                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                   PUBLISH                   September 15, 2015
                                                             Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                Clerk of Court

                                 TENTH CIRCUIT


 SCOTT EIZEMBER,

       Petitioner - Appellant,

 v.
                                                       No. 14-6012
 ANITA TRAMMELL, Warden,
 Oklahoma State Penitentiary,

       Respondent - Appellee.


                 Appeal from the United States District Court
                    for the Western District of Oklahoma
                         (D.C. No. 5:08-CV-00377-C)


Randall T. Coyne, University of Oklahoma College of Law, Norman, Oklahoma
(Edna Asper Elkouri and Frank Elkouri, Professor of Law, and Mark Henricksen
of Henricksen & Henricksen Lawyers, Inc., Oklahoma City, Oklahoma, with him
on the briefs), for Petitioner-Appellant.

Jennifer Dickson, Assistant Attorney General (E. Scott Pruitt, Attorney General of
Oklahoma, and Seth S. Branham, Assistant Attorney General, on the brief) of the
Oklahoma Office of the Attorney General, Oklahoma City, Oklahoma, for
Respondent-Appellee.


Before BRISCOE, Chief Judge, GORSUCH and McHUGH, Circuit Judges.


GORSUCH, Circuit Judge.
      Scott Eizember left a Tulsa jail intent on settling a score. He was upset

with his ex-girlfriend, Kathy Biggs, because she had tipped off authorities about

his violation of a protective order. So just as soon as he could he made for her

hometown of Depew. Once there, he noticed an elderly couple leaving a house

across the street from Ms. Biggs’s home. Mr. Eizember decided the place would

make an ideal lookout for Ms. Biggs and, after the couple left, he broke in. But

A.J. and Patsy Cantrell didn’t stay away as long as Mr. Eizember hoped, and

when they returned home they found him pointing their own shotgun at them. A

tense exchange followed but eventually things calmed down enough that Mr.

Eizember set the gun down. It was then Mr. Cantrell saw his opportunity. He

grabbed the gun and fired. The shot hit Mr. Eizember in the hand — but also

tragically struck and killed Mrs. Cantrell. In what followed, Mr. Eizember

wrestled the gun away from Mr. Cantrell and proceeded to beat him with it until

he fell unconscious. Then Mr. Eizember dragged the Cantrells’ bodies into the

bathroom, where Mr. Cantrell was left to — and did — die.

      The Cantrells’ deaths proved only the beginning of things. Next, Mr.

Eizember headed across the street, shotgun in hand, toward Ms. Biggs’s house.

Her son, Tyler Montgomery, saw him coming and tried to run, but before he could

Mr. Eizember shot him in the back. Then Mr. Eizember turned on Mr.

Montgomery’s nearby grandmother, Carla Wright, and beat her with the shotgun

too. Somehow in the midst of this melee Mr. Montgomery recovered enough to

                                         2
run out of the house and into his pickup truck. Mr. Eizember followed right

behind, jumping into the truck bed. Mr. Montgomery drove off erratically,

hoping to shake Mr. Eizember, but he wouldn’t be budged and even shot Mr.

Montgomery again. Eventually Mr. Montgomery crashed into a pole, jumped out,

and ran for help. Mr. Eizember headed in the other direction and managed to

hitch a ride. When the driver grew suspicious, though, Mr. Eizember fired a shot

at him too and leapt from the car.

      For the next eleven days Mr. Eizember went to ground. Hiding in wooded

areas around Depew — resurfacing only to steal clothes and a pistol from a nearby

house — he succeeded in evading a police dragnet. But in time he realized he

needed to make a break for it. So he stole a car he found outside a church,

somehow eluded police lines, and made his way out of town. Soon, though, the

car ran out of gas, leaving Mr. Eizember to continue his odyssey hitchhiking.

      Continue it he did. Seeing Mr. Eizember on the roadside, Dr. Sam Peebles

and his wife, Suzanne, stopped and offered him a lift. But as soon as he was

settled in the car, Mr. Eizember turned his pistol on the couple and ordered them

to drive him to Texas. The journey lasted hours. Finally, during a roadside break

in Texas, Dr. Peebles drew his own revolver and shot Mr. Eizember. Mr.

Eizember replied by wresting the revolver away and bludgeoning Dr. Peebles with

the pistol he’d stolen back in Oklahoma. Then Mr. Eizember tried to shoot Mrs.

Peebles. When the pistol wouldn’t fire, he struck her in the head instead and ran

                                         3
off. But it seems the wounds Dr. Peebles inflicted eventually caught up with Mr.

Eizember. At a nearby convenience store the clerk heard he’d been shot and

called the police. It was only then that the authorities at last arrested Mr.

Eizember, taking him first to a hospital to recover, and, in time, to Oklahoma for

trial.

         A jury there found Mr. Eizember guilty of more than a few crimes: first-

degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs.

Cantrell’s death, assault and battery with a dangerous weapon for the attack on

Mrs. Wright, shooting with intent to kill for the attack on Mr. Montgomery, and

first-degree burglary for breaking into the Wrights’ home. For the first-degree

murder charge, the jury found two aggravating circumstances — that Mr.

Eizember knowingly created a great risk of death to more than one person and

that the murder was especially heinous, atrocious, or cruel — and sentenced him

to death. For all the rest, the jury or judge settled on lesser sentences.

         Mr. Eizember’s various challenges to his convictions and sentences have so

far proven unfruitful. The Oklahoma Court of Criminal Appeals rejected his

direct appeal in Eizember v. State, 164 P.3d 208 (Okla. Crim. App. 2007), and the

United States Supreme Court denied certiorari, Eizember v. Oklahoma, 552 U.S.

1269 (2008). The OCCA separately denied postconviction relief. Eizember v.

State, No. PCD-2005-371 (Okla. Crim. App. Aug. 20, 2007). As did a federal

district court. Eizember v. Trammell, No. 08-CV-00377-C, 2013 WL 6670275

                                          4
(W.D. Okla. Dec. 18, 2013). But in the district court Mr. Eizember did manage to

obtain a certificate of appealability permitting him to raise a number of issues in

this court and it is to them we now turn.

                                            *

      First and primarily, Mr. Eizember argues that the state trial court should

have excluded two jurors — known in these proceedings by their initials, D.B.

and J.S. — because they were impermissibly biased in favor of the death penalty.

The trial court’s failure to dismiss them, he says, renders his death sentence

invalid. But both the OCCA and the federal district court disagreed with this

conclusion. And because the OCCA addressed this claim of error on the merits

(as it did all the claims Mr. Eizember now raises), the Antiterrorism and Effective

Death Penalty Act of 1996 permits us to afford relief for putative legal errors only

if we can say the state court’s decision was either “contrary to” or “an

unreasonable application of” clearly established federal law as determined by the

Supreme Court. 28 U.S.C. § 2254(d)(1). Mr. Eizember’s habeas petition and his

appeal to this court focus solely on the latter question, accepting that the OCCA

“identifie[d] the correct governing legal rule” but disputing whether the court

“unreasonably applie[d] [that rule] to the facts” of his case. Williams v. Taylor,

529 U.S. 362, 407 (2000).

      What is the Supreme Court’s clearly established rule in this area? In

Wainwright v. Witt, 469 U.S. 412 (1985), the Court held that “the proper standard

                                            5
for determining when a prospective juror may be excluded for cause because of his

or her views on capital punishment . . . is whether the juror’s views would ‘prevent

or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath.’” Id. at 424 (quoting Adams v. Texas, 448 U.S. 38,

45 (1980)). So, by way of example, the Court has recognized that someone “who

will automatically vote for the death penalty in every case will fail in good faith to

consider the evidence of aggravating and mitigating circumstances” (as the law

requires) and thus necessarily fail the Witt standard. Morgan v. Illinois, 504 U.S.

719, 729 (1992). Still, the Court has cautioned, that’s only an example: Witt’s

substantial-impairment test isn’t limited only to those jurors who would

automatically vote one way or the other. See Witt, 469 U.S. at 424-26.

      At the same time, the Court has stressed that the trial judge is best

positioned to determine whether a potential juror will be able to follow his or her

instructions — and that a court of appeals removed from the live proceedings

must afford significant deference to the trial judge’s assessments. In the Supreme

Court’s telling: “Deference to the trial court is appropriate because it is in a

position to assess the demeanor of the venire, and of the individuals who compose

it,” including not only what they say but also their “nonverbal communication” —

factors all of “critical importance in assessing the attitude and qualifications of

potential jurors.” Uttecht v. Brown, 551 U.S. 1, 9 (2007).




                                           6
      How do these established standards play out when we’re called on to review

not a federal trial court on direct appeal but the reasonableness of a state’s

application of federal law on collateral review? In Brown the Court explained that

a federal court owes what we might fairly describe as double deference: one layer

of deference because only the trial court is in a position to assess a prospective

juror’s demeanor, and an “additional” layer of deference because of AEDPA’s

“independent, high standard” for habeas review. See id. at 9-10. Indeed, the

Court stressed that where, as here, the record reveals a “lengthy questioning of a

prospective juror and the trial court has supervised a diligent and thoughtful voir

dire, the trial court has broad discretion” on the issue of exclusion. Id. at 20.

      With these standards in mind, we turn first to Mr. Eizember’s challenge to

juror D.B. Mr. Eizember argues that D.B.’s answers to a written questionnaire

show she should have been excused. For this he relies primarily on the following

six responses:

      42.    Have you ever formed an opinion either in favor or against the
             death penalty? If so, explain.

             Yes     X    No

             I firmly believe if you take a life you should lose yours.

      61.    What are your feelings about the death penalty? Please
             explain:

             I have no reservations about seeing someone put to death so
             long as it has been proven the person is guilty, especially if
             they have taken the lives of others.

                                           7
62.   What purpose do you think the death penalty serves in our
      society?

      Keeps taxpayers from having to support a criminal for the
      remainder of their life

63.   Do you think the death penalty in Oklahoma is used too often
      or too seldom?

      Definitely not too often.

64.   Check the “one” statement which “best” summarizes your
      general views about capital punishment (the death Penalty):

              1.   I am opposed to capital punishment under any
                   circumstances.

              2.   I am opposed to capital punishment except, in a
                   few cases where it may be appropriate.

              3.   I am neither generally opposed, nor generally in
                   favor of capital punishment.

              4.   I am in favor of capital punishment, except in a
                   few cases where it may not be appropriate.

       X      5.   I am strongly in favor of capital punishment as an
                   appropriate penalty.

73.   If you were Mr. Eizember or the State of Oklahoma would you
      want yourself as a juror in this case?

      Yes (        )      No (    X    )

      Because if I feel guilt has been proven, I would not hesitate to
      impose the death penalty.




                                   8
These responses, Mr. Eizember argues, show that D.B. couldn’t fairly consider all

three sentencing options for first-degree murder (death, life without parole, and

life with the possibility of parole) and had to be excluded.

      Besides, even if these answers don’t suffice to show that much, Mr.

Eizember claims that D.B.’s colloquy with his lawyer during voir dire certainly

does. During that exchange, counsel asked D.B. whether she would be able to

consider a sentence of life without parole. “If the death penalty was not an

option, yes,” she replied. Asked to elaborate, she reasoned: “If they’re in prison

for the remainder of their life without a possibility of parole why not the death

penalty?” The exchange continued:

      [Q]:   All right, so are you, are you telling me then that if you had a
             situation where it was laid out on the table, life, life without
             parole or death, then you would automatically consider one of
             those?

      [A]:   Automatically consider one of —

      [Q]:   One of those punishments over the others?

      [A]:   Probably.

      [Q]:   And —

      [A]:   Yes.

      [Q]:   And that would be death?

      [A]:   Yes.




                                          9
After counsel clarified the posture under which D.B. might have to make such a

decision — only if and after the jury found the defendant guilty of intentional

murder — he again asked whether she “would automatically say it should be the

death penalty.” D.B. responded that she “would have to look at all three but just

off the cuff, it would probably be death,” explaining too that she “would have to

try hard” to endorse life without parole.

