                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 11, 2013
                                         PUBLISH              Elisabeth A. Shumaker
                                                                  Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 MICHAEL LEE WILSON,

               Petitioner - Appellant,
          v.                                            No. 11-5031
 ANITA TRAMMELL, Interim
 Warden, Oklahoma State Penitentiary, *

               Respondent - Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE NORTHERN DISTRICT OF OKLAHOMA
                    (D.C. NO. 4:00-CV-147-CVE-FHM)


Dustin B. Rawlin, Tucker Ellis & West LLP, Cleveland, Ohio, (John Q. Lewis,
Tucker Ellis & West LLP, and Lanita Henricksen, Henricksen & Henricksen
Lawyers, Inc., Oklahoma City, Oklahoma, with him on the briefs), for Petitioner -
Appellant.

Jennifer B. Miller, Assistant Attorney General, (E. Scott Pruitt, Attorney General,
with her on the brief) Oklahoma City, Oklahoma, for Respondent - Appellee.


Before HARTZ, TYMKOVICH, and GORSUCH, Circuit Judges.


HARTZ, Circuit Judge.


      *
       In accordance with Fed. R. App. P. 43(c)(2), Anita Trammell, who was
appointed Interim Warden of Oklahoma State Penitentiary on September 24,
2012, is automatically substituted for Randall G. Workman as Respondent in this
case.
      Defendant Micheal Lee Wilson 1 was convicted of first-degree murder and

robbery with a dangerous weapon in Oklahoma state court and sentenced to death.

On direct appeal the Oklahoma Court of Criminal Appeals (OCCA) ordered

dismissal of his robbery conviction but affirmed his murder conviction and death

sentence. See Wilson v. State, 983 P.2d 448, 463, 473 (Okla. Crim. App. 1998)

(Wilson I). Defendant sought a writ of habeas corpus under 28 U.S.C. § 2254 in

the United States District Court for the Northern District of Oklahoma, but the

district court denied his application. See Wilson v. Sirmons, No. 00-CV-

147CVEFHM, 2006 WL 2289777 (N.D. Okla. Aug. 8, 2006) (Wilson II). We

affirmed in part, but vacated and remanded for an evidentiary hearing on

Defendant’s claims that he received ineffective assistance of counsel at the

sentencing phase of his trial. See Wilson v. Sirmons, 536 F.3d 1064 (10th Cir.

2008) (Wilson III), reinstated sub nom., Wilson v. Workman, 577 F.3d 1284 (10th

Cir. 2009) (Wilson IV) (en banc). After holding the evidentiary hearing, the

district court ruled that Defendant had failed to establish that his trial counsel had

performed deficiently or that counsel’s alleged failures had affected the outcome

of the penalty phase, and it again denied the writ. See Wilson v. Workman, No.

00-CV-0147-CVE-FHM, 2011 WL 744661 (N.D. Okla. Feb. 23, 2011) (Wilson V).


      1
       Although he has been referred to as “Michael Lee Wilson” throughout this
case, we are informed and the record reflects that the correct spelling of
Mr. Wilson’s first name is “Micheal.”

                                         -2-
The district court granted Defendant a certificate of appealability (COA) on his

ineffective-assistance-of-counsel claim, and Defendant appealed. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application).

           We affirm the denial of Defendant’s habeas application. In light of the

evidence presented at the hearing before the district court, he has not shown that

he was prejudiced by the alleged deficiencies in his counsel’s performance at

trial. 2

I.         BACKGROUND

           A.    The Murder

           In 1995 Defendant worked at a QuikTrip convenience store in Tulsa,

Oklahoma. He, along with accomplices Billy Alverson, Darwin Brown, and

Richard Harjo, planned to rob the store. In the early morning hours of

February 26, 1995 (two days before Defendant’s 20th birthday), the four men

entered the QuikTrip, loitering for about an hour while Defendant conversed with

the victim, Richard Yost, the employee on duty. In one chilling exchange,

Defendant, just 14 minutes before the assault began, asked Yost how long he

planned to work at QuikTrip. When Yost answered that he hoped to become store

manager someday, Defendant responded “For real?” R., Vol. 3 Tr. Feb. 20, 1997,

at 29–30. The conversation and other events in the store were captured on the


           2
       We thank counsel for both Defendant and the State for their skillful
advocacy in this appeal.

                                            -3-
store’s surveillance-camera recording, obtained by law-enforcement officers from

Alverson’s home.

       While Yost was cleaning the store’s coolers, the four men attacked him and

dragged him into a back room. Alverson and Harjo briefly left the store while

Yost screamed for help. The two men returned with a black aluminum baseball

bat and went to the back room, where the robbers beat Yost to death with the bat.

Yost was handcuffed during the beating: a piece of handcuff later recovered from

his skull indicated that he was conscious and attempting to ward off blows for at

least part of the fatal attack.

       During the beating Defendant left the back room, donned a QuikTrip jacket,

and began attempting to remove the store’s safe from its position under the

counter. As customers entered the store, Defendant greeted them, rang up their

transactions, and wished them a good day. After dislodging the safe, Defendant

and his three accomplices fled the store with the safe, the contents of the cash

drawer, and the surveillance video. Yost’s body, lying in a pool of blood, milk,

and beer, was discovered by a customer within a few hours.

       All four culprits were arrested later that day. Under police interrogation

Defendant confessed to participating in the crime. He stated that the robbery and

Yost’s killing had been planned for two weeks. Corroborating this admission was

evidence that the body alarm typically worn by QuikTrip employees on overnight

shifts had been found missing from the store the week before the murder. The

                                         -4-
safe, the surveillance tape, and several other items from the QuikTrip were

recovered from Alverson’s home.

      B.    The Penalty Phase at Trial

      Evidence was presented during the guilt phase of Defendant’s trial on

February 11, 12, and 13, 1997. He did not present any evidence other than the

tape-recorded statement of codefendant Brown. Given the irrefutable evidence of

guilt, the penalty phase, which began on February 18, was the true contest.

            1.     The State’s Case

      The State alleged three aggravating factors to justify the death penalty: (1)

that the murder was committed for the purpose of avoiding or preventing arrest or

prosecution, (2) that the murder was especially heinous, atrocious, or cruel, and

(3) that Defendant was a continuing threat to society because of the probability

that he would commit future crimes of violence. See Okla. Stat. tit. 21, § 701.12

(2011). The first aggravator—murder to avoid arrest or prosecution—was

obvious from the evidence at the guilt stage of trial. For the other aggravators,

the State offered additional evidence.

      To support the second aggravator, a forensic pathologist testified that in his

opinion Yost would have suffered during the attack unless he had been rendered

immediately unconscious, and he described Yost’s injuries, including wounds to

Yost’s hand and scalp, that indicated his efforts to defend himself. See

Willingham v. State, 947 P.2d 1074, 1084 (Okla. Crim. App. 1997) (For a jury to

                                         -5-
find that the murder was heinous, atrocious, or cruel, “the State must prove

conscious serious physical abuse or torture prior to death.”).

      To prove the continuing-threat aggravator, the State called police witnesses

who testified about two recent offenses. First, Defendant had been convicted as

an accessory after the fact to the murder of a woman in September 1994 (five

months before the Yost murder). The conviction was based on his taking

possession of a gun at the principal’s request, although, as noted by the OCCA,

“the facts revealed that he may have been more involved in this drive-by shooting

by providing ammunition for the gun on the day of the murder.” Wilson I, 983

P.2d at 466. Second, 10 days before Yost’s murder, police had seized a loaded

revolver from Defendant’s car during a traffic stop. Codefendant Brown was also

in the car. On cross-examination Defendant’s counsel pointed out that Brown was

the one charged with possession of the gun and suggested that Defendant was not

aware of the gun’s presence.

      The State also presented victim-impact statements from Yost’s wife and

mother, both of whom testified to how their lives had been tragically affected by

Yost’s murder.

             2.    The Defense Mitigation Case

                   a.     The Lay Witnesses

      In the mitigation case the defense put on five lay witnesses and one expert.

Two of Defendant’s former teachers and two fellow church members offered

                                         -6-
similar testimony: that they had known Defendant as a polite, respectful, well-

behaved, and intelligent young man and that the murder for which he had been

convicted did not represent “the Mike Wilson [they] knew.” R., Vol. 3 Tr.

Feb. 19, 1997, at 11. On cross-examination the prosecutor elicited that three of

the witnesses had last seen Defendant between two and five years earlier and that

his criminal conduct suggested that his behavior and character might have

changed in the interim.

      The other lay witness was Defendant’s mother, Patricia Taylor. She

testified that his father frequently used crack cocaine, was often absent, and was

not a positive influence on Defendant’s life; that she had cultivated a loving

relationship with Defendant and had attempted to inculcate positive values in him;

and that she had visited Defendant in jail almost every week. She also testified

that she turned over to police some physical evidence of the murder, including the

murder weapon, explaining that she had acted to follow “the rules,” and that she

expected that doing so would help her son in the long run. Id. at 99. She further

testified that immediately after the murder (but before his apprehension),

Defendant had returned home in a disturbed emotional state. He said that a man

had been killed in a robbery at the QuikTrip, although he did not know how it

happened. They then prayed together about the crime. Ms. Taylor concluded

with a plea for her son’s life.




                                         -7-
                    b.     Dr. Reynolds

      Defendant’s expert witness was Dr. Allan Eugene Reynolds, a clinical

psychologist. On direct examination Dr. Reynolds testified to some aspects of his

pretrial preparation, stating that he had reviewed information about Defendant’s

background, including his school, medical, and criminal records; that he had

interviewed Defendant’s mother; and that he had reviewed statements by lay

witnesses. In addition, he had met with Defendant on three occasions at the Tulsa

County Jail, and had administered several psychological tests to Defendant: the

Slossen Intelligence test; two tests designed to screen for organic brain damage,

the Bender Gestalt test and the Memory for Designs test; and two personality

tests, the MMPI-2 and the MCMI-III. Defendant also completed a psychosocial

questionnaire, and Dr. Reynolds observed and interviewed Defendant in addition

to the formal testing.

