                                                                                 F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                  JUN 21 2000
                              FOR THE TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                        Clerk

    JERALD WAYNE HARJO,

                 Petitioner-Appellant,

    v.                                                           No. 99-7041
                                                            (D.C. No. 97-CV-82-S)
    GARY GIBSON, Warden, Oklahoma                                (E.D. Okla.)
    State Penitentiary; DREW
    EDMONDSON, Attorney General of
    the State of Oklahoma,

                 Respondents-Appellees.


                              ORDER AND JUDGMENT *


Before TACHA, BRORBY, and MURPHY, Circuit Judges.




         Petitioner was convicted of first degree murder.      1
                                                                   The jury found two

aggravating circumstances–the murder was heinous, atrocious, or cruel and the

murder was committed to avoid arrest or prosecution–and fixed punishment at

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
       He was also convicted of first degree burglary, burglary of an automobile,
and larceny of an automobile. The jury, however, found petitioner not guilty of
first degree rape.
death. The Oklahoma Court of Criminal Appeals affirmed.        See Harjo v. State ,

882 P.2d 1067 (Okla. Crim. App. 1994) (per curiam),      cert. denied , 514 U.S. 1131

(1995). That court also denied post-conviction relief.    See Harjo v. State ,

No. 96-966 (Okla. Crim. App. Jan. 9, 1997) (unpublished). The federal district

court denied habeas corpus relief, and we affirm.


                                        FACTS

      On the evening of Saturday, January 16, 1988, petitioner, who had been

drinking, rode his nephew’s bicycle to the home of the victim, sixty-four year old

Ruth Porter. Petitioner abandoned the bicycle at the side of the road. A van and

a Ford Mustang were parked in Mrs. Porter’s driveway. Petitioner took a

screwdriver from the van. He piled two cinder blocks under a back bedroom

window and, using the screwdriver, removed the screen from the window and

entered the home.

      Petitioner found a pillowcase, tore two eye holes in it, and placed it over

his head. Then, he entered Mrs. Porter’s bedroom, where she was asleep. When

she awakened, petitioner got scared and put a pillow over her face. He also

strangled her with his hands and burned her pubic hair with a cigarette lighter.

      After killing Mrs. Porter, petitioner took the keys to the Mustang and drove

it to his brother’s home. On Sunday, Mrs. Porter’s son-in-law found her body

and reported the murder. That afternoon, Wewoka Police Officer Blankenship

                                           -2-
saw the Mustang, which the police had been looking for,      parked at petitioner’s

brother’s home. Officer Blankenship questioned petitioner after giving him

Miranda 2 warnings. Petitioner denied taking the car and provided another officer

with the names of two others who allegedly took the car. A roadblock was set up

but these two were never located. Sheriff Sisco took petitioner to the sheriff’s

office for questioning. The sheriff read petitioner   Miranda warnings, and

petitioner signed a waiver of rights. After over two hours of questioning, and

petitioner changing his story, he confessed to the crimes.


                              STANDARDS OF REVIEW

       Because petitioner filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996, it applies to this appeal.

See Williams v. Taylor , 120 S. Ct. 1479, 1486 (2000). Petitioner will not be

entitled to habeas relief unless he can establish that a habeas claim adjudicated by

the state courts “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established” Supreme Court precedent, or

“resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).



2
       Miranda v. Arizona , 384 U.S. 436 (1966).

                                            -3-
       Under the “contrary to” clause, a federal habeas court may grant the
       writ if the state court arrives at a conclusion opposite to that reached
       by [the Supreme] Court on a question of law or if the state court
       decides a case differently than [the Supreme] Court has on a set of
       materially indistinguishable facts. Under the “unreasonable
       application” clause, a federal habeas court may grant the writ if the
       state court identifies the correct governing legal principle from [the
       Supreme] Court’s decisions but unreasonably applies that principle to
       the facts of the prisoner’s case.

Williams v. Taylor , 120 S. Ct. 1495, 1523 (2000). This court will presume the

correctness of state court findings of fact, unless petitioner is able to rebut that

presumption by clear and convincing evidence.       See 28 U.S.C. § 2254(e)(1).

