especially heinous, atrocious, or  cruel' aggravator, mandating that the murder involve 'torture of the victim or  serious physical abuse.'" Id. at 793 (quoting Stouffer v. State of Oklahoma, 742  P.2d 562, 563 (Okla. Crim. App. 1987)).  In Hatch v. State of Oklahoma, 58 F.3d  1447, 1468-69 (10th Cir. 1995), we held that such a limiting construction of the  "especially heinous, atrocious, or cruel" aggravator was constitutionally  permissible.  See also Duvall, 139 F.3d at 793.36


178
On Hooks' direct appeal, the Oklahoma Court of Criminal Appeals applied  the limiting construction to the "especially heinous, atrocious, or cruel"  aggravating factor.  See Hooks I, 862 P.2d at 1282.  The court stated that "the  heinous, atrocious or cruel aggravating circumstance requires a showing that  torture or serious physical abuse preceded the victim's murder."  Id.  This  additional limiting factor has been interpreted to require that the murder victim  be conscious during at least some portion of the attack.  See Stouffer, 742 P.2d  at  563-64.


179
While the court acknowledged that the pathologist who testified for the  defense during the sentencing hearing "was unable to render an opinion  concerning whether Ms. Blaine was conscious during the attack," it concluded  that the testimony of Detective Eric Mullenix37 and Shalimein's neighbor, David  Faske,38 provided sufficient evidence  upon which "a rational trier of fact could  reasonably conclude that Ms. Blaine was conscious during at least some portion  of the attack and that she suffered the requisite torture or serious physical abuse." Hooks I, 862 P.2d at 1282.


180
Hooks has failed to show a constitutional violation in the application of the  "especially heinous, atrocious, or cruel" aggravating factor in his case. Accordingly, we affirm the district court's finding that "the 'serious physical  abuse' standard has been met in this case."

CONCLUSION

181
We REMAND for the district court to evaluate the adequacy of the state's  claim of procedural bar as to all but one of Hooks' claims of ineffective  assistance of trial counsel.  As to all other issues upon which a certificate of  appealability has been granted, we AFFIRM.


182
Anderson, Circuit Judge, with whom Judge Tacha joins, concurring:


183
I join the opinion authored by Judge Ebel except for Section III C.  As to  that section, I disagree with Judge Ebel's conclusion that Hooks rebutted by clear  and convincing evidence the factual finding by the Oklahoma Court of Criminal  Appeals that Hooks failed to elicit evidence sufficient to call into question  Hooks' intent to kill Shalimein.  Furthermore, while I have no quarrel with the  reasoning in Sections III C (1) and (2), I would find it unnecessary to reach those  alternative holdings.



Notes:


1
 While her doctors succeeded in reestablishing  Shalimein's heartbeat for a  short time, she was pronounced dead at 9:16 a.m. on October 7, 1988.  An  ultrasound revealed that the twenty-four week old, unborn fetus she was carrying  was dead as a result of a blunt force that had ruptured its liver as well as bruises  to its abdomen and head.


2
 Despite the district court granting Hooks a  COA on the issue of whether  Hooks was denied his right to a fair trial by the trial court's exclusion at stage one  of the testimony of Dr. Philip J. Murphy regarding Hooks' mental state at the time  of the killing, Hooks does not press this issue as an independent ground for relief  before this court.  Instead, Hooks raises this claim only in the context of his lesser  included offense argument.  Accordingly, we address it in our discussion of that  issue.  See infra, Section III.


3
 We denied a COA as to all other issues raised  on appeal.


4
 On direct appeal, the only ground Hooks  advanced in support of his claim  of ineffective assistance of trial counsel contended "that defense counsel was  ineffective because Hooks was not allowed to testify during either the first or  second stage of trial."  Hooks I, 862 P.2d at 1283.


5
 In denying Hooks' application for  postconviction relief in the first  instance, the Oklahoma state district court similarly stated: "Proposition[] II  [Hooks' ineffective assistance of trial counsel claim] . . . [was] addressed by the  appellate court on direct appeal and [is] therefore barred by the doctrine of resjudicata.  Jones v. State, 704 P.2d 1138 (Okl.Cr.1985), Coleman v.  State, 693  P.2d 4 (Okl.Cr.1984)."  (Hooks v. State of Oklahoma, No. CRF-88-5642, at 7  (Okla. Co. Ct. 7th Dist. Dec. 9, 1994).)