      While acknowledging that Mr. Eizember’s concerns about D.B. are hardly

trivial, the OCCA held that the trial court didn’t commit reversible error when it

decided to retain her as a juror. As a threshold matter, the OCCA explained, the

questionnaire must be understood in context: it asked potential jurors to share

their views on capital punishment before voir dire began and before the court

could explain the potentially available punishments, the factors that must be

considered when choosing one, and the need to find and weigh aggravating and

mitigating circumstances before imposing a death sentence. Eizember, 164 P.3d

at 220-21. So, the OCCA held, the questionnaire cannot be “considered in

isolation.” Id. at 221. Instead, the court reasoned, it must be viewed in

conjunction with the potential juror’s responses to live questions at voir dire after

the court instructed the prospective panel members about the law’s demands. And

broadening its view to take in “the totality of [D.B.’s] voir dire, written and oral

responses,” the OCCA saw adequate support for “the trial court’s finding that

Juror D.B. did not have such a strong bias towards the death penalty that the

                                            10
performance of her duties as juror would be prevented or substantially impaired.”

Id. at 226.

      Beginning with the questionnaire, the OCCA noted that Mr. Eizember

focused on certain questions and answers but neglected others. For example, Mr.

Eizember overlooked responses that “indicate[d] Juror D.B. could be a fair and

impartial juror.” Id. at 225. Like this one:

      65.     Assume you are on a jury to determine the sentence of a
              defendant who has already been convicted of a very serious
              crime. If the law gives you a choice of death or life
              imprisonment, or some other penalty: (check only one)

                    1.    I could not vote for the death penalty regardless of
                          the facts and circumstances of the case.

                    2.    There are some kinds of cases in which I know I
                          could not vote for the death penalty even if the
                          law allowed me to, but others in which I would be
                          willing to consider voting for it.

               X    3.    I would consider all of the penalties provided by
                          law and the facts and circumstances of the
                          particular case.

                    4.    I would usually vote for the death penalty in a
                          case where the law allows me to.

                    5.    I would always vote for the death penalty in a
                          case where the law allows me to.

      The court noted that Mr. Eizember similarly overlooked responses from

voir dire — again, after D.B. had been instructed on the law — suggesting that

she could and would consider all three sentencing options and all mitigating and


                                         11
aggravating circumstances. The transcript shows D.B. confirming —

repeatedly — that she could “consider all three punishments,” Voir Dire Tr. 207-

08, 233; that she would follow the court’s instructions and would not enter

deliberations with a preconceived outcome, id. at 236-37; that she “could put

aside any personal beliefs or predispositions,” Eizember, 164 P.3d at 224; and that

she “did not have any moral, ethical or religious obligations that would keep her

from” following the court’s directions, id.

       Beyond this, the OCCA held, the voir dire responses on which Mr.

Eizember most relied weren’t as damning as he suggested. For example, the court

reasoned that D.B.’s “response that ‘off the cuff’ she would consider death as

punishment for intentional murder” merely “illustrate[d] a ‘gut reaction.’” Id. at

225. The court said it was “confident that any determination made during jury

deliberations would be an informed decision and not merely ‘off the cuff.’” Id.

And, recalling that the trial court had “the benefit of observing D.B.’s demeanor

throughout voir dire,” the OCCA concluded that “the trial court did not abuse its

discretion in refusing to remove her for cause.” Id. at 226. 1

   1
      The OCCA noted that it reviewed Mr. Eizember’s objection to juror D.B.
only under the plain error standard because, to preserve a complaint about a trial
court’s failure to dismiss a juror for cause, a litigant in Oklahoma state court must
apparently exercise a peremptory challenge. See Eizember, 164 P.3d at 223. This
naturally raises the question whether the state court’s use of the plain error
standard affects the degree of deference we owe its decision — or whether it
might provide an adequate and independent state law ground that precludes our
review. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). At least under this
court’s precedents, however, if a state court on plain error review denies relief on

                                         12
      We cannot say, as Mr. Eizember asks us to, that this decision represents an

unreasonable application of the Supreme Court’s clearly established federal law

precedents, especially in light of the double deference we owe. Some of D.B.’s

questionnaire responses do seem to suggest a bias in favor of the death penalty.

But the questionnaire contains other responses that undercut that conclusion and

suggest a willingness to consider all the aggravating and mitigating facts and all

the available penalties. As the OCCA emphasized, too, D.B.’s questionnaire

responses came before she received instructions about the law’s demands and

addressed her ability to follow them at voir dire. During the three days of voir

dire proceedings that followed — spanning 507 pages of transcript — the trial

court had the opportunity to view D.B. firsthand and assess her demeanor, the

tone of her oral responses, and her reactions to the law as instructed. And here

many more of D.B.’s statements suggest a willingness to follow the court’s

directions and keep an open mind. To be sure, even at this stage her statements

remain something of a mixed bag. It may even be that the trial court could have

lawfully chosen to dismiss D.B. Or that the OCCA could have lawfully chosen to

reverse the trial court’s decision to retain D.B. But none of that necessarily

means the OCCA unreasonably upheld the trial court’s firsthand finding that D.B.

was a qualified juror. Before us are an inconclusive factual record and a highly


a federal claim by deciding there was no federal law error at all — the course the
OCCA chose in this case — our standard AEDPA standards apply. See Douglas
v. Workman, 560 F.3d 1156, 1177-78 (10th Cir. 2009) (per curiam).

                                         13
deferential legal standard: a combination that precludes us from forming the

conviction necessary to deem the OCCA’s decision an unreasonable application

of federal law. When it comes to juror exclusion, the unavoidable fact is that the

Supreme Court has left considerable room for trial court discretion, a discretion

AEDPA only magnifies in the context of federal court review of state court

decisions, and the resulting spectrum of permissible or reasonable judgment is

large indeed.

      We find confirmation of our judgment on this score in the fact that other

federal courts have applied relevant Supreme Court precedent much as the OCCA

did in this case, upholding trial court decisions to retain jurors in the face of

mixed responses very much like D.B.’s — and even in the face of responses

arguably more doubtful. See, e.g., United States v. Fulks, 454 F.3d 410, 428 (4th

Cir. 2006) (holding that a juror’s statement that he would vote for the death

penalty “90 percent of the time” did not “require his exclusion”); Bowling v.

Parker, 344 F.3d 487, 519-21 (6th Cir. 2003) (finding no constitutional error

where the trial court seated a juror who “initially state[d] that he would

automatically give the death penalty to those who met the aggravating factor” but

“later . . . expressly said that he would consider mitigating evidence,” id. at 520).

To say the OCCA unreasonably applied federal law in this case we would likely

have to say these courts did the same in their cases. The alternative conclusion —

that the Court’s precedents leave considerable room for discretion and that all


                                          14
these courts have at least reasonably applied its precedents — strikes us as far

more likely.

      Turning to Mr. Eizember’s complaint about juror J.S., we confront a much

easier case. In attempting to show J.S. was impermissibly biased in favor of the

death penalty, Mr. Eizember again points to several questionnaire responses:

      61.      What are your feelings about the death penalty? Please
               explain:

               Pro-Death
               Depending on the crime committed

      62.      What purpose do you think the death penalty serves in our
               society?

               Takes repeat offenders out of civilized society.

      63.      Do you think the death penalty in Oklahoma is used too often
               or too seldom?

               About right

      64.      Check the “one” statement which “best” summarizes your
               general views about capital punishment (the death Penalty):

                     1.      I am opposed to capital punishment under any
                             circumstances.

                     2.      I am opposed to capital punishment except, in a
                             few cases where it may be appropriate.

                     3.      I am neither generally opposed, nor generally in
                             favor of capital punishment.

                T    4.      I am in favor of capital punishment, except in a
                             few cases where it may not be appropriate.



                                            15
                     5.   I am strongly in favor of capital punishment as an
                          appropriate penalty.

       73.   If you were Mr. Eizember or the State of Oklahoma would you
             want yourself as a juror in this case?

             Yes (         )     No (   T     )

             If guilty, he will be on death row and eventually executed.

       But like D.B., J.S. checked the option next to “I would consider all of the

penalties provided by law and the facts and circumstances of the particular case”

when asked about his ability to vote for the death penalty. And like D.B., once

advised at voir dire of the three possible punishments for a first-degree murder

conviction and the law concerning their application, J.S. replied that he could

consider all three and would follow the court’s instructions. Neither, unlike D.B.,

did J.S. offer any comments during voir dire that might seem to cut in the other

direction. The OCCA concluded that J.S.’s responses “showed he did not hold

views regarding punishment that would prevent or substantially impair the

performance of his duty as a juror in accordance with his instructions and oath as

a juror.” Eizember, 164 P.3d at 223. And having concluded that the OCCA’s

resolution of the Witt question wasn’t unreasonably wrong when it comes to D.B.,

we must necessarily do the same on this lesser record when it comes to J.S. 2

   2
      Lingering around the edges of Mr. Eizember’s argument here is the
implication that J.S.’s willingness to reschedule his rotator cuff surgery to serve
on the jury should raise a red flag. But the OCCA held that J.S.’s response
“merely indicated a willingness to do his civic duty.” Eizember, 164 P.3d at 223.
And Mr. Eizember doesn’t develop any argument or point to any part of the

                                         16
                                           *

      Our dissenting colleague suggests that we don’t need to reach the question

whether the OCCA reasonably applied Witt to the facts of this case because that

court didn’t apply Witt at all — at least when it came to juror D.B. Instead of

asking whether D.B.’s views “prevent[ed] or substantially impair[ed]” the

performance of her duties as Witt requires, the dissent suggests that the OCCA

asked an entirely different question: whether D.B. would automatically vote for

the death penalty because she was “irrevocably committed” to that outcome. In

this way, the dissent reasons, the OCCA relied on an incorrect legal standard and

so its decision was “contrary to” clearly established federal law. For our part, we

are unable to subscribe to this line of argument for various reasons.

      First is the fact Mr. Eizember never made it. AEDPA says that we may undo

a state court decision either if it employed a rule of law “contrary to” what the

Supreme Court has prescribed or if it “unreasonably applie[d]” the correct legal

rule to the particular facts before it. Williams, 529 U.S. at 412-13 (quoting 28

U.S.C. § 2254(d)(1)). The Supreme Court has long recognized that a state court’s

identification of the correct governing legal standard and the reasonableness of its

application of that standard to the facts are two distinct statutory inquiries. See id.

Indeed, petitioners frequently will accept that the state court identified the correct

rule of law and challenge only the reasonableness of its application of that rule to


record that would allow us to declare that conclusion unreasonable.

                                          17
the particulars of the case at hand, thus bypassing the first AEDPA inquiry and

inviting the reviewing court to proceed directly to the second. See, e.g., Parker v.

Scott, 394 F.3d 1302, 1308 (10th Cir. 2005) (proceeding to the question of

reasonable application where there was no argument that the court’s decision was

“contrary to” clearly established law); Etherly v. Davis, 619 F.3d 654, 661 (7th

Cir. 2010) (same); Collado v. Miller, 157 F. Supp. 2d 227, 231 (E.D.N.Y. 2001)

(same). That is exactly what happened in this case. In six and a half years of

proceedings in federal court Mr. Eizember never argued, as the dissent now does,

that the OCCA employed a legal standard “contrary to” Witt. Instead and

accepting that the OCCA correctly identified Witt as the governing standard, Mr.

Eizember has argued only that the OCCA’s application of that standard — the

answer it gave to the question Witt poses — was unreasonable given the facts in

this particular case. Because there’s nothing in Mr. Eizember’s district court

petition resembling the argument the dissent now seeks to advance on his behalf,

he forfeited such a contention there. See Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1128 (10th Cir. 2011). And because there’s nothing in his opening brief in

this court raising the argument either, it is independently waived here. See Adler

v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998).

      To be sure, the dissent faults the district court for failing to address the

question whether the OCCA applied a rule of law contrary to Witt. The dissent

also faults the State for failing to address the question on appeal. The dissent


                                          18
even faults the State’s appellate brief for failing to observe any potential

forfeiture and waiver problems attending the argument. But it seems to us that

the fact no one has ever addressed the argument the dissent wishes to press should

be a clue. A clue that this just isn’t a case where the district court missed an

issue presented to it or where the petitioner expressly sought to introduce a new

issue on appeal and the State might have been expected to offer a response in its

appellate briefing. A clue that this is a case instead where an appellate dissent

seeks to devise a new ground for reversal for the petitioner that the petitioner has

never pursued for himself in a great many filings over a great many years of

litigation.