       “If[, however, a] claim was not heard on the merits by the state courts, and

the federal district court made its own determination in the first instance, we

review the district court’s conclusions of law    de novo and its findings of fact, if

any, for clear error.”   LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999).


                                      DISCUSSION

I. HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATOR

       Petitioner argues the evidence was insufficient to support the heinous,

atrocious, or cruel aggravator because the evidence did not show Mrs. Porter

consciously suffered torture or serious physical abuse. The Oklahoma Court of

Criminal Appeals determined sufficient evidence existed to support this

aggravator: “[petitioner] strangled and suffocated Mrs. Porter with his bare

hands. She sustained scratches and bruises on her face, chest, arms and vaginal

                                            -4-
area. Her lower denture was displaced; her windpipe crushed. Her pubic hair

was singed. Mrs. Porter struggled prior to her death.”       Harjo , 882 P.2d at 1078.

       “Under Oklahoma law, the torture or serious physical abuse required by the

properly narrowed [heinous, atrocious, or cruel] aggravator may include infliction

of great physical anguish or extreme mental cruelty.”       Jones v. Gibson , 206 F.3d

946, 952 (10th Cir. 2000). “Conscious physical suffering of the victim must

occur before death and any extreme mental distress must result from the

petitioner’s intentional acts.”     Id. at 952-53. Conscious physical suffering before

death may be proved by statements of the petitioner or any other evidence

showing the victim remained alive and conscious during the attack.        See Powell v.

State , 906 P.2d 765, 782 (Okla. Crim. App. 1995). Mental torture must produce

mental anguish in addition to what accompanies the underlying killing.        See

Jones , 206 F.3d at 953. Analysis focuses on the petitioner’s acts and the level of

tension created by those acts.      See id. Although Oklahoma law does not clearly

establish the length of time a victim must be terrorized before there is mental

torture, factors such as anticipation of harm and lack of provocation can establish

mental torture.   See id. at 953-54.

       Reviewing all of the evidence in the light most favorable to the State, we

conclude a rational factfinder could have found the existence of this aggravator

beyond a reasonable doubt.        See Lewis v. Jeffers , 497 U.S. 764, 780-82 (1990).


                                              -5-
Although the record does not expressly establish when Mrs. Porter lost

consciousness, petitioner stated in his confession that   she struggled. This shows

that she was conscious during the attack and anticipated harm and that death was

not instantaneous.   See Jones , 206 F.3d at 954. We therefore conclude the

Oklahoma Court of Criminal Appeals’ determination was reasonable.


II. MITIGATING EVIDENCE OF REMORSE

       Petitioner argues that he was denied his right to present mitigating

evidence of remorse. Petitioner had composed a letter to the jury expressing his

remorse for Mrs. Porter’s death and for the pain suffered by her family. Lacking

ability to verbalize his feelings, he had asked counsel to read the letter. The trial

court denied permission based upon the State’s hearsay objection. The Oklahoma

appellate court held the trial court did not deny petitioner his constitutional right

to be heard, but rather disallowed him to avoid cross-examination.      See Harjo ,

882 P.2d at 1080 (distinguishing     Green v. Georgia , 442 U.S. 95 (1979) (per

curiam)).

       The Oklahoma appellate court correctly distinguished      Green . In Green , a

co-defendant had confided to a friend that he had killed the victim. The trial

court disallowed the friend’s testimony under state hearsay rules. The Supreme

Court held that, regardless of whether the proffered testimony was hearsay,

exclusion violated due process because the testimony was relevant to punishment,

                                             -6-
there was ample evidence to corroborate the confession, and the evidence was

reliable. See Green , 442 U.S. at 97; see also Paxton v. Ward , 199 F.3d 1197,

1214 (10th Cir. 1999) (concluding that, like in     Green, excluded evidence was

highly relevant to punishment and State had considered it sufficiently reliable to

warrant dismissal of earlier charges).

       Here, however, petitioner’s own statement, and not a co-defendant’s

confession, was at issue. In   Green , the excluded confession tended to show the

defendant’s innocence. In this case, the statement tended to show remorse, which

petitioner had expressed in his confession, which was presented to the jury, when

he stated he did not expect the victim to die and he performed CPR in an attempt

to save her. Also, the statement here did not have the same reliability as the

confession in Green . It was not spontaneous and was not against petitioner’s

interest.