6
 Traditionally the burden of proving an  affirmative defense falls on the  party asserting the affirmative defense.  See Oklahoma Radio Assocs. v. FDIC,  987 F.2d 685, 693 (10th Cir. 1993) (citing Paul v. Monts, 906 F.2d 1468, 1474  (10th Cir. 1990) ("Estoppel is an affirmative defense upon which the defendant  has the burden of proof.")); Jackson v. Robertson, 763 F.2d 1176, 1183 (10th Cir.  1985) ("[T]he burden of proof . . . is upon the defendant as to all affirmative  defenses which he sets up . . . ." (internal quotations omitted)).


7
 Cf. Boyd v. Ward, 179 F.3d 904, 914 n. 1 (10th Cir.1999) (refusing to apply procedural bar to an ineffective assistance of trial  counsel claim because, inter alia, "it is unclear whether Oklahoma's special  remand rule is adequately and evenhandedly applied," thus arguably placing the  burden of non-persuasion on the state).


8
  See footnote 4.


9
 The jury also heard testimony that Hooks  earlier had threatened to kill one  of his "bitches" that he maintained for prostitution; that he didn't want any of his  "bitches" to have more than one child; that he had threatened Shalimein to kick  this second fetus "out her ass" and similar evidence.  The medical examiner  concluded that Shalimein had received "multiple blunt force injuries to the head,  chest, arms, back, abdomen [and] vagina."


10
 In a separate argument of ineffective  assistance of trial counsel (which we  have remanded to the district court), Hooks asserts that his trial counsel  performed unreasonably by failing to object to District Attorney Macy's remarks. At the federal evidentiary hearing, when asked about why he did not object to the  prosecutor's remarks, Hooks' trial counsel stated that he believed it was good  strategy not to object during opening or closing statements.  He said: "I think it  looks bad to the jury.  The thinking, the conventional wisdom is that if you stand  to your feet everytime there is anything remotely off color [then] you are going to  appear to be a whiner to the jury and you are afraid of the truth coming out."


11
 See also Andrews v.  Deland, 943 F.2d 1162, 1183-84 & n.31 (10th Cir.  1991) (refusing to consider Beck claim in state case arising out of Utah because  habeas petitioner abused the writ, but stating:  "Despite Beck's narrow factual  setting   a statute prohibiting an instruction on a lesser included offense in a  capital case   Beck has been interpreted more broadly to establish a  constitutional right to a lesser included offense instruction when the death  penalty is imposed and the evidence warrants the instruction." (internal quotation  omitted)).


12
 There is a similar interpretation of McVeigh in Roberts v. Ward, 176 f.3d 489 (10th Cir. 1999) (unpublished disposition). However, that is an unpublished order and judgment so it lacks precedential force  and, in any event, that statement, once again, was only an alternative holding.


13
 Another fact counseling against an  excessive reliance on the fact that the  Alabama jury in Beck lacked discretion at sentencing is that even under the  scheme at issue in Beck, the judge retained discretion to sentence the defendant  to  a punishment less than death (life imprisonment).  The jury, admittedly, did not  know this fact, but the Supreme Court did when it issued its Beck opinion.  SeeBeck, 447 U.S. at 629 ("If the defendant is convicted and the death penalty  imposed [by the jury], the trial judge must then hold a hearing with respect to  aggravating and mitigating circumstances; after hearing the evidence, the judge  may refuse to impose the death penalty, sentencing the defendant to life  imprisonment without possibility of parole."); id. at 630 ("The jury subsequently  convicted [Beck] and imposed the death penalty; after holding a hearing with  respect to aggravating and mitigating factors, the trial court refused to overturn  that penalty."); id. at 632 n.7 (Under Alabama's death penalty scheme, "it is the  judge and not the jury who does the actual sentencing.").  See also Hopkins,  118  S. Ct. at 1900 n.4 (Under the Alabama procedures reviewed in Beck, "[i]f the jury  imposed the death penalty, the trial judge had the authority to reduce the sentence  to life imprisonment without the possibility of parole.  The jury, however, was not  instructed to this effect; rather, it was told that it was required to impose the death  penalty if it found the defendant guilty.").  The fact that there was sentencing  discretion (albeit residing only in the judge and not the jury) to avoid death even  after a capital conviction in these cases did not deter the Supreme Court from  articulating and then reaffirming the holding that in a capital case a defendant has  a constitutional right to jury instructions on a lesser included offense if the  evidence warrants it.