       Indeed, the dissent’s considerable efforts to prove that Mr. Eizember

presented and preserved its argument before the district court and this one do

more to confirm the opposite conclusion in our view. The dissent’s citations to

Mr. Eizember’s pleadings in district court show him reciting the § 2254(d)(1)

standard and then proceeding to make the same argument he does here, the same

argument we’ve addressed above, the argument that the OCCA unreasonably

applied Witt to the facts in this record surrounding jurors D.B. and J.S. See

Dissent at 23-24. Precisely none of the dissent’s citations shows him arguing that

the OCCA employed a legal standard contrary to Witt and we simply cannot fault

the district court for failing to see what wasn’t there. When it comes to Mr.

Eizember’s appeal, the dissent plucks (and repeats) two sentences from his 80


                                          19
page opening brief in which Mr. Eizember first notes the OCCA’s observation

that D.B. wasn’t “irrevocably committed to any one punishment” and then

proceeds to comment flatly that this “is not the correct standard.” See Dissent at

24 (quoting Appellant’s Br. at 28). But these two sentences, the very best the

dissent can do to show preservation in all of Mr. Eizember’s pleadings before this

court or the district court, say no more on the question whether the OCCA

identified the correct Witt standard. In fact, they stand surrounded by argument

and in a section of the brief expressly challenging the reasonableness of the

OCCA’s application of Witt to the facts of this case, not its identification of that

case or its governing legal standard. And this court has repeatedly instructed that

stray sentences like these are insufficient to present an argument (let alone one

forfeited below) in a way that might fairly inform opposing counsel or a court of

its presence in the case. See Grant v. Trammell, 727 F.3d 1006, 1025 (10th Cir.

2013) (“Even a capital defendant can waive an argument by inadequately briefing

an issue . . . .”); Fairchild v. Trammell, 784 F.3d 702, 724 (10th Cir. 2015)

(same). 3


   3
        Faced with this problem, the dissent adds a further reply at the tail end of
its opinion. Here it claims it isn’t inventing for Mr. Eizember an argument that
the OCCA applied a legal standard “contrary to” federal law but only arguing that
the OCCA “unreasonably applied” the correct federal legal standard to the facts
of the case. See Dissent at 25. This new reply, however, emerging at the end of
the dissent, is pretty hard to square with all the argument that comes before it.
See id. at 14 (contending that “the OCCA applied an incorrect legal standard”);
id. (alleging that the OCCA “applied a legal standard that is inconsistent with

                                          20
       Second, it turns out that there’s a very good reason why the capable

lawyers in this case never made the dissent’s argument: it lacks merit. 4 The

Supreme Court has repeatedly reminded us that “AEDPA’s requirements reflect a

‘presumption that state courts know and follow the law.’” Woods v. Donald, 135

S. Ct. 1372, 1376 (2015) (per curiam) (quoting Woodford v. Visciotti, 537 U.S.

19, 24 (2002) (per curiam)). This presumption demands that federal judges

“afford state courts due respect by overturning their decisions only when there

could be no reasonable dispute that they were wrong.” Id. Reading the OCCA’s

opinion, it quickly becomes clear this is not such an extreme case. The OCCA


clearly established federal law”); id. at 17 (asserting “the OCCA’s ‘irrevocably
committed’ standard is not the same as, and indeed is less demanding than, the
controlling standard outlined in Witt”); id. at 22 (arguing that the state court “was
applying the OCCA’s own ‘irrevocably committed’ standard, rather than the
Witt/Adams standard”). By any reasonable reckoning the dissent contends that the
OCCA committed error by using a legal standard contrary to federal law when
assessing juror D.B. And by any reasonable reckoning nothing like that argument
appears anywhere in Mr. Eizember’s materials. Unable to shake this reality, the
dissent retreats further and at the very close seems finally to suggest that, even if
Mr. Eizember has never made its argument, we should. See id. at 26-27. But as
we’ve seen, the Supreme Court has recognized that the “contrary to” and
“unreasonable application” questions are distinct statutory questions and courts
routinely move to the second question when the first isn’t in dispute. See supra at
17-18. Neither does the dissent offer any argument or authority suggesting that
this court may or should sua sponte on appeal develop an argument for reversal
on the first question that a habeas petitioner has not ever himself pursued. Nor
could it for, as we’ve seen, governing law is to the contrary, holding that even a
capital defendant may forfeit or waive arguments by declining to pursue them
anywhere in a litigation as long lived as this one. See Grant, 727 F.3d at 1025;
Fairchild, 784 F.3d at 724.
   4
     The discussion of this second concern attending the dissent’s line of
argument represents the opinion of Judge Gorsuch only.

                                         21
cited Witt no fewer than five times. It began its discussion of the juror bias

question by quoting Witt’s substantial impairment test and recognizing it as the

“proper standard.” Eizember, 164 P.3d at 221. And in concluding its analysis of

D.B.’s responses, the court expressly held that she “did not have such a strong

bias towards the death penalty that the performance of her duties as juror would

be prevented or substantially impaired” — language that tracks Witt almost

verbatim. Id. at 226; see Witt, 469 U.S. at 424.

      The dissent acknowledges all this. Neither does the dissent dispute that the

OCCA both correctly identified and reasonably applied Witt’s standard when it

came to juror J.S. Still, the dissent suggests, the OCCA somehow missed the very

same governing legal standard when addressing juror D.B. By way of support

and again, the dissent points to a sentence in which the OCCA offered its view

that D.B. was not “irrevocably committed” to the death penalty. This sentence,

the dissent argues, proves the OCCA applied an erroneous legal standard. But the

Supreme Court itself has acknowledged that showing a juror’s irrevocable or

automatic commitment is one quite legitimate, if surely not exclusive, way to

satisfy the Witt standard for impermissible bias. See supra at 7. Neither did the

OCCA stop there, for it continued on and explained its additional view that D.B.

would not be “substantially impaired” in her ability to consider all the penalties

the law provides — thus squarely addressing the alternative method of satisfying

the Witt standard. See Eizember, 164 P.3d at 226. In light of all the evidence that


                                          22
the OCCA applied Witt when it came to D.B., just as it did when it came to J.S.,

and in light of the respect AEDPA requires us to afford our state counterparts, it

would be quite wrong to give talismanic weight to the OCCA’s passing — and

entirely pertinent — observation on the way to its essential conclusion. Under

AEDPA we must assume a state court is applying the correct federal legal

standard even when it mentions no legal standard at all. See Witt, 469 U.S. at

431; Harrington v. Richter, 562 U.S. 86 (2011). Surely we must as well assume

the state court is applying the correct federal legal standard when it tells us it is

— and when viewed fairly it appears to be — doing just that. Any other course

would evince a serious disrespect for state courts, run afoul of the federalism and

comity concerns that undergird AEDPA, and risk inviting reversal for

misapplication of that statutory scheme. See, e.g., Parker v. Matthews, 132 S. Ct.

2148, 2152 (2012) (per curiam) (summarily reversing a grant of habeas relief

because the state court had relied on a ground that was “sufficient” under federal

law, even though it had also relied on an independent “ground of questionable

validity”).

      Third, even if we were to adopt Mr. Eizember’s argument it would only

mean AEDPA deference no longer applies and we must engage in a Witt analysis

ourselves. See Trammell v. McKune, 485 F.3d 546, 550 (10th Cir. 2007). And

even without the additional layer of AEDPA deference, Brown would still require

us to afford significant deference to the trial court’s decisions on the question of


                                           23
juror bias. 551 U.S. at 9. Given that — and given the ambiguous record

concerning D.B.’s views — we would still find ourselves without a lawful basis

to overturn the trial court’s first-hand assessment that she could fairly discharge

her duties as juror. Indeed and again (though not acknowledged by the dissent),

other circuits have upheld trial court decisions to retain potential jurors on

records that are, if anything, a good deal more favorable to the defendant than the

one before us. See supra at 14 (discussing Fulks, 454 F.3d at 428; Bowling, 344

F.3d at 519-21). 5

                                          *

       Moving from arguments about jury selection to arguments about jury

instructions, we face a due process question. Everyone agrees that Oklahoma law

provides three possible sentences for first-degree murder: death, imprisonment

for life without parole, or imprisonment for life with the possibility of parole.



   5
       After denying deference to the state appellate court under AEDPA, the
dissent seems to suggest it owes no deference to the state trial court under Brown
because it too applied the wrong legal standard. But as proof the dissent cites
only questions the court asked potential jurors — not the legal standard the court
used when assessing their responses. And where, as here, “the record does not
indicate the standard applied by a state trial judge, he is presumed to have applied
the correct one.” Witt, 469 U.S. at 431. Besides, many of the trial judge’s
questions suggest a full understanding of Witt (for example, asking jurors whether
they could “consider” or “fairly consider” all three legally available
punishments). And in any event and again, the dissent here presses an argument
for Mr. Eizember that he’s never pressed for himself. Here we don’t even have
two stray sentences from Mr. Eizember: his briefing before the district court and
this court nowhere suggests that the trial court misidentified the governing law.
Any claim along these lines would therefore appear long forgone.

                                         24
Okla. Stat. Ann. tit. 21, § 701.9(A). But Mr. Eizember argues that the jury was

confused about the meaning of the third option — what the State calls a “straight”

life sentence. He contends that, thanks to a prospective juror’s erroneous

comment during voir dire, the jury pool was left with the misimpression that a

“straight” life sentence could give way to parole in seven or twenty years. In

fact, he tells us, Oklahoma law requires someone sentenced to “straight” life to

serve at least thirty-eight years in prison before becoming parole eligible. Mr.

Eizember says the trial court never adequately cleared up this confusion among

members of the jury and the result was a violation of a federal due process

guarantee articulated in Simmons v. South Carolina, 512 U.S. 154 (1994). To

remedy this violation, he claims, we must at least vacate his capital sentence. 6

       Simmons held that “[w]here the State puts the defendant’s future

dangerousness in issue, and the only available alternative sentence to death is life

imprisonment without possibility of parole, due process entitles the defendant to

inform the capital sentencing jury — by either argument or instruction — that he

is parole ineligible.” 512 U.S. at 178 (O’Connor, J., concurring in the judgment);

id. at 168-69 (plurality opinion) (same). Simply put, Simmons prevents a state



   6
       At times Mr. Eizember’s brief suggests that the jury’s confusion violated
not only his due process rights but also his rights under the Sixth and Eighth
Amendments. But when it comes to citing a Supreme Court case that articulates
the “clearly established” law he would have us apply Mr. Eizember offers just
Simmons, a case that situates the right in question in the Due Process Clause of
the Fourteenth Amendment.

                                         25
from giving the jury at the sentencing phase in a capital case “a false choice

between sentencing [the defendant] to death and sentencing him to a limited

period of incarceration.” Id. at 161 (plurality opinion).

      We don’t see how the OCCA clearly misconstrued or unreasonably

misapplied Simmons. After all, no one questions that the jury was correctly

instructed that life without parole was an option in this case. And no one

questions that the jury was correctly instructed that life without parole means

precisely that. So even assuming the jury was confused about the consequences

of a “straight” life sentence, it just “was not faced” with the “false choice” the

Court faced and condemned in Simmons. Eizember, 2013 WL 6670275, at *15

(mem. op. at 28). Indeed, it seems to us that Mr. Eizember can’t and doesn’t

complain so much that the OCCA misapplied Simmons as that the OCCA should

have extended its reasoning to the situation presented here. In his view, the

Constitution should be read to ensure not only that a capital jury is properly

instructed about the availability and meaning of life without parole. Instead, he

says, the Constitution should also be read to guarantee that a capital jury is

properly instructed about the details of a “straight” life sentence where parole is a

possibility. The problem is that, under AEDPA, this court is authorized to

intervene only when state courts fail to apply the Supreme Court’s existing and

clearly established teachings reasonably, not when they fail to extend them in new

and novel ways. White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (emphasizing


                                          26
that AEDPA “does not require state courts to extend [Supreme Court] precedent

or license federal courts to treat the failure to do so as error”).

