                              UNITED STATES COURT OF APPEALS
                                          Tenth Circuit
                               Byron White United States Courthouse
                                        1823 Stout Street
                                     Denver, Colorado 80294
                                         (303) 844-3157
Patrick J. Fisher, Jr.                                                                  Elisabeth A. Shumaker
        Clerk                                                                            Chief Deputy Clerk

                                                March 15, 1999


        TO:      ALL RECIPIENTS OF THE OPINION

        RE:      97-6217, 97-6225, Stouffer v. Reynolds
                 Filed on January 15, 1999

                The opinion filed on January 15, 1999, contains a typographical error. On page 39
        of the slip opinion, line 3, first sentence of the first full paragraph, the sentence should read:
        “We disagree.”

                 Please make the correction to your copy of the opinion.

                                                            Sincerely,

                                                            Patrick Fisher, Clerk of Court


                                                            By:
                                                                    Keith Nelson
                                                                    Deputy Clerk
                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                                      PUBLISH
                                                                             JAN 15 1999
                     UNITED STATES COURT OF APPEALS
                                                                       PATRICK FISHER
                                                                                Clerk
                                 TENTH CIRCUIT



 BIGLER JOBE STOUFFER, II,

       Petitioner-Appellant,
 v.
                                                     Nos. 97-6217, 97-6225
 DAN REYNOLDS,

       Respondent-Appellee.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF OKLAHOMA
                        (D.C. No. CIV-95-401-C)



James P. Moran, Assistant Federal Public Defender (Michael G. Katz, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Petitioner Appellant.

Robert L. Whittaker, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for
Respondent-Appellee.


Before PORFILIO, EBEL, and KELLY, Circuit Judges.


PORFILIO, Circuit Judge.
       In 1985, an Oklahoma City jury convicted Petitioner Bigler Jobe Stouffer of the

first degree murder of Linda Reaves and the shooting with intent to kill her boyfriend,

Doug Ivens, whose estranged wife was dating Petitioner. Petitioner was subsequently

sentenced to death on the first conviction and life imprisonment on the second. After the

denial of his direct appeal, Stouffer v. State, 738 P.2d 1349 (Okla. Crim. App. 1987)

(Stouffer I), modified in part, Stouffer v. State, 742 P.2d 562 (Okla. Crim. App. 1987)

(Stouffer II), cert. denied, 484 U.S. 1036 (1988), Petitioner unsuccessfully sought state

post-conviction relief, Stouffer v. State, 817 P.2d 1275 (Okla. Crim. App. 1991)

(Stouffer III), cert. denied, 503 U.S. 965 (1992), raising and exhausting many of the

issues presented here. He then filed a petition under 28 U.S.C. § 2254 for habeas corpus

relief in federal court positing an array of issues, only six of which are preserved for our

review. Pivotal to them is whether Petitioner received the effective assistance of counsel

during the guilt and penalty phases of his trial. Because the record does not satisfactorily

answer this question, we conclude the district court abused its discretion in failing to hold

an evidentiary hearing to plumb the depths of Petitioner’s Sixth Amendment argument.

However, despite our inability to piece together the record, which is most hampered in

assessing counsel’s performance during the penalty phase, we accept the district court’s

conclusion the Oklahoma Court of Criminal Appeals properly reweighed the aggravating

and mitigating circumstances after finding no evidence of the heinous, atrocious, or cruel

aggravator in Stouffer II. We, therefore, vacate the district court’s order dismissing the


                                             -2-
§ 2254 petition and remand for the court to conduct an evidentiary hearing on the merits

of Petitioner’s Sixth Amendment claims.

                                              I.

       This murder and shooting occurred in the context of Doug and Velva Ivens’

divorce, a setting conducive to two widely divergent versions of events. According to the

State, on the night of January 24, 1985, Petitioner, who was dating Velva Ivens after she

had separated from Doug, told her he was going out to pick up his mail at his post office

box. Instead, Petitioner drove to Doug Ivens’ house, not far from Velva’s. Petitioner,

who had golfed with Doug and served at times as a mediator working out visitation

privileges for Doug with his two daughters, rushed in telling Doug he feared Velva and

the girls were endangered, victims perhaps of a burglar in their home. Petitioner asked to

borrow a gun, and Doug retrieved a loaded .357 magnum Colt Python stored in a bank

bag he took from an open case in his bedroom. Handing over the bag, Doug saw

Petitioner turn away, look down into the bag, swivel, and shoot. The shots, which entered

Doug’s chest and arm, awakened Linda Reaves, Doug’s girlfriend napping on the couch.

As she sat up, Petitioner moved behind her and shot her twice in the head, one bullet

piercing the hand she had raised to protect herself. Petitioner then returned to Doug, and,

standing over him, fired a fifth shot into his face. Before leaving, Petitioner set the gun

on the sofa cushion next to Ms. Reaves and then drove to the post office and back to




                                            -3-
Velva’s. Left for dead, Mr. Ivens crawled to the telephone and dialed 911, telling the

operator Petitioner was the shooter and directing the police to his wife’s home.

       Petitioner’s version differed. In his rendering, Petitioner returned from dinner that

night with Velva and her daughters, when Ivens telephoned him at Velva’s house asking

if he could come by later. Petitioner agreed and drove over. As he neared the house, he

noticed two men sitting in a silver and maroon Dodge pickup suddenly drive away.

Invited in, Petitioner detected a pungent odor, saw “some legs on the couch,” and

assumed Ms. Reaves, who visited frequently, was there. Mr. Ivens, nervous and upset,

asked him, “how much will it take, for you to get Velva to settle this thing in my terms,”

referring, he knew, to the contested property distribution in the Ivens’ divorce. When

Petitioner refused to participate in any scheme, Ivens became irate, pulling a gun he’d

tucked into his waistband. In the ensuing struggle, the gun discharged twice, with the

third shot, Petitioner believed, hitting Ivens in the stomach. As Petitioner pulled the gun

away, it fired a fourth time. Petitioner explained he fired the fifth shot, although Ivens lay

bleeding, thinking he saw another gun in Ivens’ hand. Petitioner then left, stopped by the

post office, and returned to Velva’s where the police were waiting. In his version,

although he had shot Ivens in self-defense, Ms. Reaves was either dead when he arrived

or killed by a ricocheting bullet.1

       1
        When Velva asked Petitioner, “What is going on? Did you do it,” he responded,
“No, I did not do it. There’s a lot of confusion ... You’ll understand later.” Questioned
later by the police at the station, Petitioner stated he had not been at Ivens’ house that
                                                                                 (continued...)

                                             -4-
       At trial, the State built its case on the testimony of investigating police, forensic

experts, and Doug and Velva Ivens. The evidence was framed by the State’s theory that

Petitioner, fearing he was losing Velva, in a cold and calculating fashion, attempted to

remove the individual responsible for his loss only to confront an innocent witness he had

not expected to be present. Defense counsel parried this version solely with Petitioner’s

testimony he acted in self-defense. Dispatched to deliberate at 4:15 p.m., the jury

returned in less than an hour with its verdict finding Petitioner guilty on both charges.

       The court immediately launched the second phase of the trial for the jury to

determine Petitioner’s sentence. In that proceeding, the prosecutor read the State’s bill of

particulars enumerating three aggravating circumstances which, it alleged, supported

punishment by death: (1) the murder was committed for the purpose of avoiding or

preventing a lawful arrest or prosecution; (2) the perpetrator knowingly created a great

risk of death to more than one person; and (3) the murder was especially heinous,

atrocious, or cruel. In its opening statement, the State asked the jury to incorporate the

evidence from the guilt phase of the trial to support the allegations.