       We agree with other courts that   Green should not be extended to require a

state to admit a defendant’s own out-of-court words.       See McGinnis v. Johnson,

181 F.3d 686, 693 (5th Cir. 1999) , cert. denied, 120 S. Ct. 955 (2000); Gacy v.

Welborn , 994 F.2d 305, 316 (7th Cir. 1993);      see also Harvey v. Shillinger ,

76 F.3d 1528, 1534 (10th Cir. 1996) (recognizing right to allocution is not

constitutionally protected);   United States v. Barnette , 211 F.3d 803, 820 (4th Cir.

2000) (deciding criminal defendant has no constitutional right to make unsworn


                                           -7-
statement of remorse to jury which is not subject to cross examination)   .

Accordingly, we conclude the Oklahoma appellate court’s determination was not

unreasonable.


III. MURDER TO AVOID LAWFUL ARREST OR PROSECUTION

      Petitioner argues the murder to avoid lawful arrest or prosecution

aggravator is unconstitutional because it applies to any person accused of

murdering a potential witness to a prior felony if there is any evidence of an

attempt by the accused to conceal his identity. Additionally, petitioner argues the

evidence was insufficient to support this aggravator, because Mrs. Porter did not

know about the other crimes at the time he killed her and she did not identify him.

      The Oklahoma appellate court recognized it has consistently found this

aggravator does not create a risk of arbitrary and capricious imposition of the

death penalty. See Harjo, 882 P.2d at 1080-81. It also determined the evidence

was sufficient to support this aggravator. See id. at 1078.

      Instructing the jury according to the statutory language of the aggravator, as

the trial court did, meets constitutional standards. See Boyd v. Ward, 179 F.3d

904, 922-23 (10th Cir. 1999), cert. denied, 120 S. Ct. 1188 (2000); see also Davis

v. Executive Dir. of Dep’t of Corrections, 100 F.3d 750, 769-70 (10th Cir. 1996)

(determining similar Colorado aggravating circumstance was constitutional).



                                           -8-
Thus, further narrowing was not necessary, and the Oklahoma appellate court’s

determination was not unreasonable.

       Oklahoma law requires that the predicate crime for this aggravator be

separate and distinct from, rather than significantly contributing to, the murder.

See Barnett v. State, 853 P.2d 226, 233-34 (Okla. Crim. App. 1993). “To support

the finding of this aggravating circumstance, the focus is on the defendant’s

intent, whether proved by the defendant’s own statement or through

circumstantial evidence.” Fox v. Ward, 200 F.3d 1286 , 1301 (10th Cir. 2000).

       Reviewing pursuant to the rational factfinder standard, see Lewis, 497 U.S.

at 780-82, we conclude the Oklahoma appellate court’s determination that there

was sufficient evidence to support this aggravator was not unreasonable.

Petitioner murdered Mrs. Porter after burglarizing her home and van. He wore a

pillow case over his head. He and Mrs. Porter knew each other. He confessed

that after she awakened and started struggling he got scared and kept smashing

the pillow into her face. Thus, as the Oklahoma appellate court determined, the

jury could have reasonably inferred petitioner feared Mrs. Porter would identify

him if he did not kill her.   See Harjo , 882 P.2d at 1078.


IV. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

       Petitioner alleges five instances of ineffective assistance of trial counsel:

(1) counsel failed to adequately investigate and present additional mitigating

                                           -9-
evidence; (2) counsel failed to request additional expert assistance; (3) counsel

failed to object to improper prosecutorial comments; (4) counsel failed to object

to the removal for cause of six prospective jurors; and (5) counsel failed by the

cumulative effect of these errors.

      In order to obtain habeas relief,   Strickland v. Washington , 466 U.S. 668,

687 (1984), which the Oklahoma Court of Criminal Appeals applied, requires

petitioner to establish both that his attorney’s representation was deficient and

that he was prejudiced by counsel’s deficient performance. This court need not

address both components if petitioner failed to make the requisite showing for

one. See, e.g. , Cooks v. Ward , 165 F.3d 1283, 1292-93 (10th Cir. 1998),   cert.

denied , 120 S. Ct. 94 (1999).