                                            *

      Mr. Eizember next attempts an even more ambitious version of his Simmons

argument. So far he’s suggested only that his capital sentence should be vacated

because the trial court didn’t instruct the jury that a “straight” life sentence

guaranteed him at least thirty-eight years in prison. Now he argues that this same

failure requires us to vacate his first-degree murder conviction and perhaps his

noncapital convictions and sentences too. But where is the clearly established

federal law compelling such a conclusion? We can’t find it in Simmons, a case

that (again) addressed only what a jury must be told when deciding a sentence for

a capital crime — and a decision that does not clearly apply to the guilt phase or

to non-capital sentencing proceedings. Neither can we find it in Shafer v. South

Carolina, 532 U.S. 36 (2001), another case Mr. Eizember cites, because Shafer

expressly confirms our understanding of Simmons’s reach. See id. at 51 (“It is

only when the jury endeavors the moral judgment whether to impose the death

penalty . . . that Simmons comes into play . . . .”).

      Besides these two cases most of Mr. Eizember’s argument in this direction

is predicated on state — not federal — jurisprudence. He contends that

Oklahoma law entitled him to a correct instruction about the parole consequences

of a “straight” life sentence. And he faults the OCCA for failing to apply


                                           27
Oklahoma law correctly in this respect. But even assuming without granting that

Mr. Eizember is right about all this it does little to help him — for, again, this

court’s role on collateral review isn’t to second-guess state courts about the

application of their own laws but to vindicate federal rights. Estelle v. McGuire,

502 U.S. 62, 67-68 (1991).

      True, in the course of his extended state law discussion Mr. Eizember does

cite in passing two more federal cases still. The first is Hicks v. Oklahoma, 447

U.S. 343 (1980), where the Supreme Court held that the federal due process

guarantee sometimes requires states to abide their own procedural rules, at least

when those rules create a “substantial and legitimate” liberty interest. Id. at 346.

The second is Lisenba v. California, 314 U.S. 219 (1941), which recognized that

every trial must observe principles of “fundamental fairness” to satisfy due

process. Id. at 236. But, as the State correctly notes, Mr. Eizember didn’t

advance any federal law argument under Hicks or Lisenba before the district court

and he has, accordingly, forfeited any argument based upon them in this court.

See Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1280-81 (10th Cir.

2003). Neither for that matter does Mr. Eizember even fairly develop a Hicks or

Lisenba argument in this court. Yes, he cites the decisions in passing during an

extended state law discussion, but he never attempts to explain either how a state

law instructional rule about parole consequences creates a substantial liberty

interest under federal law or how such a rule might be required to render any


                                          28
criminal trial fundamentally fair. Or how Supreme Court precedent might clearly

compel such conclusions in a way that would satisfy AEDPA. And it’s settled

law that insufficient briefing of this sort will serve to waive an issue in this court

even if it was fairly presented and preserved in the district court. See Grant, 727

F.3d at 1025.

                                           *

      Mr. Eizember next challenges the trial court’s jury instructions on the

charges related to Mr. Cantrell’s death. The state trial court instructed the jury on

first-degree “malice aforethought” murder and two separate lesser-included

offenses: second-degree “depraved mind” murder and second-degree felony

murder. See Okla. Stat. Ann. tit. 21, §§ 701.7(A), 701.8. But by everyone’s

admission the court misstated Oklahoma law in reciting the elements of “depraved

mind” murder, erroneously informing the jury that it couldn’t convict Mr.

Eizember of that offense if he intended to kill or harm his victim. While intent to

kill does preclude a conviction for “depraved mind” murder under state law —

compelling instead a first-degree murder conviction — mere intent to harm does

not. See Eizember, 164 P.3d at 235. Here Mr. Eizember has, as well, sought to

link this state law error to the violation of federal right, contending that the error

amounted to a violation of his federal due process rights under Beck v. Alabama,

447 U.S. 625 (1980).




                                           29
      How so? In Beck, the Supreme Court held that “when the evidence

unquestionably establishes that the defendant is guilty of a serious, violent

offense — but leaves some doubt with respect to an element that would justify

conviction of a capital offense — the failure to give the jury the ‘third option’ of

convicting on a lesser included offense would seem inevitably to enhance the risk

of an unwarranted conviction.” 447 U.S. at 637. This risk, the Court held, is

intolerable in capital cases, so a state is “constitutionally prohibited from

withdrawing that option from the jury.” See id. at 637-38. And, according to Mr.

Eizember, this exact risk manifested itself in his trial: the trial court’s error in

instructing the jury on “depraved mind” murder pushed the jury toward an

unwarranted first-degree murder conviction for Mr. Cantrell’s death. Of course,

by his own admission the jury still had before it another lesser-included

offense — felony murder — on which the trial court issued unchallenged

instructions. But, Mr. Eizember argues, we should hold this insufficient to satisfy

Beck. In his view, that case should be read as requiring not only that the jury

receive some noncapital option but the best noncapital option, the one most fitting

to the defendant’s theory of the case — and here, he argues, that meant “depraved

mind” murder.

      Mr. Eizember’s Beck argument, however, confronts a challenge in Schad v.

Arizona, 501 U.S. 624 (1991). There the jury was instructed on “robbery murder”

(a capital offense) and second-degree murder (a noncapital offense). The


                                           30
defendant argued that he was also entitled to a plain-old robbery instruction as

well. But the Court disagreed, even though the trial court’s failure to instruct on

robbery meant the jury couldn’t return a verdict that was consistent with the

defendant’s preferred theory of the case. Id. at 647. The Court explained that

Beck doesn’t guarantee multiple lesser-included offense instructions or the

defendant’s favorite such instruction. Instead, it simply precludes an “all-or

nothing choice between the offense of conviction (capital murder) and

innocence.” Id.

      It seems to us Mr. Eizember finds himself in much the same position as the

defendant in Schad. Here, as there, the jury did not face an all-or-nothing choice

but was instead presented with the required “third option.” After all, even

without a proper second-degree “depraved mind” murder instruction, the jury in

this case still had at hand a viable, noncapital, lesser-included alternative if it was

unconvinced that Mr. Cantrell’s killing rose to the level of first-degree murder: it

could have convicted him of felony murder. So because “the court instruct[ed]

the jury on one lesser included offense supported by the evidence,” Beck was not

clearly implicated for AEDPA purposes “even if instructions on other lesser

included offenses might have been warranted.” Bland v. Sirmons, 459 F.3d 999,

1016 (10th Cir. 2006).

      Retreating now, Mr. Eizember argues that the evidence in this case was

legally insufficient to support a felony murder conviction for the death of Mr.


                                           31
Cantrell. In this way, he says, felony murder just wasn’t a legally viable option

for the jury and a Beck problem persists even after Schad is taken into account.

But it’s hard to see how the OCCA’s determination otherwise was unreasonable.

Mr. Eizember himself requested the felony murder instruction — and usually, of

course, a party cannot later claim that a jury instruction given at his request was

given in error. See Parker v. Champion, 148 F.3d 1219, 1221-22 (10th Cir.

1998). Besides, there’s plenty of reason to think the evidence at trial could have

supported a felony murder conviction for Mr. Cantrell’s death. After all, Mr.

Eizember himself argued at trial that he didn’t intend to kill either of the

Cantrells. The jury apparently accepted this very argument when it came to Mrs.

Cantrell, for it convicted Mr. Eizember of felony murder for her death. It’s

undisputed, too, that the homicidal acts resulting in both victims’ deaths were

separated by a few seconds and a few feet. So there’s every reason to suppose

that if the jury believed Mr. Eizember’s claim he didn’t intend to kill Mr. Cantrell

when he hit him with the gun, it also “could have found Mr. Cantrell’s murder

occurred during the course of a burglary” — and thus constituted felony

murder — just as it “found with Mrs. Cantrell’s murder.” Eizember, 164 P.3d at

235; see also Wade v. State, 581 P.2d 914, 916 (Okla. Crim. App. 1978) (noting

that under the felony murder doctrine in Oklahoma “the accused can be found

guilty of murder even though the killing is unintentional”). To be sure, the

evidence didn’t compel a conclusion that Mr. Cantrell’s death was unintentional


                                          32
and better described as felony murder than first-degree murder, but neither did it

foreclose that conclusion and to know that much is to know no clear Beck error

transpired here. See Eizember, 164 P.3d at 235-36; Eizember, 2013 WL 6670275,

at *19-20 (mem. op. at 37-40). 7

                                          *

       Finally, even if failing to give a proper instruction on second-degree

“depraved mind” murder wasn’t itself a constitutional violation under Beck, Mr.

Eizember submits his attorney’s failure to object to the instruction on state law

grounds amounted to constitutionally ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668 (1984). This argument, however, requires

no extended discussion to resolve. Everyone acknowledges that, to prevail under

Strickland, a defendant must show his lawyer’s putative error prejudiced him.

Yet, as the OCCA observed, even supposing Mr. Eizember’s attorney had secured

a proper instruction on (unintentional) “depraved mind” murder, the jury would

have been legally obliged to reject it anyway. That’s because a “depraved mind”

murder conviction in Oklahoma is unavailable as a matter of state law when the

jury finds a killing intentional beyond a reasonable doubt — precisely what the

jury did here when it convicted Mr. Eizember of first-degree murder. See

   7
        In his reply brief Mr. Eizember contends for the first time that the evidence
at trial was legally insufficient to permit the jury to find him guilty of second-
degree burglary, the predicate felony for a felony murder conviction in this case.
This argument appears too late in these proceedings and is therefore waived. See
Bronson v. Swensen, 500 F.3d 1099, 1104-05 (10th Cir. 2007).

                                         33
Eizember, 164 P.3d at 235; see also Okla. Stat. Ann. tit. 21, § 701.8(1). In this

way, the OCCA observed, trial counsel’s failure to object to the “depraved mind”

murder instruction ultimately had no impact on Mr. Eizember’s substantial rights.

Neither has Mr. Eizember identified any flaw in this reasoning or any Supreme

Court authority suggesting that this assessment is a clearly impermissible or

unreasonable application of Strickland’s prejudice test and we are aware of none. 8

       The judgment of the district court is affirmed.




   8
       Mr. Eizember argues we should reverse as well in light of “cumulative
error” — suggesting that we aggregate all errors in his case found to be harmless
and analyze their effect when considered together. But the circuits are split on
“whether the need to conduct a cumulative-error analysis is clearly established
federal law” for AEDPA purposes — and this court’s position on the question is
murky at best. Hooks v. Workman, 689 F.3d 1148, 1194 n.24 (10th Cir. 2012).
Fortunately we again find we don’t need to answer the question directly: even if
Mr. Eizember could overcome this problem, we have identified here no harmless
federal law errors to accumulate.

                                         34
No. 14-6012, Eizember v. Trammell

BRISCOE, Chief Judge, concurring in part and dissenting in part.

       I would affirm Eizember’s convictions, but reverse his death sentence and

remand for resentencing before a fair and impartial jury. I agree with the

majority that Eizember has failed to establish his entitlement to federal habeas

relief from his state court convictions. But, contrary to the majority, I find merit

to Eizember’s claim “that he was denied an impartial jury and due process of law

due to the [state] trial court’s denial of [a] for-cause challenge[] against . . .

juror[] . . . D.B.,” who “served and voted to condemn . . Eizember to death.”

Aplt. Br. at 10. Eizember raised this issue on direct appeal and the Oklahoma

Court of Criminal Appeals (OCCA) rejected it. As discussed below, I conclude

that the OCCA’s “adjudication of th[is] claim . . . resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). I in turn conclude, applying a de novo standard of review,

that the state trial court likewise failed to apply the proper legal standard in

assessing whether juror D.B. could impartially consider the sentencing options

available in a death penalty case. Juror D.B. should have been stricken for cause.

As a result, I conclude that Eizember has established his right to federal habeas

relief on this claim in the form of a new sentencing proceeding. 9

   9
     In light of this conclusion, I do not reach the other sentencing-related claims
asserted by Eizember, including his claim that juror J.S. should have been
                                                                        (continued...)
                            I. Facts relevant to the claim

       The OCCA, in resolving Eizember’s direct appeal, outlined the basic facts

relevant to this claim:

          Jury selection in this case was begun by dividing the prospective
       jurors into three groups and giving each individual a twelve page
       juror questionnaire to fill out. The written questionnaires were
       completed prior to the commencement of oral voir dire. Each of the
       three groups was then selected for a morning or afternoon session
       devoted to life and death qualification. After all potential jurors had
       been so qualified, general voir dire was conducted until thirty
       persons had been passed for cause. Then, recalling prospective
       jurors in the original order, the first twelve were seated in the jury
       box. Peremptory challenges were limited to those jurors in the box.
       As peremptory challenges were made, replacements were drawn from
       the pool of pre-qualified jurors.