       Without offering an opening statement, defense counsel countered with one

witness, Dr. John A. Call, a clinical and forensic psychologist, who had interviewed

Petitioner, conducted a mental status examination, and administered several personality

       (...continued)
       1

night and didn’t know why Ivens would say Petitioner shot him. In a later conversation
with Velva, Petitioner stated, “When I got over there, I was just angry. I just did
something I shouldn’t have done.”

                                             -5-
and intelligence tests. Based on these studies, Dr. Call told the jury Petitioner was a “42

year old man, going on 15” with an “atypical personality disorder, with immature and

hysterical traits.” Dr. Call described the manifestation of this condition in Petitioner’s

inability to “mak[e] a mature, responsible, adult decision, and acting on that decision, he

demonstrates a significant difficulty to do so.” Opining that Petitioner could distinguish

between right and wrong, Dr. Call underscored Petitioner had the judgment of a teenager,

“the teenager who is caught driving the father’s car, and being caught red-handed at it,

and blaming everyone but himself.”

        In its closing argument, the State embraced this mitigating evidence, telling the

jury,

        Now, does that [aggravating evidence] outweigh what the Defendant has
        offered as mitigating circumstances? He’s offered that he’s immature ....
            ....
        The doctor is right. He’s different. He’s a menace is what he is. No
        reasonable, nearly normal person could do what he did. And for that there
        can be only one punishment. This is the appropriate case for death ....
            ....
        They say he’s immature. I’ve got other words for it ... he’s unique. He’s
        different .... This crime was outrageous. It was cruel, it was unnecessary.
        It was committed by a man who is a vicious, cold-blooded, scheming
        murderer who needs to die.

The jury deliberated for two hours, returning at 11:00 p.m. with the sentence challenged

here.

                           II. Ineffective Assistance of Counsel




                                             -6-
       Petitioner’s claim of ineffective assistance of counsel presents a mixed question of

fact and law, Cooks v. Ward, 159 F.3d 1280, 1289 (10th Cir. 1998), which we review de

novo applying the law extant before enactment of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA),2 Williamson v. Ward, 110 F.3d 1508, 1513 (10th Cir.

1997). Although we accept the federal district court’s factual findings unless they are

clearly erroneous and recognize that “[s]tate court factual findings are presumptively

correct and are therefore entitled to deference,” Davis v. Executive Dir. of Dept. of

Corrections, 100 F.3d 750, 756 (10th Cir. 1996), cert. denied, 117 S. Ct. 1703 (1997), all

legal conclusions are subject to our plenary review, Newsted v. Gibson, 158 F.3d 1085,

1089 (10th Cir. 1998). However, because the state court did not hold an evidentiary

hearing, we “evaluate the factual record as it was.” Miller v. Champion, ___ F.3d ___,

No. 97-6439, 1998 WL 811780, at *6 (10th Cir. Okla. 1998).

       Petitioner presents three grounds for establishing he was denied the right to

competent counsel during both the guilt and penalty phases of his trial: first, counsel

labored under a conflict of interest; second, counsel’s trial performance was not

objectively reasonable and affected the outcome; and, third, counsel’s failure to

adequately investigate, prepare, and present mitigating evidence effectively invited the

jury’s sentence. To succeed, Petitioner must not only establish counsel’s performance


       2
        Petitioner filed his federal habeas petition in 1995, the year before enactment of
the AEDPA. Further, Oklahoma is not a qualifying state for purposes of the special
provisions of the AEDPA applicable to capital cases.

                                            -7-
was deficient but also “the deficient performance prejudiced the defense,” depriving

defendant of a fair trial, “a trial whose result is reliable.” Strickland v. Washington, 466

U.S. 668, 687 (1984).

                                    A. Conflict of Interest

       At his trial, Petitioner retained Mark Lea (Beau) Cantrell, who had represented him

previously in civil actions, and Mr. Cantrell later hired Bill James, a former assistant

district attorney, who told the jury he only began working on the case the week before

trial. Since Stouffer I, Petitioner has maintained both attorneys had actual conflicts of

interest in their representation which he did not previously know about, and these

conflicts prejudiced his defense. He elaborates that nine years before trial his lead

counsel, Mr. Cantrell, served as a county representative in the gubernatorial campaign of

Ron Shotts, the attorney who filed Mr. Ivens’ civil action attaching Petitioner’s assets the

day after the shootings occurred. Seven years before this trial, Petitioner states Mr. James

filed a criminal case charging him with arson but sometime later dismissed the action

because of insufficient evidence.

       In Stouffer I, the Oklahoma Court of Criminal Appeals rejected these assertions

not only because the conflicts were too remote in time to have prejudiced him, but also

because Petitioner, by allowing both attorneys to represent him, waived any possible

conflict. In his federal habeas, the district court concluded the seven-year interval and

absence of any specific evidence of instances of divided loyalty in which the prior


                                             -8-
prosecution might have altered Mr. James’ present performance dispelled Petitioner’s

contention counsel had an actual conflict of interest based on the analysis in United States

v. Gallegos, 39 F.3d 276, 278 (10th Cir. 1994). As to Mr. Cantrell’s representation, the

district court noted Petitioner had also failed to identify the precise campaign relationship

between Mr. Shotts and Mr. Cantrell or describe any contact between the two to support

the alleged conflict based on his attorney’s previously being “a political supporter of

unknown intensity for an attorney and friend of a government witness.”

       Now, Petitioner asks we view these conflicts within the context of “the apparent

insularity of the Oklahoma legal community” and, while recognizing the usual setting for

a conflict is that of dual, successive, or simultaneous representation, urges his case is an

analog, albeit less well established, and demands similar scrutiny. Petitioner relies on

United States v. Ziegenhagen, 890 F.2d 937, 940 (7th Cir. 1989), to shape our analysis,

likening Mr. Cantrell’s involvement in the civil litigation with Mr. Shotts to “directly

related prior litigation” and Mr. James’ actively leading a prior prosecution against him to

an actual conflict of interest. At a minimum, Petitioner requests we remand this issue for

an evidentiary hearing to determine whether the conflict had an adverse effect on his

representation in light of his attorneys’ performance during trial.

       The Sixth Amendment’s right to the effective assistance of competent counsel

includes the right to conflict-free representation, Cuyler v. Sullivan, 446 U.S. 335, 350

(1980), and is rooted in “the fundamental right to a fair trial.” Strickland, 466 U.S. at


                                             -9-
684. “Lawyers in criminal cases ... are the means through which the other rights of the

person on trial are secured.” United States v. Cronic, 466 U.S. 648, 653 (1984). The

principle is unchanged when defendant retains his own lawyer, as here. “The vital

guarantee of the Sixth Amendment would stand for little if the often uninformed decision

to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to

constitutional protection.” Cuyler, 446 U.S. at 344. Ultimately, we judge the fairness of

the trial itself through the Sixth Amendment lens looking to determine if counsel has

subjected each bit of evidence, each element of the prosecution’s case, to reasonable

adversarial testing. Strickland, 466 U.S. at 685. Thus, when appointed or retained

counsel operates under an actual conflict of interest, we presume the adversarial balance

has been altered and prejudice inures to the defendant, affecting the adequacy of

representation. Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996).

       In this case, because Petitioner did not object at trial to his representation by either

Mr. Cantrell, whom he retained, or Mr. James,3 he must demonstrate an actual conflict of

interest which adversely affected his attorneys’ performance by pointing to specific

instances of actions adverse to his interests. United States v. Alvarez, 137 F.3d 1249,

1251 (10th Cir. 1998). However, aside from asking us to take judicial notice of “the



       3
        Because none of these assertions has ever been subjected to an evidentiary
hearing, we do not know whether Mr. Cantrell signed Mr. James on to the defense one
week before trial because Mr. Cantrell, in fact, had never tried a capital case or because
he had little experience trying criminal cases.