      A. Failure to Investigate or Present Additional Mitigating Evidence

      Petitioner argues counsel should have presented additional mitigating

evidence at the sentencing stage, after reasonable investigation and preparation.

Because counsel allegedly did not ask petitioner or anyone in his family about

potential mitigation witnesses and did not try to interview possible mitigation

witnesses, petitioner contends counsel never learned he was generally a good

employee, had served for one year with honorable discharge in the National

Guard, and had been an excellent prisoner in the county jail. Petitioner believes




                                           -10-
that if this mitigating evidence had been presented, he would not have received

the death penalty.

      The Oklahoma Court of Criminal Appeals concluded petitioner failed to

meet his burden of proving ineffectiveness.      See Harjo , 882 P.2d at 1078. We

conclude this determination was not unreasonable.

      Without deciding whether counsel’s performance was deficient, we

conclude petitioner has failed to show prejudice. None of the evidence petitioner

points to would have been particularly helpful. Although petitioner had been a

quiet, reliable employee who never caused problems and appeared to get along

well with coworkers and supervisors, he had been unemployed for six years.

During his twelve months of National Guard service, he had nine unexcused

absences. Evidence of a successful incarceration typically is used to show a

petitioner would not be a danger to the community if he was incarcerated for life.

See Boyde v. California , 494 U.S. 370, 382 n.5 (1990);    Skipper v. South

Carolina , 476 U.S. 1, 4, 5 (1986). Whether petitioner would be a possible

danger is not at issue in this case, however. If all of this mitigating evidence had

been presented, it would have been insufficient to offset, explain, or justify the

murder of Mrs. Porter.   See Nguyen v. Reynolds , 131 F.3d 1340, 1349 (10th Cir.

1997). There is not a reasonable probability that if the jury had considered this




                                          -11-
evidence it would have concluded the balance of aggravating and mitigating

circumstances did not warrant death.      See Strickland , 466 U.S. at 695.

       B. Expert Assistance

       Petitioner contends his counsel was ineffective for failing to request

additional expert assistance. The trial court granted a request for a psychiatric

expert and authorized counsel to spend up to $750, the usual statutory maximum

amount. Petitioner maintains he needed additional expert assistance because his

mental capacity and sanity were at issue.

       On post-conviction review, the Oklahoma appellate court decided the

record did not support this argument. The federal district court determined

petitioner failed to show prejudice, because petitioner was not entitled to further

expert assistance.

       Nothing in the record suggests that a reasonable attorney would have

believed petitioner’s mental state or sanity could have been a significant factor at

either stage of trial.   See Ake v. Oklahoma , 470 U.S. 68, 74 (1985);   Mayes v.

Gibson , 210 F.3d 1284, 1289 n.3 (10th Cir. 2000);      Smith v. Gibson , 197 F.3d

454, 463 (10th Cir. 1999),     petition for cert. filed , (U.S. May 19, 2000) (No. 99-

9652). Considering the totality of the evidence, there is no reasonable

probability the jury would have determined petitioner was not guilty of murder.

See Boyd , 179 F.3d at 914. Petitioner has failed to prove additional expert


                                            -12-
testimony would have changed the outcome at sentencing.          See Moore v.

Reynolds , 153 F.3d 1086, 1098 (10th Cir. 1998),       cert. denied , 526 U.S. 1025

(1999). Accordingly, petitioner cannot show he was prejudiced because counsel

failed to request additional expert assistance.    Cf. Trice v. Ward , 196 F.3d 1151,

1160 (10th Cir. 1999) (determining funding for expert in excess of $750 would

not have altered outcome of either phase of trial because there was no evidence

petitioner was insane at time of crimes or incompetent at trial and later evidence

of psychological problems would not have been sufficient to overcome three

aggravating factors),   petition for cert. filed , (U.S. May 10, 2000) (No. 99-9518).

The state appellate court’s decision therefore was not unreasonable.