14
 There is no clear consensus that we can  derive from the other circuits. Some circuit courts of appeals have applied a Beck analysis even though the  jurisdictions from which the appeals arose permit jury discretion to impose a  sentence less than death following conviction of a capital offense.  See LaGrand  v. Stewart, 133 F.3d 1253, 1262-63 (9th Cir.), cert. denied, 119 S. Ct. 422  (1998); Ransom v. Johnson, 126 F.3d 716, 724-26 (5th Cir.), cert. denied, 118  S. Ct. 361  (1997); Kornahrens v. Evatt, 66 F.3d 1350, 1354-55 (4th Cir. 1995).  Other circuit  decisions, at least as an alternative holding, appear to have applied a standard  similar to that which we are now disapproving -- intimating that sentencing  discretion vitiates the constitutional requirements recognized in Beck.  SeeLivingston v. Johnson, 107 F.3d 297, 312-13 (5th Cir.), cert. denied, 118  S. Ct.  204 (1997); Blair v. Armontrout, 916 F.2d 1310, 1326 (8th Cir. 1990); see also O'Rourke v. Endell, 153 F.3d 560, 571-74 (8th Cir. 1998) (in assessing a claim of  ineffective assistance of counsel based on trial counsel's failure to request lesser  included instructions, noting that jury found no mitigating factors at sentencing  phase and opted for death instead of life belied a finding of prejudice under Strickland), cert. denied, 119 S. Ct. 1048 (1999).


15
 In fact, in Spaziano, the jury  recommended life imprisonment and the  sentencing judge disregarded the recommendation and sentenced the petitioner to  death.  See 468 U.S. at 451-52.


16
 Hooks' first proposed first degree  manslaughter jury instruction reads:
The Defendant is charged with Murder in the First Degree. You are instructed that in addition to the State's having sumbitted  [sic] evidence concerning the crime of Murder in the First Degree,  evidence has also been introduced concerning the crime of  Manslaughter in the First Degree.
The elements of Manslaughter in the First Degree are:
1) Death of a human;
2) When perpetrated without a design to effect death;
3) By means of a dangerous weapon
If you have a reasonable doubt of the Defendant's guilt on the  charge of Murder in the First Degree, you must then consider the  charge of Manslaughter in the First Degree.
(Accused's Requested Instruction No. 1.)
Hooks' second proposed first degree manslaughter instruction reads:
No person may be convicted of Manslaughter in the First  Degree unless the State has proven beyond a reasonable doubt each  element of the crime.  These elements are
1.  Death of a Human
2.  Death was not excusable or justifiable
3.  Inflicted by a dangerous weapon
4.  Caused by the defendant
5.  While defendant was in a heat of passion.
(Accused Requested Instruction No. 5.)
Moreover, Hooks requested the jury be instructed that:
You may find the Defendant guilty of any offense, the commission of  which is necessarily included in the crime charged.  In this case,  Manslaughter in the First Degree is a lesser included offense of  Murder in the First Degree.
(Accused's Requested Instruction No. 2.)


17
 Hooks' proposed instruction on second  degree murder reads as follows:
No person may be convicted of Murder in the Second Degree  unless the State has proven beyond a reasonable doubt each element  of the crime.  These elements are: First, the death of a human;  Second, occurring as a Result of an act or event which happened in  the commission of a felony; Third, caused by the defendant while in  the commission of a felony; Fourth, the elements of the Manslaughter  in the First Degree defendant is alleged to have been in the  commission of are as follows:
1: Willful;
2: Killing;
3: Of an unborn quick child
4: by any injury;
5: Caused by the Defendant
6: Committed upon the person of the mother of the child
(Accused Requested Instruction No. 6.)


18
 Thus, as to Shalimein, the trial court  instructed the jury only on the  elements of first degree murder, as follows:
No person may be convicted of MURDER IN THE FIRST DEGREE  unless the State has proved beyond a reasonable doubt each element  of the crime.  These elements are:
FIRST:    The death of a human;
SECOND:   The death was unlawful;
THIRD:    The death was caused by the defendant.
FOURTH:   The death was caused with malice aforethought.
(Stage One Jury Instruction No. 5.)


19
 As noted at page 35, because the state did  not assert procedural bar as a  defense to this claim, we proceed to the merits.


20
 To the extent that this conclusion  implicates Oklahoma state law, we note  that, before this court, Hooks makes no claim that the Oklahoma Court of  Criminal Appeals interpreted or applied state law erroneously.