      Dr. Reynolds was not asked about a failure in the testing. He had

administered the MMPI-2 on February 6, 1997, and sent the responses to be

scored by computer. The PhD psychologist who scored the test reported that the

test was probably invalid, and Dr. Reynolds informed Defendant’s counsel of the

invalidity by February 10, the day before trial testimony commenced. But no

retest was administered.

      Dr. Reynolds testified to the results of the valid tests. He reported

Defendant’s IQ as 126, placing him in the “superior” range of intelligence. Id. at

                                          -8-
55. He said that there was no indication of organic brain dysfunction but that the

personality tests showed that Defendant suffered from a “severe personality

disturbance.” Id. at 57. He explained:

       [T]here were responses and there were scores that indicate that
       [Defendant] has some very unusual, bizarre types of thinking. That
       would suggest that at times he’s not or has not periodically been in
       touch with reality. That he basically does not necessarily function at
       times in a normal state, but that he has a great deal of emotional
       pathology.

Id. Dr. Reynolds also said that in reviewing the statements of those who knew

Defendant and in observing Defendant himself, he found it “remarkable” that

       no one seemed to have any indication that he would engage in the
       types of behavior that he did.

       And then on the other hand, the psychological tests show that he has
       that propensity to engage in that type of behavior. And so there’s a
       big conflict in terms of what people observed of him and maybe what
       was going on inside of him.

Id. at 58.

       When asked if his psychological analysis could explain “the two Michael

Wilsons,” Dr. Reynolds spoke of the differences between Defendant’s two

parents. Id. at 59. He said:

              Well, the social history questionnaire indicates that—and his—
       his past that he grew up in a family where the father left, who was
       involved in drugs and alcohol, and pretty much was not involved in
       Michael’s life.
              The mother was very strong, caring, disciplinarian and tried to
       keep the family together. Michael was involved in church. And
       then, I believe one of the persons that he identified with very closely,
       a Sunday school teacher, died of cancer. From my interviews with

                                         -9-
      him, he indicated to me that this was very distressing and very
      upsetting to him.
             There was a lot of gang activity in the neighborhood where he
      grew up. The mother sent him off to North Carolina for a while with
      her sister. And Mike did very well out there in a different
      environment.
             So on the one hand, here’s a young man who has an
      uninvolved father, who’s a role model, was involved in drugs and
      alcohol, and not particularly caring. And on the other hand, you
      have a highly structured mother, who provides church and this sort of
      thing.
             So you have the two pictures of Mike. On the one hand, you
      have the picture of the Sunday school-going child. On the other
      hand, you have the picture of the gang and uninvolved father, who
      did not set a particularly good role model.
             When he got out of both of those environments and went off to
      North Carolina, apparently there he did very well. I believe that his
      sister and his brother-in-law were involved in the Marines, provided
      a lot of structure for him.
             So if we look at the environments to which he was exposed to
      does explain somewhat of the two type of Michael’s [sic] that you
      have, depending where he was at as to who he identified with.

Id. at 59–61.

      Dr. Reynolds testified about the gang violence to which Defendant had

been exposed from a young age. He identified several particularly traumatic

experiences: Defendant’s being shot in a drive-by attack when a young

adolescent, the torching of his home by rival gang members, and the death of his

Sunday-school teacher from cancer.

      Dr. Reynolds also suggested that Defendant could be rehabilitated because

of his superior intelligence. He explained:

      [Defendant’s high level of intelligence] provides him, I think, with
      the intelligence to do something with himself, as well as be a

                                        -10-
       contributor to others in terms of understanding his world,
       understanding what he’s done, what other persons have done. And
       therefore, with this level of intelligence, he has the ability to make
       contributions that may be helpful to those who have lesser
       intelligence.

Id. at 63.

       The prosecutor’s cross-examination of Dr. Reynolds elicited a much more

disturbing picture of Defendant. It began with the suggestion that Defendant’s

personality disturbance was that of a psychopath:

       Q: Doctor, in your experience are there psychopathic criminals who
       have superior intelligence?

       A: Yes.

       Q: Makes them all the better, doesn’t it?

       A: It can.

       Q: You referenced a severe personality disturbance and mental
       disorder, I believe you testified?

       A: Yes.

       Q: Doesn’t that mean he’s a psychopath?

       A: No.

       Q: It doesn’t?

       A: No.

       Q: The sharp contrast he exhibits that you testified to, aren’t those
       the classic designs of a psychopath? “Yes” or “no”?

       A: It can be.


                                         -11-
      Q: And aren’t psychopaths the most likely to re-offend, based on the
      studies?

      A: Yes.

Id. at 65. Later, Dr. Reynolds agreed that “a 19-year-old with superior

intelligence know[s] right from wrong.” Id. at 66.

       The prosecutor used published studies to attack the validity of the

intelligence and personality tests employed by Dr. Reynolds. But he also elicited

some of their conclusions. Dr. Reynolds conceded that the MCMI-III interpretive

report stated that “[t]he guiding principle of [Defendant] is to outwit others,

exerting power over them before they can exploit him,” id. at 69 (internal

quotation marks omitted), and that Defendant was “easily provoked” and “may

express sudden and unanticipated brutality,” id. at 70 (internal quotation marks

omitted). He also acknowledged that Defendant had responded “True” to the

following statements on the test questionnaire: “Lately, I have begun to feel like

smashing things”; “I often get angry with people who do things slowly”; “I have

had to be really rough with some people to keep them in line”; and “I sometimes

feel crazy-like or unreal when things start to go badly in my life.” Id. at 70–71

(internal quotation marks omitted).

      Later in the cross-examination the prosecutor returned to the psychopath

theme, referring to Dr. Reynolds’s prior testimony about the sharp contrast




                                         -12-
between Defendant’s behavior before family and friends and his violent criminal

conduct:

       Q: [I]sn’t this consistent with the characteristics of a psychopath?

       A: As I stated before, it can be.

       Q: Well, aren’t superficial charm and good intelligence, coupled
       with cunning and manipulative lack of implusivity [sic] behavior
       characteristics of a psychopath?

       A: Yes, they are.

       Q: And that’s what Mr. Wilson has, isn’t it?

       A: Some of those characteristics, he has.

       Q: And you told this jury that psychopaths are the most likely to re-
       offend based on the studies?

       A: Yes.

Id. at 76.

       Dr. Reynolds acknowledged that he did not know what mental-health

treatment options would be available to Defendant in prison, and he agreed that

without treatment, Defendant would represent a continuing threat to others.

Dr. Reynolds also conceded that past violent behavior is the best predictor of

future violence.

       On redirect examination Dr. Reynolds defended his use of the

psychological instruments challenged by the prosecutor. He also expanded on the

significance of Defendant’s answer on the MCMI-III that he felt “crazy-like”:


                                           -13-
      Q: What things were you referring to, sir, whenever you told us
      there were evidences of severe mental disorder in this person?

      A: Well, I think probably the most classic example would be in the
      Noteworthy Responses when [the prosecutor] asked me to read one
      of the questions, which “Sometimes I feel crazy-like or unreal when
      things start to go badly in my life,” he answers true.

Id. at 82. Dr. Reynolds went on to note that “[u]sually, unless someone’s pretty

disturbed, they’re not going to answer that true, they’re going to answer that

false.” Id.

      Dr. Reynolds further testified that the tests were mere components of his

overall evaluation of Defendant, to be interpreted in light of clinical experience,

interviews, observations, and Defendant’s social history. He stated that

Defendant’s mental disorders were treatable, reiterated his opinion that

Defendant’s high intelligence made him a good prospect for rehabilitation, and

agreed that in light of Defendant’s upstanding behavior in school and church, a

structured setting such as prison might have a positive influence on Defendant’s

conduct and mental state.

      During closing argument the prosecutor repeatedly referred to the cross-

examination of Dr. Reynolds, describing Defendant as a “psychopath” and a

“psychopathic killer.” Id., Tr. Feb. 20, 1997, at 46. The defense attorneys had

little to counter the argument. They did not discuss Defendant’s mental disorder

during closing, except to suggest that the “psychopath” label obscured

Defendant’s humanity and positive characteristics. Their main themes in closing

                                         -14-
were that there was no evidence proving that Defendant personally participated in

the beating of Yost, and that Defendant could reform his life and be of benefit to

others if allowed to live.

      The jury found all three aggravating circumstances beyond a reasonable

doubt and sentenced Defendant to death.

      C.     The § 2254 Evidentiary Hearing

      From the time of his original appeal to the OCCA to the present, Defendant

has contended that he was denied effective assistance of counsel during the

penalty phase of his trial. Adopting the language of a member of this court,

Defendant has referred to the cross-examination of Dr. Reynolds as a “‘train

wreck.’” E.g., Aplt. Br. at 11 (quoting Wilson III, 536 F.3d at 1076 (McConnell,

J.)). He attributes Dr. Reynolds’s poor performance to tardy and inadequate

preparation by defense counsel. He emphasizes that counsel did not retain

Dr. Reynolds until shortly before trial and failed to arrange for Defendant to

retake the MMPI-2 personality test when the initial results turned out to be

invalid. He contends that trial counsel also failed to conduct adequate interviews

of family members that would have enabled Dr. Reynolds to arrive at a diagnosis

that could have changed the jury’s decision to impose the death penalty.