Eizember v. State, 164 P.3d 208, 220 (Okla. Crim. App. 2007) (paragraph number

and footnote omitted).

       [D.B’s] juror questionnaire contain[ed] six (6) questions relating to
       the death penalty. Question No. 42 asked if the prospective juror had
       ever formed an opinion either in favor or against the death penalty
       and if so to explain. D.B. wrote, “I firmly believe if you take a life
       you should lose yours.” In Question No. 61, prospective jurors were
       asked to explain their feelings about the death penalty. Juror D.B.
       wrote, “I have no reservations about seeing someone put to death so

   9
     (...continued)
stricken for cause. After concluding that D.B. was not properly adjudged a fair
and impartial juror and, therefore, should not have sat on the jury, whether other
jurors also should have been stricken becomes a moot point. See Morgan v.
Illinois, 504 U.S. 719, 729 (1992) (“If even one [biased] juror is empaneled and
the death sentence is imposed, the State is disentitled to execute the sentence.”).
Although the majority states that I do not “dispute that the OCCA both correctly
identified and reasonably applied Witt’s standard when it came to juror J.S.,”
Maj. Op. at 22, the fact of the matter is that I offer no opinion on the OCCA’s
resolution of Eizember’s challenge to juror J.S.

                                          2
long as it has been proven the person is guilty, especially if they
have taken the lives of others.” To Question No. 62, which asked
“what purpose do you think the death penalty serves in our society?”
D.B. responded, “keeps taxpayers from having to support a criminal
for the remainder of their life.” Question No. 63 asked if the
prospective juror thought the death penalty in Oklahoma is used too
often. D.B. responded, “definitely not too often.” Question No. 64
listed 5 alternatives and the prospective juror was instructed to select
the one which best summarized their general views about capital
punishment. The choices were as follows:

      1. I am opposed to capital punishment under any
      circumstances.
      2. I am opposed to capital punishment except, in a few cases
      where it may be appropriate.
      3. I am neither generally opposed, nor generally in favor of
      capital punishment.
      4. I am in favor of capital punishment, except in a few cases
      where it may not be appropriate.
      5. I am strongly in favor of capital punishment as an
      appropriate penalty.

D.B. checked the last alternative. Question No. 65 asked the
following:

      Assume you are on a jury to determine the sentence of a
      defendant who has already been convicted of a very serious
      crime. If the law gives you a choice of death or life
      imprisonment, or some other penalty; (check one)

      1. I could not vote for the death penalty regardless of the facts
      and circumstances of the case.
      2. There are some kinds of cases in which I know I could not
      vote for the death penalty even if the law allowed me to, but
      others in which I would be willing to consider voting for it.
      3. I would consider all of the penalties provided by law and
      the facts and circumstances of the particular case.
      4. I would usually vote for the death penalty in a case where
      the law allows me to.
      5. I would always vote for the death penalty in cases where
      the law allows me to.

                                    3
   D.B. checked the third alternative that she “would consider all of
the penalties provided by law and the facts and circumstances of the
particular case.” No other questions on the written questionnaire
pertained to capital punishment.

   Under questioning by the prosecutor during voir dire, Juror D.B.
said she could consider all three punishment options—the death
penalty, life without parole, and life in prison. She said she would
do so based on the evidence brought forth in the courtroom and the
instructions given by the court. She said she could put aside any
personal beliefs or predispositions and decide the case on the
evidence, and she did not have any moral, ethical or religious
obligations that would keep her from doing so.

   Under questioning by defense counsel, Juror D.B. reiterated that
she could consider all three possible punishments. When specifically
asked if she could consider a life sentence if the defendant was found
guilty of intentional murder, she replied, “I could consider a sentence
of life.” Defense counsel then asked if her consideration “would be
any more meaningful than my consideration of moving furniture?”
She replied, “yes.” Defense counsel’s voir dire of D.B. continued as
follows:

      MR. CORGAN (defense counsel): . . . How about the sentence
      of life without parole, could you consider that as well?

      PROSPECTIVE JUROR D.B.: If the death penalty was not an
      option.

      MR. CORGAN: Okay, tell me what you mean by that.

      PROSPECTIVE JUROR D.B.: If they’re in prison for the
      remainder of their life without the possibility of parole why
      not the death penalty?

      MR. CORGAN: All right, so are you, are you telling me then
      that if you had a situation where it was laid out on the table,
      life, life without parole or death, then you would automatically
      consider one of the those?


                                   4
PROSPECTIVE JUROR D.B.: Automatically consider one
of—

MR. CORGAN: One of those punishments over the others?

PROSPECTIVE JUROR D.B.: Probably.

MR. CORGAN: And—

PROSPECTIVE JUROR D.B: Yes.

MR. CORGAN: And that would be death?

PROSPECTIVE JUROR D.B: Yes.

MR. CORGAN: So—

PROSPECTIVE JUROR D.B: Let me get you, you said that the
evidence had already been there and it’s over and it’s the
penalty phase, right?

MR. CORGAN: When we talk about punishment you’ve
already made the determination of intentional murder beyond a
reasonable doubt, okay?

PROSPECTIVE JUROR D.B: Uh-huh.

MR. CORGAN: That’s where we are. Within that context are
you telling me that you would automatically say it should be
the death penalty?

PROSPECTIVE JUROR D.B: I would have to look at all three
but just off the cuff, it would probably be death.

MR. CORGAN: And do you feel that you could give
meaningful consideration to life?

PROSPECTIVE JUROR D.B: Yes.

MR. CORGAN: Do you feel that you could give meaningful
consideration to life without parole?

                           5
            PROSPECTIVE JUROR D.B: I would have to try hard.

            MR. CORGAN: Okay and I appreciate that answer. In trying
            hard if you and my client were to switch places today and you
            were on trial would you want a juror with that type of mindset?

            PROSPECTIVE JUROR D.B: Personally, yes.

            MR. CORGAN: Okay.

            PROSPECTIVE JUROR D.B: Okay.

            MR. CORGAN: Do you feel like—

            PROSPECTIVE JUROR D.B: I would not want to spend my
            life in prison without the possibility of parole.

         Later during voir dire, defense counsel asked the panel if they
      understood that if the State does not prove an aggravating
      circumstance to the jury’s satisfaction beyond a reasonable doubt
      then the jury would not be allowed to consider the option of death.
      When specifically asked if she understood, Juror D.B. replied, “if it’s
      not an option I wouldn’t have a problem with it” and that she could
      consider the other two punishments of life and life without parole.
      This was the extent of Juror D.B.’s voir dire on her views of capital
      punishment.

Id. at 223-225 (paragraph numbers omitted).

         After [Eizember]’s portion of the life/death qualification, defense
      counsel raised challenges for cause to several prospective jurors
      including Jurors D.B. and J.S. [In particular, defense counsel argued
      that D.B. “said in her questionnaire that she firmly believes that if
      you take a life you should lose yours,” and that this answer
      “contrasted to the answers that she gave during our Voir Dire
      examination in the . . . courtroom.” Tr. Vol. 2 at 276.] The trial
      court overruled the challenges. [In doing so, the trial court stated
      that “the questionnaires are to gain information not to be used as
      traps for when answers are given by prospective jurors who have not
      been informed of the law. So I am not going to allow them to be
      used for that purpose.” Tr. Vol. 2 at 279.] When it came time to

                                         6
      exercise peremptory challenges, Juror D.B. took a seat in the jury
      box as a result of defense counsel’s exercise of his eighth challenge.
      With his ninth peremptory challenge, [Eizember] removed
      prospective juror J.L. who was replaced on the panel by J.S. This
      left both Juror D.B. and Juror J.S. on the jury. After exercising his
      final peremptory challenge, defense counsel again asked that Juror
      J.S. be excused for cause based upon his inability to consider all
      three possible punishments, and based upon the fact that in
      rescheduling a surgery, counsel surmised “he’s just almost too
      interested in being a juror.” The trial court overruled the challenge
      for cause. Defense counsel then informed the court that if the
      defense had been granted additional peremptory challenges, Jurors
      D.B. and J.S. would be struck from the jury.

Id. at 220 (paragraph number omitted).

                        II. The OCCA’s ruling on the claim

      Eizember argued on direct appeal that the trial court’s refusal to strike

jurors D.B. and J.S. from the jury deprived him of his constitutional rights to due

process and trial by an impartial jury. In addressing this claim on direct appeal,

the OCCA stated:

         [Eizember] suggests the responses on the juror questionnaire are
      sufficient by themselves to excuse a prospective juror for cause
      based upon his or her views of the death penalty. Our research has
      yielded no capital cases where responses to pre-trial juror
      questionnaires, without voir dire, have been found sufficient to
      excuse jurors for cause, based upon their views of capital
      punishment. Indeed, the Supreme Court has warned against
      oversimplifying the inquiry as to whether jurors can perform their
      duty notwithstanding their views on the death penalty.
      “[D]eterminations of juror bias cannot be reduced to
      question-and-answer sessions which obtain results in the manner of a
      catechism”. Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844,
      852, 83 L.Ed.2d 841 (1985).




                                          7
    “Voir dire examination serves the dual purposes of enabling the
court to select an impartial jury and assisting counsel in exercising
peremptory challenges”. Mu’Min v. Virginia, 500 U.S. 415, 431,
111 S.Ct. 1899, 1908, 114 L.Ed.2d 493 (1991). See also Warner v.
State, 2006 OK CR 40, ¶ 15, 144 P.3d 838, 858. An important aspect
of voir dire is to educate prospective jurors on what will be asked of
them under the law. As the trial court in this case noted, the
questionnaires are a means to collect information and are not to be
used “as traps” for prospective jurors who have not yet been
informed of the law. In our review of the written questionnaires, we
have found they did not advise the jury of the law they would be
required to follow, nor did they discuss or explain the process the
jurors would be required to follow in the punishment phase of trial,
i.e., determining if the alleged aggravator or aggravators had been
proved beyond a reasonable doubt and then weighing the aggravators
and mitigators to determine the appropriate punishment. This very
important part of the jurors’ duties in a capital case was not even
broached until the oral voir dire, and then not fully explained until
written instructions were given at the close of the second stage
evidence. It is the voir dire process which allows counsel and court
alike to determine whether the prospective jurors can in fact follow
their instructions and oath and whether there are grounds to
challenge a potential juror. We find the pre-trial questionnaire
cannot trump the actual voir dire. The responses to the written
questionnaire regarding views on the death penalty are not to be
considered in isolation, but in context of the other responses to the
questionnaire and oral responses given during voir dire in open court.
See Witt, 469 U.S. at 429, 105 S.Ct. at 855 (the trial judge’s
“predominant function in determining juror bias involves credibility
findings whose bias cannot be easily discerned from an appellate
record.”) See also United States v. Chanthadara, 230 F.3d 1237,
1269 (10th Cir. 2000) (“because the jurors are vested with greater
discretion in capital cases, the examination of prospective jurors
must be more careful than in non-capital cases”).

   The proper standard for determining when a prospective juror
may be excluded for cause because of his or her views on capital
punishment is “whether the juror’s views would ‘prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’” Witt, 469 U.S. at
424, 105 S.Ct. at 852. See also Gray v. Mississippi, 481 U.S. 648,

                                  8
      658, 107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987). Inherent in this
      determination is that the potential juror has been fully informed of
      the law and his or her responsibilities under the law and oath of a
      juror. This standard does not require a juror’s bias be proved with
      unmistakable clarity; neither must the juror express an intention to
      vote against the death penalty automatically. Witt, 469 U.S. at 424,
      105 S.Ct. at 852. “Deference must be paid to the trial judge who
      sees and hears the jurors”. Id., 469 U.S. at 425, 105 S.Ct. at 853.
      See also Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167
      L.Ed.2d 1014 (2007) (“deference to the trial court is appropriate
      because it is in a position to assess the demeanor of the venire, and
      of the individuals who compose it, a factor of critical importance in
      assessing the attitude and qualifications of potential jurors”).