                                             - 10 -
apparent insularity of the Oklahoma legal community,”4 Petitioner has advanced no

particular “instances in the record which suggest an impairment or compromise of his

interests for the benefit of another party.” Id. at 1252 (citation and internal quotation

marks omitted).

       Absent this showing, the state’s historical factual findings that the prior

associations were too remote in time, while entitled to our deference, are not alone

dispositive of whether individual counsel suffered under such a conflict. Indeed, as

Petitioner has advanced, in Ziegenhagen, the alleged conflict by a prosecutor who

recommended prior sentences later used to enhance defendant’s sentence occurred twenty

years before the challenged representation. 890 F.2d at 938. Thus, the passage of time

alone cannot ameliorate a specific instance of a conflict. Moreover, absent any factual

findings in the record, the state court’s conclusion Petitioner waived the alleged conflict

is not entitled to deferential treatment. “[T]he waiver of a constitutional right must not

only be voluntary, but must be a knowing, intelligent act ‘done with sufficient awareness

of the relevant circumstances and likely consequences.’” United States v. Gallegos, 108

F.3d 1272, 1281 (10th Cir. 1997) (quoting Brady v. United States, 397 U.S. 742, 748

(1970)).5 Were we to have to make such a determination, we would “‘indulge every

       4
        However, not only is this type of evidence not subject to judicial notice, but also,
the argument is not appropriate for that evidentiary leap.

      In United States v. Ziegenhagen, 890 F.2d 937 (7th Cir. 1989), the court
       5

remanded the case for an evidentiary hearing to determine whether defendant made a
                                                                                 (continued...)

                                            - 11 -
reasonable presumption against the waiver.’” Gallegos, 108 F.3d at 1281 (quoting

Glasser v. United States, 315 U.S. 60, 70 (1942)).6 Again, the record does not provide us

with any factual basis for such a determination, no hearing having been held.

       Consequently, in the absence of an objection at trial or citation of specific

instances of compromised representation in the record, we hold the district court did not

err in rejecting Petitioner’s claim of ineffective assistance of counsel based on his

attorneys’ prior associations. We further decline Petitioner’s invitation to analogize the

prior alleged adverse interests as tantamount to joint or successive representation.

Although we do raise questions about the adequacy of trial counsel’s performance, those

concerns do not derive from the alleged conflicts of interest but are confined to the trial

arena as contemplated by Strickland.

                             B. Deficient Trial Performance

       In challenging his attorneys’ performance at trial, Petitioner does indicate specific

instances alleged to fall below an objective standard of reasonableness. With citations to

the record, Petitioner catalogs lead counsel Mr. Cantrell’s failure to prepare and present a

certified copy of a defense exhibit to buttress Petitioner’s self-defense theory; Mr.

Cantrell’s inability to conduct the direct examination of his witnesses without asking



       (...continued)
       5

knowing and intelligent waiver of the conflict.
       6
        The district court did not address the question whether Petitioner waived the
alleged conflict. Its resolution is not necessary for our holding either.

                                            - 12 -
leading questions; counsel’s failure to assert and explicate challenges for cause in seating

members of the jury who had police connections or a close personal friend who had been

shot; counsel’s cross-examination of the State’s witnesses, which, most often served to

restate and highlight the most damaging elements of the direct testimony; counsel’s

failure to deliver an opening statement at either phase of his trial; and Mr. Cantrell’s

“rambling, incoherent, and irrelevant recitation of historical anecdotes and patriotic

platitudes” during his closing argument which provided the prosecutor with another

opportunity to seize on the apparent weakness of Petitioner’s case to the jury. Indeed,

Petitioner asserts the “impression left by counsel’s performance was that Mr. Stouffer had

no viable defense.” Petitioner contends these examples demonstrate counsel failed to

“exercise the skill, judgment and diligence of a reasonably competent defense attorney.”

Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir. 1980) (en banc).

       Strickland’s admonition “[j]udicial scrutiny of counsel’s performance must be

highly deferential” free from the “distorting effects of hindsight” guides our review of the

record. 466 U.S. at 689. Moreover, a wide swath of that conduct is cut for sound trial

strategy. Id. Nonetheless, we are still instructed to determine the objective

reasonableness of that performance, looking at the facts of the case at the time of

counsel’s conduct. Id. at 690.

       Our concerns about whether the attorneys’ trial performance was deficient, the first

prong of Strickland, focus on the alleged defense that counsel suggested he would mount.



                                            - 13 -
Given this highly publicized murder of a third grade teacher and the involvement of two

Oklahoma City businessmen,7 Petitioner sought to counter with a self-defense scenario, in

which he, serving as a go-between for Doug Ivens to visit with his daughters, refused to

aid Doug in locking Velva out of her fair share in a property settlement. In a capital case,

from the defense perspective, the jury would have to know, however the stretch, how

Petitioner became involved in this gruesome event.

       In a pre-trial motion, Mr. Cantrell asked to reserve opening statement until he

presented his case-in-chief. However, Mr. Cantrell never made an opening statement. In

a later affidavit submitted by the Attorney General’s Office to the Oklahoma Court of

Criminal Appeals (the Affidavit), Mr. Cantrell stated:

       Chief Defense Counsel reserved opening statements as to the first stage of
       said trial becuase [sic] the state, at the beginning of the trial, had absolutely
       no fore knowledge [sic] of the defense to be presented. Because of the
       length of time it would take for the State’s case-in-chief to be presented,
       Chief Defense Counsel believed that an opening statement would alert the
       state unnecessarily as to defense theories and allow the State to change or
       alter their case-in-chief so as to minimize the theories of the defense.

Mr. Cantrell does not explain why, given this statement of strategy, he then did not

preface the presentation of his defense with an opening statement. Although the federal

district court found counsel’s failure to present any opening argument was “well within

the tactical discretion of counsel,” that finding is conjectural given counsel’s statement of

defense strategy.

       7
        Reference is made to the publicity surrounding the trial, and the court granted
Petitioner’s objection to having a television camera in the courtroom.

                                             - 14 -
       While the failure to present an opening statement, standing alone, is not ineffective

assistance of counsel, United States v. Haddock, 12 F.3d 950, 955 (10th Cir. 1993), its

absence here serves to underscore the lack of any discernible effort by Petitioner’s

counsel to present a defense. Indeed, a review of the record establishes, except for

Petitioner’s testimony, each apparent effort to develop the defense theory was thwarted by

defense counsel’s objective incompetence. For example, apparently to impeach Mr.

Ivens’ testimony about his condition after the shooting, Mr. Cantrell attempted to

introduce a certified copy of a defense exhibit to show Mr. Ivens directed his attorney to

file a civil suit attaching Petitioner’s property the day after he was shot. Because the

document was not properly file stamped, the court prohibited its admission. Although the

federal district court agreed counsel’s inability to properly prepare the exhibit for

admission fell “below prevailing norms of representation,” it faulted Petitioner’s

argument for failing to show how introduction of this particular document “would have

caused a different outcome in the trial,” suggesting alternative inferences the jury could

have drawn had the exhibit been introduced.8 However, juxtaposed to the failed defense

effort to elicit any testimony about the contested property settlement allegedly involving

different bank statements and a life insurance policy and the victim’s drinking habits, this

particular exhibit remains another unexamined link in an indiscernible defense. In each


       Although even the state trial court made reference to the futility of Petitioner’s
       8

defense effort in light of the testimony of the surviving victim, the lack of any meaningful
adversarial testing of the State’s case magnified that testimony and permitted it to remain
unchallenged.