      To give Defendant an opportunity to show the inadequacy of his counsel’s

performance and what could have been accomplished through the additional steps

that he believes counsel should have taken, this court ordered the district court to

                                        -15-
conduct an evidentiary hearing. See Wilson III, 536 F.3d at 1096. The hearing

was held on July 28, 2010. Testifying were Dr. Reynolds; Defendant’s lead trial

counsel, Joe Paul Robertson, who was director of the Oklahoma Indigent Defense

System at the time of the hearing; and Defendant’s second-chair trial counsel,

Kent Hudson. For our purposes, we need focus only on Dr. Reynolds’s

testimony. 3

               1.   Dr. Reynolds’s Testimony on Direct

      The thrust of Dr. Reynolds’s direct examination was to show that if defense

counsel had asked him to do before trial what he did only after the jury had

sentenced Defendant to death, he could have arrived at a diagnosis of mental

disease that would have explained Defendant’s evil misconduct in a way that

would generate sympathy from the jury. Dr. Reynolds was purportedly able to

arrive at that diagnosis—schizophrenic paranoid personality disorder or paranoid

schizophrenic disorder—because he now had a valid MMPI test and had

interviews (of Defendant’s family and girlfriend) establishing the delusions and


      3
         Mr. Robertson had little specific recollection of his representation of
Defendant. He did not recall being told by Dr. Reynolds that more time was
needed to test Defendant, or that the results of the MMPI-2 personality test were
invalid. He suggested that the late hiring of Dr. Reynolds was due to budgetary
constraints and to a desire not to turn over Dr. Reynolds’s raw data to the State
until absolutely necessary.
       Mr. Hudson testified that he did not recall any coordination of strategy
between the lay witnesses (whom he handled) and the expert testimony. He also
testified that during his many interactions with Defendant, he had never noticed
any signs or symptoms of mental illness.

                                       -16-
hallucinations necessary for the diagnosis. The new diagnosis would also have

enabled him to fend off suggestions by the prosecutor that Defendant is a

psychopath.

      Defense counsel began by marching Dr. Reynolds through his pretrial

preparation and his meetings with Defendant. In answer to a question by the

court, he then explained the meaning of the invalidity of the MMPI-2 test:

      [W]hen the individual takes the test in a manner that shows that there
      may be a variety of reasons that would not allow the test results to be
      used simply because he answered and his responses were in such a
      way, that, let’s say, for example, maybe he had a low reading level,
      he was confused, or he tried to manipulate the test, or let’s say he
      was inconsistent with his answers.

R., Vol. 2 at 62. Even though the test was invalid, Dr. Reynolds thought that the

results “indicated that there was a severe disturbance,” id. at 63, and he felt that

he needed more information to determine what was going on. (The computer-

scored report on the test said, “Many individuals with this profile are considered

to have severe Personality Disorders; however, the possibility of Schizophrenia,

Paranoid type, or of a Bipolar Affective Disorder should also be considered.” Id.,

Vol. 1 pt. 5 at 912. And the report’s section on “Symptomatic Patterns” said that

Defendant “endorsed a number of extreme and bizarre thoughts, suggesting the

presence of delusions and/or hallucinations.” Id. at 910.) Dr. Reynolds thought

that he would have told defense counsel “that the test was invalid, we can’t use

this information, but there is further information here that is important and that is


                                         -17-
not totally supported by the MCMI but there’s a need to really know more.” Id.,

Vol. 2 at 65. 4 He explained:

      The MCMI really never reported the auditory hallucinations, okay?
      But where I began to get a tie between the two was the MCMI talked
      about the paranoid personality. Then I hear the MMPI, the way he
      answered those questions, talking about voices, et cetera, et cetera, et
      cetera, and then that began to give me information that there’s
      something more here that I need to investigate.

Id. He said that if he had had more time he “would have redone the MMPI again

and probably given him instructions in terms of how, if he didn’t understand a

question, or if he was unable to comprehend what it was asking, to make a note of

it and I would assist him with it so that he would be able to give a more valid

result.” Id. at 67. He added that he had now done those things.

      Dr. Reynolds then testified about the valid pretrial MCMI-III test. The

results indicated “that there was a severe personality disturbance, and that the test

gave a variety of diagnoses that could be considered.” Id. at 68. These included

narcissistic personality disorder with passive-aggressive personality traits,

schizotypal personality features, generalized anxiety disorder, bipolar disorder,

posttraumatic stress disorder, and paranoid personality disorder. 5

      4
         Dr. Reynolds believed that he had said this to defense counsel during a
meeting on February 17; but it appears that he probably conveyed this information
at least a week earlier, because defense counsel informed the court on
February 10 (the day before trial testimony began) that the test was unreliable.
      5
        Dr. Reynolds later described these disorders as follows: A person with a
narcissistic personality disorder believes the world revolves around him and may
                                                                        (continued...)

                                        -18-
      As for the disorder he now diagnosed Defendant as having—schizophrenic

paranoid personality disorder—Dr. Reynolds explained that “it would have to

have with it auditory hallucinations, and that’s where they’re hearing things,

they’re hearing things to be told to do, or they’re hearing things, for example, that

they’re a special person, or maybe there’s evil spirits.” Id. at 78–79. He said that

people with the disorder “have the paranoid ideas that people are out to get them,

that they don’t really trust people, that they’re suspicious of others, and he met

that diagnosis.” Id. at 79. But, he added, people with the disorder can function in

society:

      [E]verybody kind of thinks of schizophrenia as somebody who is
      dysfunctional, completely can’t talk straight, or anything like that.
      But on the paranoid—schizophrenic paranoid personality disorder,
      the person still appears quite able to function, and Mr. Wilson did, so
      he met that criteria as well. It was the combination of his paranoid
      ideas, the delusions, and the auditory hallucinations that fit that
      diagnosis.

Id. (emphasis added).




      5
          (...continued)
exploit others; a passive-aggressive personality trait manifests by redirecting
hostile or angry feelings from their source to another person or object; persons
with schizotypal personality features are not really schizophrenic but are socially
awkward and tend to withdraw from interactions with others; generalized anxiety
disorder involves physiological and psychological symptoms of anxiety
unconnected to any obvious stressor; bipolar disorder is characterized by mood
swings, sometimes dramatic, with the subject cycling from manic energy and
carefreeness to deep depression; and posttraumatic stress disorder involves
hypervigilance, depression, or irritability after exposure to a dangerous situation.
See R., Vol. 2 at 82, 83, 84, 86, 87.

                                         -19-
      Explaining how he arrived at his diagnosis, Dr. Reynolds testified that the

statements by lay persons were critical:

      [W]hat clued me in is when he indicated to me about the voices, but
      when I then got collaborative [sic] information that verified that from
      the girlfriend, his brother, and some sense of it from his mother, that
      somehow solidified my essence that now I felt more on the right
      track, but that’s not what I had before.

Id. at 71–72.

      In response to the court’s question about how the diagnosis would have

affected the jury, Dr. Reynolds said that the mental illness could explain

Defendant’s motivations:

             Well, I don’t know how a jury thinks, but I think it may have
      helped them understand that the motivation for what he did, once
      they knew about the delusions, once they knew about the voices, and
      once they knew about his mental illness, would have helped them
      know a little bit more that maybe he was influenced by his mental
      illness as averse to being just a raw, bad guy that’s just out there for
      the fun of it, but that the mental illness had some impact as opposed
      to being a normal guy that just goes out there and does something
      heinous, as he did. So I think it had to do with them and it would
      depend on what their opinion of mental illness is. So I think just
      knowing that the motivation may have been driven somewhat by his
      mental illness as opposed to not having that disorder.

Id. at 72. Defense counsel later pursued the matter further, asking what was “the

most crucial information” about Defendant that Dr. Reynolds could have given

the jury but did not. Id. at 89. Dr. Reynolds replied, “I think the discussion of

his mental disorders,” and went on to assert that this information “was crucial in

allowing the jury to know every aspect of Mr. Wilson in this part of the trial, to


                                           -20-
be able to understand him, possibly understand some of his motivations,

understand his behavior, and that his behavior may have had something to do with

his mental illness.” Id. Dr. Reynolds said that the schizophrenia diagnosis would

have presented “a different picture” of Defendant had it been available at trial.

Id. at 109. He explained that “my part of the trial, it was basically his

intelligence and that he was disturbed. And the picture that we have now is

someone who is very seriously disturbed with a psychiatric diagnostic disorder

that is very, very severe.” Id. He stated that the posttrial diagnosis “superseded

the antisocial diagnosis,” id. at 96, “simply because of the delusions, the auditory

hallucinations, and the test data.” Id.

      Dr. Reynolds also testified that he could have corrected the prosecutor’s

use of the term psychopath if he had been properly questioned on redirect

examination:

      Q: Do you believe that Mr. Wilson’s attorney allowed you to explain
      the term “psychopath”?

      A: No, he did not.

      Q: Okay. Could you explain the term “psychopath” to the jury had
      you been asked?

      A: Yeah. Yes.

      Q: What is the meaning of a psychopath?

      A: Well, there is no meaning because it doesn’t exist.

      Q: [W]ell, is it outdated, that it used to exist?

                                          -21-
      A: It’s outdated, yes.

      Q: Okay. Whether it doesn’t exist now or is outdated or not, does
      that term carry a stigma?

      A: Probably to the lay persons it does, yes.

      Q: And what would that stigma be?

      A: Well, I guess I’ll just put it very simply, in that this is a very
      dangerous, bad person who has no regard for life of others.

      Q: Did you feel the jury was left with an inaccurate depiction of
      Mr. Wilson?

      A: Well, I think they got part of Mr. Wilson, but I don’t think they
      got more of what was there, but I can’t say that it was inaccurate.
      [I]f the part maybe you’re referring to is being defined as a
      psychopath, that was inaccurate. But they did get other parts of him.

      Q: Is being depicted as a psychopath harmful?

      A: Certainly, yes.

Id. at 91–92.