          This Court has adhered to the principles set forth in Witt. See
      Glossip v. State, 2007 OK CR 12, ¶¶ 31–33, 157 P.3d 143, 150–151;
      Williams v. State, 2001 OK CR 9, ¶ 10, 22 P.3d 702, 709 (and cases
      cited therein). We have said the Witt standard only requires that
      each juror be willing to consider each of the three statutory
      punishments: the death penalty, life imprisonment without the
      possibility of parole, and life imprisonment (with the possibility of
      parole). Glossip, 2007 OK CR 12 at ¶ 31, 157 P.3d at 150. See also
      Williams, 2001 OK CR 9 at ¶ 10, 22 P.3d at 709–710. Further, all
      doubts regarding juror impartiality must be resolved in favor of the
      accused. Williams, 2001 OK CR 9 at ¶ 10, 22 P.3d at 709–710. This
      Court will look to the entirety of the juror’s voir dire examination to
      determine if the trial court properly excused the juror for cause. Id.
      As the trial court personally observes the jurors and their responses,
      this Court will not disturb its decision absent an abuse of discretion.
      Id.

Id. at 220-222 (alteration in original; internal paragraph numbers and footnotes
omitted).

         Reviewing D.B.’s responses in total, her responses do not
      demonstrate an impossible bias towards the death penalty. Individual
      responses read in isolation may suggest such a bias as [Eizember]
      claims. However, other responses indicate Juror D.B. could be a fair
      and impartial juror. This situation points out the importance of the
      oral voir dire. Although the juror questionnaire mentioned there
      were three possible punishments for a conviction for intentional


                                         9
murder, no options other than the death penalty were addressed. The
questionnaire did not explain the law regarding proof of aggravators
or weighing of the mitigating evidence against the aggravators.
Despite these omissions, D.B. indicated she could consider all
punishment options. It was not until voir dire, and specifically
questioning by defense counsel, that the juror’s views on the other
punishment options were explored. D.B. did not say she would
automatically consider the death sentence. Her response that “off the
cuff” she would consider death as punishment for intentional murder
does not indicate a predisposition toward the death penalty, but
rather illustrates a “gut reaction.” We are confident that any
determination made during jury deliberations would be an informed
decision and not merely “off the cuff.”

   As further evidence of her partiality, [Eizember] cites to Juror
D.B.’s failure to state that she could “fairly” consider all three
punishment options. See Hanson v. State, 2003 OK CR 12, ¶ 10, 72
P.3d 40, 48 (“that single word [fairly] carries an inescapable
constitutional weight”.) Here, the court asked the entire panel
whether they could give “fair consideration” to each punishment
option. That neither the prosecutor nor defense counsel used the
term “fairly consider” in their examination of the juror is not grounds
for a finding of partiality. Juror D.B.’s responses suggest she might
have trouble considering all three options equally. However, that is
not the standard required by law. To withstand a challenge for cause
concerning punishment issues, a venireperson need only be willing to
consider all the penalties provided by law and not be irrevocably
committed to any one punishment option before the trial has begun.
Gilbert v. State, 1997 OK CR 71, ¶ 26, 951 P.2d 98, 108. Here,
Juror D.B. indicated she could consider all possible punishment
options. Any ambiguities in D.B.’s responses or questions as to her
ability to be a fair and impartial juror were for the trial court to
resolve. Having the benefit of observing D.B.’s demeanor
throughout voir dire, the court found her responses credible and
insufficient to excuse her for cause. Our review of the totality of her
voir dire, written and oral responses, supports the trial court’s
finding that Juror D.B. did not have such a strong bias towards the
death penalty that the performance of her duties as juror would be
prevented or substantially impaired. Accordingly, the trial court did
not abuse its discretion in refusing to remove her for cause.



                                  10
Id. at 225-26 (last alteration in original; internal paragraph numbers and footnote

omitted).

                                    III. Analysis

                                 Standard of review

      Because the claim at issue was adjudicated on the merits by the OCCA, our

standard of review is governed by 28 U.S.C. § 2254(d)(1), which provides:

      An application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim–

             (1) resulted in a decision that was contrary to, or involved an
             unreasonable application of, clearly established Federal law, as
             determined by the Supreme Court of the United States . . . .

28 U.S.C. § 2254(d)(1).

      In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court discussed,

at length, the meaning of the two clauses of § 2254(d)(1). “A state court

decision,” the Supreme Court explained, is “contrary to . . . clearly established

[Supreme Court] precedent if the state court applies a rule that contradicts the

governing law set forth in [the Supreme Court’s] cases,” id. at 405, or “if the state

court confronts a set of facts that are materially indistinguishable from a decision

of th[e] [Supreme] Court and nevertheless arrives at a result different from

[Supreme Court] precedent,” id. at 406. The Court further explained that “a state-

court decision can involve an ‘unreasonable application’ of th[e] Court’s clearly



                                          11
established precedent in two ways.” Id. at 407. “First, a state court decision

involves an unreasonable application of th[e] Court’s precedent if the state court

identifies the correct governing legal rule from th[e] Court’s cases but

unreasonably applies it to the facts of the particular state prisoner’s case.” Id.

“Second, a state-court decision also involves an unreasonable application of th[e]

Court’s precedent if the state court either unreasonably extends a legal principle

from [the Court’s] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context where it should

apply.” Id.

                           Clearly established federal law

      Eizember points to several Supreme Court cases as supplying the clearly

established federal law applicable to this claim. To begin with, he points to

Uttecht v. Brown, 551 U.S. 1 (2007) and Morgan v. Illinois, 504 U.S. 719 (1992),

for the principle

that “[t]he Constitution,” in particular “the Sixth Amendment and the Due Process

Clause of the Fourteenth Amendment,” “requires an unbiased jury.” Aplt. Br. at

26. He in turn cites Wainwright v. Witt, 469 U.S. 412 (1985), for the principle

that “[a] juror’s bias need not be proved with ‘unmistakable clarity’ before he

should be excused for cause.” Id. at 27.

      Addressing these cases in chronological order, the Supreme Court in Witt

“examine[d] . . . the procedures for selection of jurors in criminal trials involving


                                           12
the possible imposition of capital punishment.” 469 U.S. at 414. In doing so, the

Court outlined several principles that are applicable to Eizember’s appeal. To

begin with, the Court emphasized that, “[a]s with any other trial situation where

an adversary wishes to exclude a juror because of bias, . . . it is the adversary

seeking exclusion who must demonstrate, through questioning, that the potential

juror lacks impartiality.” Id. at 423. In turn, the Court noted, “[i]t is then the

trial judge’s duty to determine whether the challenge is proper.” Id. The Court

explained that “the proper standard for determining when a prospective juror may

be excluded for cause because of his or her views on capital punishment . . . is

whether the juror’s views would prevent or substantially impair the performance

of his duties as a juror in accordance with his instructions and his oath.” Id. at

424 (internal quotation marks omitted). “[T]his standard,” the Court held, “does

not require that a juror’s bias be proved with ‘unmistakable clarity.’” Id. But,

the Court noted, “there will be situations where the trial judge is left with the

definite impression that a prospective juror would be unable to faithfully and

impartially apply the law.” Id. at 425-26. “[T]his is why,” the Court explained,

“deference must be paid to the trial judge who sees and hears the juror.” Id. at

426.

       The Court in Witt also emphasized that “a trial judge’s finding that a

particular venireman was not biased and therefore was properly seated [i]s a

finding of fact subject to § 2254(d).” Id. at 428. “[S]uch a finding,” the Court


                                           13
noted, “is based upon determinations of demeanor and credibility that are

peculiarly within a trial judge’s province.” Id. The same holds true, the Court

held, for “a trial court’s determination that a prospective capital sentencing juror

was properly excluded for cause.” Id. at 429. Finally, the Court held that in

making these determinations, a “trial judge is of course applying some kind of

legal standard to what he sees and hears, but his predominant function in

determining juror bias involves credibility findings whose basis cannot be easily

discerned from an appellate record.” Id.

      In Morgan, the Supreme Court considered “whether, during voir dire for a

capital offense, a state trial court may, consistent with the Due Process Clause of

the Fourteenth Amendment, refuse inquiry into whether a potential juror would

automatically impose the death penalty upon conviction of the defendant.” 504

U.S. at 721. In addressing this question, the Court held that “[a] juror who will

automatically vote for the death penalty in every case will fail in good faith to

consider the evidence of aggravating and mitigating circumstances as the

instructions require him to do.” Id. at 729. The Court explained that “because

such a juror has already formed an opinion on the merits, the presence or absence

of either aggravating or mitigating circumstances is entirely irrelevant to such a

juror.” Id. “Therefore,” the Court held, “based on the requirement of impartiality

embodied in the Due Process Clause of the Fourteenth Amendment, a capital

defendant may challenge for cause any prospective juror who maintains such


                                           14
views.” Id. And, the Court held, “[i]f even one such juror is empaneled and the

death sentence is imposed, the State is disentitled to execute the sentence.” Id.

       The Court in turn held that these principles afford a defendant the “right to

make inquiry” during voir dire, id. at 734, in order to ferret out “those biased

persons on the venire who as jurors would unwaveringly impose death after a

finding of guilt,” id. at 733. Such inquiry, the Court emphasized, is not limited to

“general fairness and ‘follow the law’ questions.” Id. at 734. Instead, the Court

held, a defendant is “entitled, upon his request, to inquiry discerning those jurors

who, even prior to the State’s case in chief, ha[ve] predetermined the terminating

issue of [the] trial, that being whether to impose the death penalty.” Id. at 736.

       Finally, in Uttecht, the Supreme Court reviewed its past precedents and

noted that they established “at least four principles” relevant to voir dire during a

capital trial:

       First, a criminal defendant has the right to an impartial jury drawn
       from a venire that has not been tilted in favor of capital punishment
       by selective prosecutorial challenges for cause. Second, the State has
       a strong interest in having jurors who are able to apply capital
       punishment within the framework state law prescribes. Third, to
       balance these interests, a juror who is substantially impaired in his or
       her ability to impose the death penalty under the state-law framework
       can be excused for cause; but if the juror is not substantially
       impaired, removal for cause is impermissible. Fourth, in determining
       whether the removal of a potential juror would vindicate the State’s
       interest without violating the defendant’s right, the trial court makes
       a judgment based in part on the demeanor of the juror, a judgment
       owed deference by reviewing courts.

551 U.S. at 9 (internal citations omitted).


                                          15
                   Eizember’s challenge to the OCCA’s decision

      Eizember argues that the OCCA’s decision “was contrary to and an

unreasonable application of well-established Supreme Court precedent.” Aplt. Br.

at 31. In particular, Eizember asserts that the OCCA, in assessing the totality of

D.B.’s responses, “ wrongly conclude[d] that any consideration [of the three

sentencing options] w[ould] do so long as D.B. w[a]s not ‘irrevocably committed

to any one punishment.’” Id. at 28 (quoting Eizember, 164 P.3d at 226). “That,”

Eizember argues, “is not the correct standard.” Id. After carefully examining the

OCCA’s decision and relevant Supreme Court precedent, I and my concurring

colleague agree that the OCCA applied an incorrect legal standard when

addressing Eizember’s assertion that juror D.B. was biased. See Conc. Op. at 1

(McHugh, J., concurring).

      The critical flaw in the OCCA’s analysis is that, in evaluating D.B.’s

responses, it applied a legal standard that is inconsistent with clearly established

federal law. To be sure, the OCCA began its analysis by correctly identifying and

quoting from Witt. 164 P.3d at 221. And it concluded its analysis with language

that can fairly be said to track Witt. Id. at 226. The problem, however, is what

lies in between.

      After initially identifying and quoting from Witt, the OCCA stated that it

had long “adhered to the principles set forth in Witt.” Id. at 222. The OCCA

explained: “We have said the Witt standard only requires that each juror be


                                          16
willing to consider each of the three statutory punishments: the death penalty, life

imprisonment without the possibility of parole, and life imprisonment (with the

possibility of parole).” Id. Subsequently, in “[r]eviewing D.B.’s responses in

total” and concluding that they “d[id] not demonstrate an impossible bias towards

the death penalty,” id. at 225, the OCCA relied on its own precedent and the

standard developed thereunder, which it believed was consistent with Witt:

      Juror D.B.’s responses suggest she might have trouble considering all
      three options equally. However, that is not the standard required by
      law. To withstand a challenge for cause concerning punishment
      issues, a venireperson need only be willing to consider all the
      penalties provided by law and not be irrevocably committed to any
      one punishment option before the trial has begun.