                                            - 15 -
instance, defense counsel was unable either to lay a proper foundation to predicate the

particular question or offer a plausible explanation for the basis of the question to the trial

judge to overcome the court’s sustaining the State’s objection.9 Taken alone, no one

instance establishes deficient representation. However, cumulatively, each failure

underscores a fundamental lack of formulation and direction in presenting a coherent

defense. Whether that amounts to a viable Sixth Amendment violation satisfying

Strickland’s two-pronged inquiry requires further evidentiary exploration to assure that

hindsight has not distorted these examples, 466 U.S. at 689, or “sound trial strategy” has

not unduly sheltered them.

       We couple this concern over counsel’s conduct in presenting a defense with their

overall trial strategy, as Mr. Cantrell articulated in the Affidavit.

       Defense trial strategy as to the first stage of Case No. F-85-443 was to show
       the inconsistency of the evidentiary facts as alleged by the State. This was

       9
        For example, Mr. Cantrell called Ann Cook, Petitioner’s neighbor, to testify about
a telephone conversation she had with Petitioner shortly before he left for Doug Ivens’
house. She began to testify that Petitioner told her he had a telephone conversation with
Doug Ivens and had discussed some insurance. Counsel then asked Ms. Cook, “Did he
tell you whether or not Doug had asked him to come over to his house?” Prosecutor Bob
Macy objected to the question as leading, and the court sustained the objection. Upon a
second unsuccessful effort to ask the same question, Mr. Cantrell approached the bench
and the court admonished him to ask direct, not leading questions. Mr. Cantrell then
questioned Ms. Cook: “Do you know whether or not he told you that Doug had asked
him to come over to his house?” Again an objection was sustained; the jury was
dismissed; and Mr. Cantrell had another bench conference in which he asked the court’s
direction in phrasing the question. The court refused and after the jury returned, the court
permitted co-counsel, Mr. James, to continue questioning Ms. Cook. The court sustained
the prosecution’s hearsay objection to Mr. James’ questions about Ms. Cook’s
conversation with Petitioner.

                                             - 16 -
       primarily to be done through cross-examination of the State’s witnesses and
       presentation of the State’s imperical [sic] evidence in it’s [sic] true light to
       the jury.

       We offer one example from many in the record which defies this characterization

and leaves us with a suspicion that defense counsel had not previously interviewed

prosecution witnesses or prepared adequately for trial. In its case-in-chief, the State

called Mr. James Gibbons, an officer in the Oklahoma City Police Department, who was

on patrol the night of the murder and was directed to the crime scene, arriving just after

the ambulance. In his direct testimony, Officer Gibbons described his duties at the crime

scene and how, as one of the first officers there, he stepped over Mr. Ivens while

ambulance workers were administering care, and looked over the house, spotting the gun

on the sofa and moving it to avoid any further accidents. He then related how Mr. Ivens,

lying gravely wounded on the floor, told him he’d been shot by Bud Stouffer. Officer

Gibbons recalled Mr. Ivens added, “Stouffer like the frozen food kind.”

       Mr. Cantrell cross-examined, first questioning the officer about whether he had

sketched the crime scene although his direct testimony made clear what his

responsibilities were. Mr. Cantrell then asked the officer when he “interviewed” Doug

Ivens, as the officer previously described, whether the victim was coherent:

       A Yes, sir.
       Q Do you think that he was in command of his mental senses, and knew
       what he was saying?
       A I believe so, yes, sir.
       Q And is it correct that you asked him who shot you, and that he said Bud?
       A Yes, sir.

                                            - 17 -
       Q Is it also correct that you asked him Bud who, and he said “Stouffer, as
       in the frozen food.”
       A Yes, sir.

Mr. Cantrell not only provided the jury with a second opportunity to hear Mr. Ivens’

eyewitness identification but also established when the statements were made, the

speaker, Petitioner’s accuser, was coherent and in command of his senses.

       In another instance, when cross-examining Ms. Chai Choi, the State’s forensic

pathologist, Mr. James meticulously asked questions about each bit of soot, hair, bone,

and other material found on Ms. Reaves, eliciting responses already given in her direct

testimony. Counsel then suggested alternative theoretical possibilities for this physical

evidence which again served to reiterate that evidence and underscore its validity without

casting any doubt upon it. Mr. James concluded by asking:

       Q Since you don’t know which order the shots occurred, and everything, is it
       possible that wound that you have described in the left hand was received,
       hypothetically in the following manner: That the lady put the hand up in front of
       her, she was shot through here, and then shot in the chest?
       A Yes, it’s possible.
       Q It even could be probable, is that correct?
       A It may be.

Defense counsel’s revisiting the picture of this third grade teacher whom the State sought

to prove had been shot execution-style again belies Mr. Cantrell’s statement counsel

attempted to “show the inconsistency of the evidentiary facts.”6


       6
        In cross-examining Officer Steve Pacheco, Mr. Cantrell had the witness draw in
the blood spots, showing the locations and trails in the room. Mr. Cantrell asked the
officer to “make your blood in the wet bar a little bit bigger please”? The witness
                                                                               (continued...)

                                           - 18 -
       Finally, we would note closing arguments offered by both defense counsel. Mr.

James led off by telling the jury he would not go over the entire case but rather address

the testimony of the expert witnesses. Instead, he spoke generically about the jury’s role,

the State’s burden, and raised some questions about why Ms. Reaves did not run out of

the house when she heard the first shots; how her head was slumped; and why Petitioner

would borrow a gun when he had access to one at Velva’s house. A second time, he told

the jury he had hardly been on the case longer than they: “Actually one week ago today is

when I really started working on the case.”

       In tandem, Mr. Cantrell reviewed the State’s theory of the shooting and key

testimony introducing a new line of defense that the police misinvestigated the case,

instantly targeting Petitioner and failing to explore other possibilities and suspects.7 After

that lengthy narration, Mr. Cantrell told the jury how the timing of this trial, beginning

just before the fourth of July, prompted him to think about 209 years before and how the

Declaration of Independence to which the signers pledged their lives was in such stark

contrast to the sloppy way the State had presented its case. Pages later in the record after



       (...continued)
       6

complied.
       7
        Mr. Cantrell: “And I ask you – and again, we see the consistent and the continual,
and the thorough misinvestigation of this case. I asked him, I said weren’t there two eye-
witnesses to at least some incidents? He said why, no, there was only one. I said well,
who was that? He said Doug Ivens. He was there. I said what about Bud Stouffer. He
said oh, no, he was a suspect. You see? The consistent and continual complete absence
of extensive and thorough investigation in this case.”

                                            - 19 -
the State objected, Mr. Cantrell proceeded to tell a last anecdote about a friend who

served as Assistant Chief of Staff at the White House and the friend’s experience with a

group of African Freedom Fighters at the Jefferson Memorial to illustrate the jury’s role

in assuring a fair trial. Prosecutor Macy commenced his closing statement with an

apology for the length of the closing arguments and promised he would not give any

lessons in American history.

       If defense counsel’s trial strategy was to “show the inconsistency of the evidentiary

facts,” the record reveals the strategy served to reinforce the State’s evidence without

ever, except for Petitioner’s isolated testimony, presenting a case in defense. Each key

piece of defense evidence was thwarted by defense counsel’s inability to advance it. This

is not hindsight. These are the facts of defense counsel’s performance at the time of a

capital trial. To shelter these facts with the mantle of trial strategy defies experience, we

believe, and countenances deficient practice in such a high-stakes setting.