                2.   Cross-Examination of Dr. Reynolds

      The prosecutor’s cross-examination of Dr. Reynolds at the evidentiary

hearing was, if anything, more devastating to Defendant’s case than the trial

cross-examination of Dr. Reynolds had been. Rather than reporting the cross-

examination in chronological order, we organize it by subject matter.

                     a.    Use of the Term Psychopath

      The prosecutor began by pointing out that the term psychopath was not as

clinically inappropriate or outdated as Dr. Reynolds had suggested. He noted that

                                         -22-
the American Psychiatric Association’s widely used and authoritative Diagnostic

and Statistical Manual of Mental Disorders (4th ed. Text Revision 2000)

(DSM-IV-TR), itself says that the term has been used as another name for

antisocial personality disorder. Indeed, Dr. Reynolds himself had used the term

shortly after the trial. The affidavit that he drafted for Defendant’s state-court

appeal stated that “psychopath is a term associated with antisocial personality

disorder.” Id., Vol. 1 pt. 5 at 1011. (The statement was deleted from the affidavit

filed with the OCCA.) Dr. Reynolds responded that it would nevertheless be

incorrect to use the term because “it’s not a DSM-IV diagnosis any longer,” id.,

Vol. 2 at 114, and, in any event, as his affidavit quoted the DSM-IV, “‘Antisocial

behavior that occurs exclusively during the course of schizophrenia or a manic

episode should not be diagnosed as antisocial personality disorder’ or

psychopathic personality.” Id., Vol. 1 pt. 5 at 1011.

                    b.    Effect of Mental Disorder on Defendant’s
                          Participation in the Murder

      The prosecutor challenged whether Dr. Reynolds’s diagnosis of Defendant,

even if correct, could help explain his behavior at the QuikTrip:

      Q: Doctor, I believe you mentioned on direct examination that you
      believe your diagnosis of paranoid schizophrenia may have helped
      the jury understand Mr. Wilson’s motivation for what he did. Is that
      what you testified to?

      A: Something to that effect.




                                         -23-
Q: And, Doctor, you’ve reviewed the surveillance tape from the
Quik Trip depicting Mr. Wilson’s actions during the commission of
the murder; correct?

A: I have.

Q: All right. And will you agree, sir, that that videotape depicts a
number of logical, goal-oriented behaviors on Mr. Wilson’s behalf?

A: Yes.

Q: So there’s no question that when he goes from the cooler, after
Mr. Yost has been herded in there by Mr. Wilson and his
accomplices, Mr. Wilson goes to the front checkout stand and
assumes the role of clerk; right?

A: Yes.

Q: Logical, goal-oriented behavior?

A: Yes.

Q: Okay. And when Mr. Wilson is conversing with the individuals,
the various customers who came into the Quik Trip store that early
morning time period, did he seem to have any trouble conversing
with them, sir?

A: No.

Q: The tape you had had the audio portion of it; right?

A: Yes.

Q: He’s able to strike up conversations; right?

A: Yes.

Q: He’s able to help these individuals find whatever it was they
supposedly were looking for; right?

A: Yes.

                                 -24-
      Q: Okay. And he was able to help move them along and get them on
      out; right?

      A: Yes.

      Q: And that’s logical, goal-oriented behavior under the
      circumstances; would you agree?

      A: Yes.

      Q: And the same is true with Mr. Wilson removing the safe from the
      cabinet; right?

      A: Yes.

      Q: And I could go on and on. Doctor, that’s a pretty good
      indication, is it not, of what Mr. Wilson was motivated to do there;
      right?

      A: Yes.

Id., Vol. 2 at 127–29.

                   c.      Consistency of Dr. Reynolds’s Diagnosis with the
                           Test Results

      The prosecutor also challenged Dr. Reynolds’s posttrial diagnosis. He first

questioned whether it was consistent with the pretrial MCMI-III, which was valid:

      Q: [I]sn’t it true the MCMI-III has several clinical scales that
      measures for the sort of thought disorders and delusional disorders
      that would be relevant to a diagnosis of schizophrenia?

      A: Yes.

      Q: [D]espite that, the MCMI-III did not suggest, as a likely
      diagnosis, paranoid schizophrenia, did it?

      A: That’s correct.


                                       -25-
      Q: A diagnosis of paranoid personality disorder suggests the absence
      of paranoid schizophrenia; is that correct?


      A: Well, it would be only the absence of the hallucinations and
      delusions.

Id. at 123.

      The prosecutor then asked about the consistency of the diagnosis with the

valid posttrial MMPI-2:

      Q: [U]nder “Diagnostic Considerations,” where the report states,
      “Individuals with this MMPI-2 clinical profile are usually diagnosed
      as having a personality disorder, antisocial type.”

      A: Uh-huh.

      Q: Okay. And it goes on to say a lot of other things; right?

      A: Correct.

      Q: Basically bolstering the antisocial features of Mr. Wilson’s
      personality; is that fair to say?

      A: Well, again, you have to understand that this is a hypothesis that
      you then correlate with collateral data. So the collateral data then
      supported the bizarre, unusual thinking, things—and it said that I
      need to take those into consideration, which I did, and therefore, as a
      clinician, I felt the diagnosis was more clearly of the paranoid
      schizophrenic than it was the antisocial. As I explained before, there
      are antisocial characteristics here, for sure.

Id. at 126–127 (emphasis added). (The record shows that the computer-scored

report of the initial but invalid MMPI-2 had actually been more supportive of

Dr. Reynolds’s ultimate diagnosis. Its first sentence under “Diagnostic

Considerations” stated: “Many individuals with this profile are considered to

                                        -26-
have severe Personality Disorders; however, the possibility of Schizophrenia,

Paranoid type, or of a Bipolar Affective Disorder should also be considered.” Id.,

Vol. 1 pt. 5 at 912. The same section in the report of the valid test did not

suggest consideration of schizophrenia, paranoid type.)

      More dramatically, the prosecutor pointed out that the posttrial MMPI-2

emphatically supported a picture of Defendant that correlated closely with the

psychopath image elicited at trial. He asked about a section of the interpretive

report for the test that described Defendant as posing a continuing threat to

society:

      Q: MMPI-2, the second that you administered here, the valid one,
      sir, refers to the Megargee scale; right?

      A: Yes.

      Q: All right. And it classified Mr. Wilson as a type C offender;
      correct?

      A: Yes.

      Q: What does type C offender mean?

      [Discussion of where to find the section of the report]

      A: It indicates that these are difficult and criminal offenders.

      Q: It also goes on to say that, in fact, type C inmates typically have
      difficulty adjusting to prison life; right?

      A: Yes.

      Q: It may be necessary to segregate them from weaker or more
      vulnerable inmates; correct?

                                         -27-
      A: Yes.

      Q: And when it refers to treatment considerations in the last
      paragraph on the page, the MMPI-2, the second one, the valid one
      that you generated, it says that, in fact, Mr. Wilson—or individuals
      with this profile type tend not to be very successful with treatment or
      rehabilitation programs; is that correct?

      A: Yes.

      Q: And it says it’s because they usually do not seek treatment on
      their own and have little motivation to alter their behavior. Okay.
      Well, could that extend to the taking of medication?

      A: You mean whether they’ll take medication or not?

      Q: Correct.

      A: Well, medication is treatment, so it could.

      ....

            THE COURT: And it says . . . “Their suspicious attitudes and
      deep-seated hostility toward others make them a difficult case for
      rehabilitation.” That would be counterproductive to a strategy of
      having an intelligent human being that could do well in a prison
      environment and be rehabilitated; correct?

             THE WITNESS: Correct.

             THE COURT: It’s inconsistent?

             THE WITNESS: Yes.

Id., Vol. 2 at 129–131 (emphasis added). 6

      6
        The full description of Type C offenders from the interpretive report is
chilling:
       This client’s profile matches those of Type C offenders in the
       Megargee typology. Individuals matching this profile type are
                                                                        (continued...)

                                        -28-
                       d.   Factual Support for Dr. Reynolds’s Diagnosis

      As previously discussed, the basis of Dr. Reynolds’s rejection of the

diagnosis of “personality disorder, antisocial type” (which was suggested by the

valid posttrial MMPI-2 report) in favor of his diagnosis of paranoid schizophrenic

disorder was his finding that Defendant suffered from delusions and auditory

hallucinations. On cross-examination of Dr. Reynolds the prosecutor took aim at

that finding. The finding relied in large part on statements by Defendant’s family

and girlfriend.

      First, the prosecutor asked whether Dr. Reynolds had spoken with any of

the witnesses other than Defendant’s mother. Although Dr. Reynolds had

testified on direct examination that he had conducted interviews with at least two




      6
          (...continued)
      among the most difficult criminal offenders. They are often viewed
      as distrustful, cold, irresponsible, and unstable. They tend to have
      antisocial, aggressive, and hostile attitudes toward others. They
      engage in violent crimes against other people and usually have an
      extensive criminal record. They tend to come from deviant and
      stressful home environments and typically have a great deal of
      difficulty adjusting to society. They are viewed by others as
      alienated, bitter, rigid, and dogmatic. Their interpersonal
      relationships are quite disruptive; their suspicious attitudes and deep-
      seated hostility toward others make them a difficult case for
      rehabilitation. Research has supported the view that Type C inmates
      typically have difficulty adjusting to prison life. It may be necessary
      to segregate them from weaker or more vulnerable inmates during
      incarceration.

R., Vol. 1 pt. 5 at 1017.

                                         -29-
others, he retreated from that assertion on cross-examination, saying that he may

have just relied on their affidavits. The exchange continued:

      Q: Okay. And would it have been important to you to have sat down
      and spoken with these family members who signed these affidavits?

      A: I felt like the information that I got with them on an affidavit
      under oath was adequate . . . and that it was valuable.

      Q: Okay. And who—

             THE COURT: How do you know whether that information is
      true or not?

             THE WITNESS: I don’t. . . . It’s not my job to investigate. I
      take them for what they tell me. But what I saw was consistency
      across the board, which gave me some sense that there was
      truthfulness to it.

              THE COURT: Unless someone drafts the affidavits for them?

              THE WITNESS: True.

Id. at 118.

      Later the prosecutor asked about the specifics of the statements by the

various witnesses. He began by questioning Dr. Reynolds about his reliance on

three statements by Defendant’s girlfriend, Tonya Holt. The first was her

statement that he had told her that his father was dead:

      Q: Okay. And one of the instances from the affidavits that you refer
      to to support your diagnosis of paranoid schizophrenia is Tonya
      Holt’s affidavit, her statement that the defendant told her that his
      father was dead; right?