Id. at 225-26 (citing Gilbert v. State, 951 P.2d 98, 108 (Okla. Crim. App. 1997)).

      From what I can determine, this “irrevocably committed” standard was

developed by the OCCA shortly after, and was based upon the OCCA’s

interpretation of, the Supreme Court’s decision in Witherspoon v. Illinois, 391

U.S. 510 (1968). See, e.g., Davis v. State, 665 P.2d 1186, 1191 (Okla. Crim.

App. 1983); Gibson v. State, 501 P.2d 891, 896 (Okla. Crim. App. 1972); Koonce

v. State, 456 P.2d 549, 554 (Okla. Crim. App. 1969). More specifically, the

standard was based upon the following language found in footnote 21 of

Witherspoon:

      Just as veniremen cannot be excluded for cause on the ground that
      they hold such views [i.e., “general objections to the death penalty or
      . . . conscientious or religious scruples against its infliction”], so too
      they cannot be excluded for cause simply because they indicate that


                                          17
        there are some kinds of cases in which they would refuse to
        recommend capital punishment. And a prospective juror cannot be
        expected to say in advance of trial whether he would in fact vote for
        the extreme penalty in the case before him. The most that can be
        demanded of a venireman in this regard is that he be willing to
        consider all of the penalties provided by state law, and that he not be
        irrevocably committed, before the trial has begun, to vote against the
        penalty of death regardless of the facts and circumstances that might
        emerge in the course of the proceedings.

301 U.S. at 522 n.21. 10

        Importantly, the Supreme Court has since held that the language of footnote

21 in Witherspoon does not set forth the controlling standard for assessing

potential jurors in a capital case. In Witt, the Supreme Court recognized that its

post-Witherspoon decisions had deviated from the language of footnote 21 and

“demonstrate[d] no ritualistic adherence to a requirement that a prospective juror

make it ‘unmistakably clear . . . that [she] would automatically vote [for or]

against the imposition of capital punishment . . . .’” 469 U.S. at 419 (first

alteration in original; italics in original). In particular, the Supreme Court noted

that the standard it had announced and applied in Adams v. Texas, 448 U.S. 38

(1980), “differ[ed] markedly from the language of footnote 21” in Witherspoon.

469 U.S. at 421. Because of the confusion caused by these conflicting decisions,

the Supreme Court took “th[e] opportunity to clarify [its] decision in

   10
      The OCCA was not alone in doing so. As the Supreme Court discussed in
Witt, “[d]espite Witherspoon’s limited holding, later opinions in this Court and
the lower courts have referred to the language in footnote 21 . . . as setting the
standard for judging the proper exclusion of a juror opposed to capital
punishment.” 469 U.S. at 418.

                                           18
Witherspoon, and to reaffirm the . . . standard from Adams as the proper standard

for determining when a prospective juror may be excluded for cause because of

his or her views on capital punishment.” Id. at 424. “That standard [i.e., the

Adams standard],” the Court stated, “is whether the juror’s views would ‘prevent

or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath.’” Id. (quoting Adams, 448 U.S. at 45). The Court

“note[d] that, in addition to dispensing with Witherspoon’s reference to

‘automatic’ decisionmaking, this standard likewise does not require that a juror’s

bias be proved with ‘unmistakable clarity.’” Id. “This is because,” the Court

stated, “determinations of juror bias cannot be reduced to question-and-answer

sessions which obtain results in the manner of a catechism.” Id.

      The problem is that, since Witt, the OCCA has failed to revise or abandon

its “irrevocably committed” standard. Instead, the OCCA has concluded that its

“irrevocably committed” standard is “[e]ssentially . . . the same” as the Witt

standard, Carter v. State, 879 P.2d 1234, 1244 (Okla. Crim. App. 1994), and it

has continued to routinely apply the standard in capital cases, including

Eizember’s. Indeed, in analyzing Juror D.B.’s written and oral responses and

concluding that the state “trial court did not abuse its discretion in refusing to

remove her for cause,” the OCCA emphasized that she “indicated she could

consider all possible punishment options.” Eizember, 164 P.3d at 226.




                                          19
      Quite clearly, however, the OCCA’s “irrevocably committed” standard is

not the same as, and indeed is less demanding than, the controlling standard

outlined in Witt (i.e., the Adams standard). The result is that a potential juror

could satisfy the “irrevocably committed” standard and be permitted to sit as a

juror, yet fail to meet the Witt/Adams standard.

      And that appears to be precisely the situation in Eizember’s case with

respect to juror D.B. To begin with, D.B.’s responses to questioning by defense

counsel during voir dire clearly suggested that she would have difficulty giving

adequate consideration to the option of life without parole. When asked by

defense counsel if she would “automatically” choose one of the three possible

sentencing options for capital murder, she stated that she “[p]robably” would

choose a sentence of death. Defense counsel followed up on D.B.’s response by

asking her directly if she would automatically choose the death penalty. D.B.

responded, “I would have to look at all three but just off the cuff, it would

probably be death.” Relatedly, D.B. stated that she “would have to try hard” to

give meaningful consideration to the sentence of life without parole. She

explained that death would be her own choice if she were a defendant choosing

between those two options. Notably, these answers, which clearly displayed a

strong, if not automatic, preference for the death penalty, were largely consistent

with her answers on the written questionnaire. For example, on the written

questionnaire, D.B. was asked “What purpose do you think the death penalty


                                          20
serves in our society.” D.B.’s Jury Information Questionnaire at 9. D.B. stated in

response: “Keeps taxpayers from having to support a criminal for the remainder

of their life.” Id. When asked on the questionnaire to “[c]heck the ‘one’

statement which ‘best’ summarizes your general views about capital punishment

(the death Penalty),” D.B. checked option #5, which stated, “I am strongly in

favor of capital punishment as an appropriate penalty.” Id. Lastly, in response to

the question “What are your feelings about the death penalty?,” D.B. stated, “I

have no reservations about seeing someone put to death so long as it has been

proven the person is guilty, especially if they have taken the lives of others.” Id.

        It appears to be a close question whether these responses were sufficient to

satisfy the OCCA’s own “irrevocably committed” standard. Although D.B. came

quite close to indicating that she would automatically vote to impose the death

penalty, her responses could perhaps reasonably be construed as indicating a

willingness to at least consider all three available penalties. Under the

Witt/Adams standard, however, it is clear that D.B.’s views would have prevented

or substantially impaired the performance of her duties as a juror in accordance

with her instructions and oath. 11 More specifically, D.B.’s responses “made it

   11
      “[T]he right to jury trial guarantees to the criminally accused a fair trial by a
panel of impartial, ‘indifferent’ jurors.” Morgan, 504 U.S. at 727. Such “jurors
can conscientiously and properly carry out their sworn duty to apply the law to
the facts of the particular case.” Lockhart v. McCree, 476 U.S. 162, 184 (1986).
In the context of a capital murder case, each juror’s “verdict must be based upon
the evidence developed at trial.” Morgan, 504 U.S. at 727. “‘[A] juror who has
                                                                        (continued...)

                                          21
unmistakably clear that [she] could not be trusted to abide by existing law and to

follow conscientiously the instructions of the trial judge.” Witt, 469 U.S. at 419

(internal quotation marks omitted). Consequently, she should have been stricken

for cause under that standard.

        For these reasons, the OCCA’s analysis of Eizember’s challenge to the state

trial court’s refusal to excuse juror D.B. was “contrary to, or involved an

unreasonable application of, clearly established Federal law.” 28 U.S.C. §

2254(d)(1). “[A]lthough” this “does not [automatically] entitle [Eizember] to the

issuance of a writ of habeas corpus, it effectively removes AEDPA’s prohibition

on the issuance of a writ.” Milton v. Miller, 744 F.3d 660, 670-71 (10th Cir.

2014) (internal citation omitted). That in turn “requires us to review de novo his”

claim regarding the trial court’s failure to excuse juror D.B. for cause, “rather

than deferring to the OCCA’s resolution of that claim.” Id. at 671.

                        The state trial court’s determination

        In determining whether “a prospective capital sentencing juror” should be

“excluded for cause,” a trial court “appl[ies] some kind of legal standard to what

[it] sees and hears” from the juror and it ultimately makes a finding of fact

regarding that juror’s state of mind. Witt, 469 U.S. at 429. Generally speaking,



   11
    (...continued)
formed an opinion [prior to trial] cannot be impartial.’” Id. (quoting Reynolds v.
United States, 98 U.S. 145, 155 (1879)).


                                          22
such a finding is “owed deference by reviewing courts” because the trial court

was in a unique “position to assess the demeanor of the” juror. Uttecht, 551 U.S.

at 9.

        As I shall proceed to describe, the state trial court in this case made such a

finding regarding juror D.B. But in doing so, the state trial court, presumably and

understandably attempting to follow OCCA precedent, applied an improper legal

standard. As a result, its finding regarding juror D.B.’s impartiality is essentially

meaningless and entitled to no deference because it failed to apply the correct

Witt/Adams standard.

        At the beginning of Eizember’s trial, the state trial court split the pool of

potential jurors into three groups. Juror D.B. was in the second group. At the

outset of the questioning of the second group, the state trial court gave the

potential jurors a brief description of the case and informed them that the purpose

of the questioning was to “see[] if there are any of you who have preconceived

notions or ideas or beliefs that you cannot set aside that are not fit to hear this

case.” Tr., Vol. 1 at 164. The state trial court then conducted its own questioning

of the second group. In doing so, it asked the potential jurors:

        If you find the defendant guilty of Murder in the First Degree can
        you consider all three of these legal punishments, death,
        imprisonment for life without parole or imprisonment for life and
        impose the one warranted by law and evidence? Okay, now that was
        a long question, wasn’t it, but what we are finding out here is that
        and remember we are assuming just for the purpose of this question
        that you do find the defendant guilty of Murder in the First Degree,


                                            23
           can you just give a fair consideration to all three possible
           punishments and base your decision solely upon the facts in the case,
           not upon any preconceived bias for or against any one of the three
           punishments?

Id. at 174-75.

           As potential jurors responded, the state trial court repeatedly summarized

the legal standard it was applying:

           The question is can you consider all three of the punishments,
           possible ranges of punishment?

Id. at 178.

           [C]an you give consideration to all three ranges of punishment and
           impose the one that the facts and the law requires . . . ?

Id.

           Is there anyone on the third row that if the jury found beyond a
           reasonable doubt the defendant is guilty of the Murder in the First
           Degree could not consider all three of the legal punishments which
           are death, imprisonment for life without parole or imprisonment for
           life, is there any person on the third row that cannot consider any
           one, any one of those three or that would automatically impose one
           of those three?

Id. at 180.

           What I want to know is just the basic rule, will you consider all three
           of them or are [you] telling me that your mindset is against life so
           strongly that it cannot be considered or that you have a prejudice
           against --

Tr. Vol. 2 at 255. 12

      12
      At no point did the state trial court make any comments that reflected the
controlling Witt/Adams standard, i.e., whether a venireperson’s views would
                                                                     (continued...)

                                              24
        These statements from the state trial court make clear that it was applying

the OCCA’s own “irrevocably committed” standard, rather than the Witt/Adams

standard, in assessing the responses from each of the potential jurors. 13 As a

result, its finding that juror D.B. was qualified under the “irrevocably committed”

standard to serve on Eizember’s jury, even if afforded deference by this court,

tells us nothing about whether juror D.B. was qualified to serve under the proper

Witt/Adams standard.