       Nonetheless, without benefit of an evidentiary hearing, our judgment of counsel’s

performance as deficient remains unsettled given the Court’s admonition in Strickland to

avoid the seduction of hindsight review. Moreover, it represents only half the analysis.

We must determine whether the failure to provide Petitioner with objectively reasonable

representation prejudiced the defense such that we cannot say the result is reliable.

Strickland, 466 U.S. at 687. We focus that analysis by addressing the third prong of




                                            - 20 -
Petitioner’s ineffectiveness claim, the lack of mitigating evidence presented during the

penalty phase of his trial.

                                 C. Mitigating Evidence

       Petitioner contends counsel’s failure to investigate, prepare, and present mitigating

evidence not only demonstrated deficient representation but also clearly caused

prejudice, denying him the prospect of the potential single juror who would not vote for

the death penalty. He maintains counsel treated the penalty phase as “a mere

afterthought,” calling only one witness who raised for the first time the presence of a

“personality disorder” of immaturity, which, in fact, contradicted the self-defense theory

by attempting to offer some excuse for the murder.

       Again, because there has been no evidentiary hearing in either the state or federal

court, we look to Mr. Cantrell’s Affidavit explaining his strategy at the penalty phase:

           It is the recollection of Chief Defense Counsel that the Defendant requested no
       witnesses to be called in the second stage other than Dr. Call.
           ....
           It was, and is, the opinion of Chief Defense Counsel that had character
       witnesses been called for the Defendant, such testimony would have made
       little or no impression of a positive nature upon the jury. Additionally, such
       a maneuver would have allowed the State to present evidence showing, in
       their opinion, the bad character of the Defendant. Had the State [sic]
       allowed, by the opening of the issue of character by the defense, to present
       refuting evidence of bad character it is the opinion of Chief Defense
       Counsel that the prejudice against the Defendant to the jury would have
       outweighed whatever possibly helpful evidence might have been presented
       to the jury on the issue of the Defendant’s character.
           The Defendant did not want the evidence of Dr. Call concerning the
       Defendant’s absolute imaturity [sic] placed into the record. It was, and is,
       the opinion of Chief Defense Counsel that Dr. Call’s testimony was the only

                                           - 21 -
        qualified expert evidence that could be given in mitigation of the
        punishment to be assessed against the Defendant.
            The Defendant did advise counsel that the Defendant believed that the
        Defendant had flunked Dr. Call’s test. Upon inquiry to Dr. Call, Chief
        Defense Counsel was advised by Dr. Call that the test was of such a nature
        that the Defendant could not “flunk” the test. That is, the test measured
        psychological traits of the Defendant, not imperical [sic] knowledge.
            It was the belief of the Chief Defense Counsel that Dr. Call’s testimony
        would establish the Defendant’s inability to emotionally or intellectually act
        or react beyond the level of an early adolescent child. This being the case,
        it was the belief of Chief Defense Counsel that in sentencing, the jury
        would determine that the punishment assessed against the Defendant would
        be commensurate to punishment leveled against an early adolescent child in
        similar circumstances. In short, it was believed that Dr. Call’s testimony
        would incline the jury to assess a merciful punishment against the
        Defendant.

       First, the Affidavit addresses counsel’s decision not to call other witnesses to offer

evidence in mitigation of Petitioner’s sentence. Mr. Cantrell recalled Petitioner directed

him not to do so although Petitioner contradicted that representation in a supplemental

record accompanying his 1986 post-conviction petition. Attached to that filing were

affidavits submitted by family members, business acquaintances, and friends describing

Petitioner as a person of high morals, good judgment, and trustworthy character.

However, Mr. Cantrell explained he did not place Petitioner’s character in issue during the

penalty phase to forestall the State’s introducing evidence of bad character. The district

court placed Mr. Cantrell’s decision not to call additional witnesses “within counsel’s

strategic discretion,” although it found “nothing in the record to suggest petitioner

previously exhibited violent behavior.” It further found Petitioner was not prejudiced by




                                            - 22 -
the Oklahoma Court of Criminal Appeals’ consideration of “an allegation of past violent

behavior although no evidence of such behavior existed on the record.”

       Lurking behind the tactical decision not to place Petitioner’s character at issue was

a tape of a telephone call, apparently recorded at an Oklahoma City police station, in

which the caller, in a rambling, free-associational manner, suggested Petitioner was

involved in drugs, prostitution, and gambling. Although the state trial court ruled the tape

inadmissable, calling it “rank hearsay,” the tape remains with the record and serves as a

persistent echo about Petitioner’s “bad character.”8 Thus, on the basis of this nonentity in

the record9 and no representation from the State it had any evidence to offer of “bad

character,” Mr. Cantrell made the “tactical decision” not to call other witnesses.

Moreover, Mr. Cantrell made no effort, at least as represented by the Affidavit, to

investigate any mitigating evidence.

       As a second area of concern, judging counsel’s explanation at the time the decision

was made, that is reconstructing “the circumstances of counsel’s challenged conduct, and

[] evaluat[ing] the conduct from counsel’s perspective at the time,” Strickland, 466 U.S. at

689, we are baffled by the reasonableness of Mr. Cantrell’s proceeding with this one


        The Oklahoma Court of Criminal Appeals embraced the evidence as well, stating,
        8

“Had the defense made appellant’s character an issue as such, the State could have
presented significant evidence of appellant’s connection to organized crime and of his
prior violent conduct.” Stouffer I, 738 P.2d 1349, 1362 (Okla. Crim. App. 1987) (italics
added).

        At oral argument in this appeal, the State persisted in calling the tape “some
        9

indication in the record.”

                                            - 23 -
witness, against the wishes of his client, upon the belief that a jury that took less than an

hour to find him guilty10 would choose to spare his life because he behaved like an

adolescent. Nothing in the guilt phase of the trial, incorporated into the penalty phase,

indicated Petitioner behaved immaturely and impulsively. Indeed, Doug Ivens testified he

relied upon Petitioner to negotiate with Velva to visit his daughters. Velva Ivens

described the good relationship Petitioner enjoyed with her children. However, in closing,

defense counsel did not reiterate any positive evidence about Petitioner. Instead, Mr.

Cantrell apologized to the jury for appearing to zealously represent his client; did not

attempt to revisit any positive character information from the trial’s first phase; and did not

underscore Petitioner’s lack of a criminal record, or attempt to plead for Petitioner’s life,

other than to tell the jury he was almost a half century old so life imprisonment would not

last an inordinately long time.

       While the decision to present no mitigating evidence may be a tactical one, the

failure to investigate the existence of any such evidence triggers a fundamental component

of the Sixth Amendment.

       The duty to investigate derives from counsel’s basic function, which is to
       make the adversarial testing process work in the particular case. Because
       that testing process generally will not function properly unless defense


         Mr. Cantrell stated in the Affidavit he did not give an opening statement in the
        10

penalty phase because “an opening statement would inflame the jury prejudicially against
the Defendant and furnish the State’s counsel with an opportunity to refute generally what
the State could not otherwise refute specifically. In other words, Chief Defense Counsel
wished to hold State’s counsel to the narrow issue of Dr. Call’s specific testimony and
opinion. The Affiant believes that this was successfully accomplished.”

                                             - 24 -
       counsel has done some investigation into the prosecution’s case and into
       various defense strategies, [the Supreme Court has] noted that counsel has a
       duty to make reasonable investigations or to make a reasonable decision that
       makes particular investigations unnecessary.