      A: Yes.


                                        -30-
Q: Do you remember that? Well, Doctor, do you recall what kind of
a relationship Mr. Wilson had with his father?

A: It was rather distant and difficult.

Q: Okay. Basically a non-entity in his life?

A: Yes. Pretty much so.

Q: Do you recall, was his father, you know—was he a homeless
person? Did he have a house? Do you recall what his social status
was in life?

A: I believe that he had an issue with drugs and alcohol.

Q: Okay. So is it possible, sir, that Mr. Wilson told Tonya Holt
that—

      [Defense counsel]: Objection, Your Honor.

      THE COURT: Let him ask the question first.

Q: Is it possible, sir, that Mr. Wilson told Ms. Holt that his father
was dead because he was embarrassed by his father?

      [Defense counsel]: Objection, Your Honor; there’s no—

      THE COURT: Calls for speculation?

      [Defense counsel]: Exactly.

      THE COURT: Sustained.

Q: Is there a possible nonpsychotic explanation for Mr. Wilson’s
statement to Ms. Holt that his father was dead?

A: None that I have.

Q: None that you have that you received from the sources you read,
or none that you’ve come up with?


                                   -31-
      A: I have no information to indicate that there was a different reason
      that he might make that statement.

Id. at 131–32. 7 Dr. Reynolds apparently had forgotten what Holt had said in her

statement: “Micheal never explained to me why he said his father was dead. I

thought Micheal meant his father Oscar was not being a father.” Id., Vol. 1 pt. 5

at 854.

      The second Holt statement about which the prosecutor questioned

Dr. Reynolds was her statement that Defendant had said his name was Tom, not

Micheal:

      Q: You cite the fact that Mr. Wilson—and this is according to
      Ms. Holt’s affidavit—Mr. Wilson denied his name was Michael and
      introduced himself as Tom. You cite that as a basis to support your
      diagnosis of paranoid schizophrenia; correct?

      A: That’s one of the delusions that I cited, yes.

      Q: Okay. And you’ve reviewed the recording of Mr. Wilson’s
      statement to the police; correct?

      A: Yes.

      Q: He gives a confession?

      A: Gave a confession, yes.

      Q: Right?
      And do you recall in that audio statement he tells the police, in
      response to questioning, that he used the name Tommy when he
      identified himself to the newspaper man who came into the store?
      Do you recall that?

      7
       Although the objection to the question about embarrassment was sustained
as speculative, the question later became relevant to probing Dr. Reynold’s bias.

                                       -32-
      A: I don’t. I don’t recall that.

Id., Vol. 2 at 132–33. The prosecutor did not refer to Holt’s statement in her

affidavit that when Defendant used the name “Tom,” she thought “he was just

playing.” Id., Vol. 1 pt. 5 at 855.

      Third, the prosecutor asked Dr. Reynolds about Holt’s suggestion that

Defendant had auditory hallucinations:

      Q: All right. Well, you cite Mr. Wilson’s statement to Tonya Holt
      that he hears voices and you have to fight them away and pray them
      away as an example of psychotic behavior supporting your paranoid
      schizophrenia diagnosis; correct?

      A: Correct.

      Q: Okay. And in this situation, Mr. Wilson basically states that he
      can control the voices; is that right?

      A: I believe that he tries to control the voices through prayer.

      Q: Okay. Because he states you can pray them away if you just pray
      hard enough, fight hard enough; is that right?

      A: Well, no, that’s not what he said. I don’t think he said that you
      can pray them away or if you pray hard enough, but that was an
      attempt which is very common for people with this disorder to make
      these voice [sic] goes away. They usually try to do whatever they
      can, and in this case he used religion to attempt to make the voices
      go away because they told him to do things.

Id., Vol. 2 at 133–34. Dr. Reynolds’s recollection was faulty. The affidavit of

Holt in the record states that Defendant told her: “I hear voices & its OK. You




                                         -33-
just have to fight them, you just have to pray them away and they will go away.” 8

Id., Vol. 1, pt. 5 at 856.

       Next, the prosecutor asked Dr. Reynolds whether his diagnosis was

supported by the statement of Defendant’s sister that he had told school officials

that his mother was white. Dr. Reynolds said that he did not recall how old

Defendant was when he made the statements. The prosecutor reminded

Dr. Reynolds that the sister said that it was when they were in school together.

(The sister’s affidavit states that Defendant was “just a kid” at the time. Id. at

864.) He then continued:

       Q: Okay. Sir, would it be unusual for paranoid schizophrenia to
       onset in a young child?



       8
           The entirety of the paragraph from Holt’s affidavit stated:

       After I was raped I had some severe mental problems that finally
       forced me to seek counseling. I now know that I have been
       diagnosed with Post Traumatic Stress Disorder (PTSD). I started
       worrying when I would hear things—voices. I told Micheal about
       the voices and he told me, ‘its O.K. to hear voices, I hear voices.’ I
       said, no Micheal this is not like hearing your conscience tell you not
       to do bad things, they are telling me things. Micheal told me, ‘I’ve
       heard them too, I hear voices & its OK. You just have to fight them,
       you just have to pray them away and they will go away.’ That is
       when I started thinking he is really crazy, he has mental problems. I
       asked him what kind of voices do you hear? He told me he didn’t
       want to talk about it and he wouldn’t tell me anymore. I have sought
       help and my doctor prescribed Zoloft and later on Xanax. I am not
       on any medication now, and I do not hear the voices anymore.

R., Vol. 1 pt. 5 at 856.

                                           -34-
      A: The onset usually begi- —it’s not unusual. I mean, it does occur,
      it’s not common, but the onset is usually the late teens to the early
      forties, but it is not uncommon for it to occur in children.

      Q: Okay. And Doctor, you’ve reviewed medical records from
      Children’s Medical Center in preparation for your trial testimony; is
      that correct?

      A: That is correct.

Id., Vol. 2 at 134–35. Dr. Reynolds could not recall when Defendant had been

seen at the center, but he was given records showing that Defendant was 16.

Dr. Reynolds then acknowledged that the doctors at the center had found no

indication of psychotic behavior, specifically reporting the absence of delusions

or hallucinations.

      Similarly, the prosecutor suggested that another supposed delusion cited by

Dr. Reynolds was not indicative of mental illness:

      Q: Okay. You cite Mr. Wilson’s belief, firm belief that he will be
      released from prison as an example of unusual behavior supporting
      your diagnosis of paranoid schizophrenia; is that right?

      A: I believe that it was along the lines of not the diagnosis but that
      was a delusional comment.

      Q: Okay. Well, Doctor, have you had any experience with inmates
      in the correctional system in the course of your career as a
      psychologist?

      A: Yes.

      Q: And are there a lot of inmates who, in fact, may have an
      irrational belief that they’re going to be released no matter how
      strong the evidence is against them?


                                        -35-
       A: I think your word was correct, irrational.

       Q: Are they all psychotic?

       A: Of course not.

                 [Defense counsel]: Objection, Your Honor; irrelevant.

                 THE COURT: Sustained.

Id., at 136. 9

       The prosecutor also challenged Dr. Reynolds’s statement in his affidavit

that Defendant may have been out of touch with reality at the time of trial.

Dr. Reynolds admitted that he had not interviewed the trial attorneys on the

matter.

       Later the prosecutor inquired whether Defendant’s alleged paranoia might

be rational, rather than delusional:

       Q: All right. In your report, you cite the fact that the defendant
       believes he’s being plotted against as evidence supporting a
       diagnosis of paranoid schizophrenia; correct?

       A: Yes.

       Q: Is it your understanding, sir, that Mr. Wilson was involved in
       gang life?

       A: Yes.

       Q: Both before—well, at least before he went to jail; right?

       A: Yes.

       9
       Although the objection was sustained, the prosecutor could have elicited
the same point through a properly phrased question.

                                           -36-
      Q: And do you recall, sir, that, in fact, he was having gang trouble
      even in jail?

      A: I understand there was some fights in jail. I didn’t know if it was
      gang-related or not but I know there were some altercations.

      Q: All right. I mean, gang life, the sort of gang life Mr. Wilson had,
      is that a possible nonpsychotic explanation for his belief that he was
      being plotted against?

      A: Well, it would certainly fit into gang life, that is correct. And so,
      therefore, that would be consistent with the development of a
      paranoid disorder, whether how accurate it was that he was being
      plotted against or not, but he would probably have, most likely with
      this disorder, an exaggerated view of how he is out to be gotten or
      killed. But there had some relative—there was some relevance to the
      idea that he was definitely being plotted against, yes.

      Q: I mean, you recall the situation where his mother’s house was
      burned down; right?

      A: Yes.

Id. at 138–39.

      We also note a matter not explored during the hearing. Present in the

record submitted to the district court was a telling discrepancy between

Defendant’s responses on the pretrial invalid MMPI-2 and the posttrial valid

MMPI-2. In the pretrial MMPI-2, under the “Critical Items” section for “Mental

Confusion,” the interpretive report indicated that Defendant had answered “True”

when asked to respond to the statement “I often hear voices without knowing

where they come from.” Id., Vol. 1 pt. 5 at 922. (Dr. Reynolds’s handwritten

notes on the pretrial report reflect that Defendant told him that when he was in


                                        -37-
jail he heard two voices telling him to hang himself. Dr. Reynolds did not recall

when he wrote the notes.) But on the posttrial MMPI-2 under the same Critical

Items section, no such response is noted, meaning that Defendant apparently did

not answer this item “True” during the re-test. When administering the re-test,

Dr. Reynolds had instructed Defendant to ask for clarification or assistance if he

had difficulty understanding any of the questions. 10

      This discrepancy may partly account for the fact that while the invalid

MMPI-2 suggested that “Schizophrenia, Paranoid type” should be considered as a

possible diagnosis, id. at 912, the valid MMPI-2 stated that “[i]ndividuals with

this MMPI-2 clinical profile are usually diagnosed as having a Personality

Disorder, Antisocial type,” id. at 1017, and did not mention a possible diagnosis

of schizophrenia. Dr. Reynolds testified that it was collateral data from the other

witnesses’ affidavits and the additional records furnished him by appellate

counsel that enabled him to arrive at the schizophrenia diagnosis.