21
 At trial, Shalimein's mother, Virginia  Plumley, testified that when Hooks  came to her door seeking help on the night of the beating, she did not call for help  because she "just thought it was one of the same old battles that they [Hooks and  Shalimein] always had.  They were always arguing and fighting.  And she's come  over a lot of times with bruises on her, and I figured it was just some more of  their fights.  I didn't think it was that serious."  Moreover, Shanna Dinh testified  that she had witnessed Hooks beat Shalimein on "several" occasions, including  one prior occasion on which Hooks had beaten Shalimein with a "two-by-four."


22
 Shanna Dinh testified that Hooks had  beaten her so severely that he  induced a miscarriage.  Further, Dinh testified that Hooks beat Carol Hill, another  one of his girlfriends.


23
 Shanna Dinh testified that when she  became pregnant for a second time,  Hooks induced a miscarriage by beating.


24
 According to the testimony of Shanna  Dinh, on the occasion when Hooks  beat Shalimein with a two-by-four, after pushing her down on a couch, Hooks  spread her legs open kicked her in her vagina with cowboy boots, saying several  times "I don't want this baby."  Moreover, Amanda Blaine, Shalimein's sister,  testified that she had heard Hooks tell Shalimein "that he wished that that baby  would die and wished that baby would get killed inside of her because he didn't  want it."


25
 After initial briefing, oral argument, and  supplemental briefing on the Beck issue, the appellee filed a notice of supplemental authority advising this  court of the Oklahoma Court of Criminal Appeals' decisions in Welch v. State of  Oklahoma, 968 P.2d 1231 (Okla. Crim. App. 1998) and Willingham v. State of  Oklahoma, 947 P.2d 1074 (Okla. Crim. App. 1997), and arguing that second  degree depraved mind murder is not a lesser included offense of first degree  malice murder under Oklahoma law.  For two principal reasons, appellee's  supplemental authority fails to persuade us.  First, we do not accept a new  argument by way of notice of supplemental authority notices, and arguments not  raised in duly filed briefs are deemed waived.  Second, and more important, the  Oklahoma Court of Appeals decisions referenced in appellee's supplemental  authority memorandum post-date Hooks trial by over eight years, and as we  recently stated in Boyd, 179 F.3d at 913, "[a]t the time of his trial . . .  [Oklahoma] courts treated second degree 'depraved mind' murder as a lesser  included offense of first degree malice murder."  Id. at 20 (citing Willingham,  947 P.2d at 1081).


26
  Murder in the second degree was defined  under Oklahoma criminal  statutes in effect at the time of Hooks' trial as follows:
Homicide is murder in the second degree in the following cases:
1.   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; or
2.   When perpetrated by a person engaged in the commission of  any felony other than the unlawful acts set out in [the first  degree murder section] of this act.
Okla. Stat. Ann. tit. 21, §701.8 (West 1983).  "The Oklahoma Court of Criminal  Appeals adopted a specific definition of depraved mind in Palmer v. State, 871  P.2d 429, 431 (Okla. Crim. App. 1994): 'A person evinces a depraved mind when  he engages in imminently dangerous conduct with contemptuous and reckless  disregard of, and in total indifference to, the life and safety of another.'" Stouffer  v. Reynolds, 168 F.3d 1155, 1171 n.18 (10th Cir. 1999).


27
 We acknowledge that in one previous  case this court apparently reviewed  for "plain error" a Beck claim regarding jury instructions on lesser included  offenses that the petitioner had not requested at trial.  See Stouffer, 168 F.3d at  1070-71.  In Stouffer, we stated: "Acknowledging counsel did not request the  lesser-included offense instructions, Petitioner urges the failure amounts to plain  error."  Id. at 1170.  We then considered petitioner's Beck claim despite his  failure to request jury instructions on lesser included offenses at trial.  However,  from the opinion in Stouffer, it appears that the parties did not contest the proper  standard of review and the court merely assumed without explicitly deciding the  appropriate review standard.  Accordingly, we view the issue of whether a state  prisoner can raise a Beck claim on federal habeas as to a lesser included offense  for which he failed to request an instruction at trial as an open question in this  circuit.


28
 Fed. R. Crim. P. 31(c) reads:
(c) Conviction of Less Offense.  The defendant may be found  guilty of an offense necessarily included in the offense charged or of  an attempt to commit either the offense charged or an offense  necessarily included therein if the attempt is an offense.