Williamson, 110 F.3d at 1514 (quoting Kimmelman v. Morrison, 477 U.S. 365, 384

(1986)) (internal quotation marks omitted). We have frequently stated, “In a capital case

the attorney’s duty to investigate all possible lines of defense is strictly observed.” Duvall

v. Reynolds, 139 F.3d 768, 777 (10th Cir. 1998), cert. denied, 119 S. Ct. 345 (1998)

(quoting Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir. 1986)). Although we have

never delineated the bounds of that duty, Brecheen v. Reynolds, 41 F.3d 1343, 1366 (10th

Cir. 1994), we have stated, “an attorney must have chosen not to present mitigating

evidence after having investigated the defendant’s background, and that choice must have

been reasonable under the circumstances.” Id. at 1369 (citations and internal quotation

marks omitted).11 Nonetheless, “[w]hat is essential is that the jury have before it all

possible relevant information about the individual defendant whose fate it must

determine.” Jurek v. Texas, 428 U.S. 262, 276 (1976) (plurality opinion).

       The introduction of mitigating evidence individualizes the capital sentencing

decision. The Supreme Court has underscored every defendant’s right to introduce

mitigating evidence at capital sentencing because the death sentence is “so profoundly

different from all other penalties.” Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality


        We would note Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir. 1994), for
        11

example, was decided with benefit of an evidentiary hearing as were Duvall v. Reynolds,
139 F.3d 768 (10th Cir. 1998), and Brewer v. Reynolds, 51 F.3d 1519 (10th Cir. 1995).

                                            - 25 -
opinion) (emphasis added). Thus, we must closely scrutinize counsel’s performance to

assure their representation appreciated the role of mitigating evidence in the second phase

of Petitioner’s trial. In this context, the objective reasonableness of counsel’s performance

is not assessed by the attorney’s general legal skill, experience, and knowledge. “When

the choice is between life and death,” id., we must demand more of counsel’s

representation to assure defendant “[t]hat a person who happens to be a lawyer is present

at trial alongside the accused, however, is not enough to satisfy the constitutional

command.” Strickland, 466 U.S. at 685.

       To establish entitlement to an evidentiary hearing under pre-AEDPA law, a

petitioner must “make allegations which, if proved, would entitle him to relief.” Medina

v. Barnes, 71 F.3d 363, 366 (10th Cir. 1995) (citation omitted). “[W]here an applicant for

a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the

federal court to which the application is made has the power to receive evidence and try

the facts anew.” Townsend v. Sain, 372 U.S. 293, 312 (1963). When the facts are in

dispute, the federal district court “must hold an evidentiary hearing if the habeas applicant

did not receive a full and fair evidentiary hearing in a state court, either at the time of the

trial or in a collateral proceeding.” Id. In this case, we believe Petitioner has alleged

specific and particularized facts, which, if proved, would entitle him to relief. Hatch v.

State of Okla., 58 F.3d 1447, 1471 (10th Cir. 1995).




                                              - 26 -
       Nevertheless, before a hearing is mandated, we recognize Petitioner must also

satisfy the second Strickland hurdle, whether he has been prejudiced by counsel’s alleged

ineffective assistance; that is, whether there is a reasonable probability that but for his

attorneys’ deficient representation, the result would have been different at the guilt and

penalty stages. Again, given the state of this record before us, we cannot prognosticate.

Absent an evidentiary hearing, we may only bandy the merits of the ineffective assistance

claim about piecing together fragments and substituting conjecture for reasoning. Most

importantly, because an ineffectiveness claim is a mixed question of fact and law, the

adequacy of the record is essential. We therefore conclude the district court erred in

failing to hold an evidentiary hearing to assess Petitioner’s allegations of ineffective

assistance of counsel as we have delineated that issue.

                                  III. State’s Reweighing

       After the Oklahoma Court of Criminal Appeals modified its denial of Petitioner’s

direct appeal by finding the evidence was insufficient to support a finding of the

aggravating circumstance the murder was especially heinous, atrocious, or cruel, Stouffer

II, 742 P.2d at 563, the court weighed the remaining aggravating circumstances. It

considered the murder was committed for the purpose of avoiding or preventing a lawful

arrest or prosecution and the perpetrator knowingly created a great risk of death to more

than one person, with the mitigating circumstances, the lack of a criminal record and

personality disorder, and concluded “the sentence of death [was] factually substantiated



                                             - 27 -
and appropriate.” Id. at 564. The court further stated the “overwhelming evidence of

guilt” rendered inclusion of the unsupported aggravator “at most harmless error.” Id.

Examining his federal habeas claim, the district court rejected Petitioner’s argument that,

despite its subsequent elimination, inclusion of the unconstitutional aggravating

circumstance required vacating his sentence. Rather, it found the state court actually

reweighed, “albeit described in a somewhat cursory fashion.”

       Here, Petitioner contests this conclusion, distinguishing that although the state

court’s reweighing was correct in form, Clemons v. Mississippi, 494 U.S. 738, 748-54

(1990), it lacked the essential substance mandated by Richmond v. Lewis, 506 U.S. 40, 48

(1992). He maintains the decision was too summary to permit any adequate independent

review and remained infected by the pervasive taint of the especially heinous, atrocious, or

cruel aggravating circumstance. He urges the Oklahoma Court of Criminal Appeals’ terse

conclusion failed to reveal whether it “actually reweighed” to cure the otherwise

constitutionally infirm sentence.

       Our de novo review of the decision reweighing the aggravating and mitigating

factors must determine whether Stouffer II afforded Petitioner “an individualized and

reliable sentencing determination based on the defendant’s circumstances, his background,

and the crime.” Clemons, 494 U.S. at 749; Stafford v. Saffle, 34 F.3d 1557, 1569 (10th

Cir. 1994). We are not required “to peer majestically over the [state] court’s shoulder so

that [we] might second-guess its interpretation of facts,” Lewis v. Jeffers, 497 U.S. 764,



                                            - 28 -
780-81 (1990) (quoting Godfrey v. Georgia, 446 U.S. 420, 450 (1980) (White, J.,

dissenting)), but rather, applying the standard used to review a conviction, we ask

“whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt,” id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The

standard “is equally applicable in safeguarding the Eighth Amendment’s bedrock

guarantee against the arbitrary or capricious imposition of the death penalty.” Lewis, 497

U.S. at 782. Thus, “[a]t a minimum, we must determine that the state court actually

reweighed,” Richmond v. Lewis, 506 U.S. at 48, so that the statutory aggravating

circumstance provides “principled guidance,” id. at 46, and not a “conclusive justification”

for the death penalty, id. at 49.

       In light of the state court’s abbreviated reweighing, the district court sketched in

those facts substantiating the appropriateness of the death sentence. It cited the “ample

evidence” Ms. Reaves was shot at close range to substantiate Petitioner knowingly created

a great risk of harm to more than one person “regardless of any evidence presented to

show the gruesome or heinous nature of the crime.” Further, the court stated, “the

absolute lack of connection between petitioner and Reaves prior to the shooting meant that

Reaves was only shot to preclude her later appearing as a witness against petitioner,” as

evidence in support of the second aggravating circumstance.




                                            - 29 -
       Nonetheless, Petitioner catalogs the numerous references in the State’s closing

argument, describing the killing as heinous, atrocious or cruel, or some closely connected

adjectival equivalent. The prosecution’s repeatedly characterizing defendant as pitiless,

wicked, evil, greedy, cold-blooded, and unaffected by killing, however, Petitioner insists,

illustrates how the presence of the heinous, atrocious or cruel aggravator fatally infected

the process of arriving at a sentence.

       “[T]he United States Supreme Court ‘has never specified the degree of clarity with

which a state appellant court must reweigh in order to cure an otherwise invalid death

sentence.’” Correll v. Stewart, 137 F.3d 1404, 1418 (9th Cir. 1998) (quoting Jeffers v.