             3.    Redirect Examination of Dr. Reynolds

      On redirect examination Dr. Reynolds reiterated his belief that he

reasonably relied on the witness affidavits in forming his clinical opinion, and

      10
         Defendant’s responses on the “Mental Confusion” section were otherwise
nearly identical. On the second MMPI-2, Defendant responded “True” to the
statement “I find it hard to keep my mind on a task or job.” R., Vol. 1 pt. 5 at
1026. On the first MMPI-2, no response to this statement is indicated in the
“Mental Confusion” section. Id. at 921–22. Other than the different responses to
that statement and the statement about voices, Defendant’s responses in the
Mental Confusion section were the same on both reports.

                                         -38-
that he had not needed to interview the witnesses to obtain adequate information.

He clarified that although the valid MMPI-2 had contained indications of

antisocial behavior, he thought that those patterns were “part of a paranoid

schizophrenic process.” Id., Vol. 2 at 146. He testified that the actions of Type C

offenders can be controlled in a prison. And he stated that the absence of

delusions and hallucinations reported in Defendant’s medical records from age 16

did not negate the schizophrenia diagnosis, because the onset of the disorder is

typically later in life.

II.    DISCUSSION

       A.     Standard of Review

       Generally, when an applicant seeks relief from a state court conviction or

sentence under 28 U.S.C. § 2254, we must apply the deferential standard of

review established by the Antiterrorism and Effective Death Penalty Act

(AEDPA). If the state court adjudicated the federal claim that the applicant now

presses on the merits,

       we may only grant federal habeas relief if the habeas petitioner can
       establish that the state court decision “was contrary to, or involved
       an unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States,” or “was
       based on an unreasonable determination of the facts in light of the
       evidence presented in the State court proceeding.”

Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004) (quoting 28 U.S.C.

§ 2254(d)(1)).


                                        -39-
      On direct appeal from his conviction and sentence, Defendant pressed his

ineffective-assistance claim before the OCCA, supported by affidavits from

Dr. Reynolds and his family and girlfriend. Defendant requested an evidentiary

hearing on the claim under Rule 3.11, Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch. 18, App. (1995). The OCCA denied relief on the claim and

Defendant’s request for an evidentiary hearing. See Wilson I, 983 P.2d at 471–72.

Although noting Defendant’s “attempt to supplement the record with material not

found in the record,” id. at 472, the OCCA held that on the basis of its “review of

the trial record,” Defendant had failed to demonstrate either deficient

performance or prejudice on the mental-health issue, id.

      On Defendant’s prior appeal we held that AEDPA deference was not

required because the OCCA’s denial of Defendant’s request for an evidentiary

hearing was not an adjudication “on the merits” within the meaning of 28 U.S.C.

§ 2254(d). We noted (1) the OCCA’s apparent failure to consider Defendant’s

nonrecord evidence in denying his request for an evidentiary hearing, and (2) the

higher threshold for triggering an evidentiary hearing under the OCCA’s Rule

3.11 than permitted under the federal standard stated in Strickland v. Washington,

466 U.S. 668 (1984). See Wilson IV, 577 F.3d at 1290–1300.

      The State argues that we should “restore” AEDPA deference to the OCCA’s

decision in Wilson I, because the later decision of the OCCA in Simpson v. State,

230 P.3d 888, 905–06 (Okla. Crim. App. 2010), shows that we misinterpreted

                                        -40-
Oklahoma’s threshold for an evidentiary hearing. Recently, this court has

adopted the State’s view. See Lott v. Trammell, No. 11-6096, slip op. at 79–83

(10th Cir. Jan. 14, 2013). But we need not decide whether the OCCA’s decision

on the record before it requires that we affirm under AEDPA, because we deny

relief based on the evidence that Defendant asks us to consider.

      In evaluating Defendant’s claim that his Sixth Amendment rights were

violated by ineffective assistance of counsel at the sentencing proceedings, we

apply the standard laid out in Strickland, 466 U.S. at 687:

      A convicted defendant’s claim that counsel’s assistance was so
      defective as to require reversal of a conviction or death sentence has
      two components. First, the defendant must show that counsel’s
      performance was deficient. This requires showing that counsel made
      errors so serious that counsel was not functioning as the ‘counsel’
      guaranteed the defendant by the Sixth Amendment. Second, the
      defendant must show that the deficient performance prejudiced the
      defense. This requires showing that counsel’s errors were so serious
      as to deprive the defendant of a fair trial, a trial whose result is
      reliable.

In conducting this two-part inquiry, we need not address the performance and

prejudice prongs in that order. See id. at 697 (Because defendants must establish

both components to prevail, “a court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies.”). Here, we need address only

prejudice.




                                        -41-
      “An error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on

the judgment.” Id. at 691. In a challenge to a capital sentence, “the question is

whether there is a reasonable probability that, absent the errors, the sentencer . . .

would have concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” Id. at 695. We “must ask if the defendant

has met the burden of showing that the decision reached would reasonably likely

have been different absent the errors.” Id. at 696.

      To resolve whether there was prejudice, we do not consider omitted

mitigation evidence in a vacuum. In Wong v. Belmontes, 130 S. Ct. 383 (2009),

the defendant was sentenced to death after his counsel presented evidence of his

difficult family background during the sentencing hearing but declined to

introduce certain additional mitigating evidence (including expert testimony to

explain his behavior, see id. at 388–89, and evidence of a serious illness that

caused “emotional instability, impulsivity, and impairment of the

neurophysiological mechanisms for planning and reasoning,” id. at 389 (internal

quotation marks omitted)) out of concern that it would open the door for the

prosecution to introduce evidence of a prior murder committed by the defendant,

see id. at 385–86. Counsel’s concern that this extremely harmful evidence would

be admitted if he introduced certain mitigating evidence was supported by the

trial court’s warning that it would allow the prosecution to put on the evidence if

                                          -42-
the defense presented substantial evidence of the defendant’s nonviolent

character. See id. at 386. Rejecting the defendant’s ineffective-assistance-of-

counsel claim for failure to demonstrate prejudice, the Supreme Court held that in

assessing prejudice a reviewing court must “consider all the relevant evidence

that the jury would have had before it if [the defendant] had pursued the different

path—not just the mitigation evidence [the defendant] could have presented, but

also the [evidence of the other murder] that almost certainly would have come in

with it.” Id. Although some of the omitted mitigation evidence might have

helped the defendant, “the worst kind of bad evidence would have come in with

the good.” Id. at 390. Hence, the defendant had failed to show prejudice.

Following the holding of Belmontes, we must consider not just the mitigation

evidence that Defendant claims was wrongfully omitted, but also what the

prosecution’s response to that evidence would have been.

      In reviewing the district court’s conclusion that Defendant was not

prejudiced by his counsel’s alleged deficiencies, “we accept the district court’s

underlying factual findings unless clearly erroneous, and we review de novo . . .

whether any deficiencies prejudiced the defendant.” United States v. Rodriguez-

Rivera, 518 F.3d 1208, 1216 (10th Cir. 2008) (internal quotation marks omitted).

The court ruled that introduction of the additional mental-health evidence

submitted by Defendant at the court’s hearing on remand might well have been a

double-edged sword, “support[ing] the prosecution’s portrayal of [Defendant] as a

                                        -43-
dangerous and continuing threat to society.” Wilson V, 2011 WL 744661, at *26.

Because of the “distinct possibility that additional mental health evidence might

have been counterproductive and harmed Defendant’s mitigation case,” the

district court could not “conclude that additional evidence of [Defendant’s]

mental health problems would have affected the jury’s imposition of the death

penalty.” Id. We agree with the district court that Defendant has not shown that

trial counsel’s alleged deficiencies prejudiced him.

             1.     The Failure to Call Additional Family Witnesses

      We first address Defendant’s argument that the witnesses who provided

affidavits for his appeal, including his sister, brother, and girlfriend, should have

been called during the mitigation case and that their testimony may have

convinced jurors to vote against death.

      We look to the posttrial affidavits as proffers of how these witnesses would

have testified. These affidavits assert that Defendant was affected by gang

violence from his youth, stating that he sustained a gunshot injury in a drive-by

shooting; that he was frequently targeted by rival gang members, who shot at him,

vandalized his car, and burned the house he shared with his mother; and that he

was attacked by gang members, including members of his own gang, while

incarcerated. But the jury heard about the drive-by shooting and arson incident

during Dr. Reynolds’s testimony on Defendant’s social history. Although

Dr. Reynolds did not speak from first-hand knowledge about either incident,

                                          -44-
neither, so far as the record shows, could any of the omitted witnesses. The

additional matter would not have qualitatively altered the picture of Defendant’s

exposure to violence and could have merely emphasized his gang involvement.

      The omitted witnesses might also have testified to some of Defendant’s

unusual behaviors and thought processes, which Dr. Reynolds thought indicative

of a mental disorder. The value of this evidence, however, depends on the value

of Dr. Reynolds’s use of it, a matter we address in the next section of this

opinion. Suffice it to say now that Defendant gives no reason to suppose that the

evidence would have been more effective if presented by the witnesses in person

(and subject to cross-examination), rather than through Dr. Reynolds’s testimony.

             2.    Deficiencies in Dr. Reynolds’s Trial Preparation and
                   Testimony

      Defendant’s chief argument regarding prejudice relates to Dr. Reynolds’s

testimony. According to Defendant, had Dr. Reynolds been given sufficient time

and information to conduct all necessary interviews and psychological tests

properly, he would have arrived at his diagnosis of schizophrenic paranoid

personality disorder before trial and, if properly prepared by counsel, could have

presented that diagnosis to the jury and explained how Defendant’s background

contributed to his mental illness, demonstrated that Defendant’s mental illness

affected his behavior and caused him to have difficulty conforming his conduct to

the law, and helped the jury understand the motivation for Defendant’s actions,


                                         -45-
thereby calling into question Defendant’s moral culpability. Defendant contends

that conveying this information would have caused at least one juror to believe

that Defendant was not deserving of capital punishment. And he asserts that had

counsel performed properly, the prosecutor would not have been able to elicit

testimony from Dr. Reynolds that supported the prosecutor’s repeated

characterizations of Defendant as a psychopath.