29
 We do not preclude the possibility that Beck would require reversal where  the failure to request a jury instruction on lesser included non-capital offenses  resulted from ineffective assistance of counsel.  In this case, Hooks has not  alleged that his trial counsel was ineffective for failing to request an instruction  on "depraved mind" second degree murder.


30
 While we note that Hooks' proffered  instructions on first degree  manslaughter were inartfully drafted and included elements that were not part of a  first degree manslaughter offense under Oklahoma law, the appellee has not  challenged the proffered instruction on this ground, and thus we proceed to  analyze, under the proper standard, whether the evidence adduced at trial  warranted an instruction on first degree heat-of-passion manslaughter.


31
 A third requirement is that the defendant  caused the death either in a cruel  and unusual manner or by means of a dangerous weapon.  See Okla. Stat. Ann. tit.  21, § 711(2).


32
 As noted in the Background Section, the  district court granted Hooks a  COA on the issue of whether he was denied his right to a fair trial when the trial  court excluded the expert testimony of Dr. Philip J. Murphy, proffered to show  that Hooks did not intend to kill Shalimein.  Before this court, Hooks does not  press this as an independent claim.  Instead, he argues that exclusion of Dr.  Murphy's testimony hindered his efforts to demonstrate that Hooks did not intend  to kill Shalimein.  In essence, he argues that the evidence presented at trial, plus  the evidence which was excluded (erroneously in his view) was sufficient to  warrant an instruction on first degree manslaughter.  We do not need to address  the state court's evidentiary ruling under state law with respect to Dr. Murphy's  testimony, because we agree with Hooks that the evidence that was adduced at  trial was sufficient to conclude that Hooks lacked the intent to kill Shalimein.


33
 Compare Le, 947 P.2d  at 546 (victim picking up a bar and threatening or  striking the defendant was "not adequate provocation for heat-of-passion  manslaughter"), and Conover v. State of Oklahoma, 933 P.2d 904, 917 (Okla.  Crim. App. 1997) ("The breaking of the window as the victim ran by the . . .  home [of appellant's friend] does not provide adequate provocation for  Appellant's act of chasing the victim down and restraining him while multiple  stab wounds were inflicted."), with Williams v. State of Oklahoma, 513 P.2d  335,  338 (Okla. Crim. App. 1973) (wife's "sudden and unexpected attempt to attack  defendant [husband] with a pair of scissors" could be adequate provocation).


34
 Once again, appellee fails to assert  procedural bar and, accordingly, we  proceed to the merits of this claim.


35
 Appellee argues that because Hooks  failed to raise his challenge to the  continuing threat aggravator in state court, he has failed to exhaust this claim. Because we find Hooks' claim to be without merit, we deny it on the merits,  notwithstanding Hooks' failure to exhaust state remedies.  See 28 U.S.C.  § 2254(b)(2).


36
 Hooks acknowledges Duvall,  "respectfully disagrees with the panel's  decision in that case," and "requests [that] this Court revisit the issue."  As noted  previously, one panel cannot overrule a previous panel.  In addition, he argues  that the Oklahoma's limiting construction of the "especially heinous, atrocious, or  cruel" aggravating factor might serve to limit death eligible first degree murder  convictions, but if the jury is never instructed on this limiting construction, the  aggravating factor as described to and applied by the jury violates the Eighth  Amendment because it is unconstitutionally vague.  However, Hooks ignores the  fact that here the jury was expressly given the limiting definition so there could  not be any claim of vagueness in this case.


37
 At trial, Detective Mullenix testified as  follows:
[Hooks] said that he then struck her with his fist and that she  fell on the floor by the bed.  He said that he then kicked her in the  stomach and then in the face.  He said that they were -- that she laid  there on the floor by the bed, and that she began to bleed, with blood  coming out of her mouth and nose.
He said that she then told him that she was hurt and that he  picked her up off the floor and took her into the bathroom and put  her in the bathtub.  He then removed her clothing and began trying to  clean her up and put all of her clothing into the trash can in the  kitchen.
He said that she then became unconscious and that he  continued to tell her to wake up . . . .
Hooks' own statement to police (introduced at trial), confirms Detective  Mullenix's testimony.  See Hooks, No. CIV-96-732-M, at 37 (quoting Hooks'  statement from the trial transcript).


38
 Mr. Faske lived across the hall from Ms.  Blaine at the time Hooks beat  her to death.  He testified that on the evening of the incident he heard thumping  every five or ten minutes from 5 P.M. until 7 P.M.