       C. Improper Prosecutorial Comments

       Petitioner argues counsel should have objected to prosecutorial comments

improperly defining reasonable doubt during voir dire, stating a personal opinion,

evoking sympathy for the victim and her family, misstating the evidence, and

denigrating the mitigating evidence. Generally, a prosecutor’s improper remark

will require reversal of a state conviction only where the remark sufficiently

infected the trial so as to make it fundamentally unfair, and, therefore, a denial of

due process. See Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974). In

assessing fundamental fairness, the comment must be reviewed in the context in

which it was made and in light of the entire record.     See Greer v. Miller , 483 U.S.


                                            -13-
756, 765-66 (1987); Donnelly , 416 U.S. at 643. If the alleged prosecutorial

misconduct denied a petitioner a specific constitutional right, a habeas claim may

be established without requiring proof the entire trial was rendered fundamentally

unfair by the remark.   See Paxton , 199 F.3d at 1217.

              1. Voir Dire

       Possibly implicating a constitutional right, petitioner argues counsel should

have objected to the prosecutor’s comment that “the Court has told you our

burden is to prove our case beyond a reasonable doubt. The Court told you that

doesn’t mean beyond a shadow of doubt or beyond all doubt or one hundred

percent certain just said beyond a reasonable doubt.” Tr. vol. I at 82. On direct

criminal appeal, the Oklahoma appellate court concluded the prosecutor repeated

the trial court’s explanation of reasonable doubt.   See Harjo , 882 P.2d at 1075.

This determination was not unreasonable. Thus, counsel’s failure to object was

not prejudicial.

              2. Sympathy

       Petitioner complains the prosecutor improperly asked for sympathy for the

victim and her family during first stage closing argument. The Oklahoma Court

of Criminal Appeals decided the prosecutor merely reiterated uncontroverted

facts that Mrs. Porter was sixty-four years old when she was killed, she struggled

for her life, and she was found by her son-in-law who kept his wife from seeing


                                            -14-
her mother. See id. at 1075-76. This determination was reasonable. Further, the

evidence makes it probable the nature of the crime, strangling and suffocating an

elderly lady, produced sympathy before the prosecution made any closing

remarks. See Duvall v. Reynolds , 139 F.3d 768, 795 (10th Cir. 1998). Because

the prosecutor’s remarks did not render the trial fundamentally unfair, counsel’s

failure to object was not prejudicial.

              3. Personal Opinion

       Petitioner believes the prosecutor improperly expressed his opinion on

petitioner’s guilt and deserving the death penalty. The Oklahoma Court of

Criminal Appeals agreed that the prosecutor exceeded his bounds and engaged in

“improper and reprehensible” conduct when he expressed his personal opinion.

Harjo , 882 P.2d at 1076. Nonetheless, the court determined the comments were

harmless because, in light of its acquittal verdict on the rape charge, the jury did

not follow the comments.     See id. (citing Chapman v. California , 386 U.S. 18

(1967)). Accordingly, the court concluded petitioner could not show prejudice

due to counsel’s failure to object to the remarks.   See id. at 1077. Petitioner has

failed to show the Oklahoma Court of Criminal Appeals unreasonably applied

Chapman , see Pickens v. Gibson , 206 F.3d 988, 996 (10th Cir. 2000), and

unreasonably determined petitioner was not prejudiced by counsel’s failure to

object.


                                            -15-
              4. Misrepresentation of the Evidence

       Petitioner believes the prosecutor, during first stage closing argument,

invaded the province of the jury and made improper representations concerning

the forensic evidence by indicating a positive identification could be made from

hair comparisons and saliva samples. The Oklahoma Court of Criminal Appeals

determined “[t]he record plainly shows the prosecutor argued inferences from the

evidence and did not misstate it.”      Harjo , 882 P.2d at 1076. This determination

was not unreasonable. The prosecutor is given reasonable latitude in drawing

inferences from the evidence during closing arguments.        See Duvall , 139 F.3d at

795. Because the prosecutor’s representations did not cause the trial to be

fundamentally unfair, counsel’s failure to object was not prejudicial.