      In evaluating these claims of prejudice, we look to the testimony at the

evidentiary hearing, together with the exhibits offered in evidence at that hearing,

to see what likely would been presented at trial if Defendant’s counsel had done

what he contends they should have. Our review indicates that Defendant would

have been no better off with the evidence presented at the hearing, and in

significant ways would have been worse off.

      We start with the MMPI-2. Since his direct appeal, Defendant has laid

great stress upon the failure to obtain a valid MMPI-2 before trial.

Dr. Reynolds’s affidavit submitted to the OCCA in support of an evidentiary

hearing states: “There was some evidence for a diagnosis of schizophrenia but

because his first MMPI-2 was invalid, I needed additional testing, and further

collateral data to support this diagnosis. Unfortunately, there wasn’t enough time

to obtain this information before the trial.” R., Vol. 1 pt. 5 at 845.

      But the evidence from the hearing demonstrates that having Defendant

retake the test did not help his case. The valid test contradicted more than it

                                          -46-
supported Dr. Reynolds’s transition to a diagnosis of paranoid schizophrenic

disorder. The interpretive report for the invalid test stated: “Many individuals

with this profile are considered to have severe Personality Disorders; however,

the possibility of Schizophrenia, Paranoid type, or of a Bipolar Affective

Disorder should also be considered.” Id. at 912 (emphasis added). But the valid

test’s interpretive report said: “Individuals with this MMPI-2 clinical profile are

usually diagnosed as having a Personality Disorder, Antisocial type.” Id. at 1017.

It did not suggest that schizophrenia be considered as a possible diagnosis.

      Worse for Defendant, the interpretive report of the valid MMPI-2

emphatically bolstered the prosecution’s position that Defendant was a continuing

threat to society. The invalid test’s interpretive report said that Defendant “fits

equally well into more than one classification according to the Megargee

classification,” which was described as a “system for classifying male criminal

offenders.” Id. at 912. The report did not say which classifications Defendant fit

within, nor did it describe the characteristics of those classifications. The valid

test’s interpretive report, however, painted Defendant as being the most

despicable type of criminal. It said:

      [Defendant’s] profile matches those of Type C offenders in the
      Megargee typology. Individuals matching this profile type are
      among the most difficult criminal offenders. They are often viewed
      as distrustful, cold, irresponsible, and unstable. They tend to have
      antisocial, aggressive, and hostile attitudes toward others. They
      engage in violent crimes against other people and usually have an
      extensive criminal record. They tend to come from deviant and

                                         -47-
      stressful home environments and typically have a great deal of
      difficulty adjusting to society. They are viewed by others as
      alienated, bitter, rigid, and dogmatic. Their interpersonal
      relationships are quite disruptive; their suspicious attitudes and
      deep-seated hostility toward others make them a difficult case for
      rehabilitation. Research has supported the view that Type C inmates
      typically have difficulty adjusting to prison life. It may be necessary
      to segregate them from weaker or more vulnerable inmates during
      incarceration.

Id. at 1017 (emphasis added). This is a roadmap for one seeking to portray

Defendant as a dangerous criminal who could not safely be allowed to live.

      When confronted at the evidentiary hearing with these statements

contradicting his diagnosis of Defendant, Dr. Reynolds stated that the test’s

suggested diagnoses merely provided “a hypothesis that you then correlate with

collateral data.” Id., Vol. 2 at 126. But the value of the collateral data on which

he relied—the statements by members of Defendant’s family and his girlfriend

that Dr. Reynolds found to be evidence of Defendant’s delusions and

hallucinations—was undermined by the cross-examination of Dr. Reynolds at the

§ 2254 evidentiary hearing. Indeed, Dr. Reynolds’s insistence that the statements

provided clear support for the diagnosis suggested sloppy analysis and bias,

raising serious question about his credibility.

      We note a few examples. First, as evidence of Defendant’s delusions,

Dr. Reynolds referred to the statement by Defendant’s sister that years earlier,

when she and Defendant had attended the same school, Defendant had told school

officials that the two of them had different mothers and that his mother was

                                         -48-
white. But the statement was made when Defendant was “just a kid,” id., Vol. 1

pt. 5 at 864, and a later mental-health evaluation of Defendant administered by

Children’s Medical Center when he was 16 reported no delusions or

hallucinations. After being confronted by this information on cross-examination,

Dr. Reynolds tried to explain away the mental-health evaluation during his

redirect examination by noting that “usually the onset [of paranoid schizophrenia]

is late teens to the early forties.” Id., Vol. 2 at 146. The explanation, however,

merely emphasizes the irrelevance of the “white mother” incident during

Defendant’s childhood.

      Second, Dr. Reynolds said that the presence of delusions and hallucinations

was supported by the untrue statement of Defendant to his girlfriend, Tonya Holt,

that his father was dead. Dr. Reynolds testified on cross-examination that he had

no “possible nonpsychotic explanation” for Defendant’s statement, id. at 132,

even after he had conceded that Defendant’s father was a man with drug and

alcohol issues who was “pretty much” a non-entity in Defendant’s life, id. at 131,

and the prosecutor had suggested that Defendant was simply embarrassed by his

father. Most remarkably, the very statement by Holt relied on by Dr. Reynolds

continued: “[Defendant] never explained to me why he said his father was dead.

I thought [Defendant] meant his father Oscar was not being a father.” Id., Vol. 1

pt. 5 at 854




                                         -49-
      Third, another statement from the Holt affidavit that Dr. Reynolds cited in

support of the presence of delusions and hallucinations described Defendant’s

habit of sometimes introducing himself by a false name, Thomas, and adopting

different mannerisms. The prosecutor pointed out that Defendant had told police

(in his murder confession) that he had used the name “Tommy” during the

robbery in order to conceal his identity. Id., Vol. 2 at 133. Dr. Reynolds did not

recall this information. He also apparently ignored Holt’s statement that “[she]

always thought it was strange [that Defendant used the name “Tom”], but [she]

also thought that he was just playing.” Id., Vol. 1 pt. 5 at 855.

      The best of this evidence of hallucinations was Holt’s statement that

Defendant had told her that he heard voices. But even on this point Dr. Reynolds

misremembered facts that may have been relevant to his diagnosis. At the

evidentiary hearing the prosecutor asked whether “[Defendant] state[d] you can

pray [the voices] away if you just pray hard enough, fight hard enough.” Id.,

Vol. 2 at 133. Dr. Reynolds responded: “Well, no, that’s not what he said. I

don’t think he said that you can pray them away or if you pray hard enough, but

that was an attempt which is very common for people with this disorder to make

these voice goes [sic] away.” Id. at 133–34. The prosecutor was not wrong.

According to Holt, “[Defendant] told me, ‘I’ve heard them too, I hear voices & its

OK. You just have to fight them, you just have to pray them away and they will

go away.’” Id., Vol. 1 pt. 5 at 856.

                                         -50-
      Another point on which Dr. Reynolds looked foolish was his finding that

Defendant suffered from paranoia. He said in his affidavit: “[Defendant’s]

delusions appear to be of a grandiose and paranoid type. He believes . . . that he

is being plotted against.” Id. at 848. But Defendant was a gang member, and a

rival gang had shot him and set his mother’s home ablaze. Dr. Reynolds’s

struggle to construct a finding of delusional paranoia can be illustrated by the

statement in his affidavit that Defendant’s sister “described him as very

suspicious and paranoid,” id. at 847, when her full statement was:

      I am familiar with the gang environment that [Defendant] grew up in
      and I know it is no exaggeration to say that he was shot at on a daily
      basis. I believe [Defendant] was being pulled into the gang scene by
      at least his ninth grade year of high school. I remember [Defendant]
      got real suspicious and paranoid after he joined the gang. He knew
      it was a game of survival and he was always checking to see if
      someone was in the house or near the car.

Id. at 865 (emphasis added).

      In sum, Defendant has utterly failed to show that additional testing and

interviews would have produced a plausible diagnosis of paranoid schizophrenic

disorder. Nor has Defendant shown that better preparation of Dr. Reynolds could

have eliminated or weakened the prosecutor’s success at trial in characterizing

Defendant as a psychopath. The term is used in the DSM-IV. It was even used

by Dr. Reynolds in his draft affidavit for use in the appeal to the OCCA, before it

was deleted in the editing process. And little would have been gained by

prohibiting use of the term because the description in the valid MMPI-2 of the

                                         -51-
Defendant’s profile—a Type C offender in the Megargee typology—explicitly

describes the vision of evil evoked by the word psychopath.

      Defendant’s evidence from the hearing also failed to establish any

connection between Dr. Reynolds’s diagnosis of Defendant and his commission of

the murder. Although Dr. Reynolds testified that knowing that Defendant

suffered from schizophrenic paranoid personality disorder might help a jury

understand Defendant’s “motivation” for committing the crime, id., Vol. 2 at 72,

there was no credible evidence that Defendant acted as a result of delusions or

hallucinations. Dr. Reynolds suggested in his affidavit: “It is possible that

[Defendant] could have been delusional at the time of the crime; for example, he

went to his own place of employment knowing he would be observed by his co-

worker, and customers. His thinking must have been delusional to believe that he

would not be easily identified.” Id., Vol. 1 pt. 5 at 848. But this ignores the

planning for the crime, the efforts to allay any suspicion by customers who

entered before the perpetrators could remove the safe, and the murder of the one

witness who had known Defendant previously.