                                 The majority opinion

        The majority makes several assertions that are erroneous and thus require a

response. To begin with, the majority is wrong in asserting that Eizember

forfeited any challenge to the OCCA’s use of its own “irrevocably committed”

standard. According to the majority, “[i]n six and a half years of proceedings in


   12
    (...continued)
prevent or substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.
   13
      The majority seems to suggest that the questions posed by the state trial
court do not reflect the legal standard that it actually applied in assessing the
answers given by the potential jurors. Maj. Op. at 24 n.5. If that is true, then
what was the point of the state trial court asking these questions? Further, there
is nothing in the trial transcript or elsewhere in the record that suggests the state
trial court applied a standard different than the one reflected by its questions.
Indeed, rarely, if ever, will a trial court issue a written order outlining the legal
standard it is applying in assessing the responses of potential jurors. As a result,
we are left to examine the oral statements that the trial court makes in the course
of examining jurors and ruling on challenges for cause. Doing so in this case
reveals that the trial court was, not surprisingly, relying on Oklahoma’s flawed
interpretation of Witt (an interpretation that erroneously equated the Witt standard
and the OCCA’s own “irrevocably committed” standard).

                                          25
federal court . . . Eizember never argued . . . that the OCCA employed a legal

standard ‘contrary to’ Witt.” Maj. Op. at 18. “Instead,” the majority asserts,

“accepting that the OCCA correctly identified Witt as the governing standard, . . .

Eizember has argued only that the OCCA’s application of that standard — the

answer it gave to the question Witt poses — was unreasonable given the facts in

this particular case.” Id. Indeed, the majority asserts, “there’s nothing in . . .

Eizember’s district court petition” or “in his opening brief in this court” that

“resembl[es] the” legal flaws I have outlined above. Id. As I shall outline below,

however, the majority ignores key passages in Eizember’s federal court pleadings

and ultimately paints a distorted picture of Eizember’s legal challenge to the trial

court’s refusal to strike juror D.B. The majority also wrongly assumes that, in

considering the totality of juror D.B.’s responses, the OCCA actually answered

the question that Witt poses.

      Ground I of Eizember’s federal habeas petition alleged that “the trial

court’s erroneous denial of challenges for cause left biased jurors on [his] jury,

depriving him of trial by an impartial jury and due process in violation of the

Sixth and Fourteenth Amendments.” Dist. Ct. Docket No. 24 at 23 (capitalization

omitted). In support of this issue, Eizember outlined the facts relevant to the

claim, as well as the OCCA’s resolution of the claim. Id. at 23-29. In a section

entitled “Argument and Authority,” Eizember then cited Supreme Court and

Tenth Circuit law regarding the right to an impartial jury, and proceeded to


                                           26
discuss the application of that law to jurors D.B. and J.S. Id. at 30-38. In the

subsection discussing juror D.B., Eizember, quoting from the dissenting opinion

of OCCA Judge Chapel, characterized as “‘absurd,’” id. at 32 (quoting Eizember,

164 P.3d at 249 (Chapel, J., dissenting)), the OCCA majority’s “suggest[ion] that

any consideration [of the three available sentencing options] will do as long as the

juror is not ‘irrevocably committed to any one punishment,’” id. (quoting

Eizember, 164 P.3d at 226). Notably, as I have already indicated, Eizember

repeated this argument in his opening appellate brief:

         Discounting the fact that D.B.’s “responses suggest she might
      have trouble considering all three options equally,” the OCCA
      majority wrongly concludes that any consideration will do as long as
      D.B. is not “irrevocably committed to any one punishment.”
      Eizember, 164 P.3d at 226. That is not the correct standard.

Aplt. Br. at 28. These arguments, though brief, correctly identified the key flaw

in the OCCA’s analysis of juror D.B. and its purported application of the Witt

standard.

      The majority, in its effort to avoid the issue, characterizes these as nothing

more than “stray sentences” that “are insufficient to present an argument . . . in a

way that might fairly inform opposing counsel or a court of its presence in the

case.” Maj. Op. at 20. That characterization, however, is simply inaccurate. At

worst, Eizember’s counsel could, and perhaps should, have argued the issue in

greater detail. But nothing about the above-quoted statements was random,

incidental, unintentional, or otherwise lacking in purpose. See Webster’s Third


                                          27
New Int’l Dictionary at 2258 (1993) (defining the adjective “stray”). Quite

clearly, Eizember’s counsel understood and attempted to convey that the OCCA

had applied an improper legal standard in assessing the totality of D.B.’s

responses. Moreover, Eizember’s counsel in no way conceded or accepted that

the OCCA correctly identified and employed the Witt standard. Maj. Op. at 17-

18.

      The majority also inaccurately frames my position in this case by

suggesting that I think “we don’t need to reach the question whether the OCCA

reasonably applied Witt because that court didn’t apply Witt at all.” Maj. Op. at

17. The fact of the matter is that I agree we must examine the OCCA’s purported

application of Witt because that is precisely where the OCCA’s error occurred.

As I have previously noted, the OCCA began addressing Eizember’s challenge to

juror D.B. and J.S. by properly identifying Witt as providing the controlling legal

standard. In the course of purportedly applying that standard to juror D.B.,

however, the OCCA actually relied on its own “irrevocably committed” standard;

a standard the OCCA erroneously thought was the equivalent of the Witt standard.

Thus, there was no error on the part of the OCCA in the initial “identification”

stage. Rather, the OCCA erroneously deviated from the Witt standard in the

course of attempting to “apply” it to juror D.B. In light of all this, it is perfectly

understandable why Eizember has focused his arguments on the OCCA’s

purported “application” of Witt.


                                           28
      Further, the majority is wrong in suggesting that we can we neatly divide

our analysis in this case between § 2254(d)(1)’s “contrary to” and “unreasonable

application” clauses, or that the error I have outlined necessarily falls within the

“contrary to” clause. Indeed, a reasonable argument can be made that the

OCCA’s error in this case implicates both clauses of § 2254(d)(1). In terms of

the “contrary to” clause, the OCCA actually applied (but did not realize it was

doing so) “a rule that contradicts the governing law set forth in” Witt. Williams,

529 U.S. at 405. In terms of the “unreasonable application” clause, the OCCA

“identifie[d] the correct governing legal rule . . . but unreasonably applie[d] it to

the facts of [Eizember’s] case” by unwittingly substituting a standard (the

“irrevocably committed” standard) that it thought was the equivalent of Witt.

Williams, 529 U.S. at 407.

      In any event, it matters not which clause of § 2254(d)(1) we rely upon

because, contrary to the majority’s assertion, both the parties and the district

court consistently treated Eizember’s claim as invoking both clauses of §

2254(d)(1). Further, the respondent in this case has never asserted any type of

forfeiture argument, either in the district court or before us.

      In the end, I submit that Eizember, who is challenging the constitutionality

of a death sentence “unique in its severity and irrevocability,” Barclay v. Florida,

463 U.S. 939, 958 (1983) (Stevens, J., concurring), has sufficiently argued the

claim to have placed it at issue both in the district court (which essentially


                                          29
overlooked the key component of the claim) and in this court. At an absolute

minimum, I submit that Eizember’s attempt to raise this issue in the district court

and on appeal, combined with the gravity of his sentence, warrants the exercise of

our discretion in proceeding to address whether the OCCA and the state trial

court, in assessing D.B.’s responses, applied a legal standard that was inconsistent

with Witt. See Abernathy v. Wandes, 713 F.3d 538, 552 (10th Cir. 2013) (stating

that “the decision regarding what issues are appropriate to entertain on appeal in

instances of lack of preservation is discretionary.”).

                                   IV. Conclusion

      I ultimately conclude, after considering juror D.B.’s written and oral

responses as a whole, that she should have been stricken for cause under the

Witt/Adams standard and that the state trial court erred in failing to do so. And,

because the constitutional requirement of an impartial jury is violated if even a

single juror is unable to carry out his or her sworn duties, see Ross v. Oklahoma,

487 U.S. 81, 85 (1988), this error was not harmless. As a result, I conclude that

Eizember is entitled to federal habeas relief on this claim, in the form of a new

sentencing proceeding.




                                          30
No. 14-6012, Eizember v. Trammell

McHUGH, Circuit Judge, concurring:


      I join the majority’s well-reasoned analysis in most respects, and concur in

its holding that Mr. Eizember is not entitled to habeas relief. I write separately to

note my disagreement with the majority’s conclusion that the OCCA applied the

correct legal standard in evaluating Mr. Eizember’s claim that Juror D.B. was

biased.

      In my view, the dissent is correct that the OCCA’s opinion reflects its

continuing erroneous belief that a juror may withstand a challenge for cause

unless she is "irrevocably committed" to any one punishment option. See

Eizember v. State, 164 P.3d 208, 225-26 (Okla. Crim. App. 2007) (“To withstand

a challenge for cause concerning punishment issues, a venireperson need only be

willing to consider all the penalties provided by law and not be irrevocably

committed to any one punishment option before the trial has begun.” (emphasis

added)). This is no longer a correct statement of the law under Wainwright v.

Witt, 469 U.S. 412, 421-26 (1985). And contrary to OCCA authority suggesting

otherwise, the “irrevocably committed” standard is not “[e]ssentially . . . the

same” as the “substantially impaired” standard articulated in Witt. See Carter v.

State, 879 P.2d 1234, 1243-44 (Okla. Crim. App. 1994).

      Despite the OCCA’s apparent confusion about the continuing utility of the

“irrevocably committed” standard, I join in the majority’s conclusion that
Mr. Eizember is not entitled to habeas relief for two reasons. First, as the

majority opinion explains, Mr. Eizember forfeited any argument that the OCCA

applied the incorrect legal standard. He did not fairly raise this issue in the trial

court, on direct appeal, during his postconviction proceedings, or in the briefing

to this court. Unlike the dissent, I do not read Mr. Eizember’s federal habeas

petition as fairly asserting a challenge to the OCCA’s use of the “irrevocably

committed” standard. See Dist. Ct. Dkt. 24 at 30-38. Although Mr. Eizember set

forth the general legal standard by explaining that 28 U.S.C. § 2254(d)(1),

permits federal habeas relief if a state court’s decision is “contrary to” law or “an

unreasonable application” of that law, he based his claim for relief solely on the

“unreasonable application” prong. It is apparent the district court did not

understand Mr. Eizember to be challenging the legal standard applied by the

OCCA, because it never addressed the “contrary to law” prong of § 2254(d)(1) in

its decision. Indeed, the district court applied AEDPA deference to the OCCA’s

conclusions, upon the assumption—unchallenged by Mr. Eizember—that the

OCCA applied the correct legal standard. See Dist. Ct. Dkt. 44 at 19-21. Finally,

the dissent identifies two sentences from Mr. Eizember’s appellate brief that can

be read to assert the OCCA did not apply the correct standard. Aplt. Br. at 28.

But Mr. Eizember wholly fails to support that passing assertion with any

argument or citation to supporting authority. This single unsupported statement in

an eighty-page brief is insufficient to place the question fairly before us or the


                                          2
respondent. 14 In short, although the dissent has done a masterful job of

constructing this argument on behalf of Mr. Eizember at this advanced stage of

his legal saga, it is forfeited.

        Second, even if we were to exercise our discretion to consider the issue

despite Mr. Eizember’s forfeiture, as urged by the dissent, I would reach the same

conclusion with respect to Mr. Eizember’s petition for relief. Where the OCCA

has applied an incorrect legal standard, we are required to review its decision de

novo, without affording deference to the OCCA’s decision. Here, we must

determine whether Juror D.B. was “substantially impaired,” but we do so

constrained by the significant deference afforded trial court decisions regarding

juror bias. See Witt, 469 U.S. at 426 (explaining that “deference must be paid to

the trial judge who sees and hears the juror”). As the majority opinion highlights,

the Supreme Court has instructed that “where the record does not indicate the

standard applied by a state trial judge, he is presumed to have applied the correct

one,” id. at 431, and if the record is ambiguous, we defer to the credibility

determination made by the trial judge after extensive voir dire. Maj. Op. at 24 &

n.5. The dissent infers from the trial court record that the trial judge applied the

wrong standard in striking jurors for cause; I read that record as being silent on


   14
     The dissent notes the respondent has never raised a forfeiture argument
before this court. Dissent at 27. This is true. In fact, the respondent, like the
district court, never addressed the issue of whether the OCCA applied the correct
standard at all. In my view, this merely reflects that fact that Mr. Eizember never
fairly raised this issue.

                                          3
the standard applied by the trial court. Accordingly, I am bound by controlling

authority to defer to the trial court’s assessment of Juror D.B.’s fitness to serve

and, therefore, to deny Mr. Eizember the relief he requests.




                                           4