              5. Negating Mitigating Evidence

       Without further explanation, petitioner argues the prosecutor attempted to

destroy his right to have the jury consider mitigating evidence and denigrated the

mitigating circumstances set forth in the jury’s instructions. The Oklahoma

Court of Criminal Appeals held the prosecutor’s argument went to the weight of

the evidence and did not limit the evidence the jury could consider.     See Harjo ,

882 P.2d at 1079. A prosecutor is permitted to comment on the weight to be

afforded mitigating evidence.        See Fox , 200 F.3d at 1299-1300. The state




                                             -16-
appellate court’s denial of relief therefore was not unreasonable, and counsel’s

failure to object to the prosecutor’s remark was not prejudicial.

      D. Removal of Jurors

      Petitioner argues trial counsel failed to object to the removal of six jurors

for cause and did not attempt to rehabilitate these jurors. The Oklahoma Court of

Criminal Appeals rejected this argument on direct appeal:

      The record could not be clearer in this regard: each of the excused
      veniremen had been thoroughly questioned by the trial judge who
      made clear throughout the record that mere reservation about the
      death penalty did not disqualify one from service, and each stated
      explicitly that under no circumstance could he or she impose the
      death penalty. These veniremen were properly removed under
      Witherspoon [v. Illinois , 391 U.S. 510 (1968)]. Defense counsel did
      not fall below the standard of reasonable effectiveness by failing to
      question them further after each emphatically stated unwavering
      opposition to the death penalty.

Harjo , 882 P.2d at 1077. This determination was not unreasonable.

      E. Cumulative Effect

      Petitioner argues the cumulative effect of counsel’s deficient performance

created a risk the death sentence was arbitrary and capricious. Finding no

instance of ineffective assistance of counsel, the district court concluded there

was no cumulative error. We agree. “Cumulative error analysis applies where

there are two or more actual errors; it does not apply to the cumulative effect of

non-errors.” Moore , 153 F.3d at 1113



                                        -17-
V. AKE

      Petitioner argues (1) Oklahoma’s $750 maximum payment for experts

violates Ake , 470 U.S. 68, and (2) the federal district court erred in finding that

petitioner failed to make a sufficient threshold showing that his sanity or mental

capacity would be an issue at trial or sentencing. In light of our resolution of

petitioner’s argument that his trial counsel was ineffective for failing to request

additional expert assistance, we conclude petitioner is not entitled to relief on

this argument.


VI. ANTI-SYMPATHY INSTRUCTION

      Petitioner argues the trial court effectively prohibited the jury from

considering mitigating evidence when it instructed the jury not to consider

sympathy at the second stage. On direct appeal, the Oklahoma appellate court

found the argument unsupported by the record.      See Harjo , 882 P.2d at 1079.

      The trial court instructed the jury at the first stage not to allow sympathy,

sentiment, or prejudice to influence its deliberations. At the second stage, the

trial court directed the jury to consider the first stage instructions where

appropriate. Also, the court instructed the jury regarding several mitigating

circumstances, and directed the jury to consider whether the circumstances

existed and whether they were mitigating. Further, the court informed the jury

the

                                         -18-
       [m]itigating circumstances are those which, in fairness and mercy,
       may be considered as extenuating or reducing the degree of moral
       culpability or blame. The determination of what are mitigating
       circumstances is for you as jurors to resolve under the facts and
       circumstances of this case.

O.R. at 102.

       Viewing the instructions as a whole,      see Cupp v. Naughten , 414 U.S. 141,

146-47 (1973), we conclude there was not a reasonable likelihood the jury

applied the anti-sympathy instruction in a way that prevented consideration of the

mitigating evidence, see Boyde , 494 U.S. at 380, 381, 386. The Oklahoma Court

of Criminal Appeals’ decision therefore was not unreasonable.


VII. UNANIMOUS FINDING OF MITIGATING CIRCUMSTANCES

       Petitioner argues the trial court effectively instructed the jury it was

required to find mitigating circumstances unanimously. This argument, as

petitioner concedes, is foreclosed by   Duvall , 139 F.3d at 791-92.


VIII. CONFESSION

       Petitioner argues he did not knowingly, intelligently, and voluntarily waive

his right to counsel before confessing to the murder of Mrs. Porter. Rather, he

maintains the totality of the circumstances show the confession was a result of his

mental limitations, his state of intoxication, his past chronic abuse of alcohol, his

lack of sleep or food before his confession, the coercive nature of the interview,


                                          -19-
and the illegal seizure of his tennis shoes without being informed of his right to

withhold consent.