Lewis, 38 F.3d 411, 414 (9th Cir. 1994)). Thus, the Court has not translated its call for

“close appellate scrutiny of the import and effect of invalid aggravating factors,” Stringer

v. Black, 503 U.S. 222, 230 (1992), into a clear set of requirements for a constitutional

reweighing analysis. However, in reviewing its analysis, we may look at the evidence

before the Court of Criminal Appeals to support Petitioner’s conviction.12 That evidence

included Doug Ivens’ describing Petitioner’s standing over him firing a last shot into his

face and Ms. Reaves’ exclaiming, “No,” trying to shield herself from Petitioner’s aim



         It remains, however, troubling in the interest of a comprehensive review and
        12

principles of comity for the state court to have provided such a scant acknowledgment of
its review. Although we do not disagree with the State’s assertion “[t]here are no magical
terms which must be included in the reweighing determination,” the state court’s failure
to even shorthand a conclusion based on its actual reweighing that with removal of the
unsupported aggravator the jury would still have found ample evidence to support the
remaining two aggravators, renders independent review more problematic.

                                            - 30 -
before he shot her at close range. In arriving at a verdict of guilt in the first phase after

only an hour’s deliberation, we may infer the jury fully embraced the State’s case and then

rationally could channel that evidence to individualize its determination of the death

sentence. Surely, a rational fact-finder viewing this evidence in the light most favorable to

the State could find Petitioner’s actions created a risk of death to more than one person,

and he shot either Ms. Reaves or Mr. Ivens to escape detection. The Court of Criminal

Appeals noted the trial court’s advising the jury Petitioner’s personality disorder and lack

of a prior criminal conviction involving violence were minimum mitigating circumstances.

Stouffer II, 742 P.2d at 564 n.4. Thus, we must conclude the two remaining aggravating

circumstances clearly outweighed the mitigating evidence presented. While this balance

may be affected by counsel’s failure to investigate and present mitigating evidence of

defendant’s circumstances and background, Clemons, 494 U.S. at 749, within the scope of

our review, we believe the sentencing jury was guided by the overwhelming evidence of

guilt. See Moore v. Reynolds, 153 F.2d 1086, 1115 (10th Cir. 1998).13

                                IV. Lesser Included Offense

       Petitioner contends the trial court’s instructing only on first-degree murder for the

death of Ms. Reaves was plain error, foreclosing the jury from considering a verdict of

guilt on a lesser-included non-capital offense which the evidence would have supported.


        In Moore v. Reynolds, 153 F.2d 1086 (10th Cir. 1998), however, the court had
        13

the benefit of a more detailed enumeration of the mitigating evidence to underpin the
individualized determination “based on defendant’s circumstances, his background, and
the crime.” Clemons v. Mississippi, 494 U.S. 738, 749 (1990).

                                              - 31 -
He relies principally on Beck v. Alabama, 447 U.S. 625 (1980), which invalidated an

Alabama statutory scheme prohibiting the judge from instructing the jury on the option of

convicting defendant charged with a capital crime of a lesser included offense. Petitioner

asserts because he steadfastly maintained he was only aware of the shots during the

struggle with Mr. Ivens, the possibility two of those shots accidentally hit Ms. Reaves

required the trial court to instruct the jury on second-degree murder, second-degree

manslaughter, or negligent homicide under Oklahoma law. Acknowledging counsel did

not request the lesser-included offense instructions, Petitioner urges the failure amounts to

plain error.

       The State counters by distinguishing Beck and underscoring Oklahoma law which

provides a lesser included offense instruction should not be given unless there is evidence

to support it. The State reminds the evidence portrayed either Petitioner’s intentional

deceit to obtain the gun he used to shoot Doug Ivens and Ms. Reaves or Iven’s pulling the

gun on Petitioner and the shootings resulting from the gun’s accidentally discharging and

stray bullets hitting unintended targets. That is, Petitioner’s testimony left the jury no

choice but to find him guilty of murder in the first degree or not guilty based on self-

defense.

       Denying this claim for relief, the district court found, based on either Mr. Ivens’ or

Petitioner’s testimony, a rational jury could not have concluded Ms. Reaves was shot

intentionally yet without premeditation. That is, Petitioner’s testimony would not support



                                             - 32 -
a finding of conduct evincing a depraved mind in extreme disregard of human life, an

element of second degree murder; nor did any of the State’s evidence support any

inference but premeditated action intended to take a life. Rather, the district court found

Petitioner only offered evidence leading to a complete defense of the murder charge.

Under these circumstances, the court concluded the trial court’s failure to instruct on

second degree manslaughter or negligent homicide did not violate Petitioner’s right to due

process.

       Hopper v. Evans clarified Beck, stating, “But due process requires that a lesser

included offense instruction be given only when the evidence warrants such an instruction.

456 U.S. 605 (1982). The jury’s discretion is thus channeled so that it may convict a

defendant of any crime fairly supported by the evidence.” Id. at 611. Thus, the Court

rejected defendant’s effort to confine his conduct to the commission of a robbery under

Alabama law in light of his repeated statements making it “crystal clear” he killed and

intended to kill the victim. Id. at 612.

       Okla. Stat. Ann. tit. 21, § 701.7(A), states:

       A person commits murder in the first degree when he unlawfully and with
       malice aforethought causes the death of another human being. Malice is that
       deliberate intention unlawfully to take away the life of a human being, which
       is manifested by external circumstances capable of proof.

Okla. Stat. Ann. tit. 21, § 702, adds, “A design to effect death is inferred from the fact of

killing, unless the circumstances raise a reasonable doubt whether such design existed,”




                                             - 33 -
and under section 703, that design to effect death “may be formed instantly before

committing the act by which it is carried into execution.” Okla. Stat. Ann. tit. 21, § 703.

       In contrast, Oklahoma classifies a homicide as murder in the second degree

“[w]hen perpetrated by an act imminently dangerous to another person and evincing a

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

effect the death of any particular individual.” Okla. Stat. Ann. tit. 21, § 701.8(1).14 Under

Oklahoma law, first degree manslaughter is a homicide “perpetrated without a design to

effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a

dangerous weapon; unless it is committed under such circumstances as constitute

excusable or justifiable homicide.”

       On redirect examination, Petitioner was unwavering in his story he shot Doug Ivens

in self-defense: “[b]ecause I felt he had a gun in his hand, and I shot at the gun ... [and] I

was scared to death.” Despite his insistence he did not shoot Ms. Reaves, and his

alternative explanation she may have been lying dead on the couch when he arrived or she

was hit by ricocheting bullets, defense counsel failed to controvert the State’s physical

evidence.




        The Oklahoma Court of Criminal Appeals adopted a specific definition of
        14

depraved mind in Palmer v. State, 871 P.2d 429, 431 (Okla. Crim. App. 1994): “A person
evinces a depraved mind when he engages in imminently dangerous conduct with
contemptuous and reckless disregard of, and in total indifference to, the life and safety of
another.”

                                             - 34 -
       The question then becomes: if the jury disagreed with Petitioner’s absolute defense

of self-defense, was there evidence to support instructing it that Petitioner acted with a

“depraved mind ... although without any premeditated design,” § 701.8(1), or acted “in a

heat of passion, but in a cruel and unusual manner to effect manslaughter in the first

degree”? § 711(2). We think not. Petitioner introduced no evidence to support either

potentially lesser included offense, a prerequisite under Oklahoma law. See Fowler v.

State, 779 P.2d 580, 585 (Okla. Crim. App. 1989). Moreover, “[a] state [] is not required

to ‘create a noncapital murder offense for every set of facts under which a murder may be

committed.’” Duvall, 139 F.3d at 786 (quoting Hatch, 58 F.3d at 1454). We therefore

conclude the district court did not err in denying Petitioner relief on this ground.