      Finally, insofar as Defendant contends that his counsel were ineffective in

not even presenting adequately what Dr. Reynolds had determined from the

information obtained before his trial testimony, Defendant has not satisfied his

burden of showing what more Dr. Reynolds could usefully have said. He argues

that the jury should have been presented “a complete picture of [Defendant’s]

                                         -52-
mental health,” Aplt. Br. at 40; but he does not describe what that picture was. At

most, from what we can tell from the record, Dr. Reynolds had several possible

diagnoses stated in the interpretive report on the valid MCMI-III test; but we have

no way of assessing how that would have played out at trial, particularly when

Dr. Reynolds has never stated that he had adopted one of those diagnoses at the

time of his trial testimony. Defendant also states that Dr. Reynolds could have

testified at trial that those with mental disease “have less capability of controlling

their behavior in regards to the law.” Id. at 38 (quoting R. Vol. 2 at 88). Such a

vague, generalized statement, however, is not the sort of mental-health evidence

that courts rely on to show prejudice; indeed, this statement seems as probative of

future dangerousness as of diminished moral culpability.

      We are not denigrating the value of mental-health evidence to support

mitigation in a capital case, nor are we departing from our precedent addressing

such evidence. We do not dispute that mental retardation and organic brain

damage are well-recognized grounds for mitigation. See Hooks v. Workman, 689

F.3d 1148, 1205 (10th Cir. 2012) (organic brain damage); Anderson v. Sirmons,

476 F.3d 1131, 1144 (10th Cir. 2007) (brain damage) Smith v. Mullin, 379 F.3d

919, 941–42 (10th Cir. 2004) (mental retardation and brain damage); see also

Atkins v. Virginia, 536 U.S. 304, 306 (2002) (prohibiting execution of the

mentally retarded, partly because they “do not act with the level of moral

culpability that characterizes the most serious adult criminal conduct”). And if

                                         -53-
(1) the record had supported a plausible diagnosis of paranoid schizophrenia and

(2) Defendant’s behavior during the crime could have been tied to that disorder,

this would be a different case.

       We conclude that Defendant has not satisfied his burden of showing that

the jury’s sentence of death “would reasonably likely have been different absent

the errors” of his counsel. Strickland, 466 U.S. at 696. Accordingly, we must

deny relief.

III.   CONCLUSION

       We AFFIRM the district court’s denial of Defendant’s claims under § 2254.




                                       -54-
11-5031, Wilson v. Workman

GORSUCH, J., Circuit Judge, concurring.

         The court convincingly explains why, even viewed de novo, the evidence

that emerged during the district court’s evidentiary hearing doesn’t help Mr.

Wilson’s cause. I write only to add that the hearing wasn’t necessary in the first

place.

         That, of course, was what the district court thought from the start. When

the case originally came to it, the district court held that the OCCA’s ruling on

Mr. Wilson’s state court Rule 3.11 motion amounted to an adjudication on the

merits of his Sixth Amendment claim, applied AEDPA deference, and held the

OCCA’s decision neither an unreasonable adjudication of federal law nor based

on an unreasonable determination of the facts. See Wilson v. Sirmons, No. 00-

CV-147CVEFHM, 2006 WL 2289777, at *41-43 (N.D. Okla. Aug. 8, 2006).

         Then things took a turn. Years of wrangling on appeal intervened and at

the end of it all this court reversed, instructing the district court to hold an

evidentiary hearing and conduct a de novo review of Mr. Wilson’s claim. This

court reasoned that the OCCA’s Rule 3.11 decision failed to constitute an

“adjudication on the merits” of Mr. Wilson’s Sixth Amendment claim so the

district court could afford it no deference. Wilson v. Workman, 577 F.3d 1284,

1290-93, 1299-1300 (10th Cir. 2009) (en banc). On remand, the district court

proceeded to do as instructed, and did the job thoroughly and well. But this

whole process has turned out to be as needless as it was protracted. As our recent
decision in Lott v. Trammell, __ F.3d __, No. 11-6096, 2013 WL 142067, at *42-

44 (10th Cir. Jan. 14, 2013), explains, Wilson no longer controls: intervening

events have undone the essential premises on which it rested.

        Rule 3.11 requires the OCCA to decide whether a petitioner has shown a

“strong possibility” his counsel was constitutionally ineffective. From this it

seems plain enough that an adjudication of a Rule 3.11 motion necessarily

adjudicates a Strickland claim on the merits entitled to deference under 28 U.S.C.

§ 2554(d). If anything, Oklahoma’s standard appears less demanding than

Strickland, requiring the petitioner to show only a strong possibility of a

constitutional violation, not an actual constitutional violation. That, of course, is

exactly what the district court held.

        Wilson, however, decided otherwise. It ruled that the OCCA’s Rule 3.11

decisions don’t constitute “adjudications on the merits” of Strickland claims

entitled to deference under AEDPA. They don’t, Wilson said, because — as a

matter of state law — the OCCA doesn’t have to consider evidence outside the

trial and direct appeal record developed collaterally by the petitioner. Put simply,

this court held that a ruling on such an “incomplete record” is not “an

adjudication on the merits to which we owe any deference.” Wilson, 577 F.3d at

1291.

        Since then, however, the OCCA has explained that Wilson was mistaken in

its understanding of Oklahoma law. In fact, Rule 3.11 “obligates” the OCCA in

                                        -2-
every case to “thoroughly review and consider a defendant’s Rule 3.11

application and affidavits along with other attached non-record evidence.” Lott,

2013 WL 142067, at *44 (alterations omitted) (quoting Simpson v. State, 230 P.3d

888, 905 (Okla. Crim. App. 2010)). Thus, the essential premise on which Wilson

stood has now evaporated. It turns out the OCCA does review all of a petitioner’s

evidence, even evidence outside the trial and direct appeal record. Neither may

we ignore the OCCA’s interpretation of its own rule. After all, state courts, not

we, have the final say when it comes to explaining the meaning of state law. See

Lott, 2103 WL 142067, at *44.

      Of course, while the petitioner in a state Rule 3.11 motion enjoys a lower

standard of proof than in a federal Strickland claim, he also faces what appears to

be a higher evidentiary burden. See Wilson, 577 F.3d at 1297. To win a Rule

3.11 motion in state court, a petitioner must present “clear and convincing”

evidence of a “strong possibility” of a Sixth Amendment violation: meanwhile, to

win a Strickland claim in federal court a petitioner must show an actual Sixth

Amendment violation under a preponderance of the evidence standard. Despite

this difference in language, the State of Oklahoma argued in Wilson that, as a

matter of state law, Rule 3.11’s “clear and convincing” evidentiary standard is

really no more demanding than the federal “preponderance of the evidence”

standard. In support of its view, the State pointed to state case law indicating that

a Rule 3.11 petitioner’s evidentiary burden is modest, requiring only the

                                         -3-
presentation of persuasive evidence, as opposed to “speculation, second guesses,

or innuendo.” Id. at 1298 (quoting Jones v. State, 201 P.3d 869, 890 (Okla.

Crim. App. 2009)); see also id. at 1306 (Tymkovich, J., dissenting) (offering this

same interpretation of state law). The Wilson court, however, rejected this

interpretation of state law. It read Rule 3.11 as imposing a more onerous

evidentiary duty on litigants in state court than they would face in federal court

and proceeded to question whether, in this light, a Rule 3.11 ruling could qualify

as an adjudication on the merits of a Strickland claim entitled to AEDPA

deference. Id. at 1298-99.

      Once again, however, the OCCA has since intervened. And once again it

has assured us that its evidentiary standard is “intended to be less demanding than

the test imposed by Strickland.” Lott, 2013 WL 142067, at *44 (quoting Simpson,

230 P.3d at 906) (emphasis added). It has clarified that “when [it] review[s] and

den[ies] a request for an evidentiary hearing on a claim of ineffective assistance

under the standard set forth in Rule 3.11, [it] necessarily make[s] the adjudication

that Appellant has not shown defense counsel to be ineffective under the more

rigorous federal standard set forth in Strickland.” Id. (alterations in original)

(quoting Simpson, 230 P.3d at 906). And, once again, the OCCA’s views of state

law are controlling. Even if its interpretation doesn’t seem obvious to us, a state

court is free to interpret its evidentiary rules as it wishes and free to interpret a

state “clear and convincing” standard as requiring no more proof than the federal

                                          -4-
“preponderance of the evidence” standard. Certainly the State of Oklahoma in

Wilson understood Rule 3.11’s evidentiary standard to require no more and after

the OCCA’s ruling in Simpson that understanding seems to stand confirmed. As

Lott has recognized, we must now accept “as a matter of federal law” that a Rule

3.11 ruling “operates as an adjudication on the merits of the Strickland claim and

is therefore entitled to deference under § 2254(d)(1).” Id.

      Of course, if the OCCA should later rule in a way that suggests it is using a

higher evidentiary standard than Strickland employs we would have renewed

questions. In those circumstances, it seems to me the use of a higher evidentiary

standard than federal law prescribes could very well render the OCCA’s

adjudication of a particular federal claim unreasonable — and so reversible —

under § 2254(d)(1). But while the OCCA’s choice of a different but conventional

rule of evidence than federal courts use when ruling on a federal claim might

expose it to a greater chance of reversal when the case comes to federal court, it

is less clear to me whether that might render the state court’s final decision on the

claim something entirely alien, something other than an adjudication on the

merits of the claim entitled to deference in the first instance.

      Happily, though, none of these potential problems appears to be live ones

today. For now, the essential state law premises on which Wilson rested no

longer appear operative, having been superseded by the OCCA’s definitive

exposition of the meaning of its own rule. Accordingly and as Lott has held, we

                                          -5-
owe AEDPA deference to the OCCA’s adjudication of Rule 3.11 motions. Seven

years ago the district court concluded as much and explained in great detail why

the OCCA’s decision in this particular case did not offend § 2254(d). See Wilson,

2006 WL 2289777, at *41-43. The many years and rounds of additional process

between there and here only serve to that court’s prescience.




                                       -6-