      On direct appeal, the Oklahoma Court of Criminal Appeals concluded

petitioner’s confession was knowing despite his consumption of alcohol and low

intelligence. See Harjo , 882 P.2d at 1071. In so concluding, the court found that

(1) he had been given Miranda warnings twice; (2) he understood the questions

asked; and (3) he understood the importance of his answers.         See id. The court

also determined the confession was voluntary, finding no evidence of

exploitation or overreaching by law enforcement.         See id. at 1071-72 (citing, e.g.,

Colorado v. Connelly , 479 U.S. 157 (1986)). The court noted petitioner’s initial

elaborate fabrication that another committed the murder indicated he was well

aware of the consequences of talking to law enforcement and the totality of the

circumstances showed his waiver of the right to remain silent was not invalid due

to his consumption of alcohol or his low intelligence.       See id. at 1072 (citing

Moran v. Burbine , 475 U.S. 412 (1986)).

      A defendant may waive his rights if, considering the totality of the

circumstances, the waiver is voluntary, knowing, and intelligent.        See Moran ,

475 U.S. at 421. The waiver must be “voluntary in the sense that it was the

product of a free and deliberate choice rather than intimidation, coercion, or

deception.” Id. A waiver is knowing and intelligent if it was “made with a full


                                           -20-
awareness of both the nature of the right being abandoned and the consequences

of the decision to abandon it.”     Id.

       The record is devoid of evidence of overreaching by the sheriff or other

officers. See Connelly , 479 U.S. at 170. Further, there is no real question of

petitioner’s comprehension of the         Miranda rights and of the potential

consequences of waiving them.        See Moran , 475 U.S. at 422. Thus, the state

appellate court’s determination that petitioner’s waiver of his      Miranda rights was

voluntary, knowing, and intelligent was not contrary to or an unreasonable

application of clearly established Supreme Court precedent.


IX. SEIZURE OF TENNIS SHOES

       Petitioner argues the State failed to provide him with a full and adequate

opportunity to litigate whether his Fourth Amendment rights were violated by the

seizure of his tennis shoes prior to his confession. Petitioner believes the state

courts failed to conduct a hearing to determine whether exigent circumstances

existed justifying immediate seizure of the tennis shoes.

       The trial court ruled there was probable cause to believe petitioner was

involved in the murder and therefore it was proper to seize the shoes. On direct

appeal, the Oklahoma Court of Criminal Appeals first determined petitioner did

not consent to the seizure of the tennis shoes.       See Harjo , 882 P.2d at 1073. The

court decided probable cause existed to believe the shoes were evidence of the

                                               -21-
murder and immediate seizure was reasonable due to exigent circumstances:

(1) tennis shoe footprints were the only ones found at the crime scene;

(2) petitioner admitted being at Mrs. Porter’s home; (3) petitioner stated the

alleged murderer wore boots; and (4) petitioner could have destroyed the shoes or

their tread. See id. 1073-74 (citing Cupp v. Murphy , 412 U.S. 291 (1973);

Brinegar v. United States , 338 U.S. 160 (1949)). Concluding the claim was fully

and fairly considered at the state court level, the federal district court declined,

pursuant to Stone v. Powell , 428 U.S. 465 (1976), to address the merits of the

claim that there were no exigent circumstances justifying warrantless seizure of

the shoes during interrogation.

       “[W]here the State has provided an opportunity for a full and fair litigation

of [the] Fourth Amendment claim, a state prisoner may not be granted federal

habeas corpus relief on the ground that evidence obtained in an unconstitutional

search or seizure was introduced at this trial.”    See Stone , 428 U.S. at 494

(footnote omitted); cf. Locks v. Sumner , 703 F.2d 403, 408 (9th Cir. 1983) (full

and fair hearing even though state appellate court considered evidence not

offered at suppression hearing). The transcript from the evidentiary hearing,

which lasted more than two days, confirms that petitioner had a full and fair

opportunity to litigate his Fourth Amendment claims. The federal district court

therefore properly declined to address the merits of this claim.


                                             -22-
     The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                  Entered for the Court


                                                  Deanell Reece Tacha
                                                  Circuit Judge




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