               V. Newly Discovered Evidence and Motion for Discovery

       Petitioner’s last two issues presented for this appeal are of recent vintage, raised for

the first time in his federal habeas petition. He initially attempted to amend his federal

habeas petition15 with the claim he was incompetent to stand trial, relying on Cooper v.

Oklahoma, ___U.S. ____, 116 St. Ct. 1373 (1996), in which the Supreme Court

invalidated an Oklahoma statute requiring defendant prove incompetence by clear and

convincing evidence to overcome the presumption of competence. The district court,



         Petitioner also filed a pro se Motion for Abeyance to Exhaust State Proceedings,
        15

which informed the district court he was also seeking post-conviction relief in state court
based on Cooper v. Oklahoma, ___U.S. ____, 116 S. Ct. 1373 (1996). The Oklahoma
Court of Criminal Appeals had instructed its clerk not to accept additional filings from
Petitioner.

                                             - 35 -
however, denied amendment, finding nothing in the record or subsequent to it to establish

competency was ever an issue or any objections by defense counsel to any informal

determinations about competency. Petitioner appealed the denial of his motion to amend

in his notice of appeal filed June 12, 1997.

       On August 6, 1997, Petitioner sought relief from judgment under Fed. R. Civ. P.

60(b), appending an affidavit from his trial counsel, Mr. Cantrell, which enumerated each

instance of his effort to have the court recognize the need to assess Petitioner’s

competence. The affidavit concluded Petitioner was incompetent to assist in his defense

because of his “adolescent mental and emotional maturity level.” The district court denied

that motion as well concluding it came too late and provided insufficient grounds excusing

Petitioner’s failure to present the affidavit earlier. Petitioner did not file a new notice of

appeal although in this appeal he only addresses the denial of his Rule 60(b) motion.

       Appellate counsel asserts the initial notice of appeal is sufficient to confer

jurisdiction, relying on Hinton v. City of Elwood, Kan., 997 F.2d 774 (10th Cir. 1993).

The State does not specifically respond. However, we are obligated to examine the basis

of our jurisdiction before addressing the merits of Petitioner’s claim.

       The denial of a Rule 60(b) motion is separately appealable. Indeed, its denial

usually “raises for review only the district court’s order of denial and not the underlying

judgment itself.” Stubblefield v. Windsor Capital Group, 74 F.3d 990, 994 (10th Cir.

1996). Consequently, absent his filing an amended notice of appeal or second notice of



                                               - 36 -
appeal, we lack jurisdiction to consider Petitioner’s claim the district court erred in failing

to grant relief from judgment so that he could present newly discovered evidence of his

competence to stand trial.16

       In another pro se motion, Petitioner sought the release and transfer of certain

evidence for DNA testing: Petitioner’s jacket and shirt worn at the crime scene; a dried

sample of Linda Reaves’ blood; and the shirt Doug Ivens wore which was submitted to the

State’s forensic expert but not admitted into evidence at trial. Petitioner’s motion asserted

the evidence had been preserved and remained in the custody of the State. He alleged the

PCR and RFLP DNA testing, not available at the time of his trial, was necessary because it

could provide the essential evidence corroborating his version and contradicting the State’s

forensic expert’s testimony.

       Dr. Joyce Gilchrist, the State’s forensic serologist, testified there was not enough

blood on the shirt to produce a sample capable of being typed by conventional serological

methods. Although she believed there were blood stains on Petitioner’s leather jacket,



        16
          Hinton v. City of Elwood, Kan., 997 F.2d 774 (10th Cir. 1993), is not to the
 contrary. There, we addressed whether plaintiff’s untimely notice of appeal was validated
 by the district court’s later approval of his subsequent motion to extend the time to file a
 notice of appeal. To resolve the question, we examined Fed. R. App. P. 4(a)(2) and
 4(a)(4) and concluded, “these two provisions stand for the proposition that a premature
 notice of appeal retains its validity only when the order appealed from is likely to remain
 unchanged in both its form and its content. When an intervening motion occurs which
 could alter the order or judgment appealed from, a new notice of appeal must be filed
 after disposition of the subsequent motion to ensure that the would-be appellant still
 desires to appeal.” Hinton, 997 F.2d at 778. Petitioner surely sought to alter the
 judgment appealed from and was required to file a new notice of appeal.

                                             - 37 -
those spots tested negative for human blood. She explained the result stating that blood is

generally absorbed by leather. However, tests of the blood on Petitioner’s shirt sleeve

showed genetic markers consistent with Ms. Reaves’ blood.

       The district court denied the motion, finding Petitioner’s allegations would not

entitle him to relief on any ground raised. First, it noted that traditional serological

techniques identified the blood on his sleeve to match Ms. Reaves’ blood. Second, it

faulted Petitioner’s failure to identify a claim cognizable in habeas or any legal theory

entitling him to relief, in particular, any connection between this DNA evidence and a claim

of actual innocence.

       Petitioner asserts the serologic evidence was crucial in corroborating Doug Ivens’

version of events. However, he insists the results were inconclusive, necessitating retesting

with the more sophisticated and advanced DNA techniques. This showing, he asserts,

satisfied the “good cause” needed for discovery under Rule 6(a) of the Rules Governing

Section 2254 cases17 as recently articulated in Bracy v. Gramley, ___U.S.___, 117 S. Ct.




          Rule 6(a) provides:
         17



                 Leave of court required. A party shall be entitled to invoke the
         processes of discovery available under the Federal Rules of Civil Procedure
         if, and to the extent that, the judge in the exercise of his discretion and for
         good cause shown grants leave to do so, but not otherwise. If necessary for
         effective utilization of discovery procedures, counsel shall be appointed by
         the judge for a petitioner who qualifies for the appointment of counsel
         under 18 U.S.C. § 3006A(g).

                                              - 38 -
1793, 1799 (1997). He urges we find the district court abused its discretion in denying the

motion.

       We disagree. Petitioner’s allegations fall far short of those relied upon in Bracy.

There, petitioner sought habeas corpus relief claiming he was denied a fair trial because the

trial judge was prosecution oriented in some cases to cover up the fact he took bribes from

defendants in other cases. 117 S. Ct. at 1796. To prove his claim, petitioner sought

discovery ranging from the transcript of the judge’s own trial to copies of the judge’s

rulings to establish a pro-prosecution bias. The district court denied the motion for

discovery and the Seventh Circuit affirmed. The Supreme Court reversed finding

petitioner’s showing established the trial judge’s corruption in his own case not only with

the judge’s conviction but also with the additional specific allegations soundly rebutting the

presumption that “public officials have properly discharged their official duties.” 117

S. Ct. at 1799 (internal quotations omitted). Thus, the Court found those allegations amply

entitled petitioner to conduct further discovery into his judicial bias claim. As the Court

distinguished, the good cause showing under Rule 6(a) is targeted at discovery and is not

meant to be judged by whether or not a petitioner would succeed on the merits of his claim.

Id. We therefore hold the district court did not abuse its discretion in denying Petitioner’s

Rule 6(a) motion to perform further DNA testing.

                                      VI. Conclusion




                                            - 39 -
       Our review in this case is predicated on the awesome responsibility entrusted to the

federal judiciary in its habeas jurisdiction. “Our duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital case.” Burger v. Kemp, 483

U.S. 776, 785 (1987). Given that obligation, we VACATE the district court’s order

denying relief and REMAND for an evidentiary hearing addressing those concerns we

have found deficient in the record. In all other respects, the district court’s order is

AFFIRMED.




                                              - 40 -
