                                                                                       FILED
                                                                           United States Court of Appeals
                                         PUBLISH                                   Tenth Circuit

                       UNITED STATES COURT OF APPEALS                           November 1, 2018

                                                                               Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                                 Clerk of Court
                         _________________________________

TREMANE WOOD,

      Petitioner - Appellant,

v.                                                             No. 16-6001
                                                       (D.C. No. 5:10-CV-00829-HE)
MIKE CARPENTER, Interim Warden,                               (W.D. Okla.)
Oklahoma State Penitentiary,

      Respondent - Appellee.

                         _________________________________

                                      ORDER
                         _________________________________

Before TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
Judges.
                 _________________________________

       This matter is before the court on the appellant’s Petition for Rehearing and

Request for En Banc Consideration. Upon consideration, the request for panel rehearing

is granted in part and to the extent of the changes made to the attached revised opinion.

The clerk is directed to file the revised opinion effective the date of this order. Panel

rehearing is otherwise denied.




       
        Pursuant to Fed. R. App. P. 43(c)(2), Mike Carpenter is substituted for Terry
Royal as the respondent in this case.
       In addition, the Petition was also circulated to all the judges of the court in regular

active service. As no judge on the original panel or the en banc court requested that a

pollbe called, the suggestion for en banc rehearing is denied. See Fed. R. App. P. 35(f).




                                               Entered for the Court



                                               ELISABETH A. SHUMAKER, Clerk




                                              2
                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              November 1, 2018
                                       PUBLISH
                                                             Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 TREMANE WOOD,

             Petitioner - Appellant,
 v.                                                    No. 16-6001
 MIKE CARPENTER, Interim Warden,
 Oklahoma State Penitentiary,

             Respondent - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                   (D.C. NO. 5:10-CV-00829-HE)


Jessica L. Felker, Assistant Federal Public Defender (Jon M. Sands, Federal
Public Defender, with her on all briefs, and Amanda C. Bass, Assistant Federal
Public Defender, with her on reply and supplemental briefs), Office of the Federal
Public Defender, Phoenix, Arizona, for Petitioner.

Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General of
Oklahoma, with her on the briefs), Office of the Attorney General, Oklahoma
City, Oklahoma, for Respondent.


Before TYMKOVICH, Chief Judge, MATHESON, and BACHARACH, Circuit
Judges.


TYMKOVICH, Chief Judge.
      An Oklahoma jury convicted Tremane Wood of first-degree felony murder

for the killing of Ronnie Wipf during a botched robbery. The jury found

Oklahoma had proved three aggravating circumstances associated with the

murder, and the mitigating circumstances did not outweigh them. The jury

accordingly sentenced Wood to death.

      The conclusion of Wood’s trial was only the start of his case’s long legal

odyssey. Wood directly appealed his conviction to the Oklahoma Court of

Criminal Appeals, advancing, as relevant here, two primary arguments. First, he

claimed his trial counsel performed ineffectively at the sentencing stage. Second,

he argued the “heinous, atrocious, or cruel” aggravating circumstance could not

be constitutionally applied to this case given the dearth of evidence that Mr. Wipf

suffered before death. The OCCA ordered an evidentiary hearing on the

ineffectiveness issue, but ultimately affirmed Wood’s conviction and death

sentence.

      Wood then filed an application for post-conviction relief in state court. He

claimed his appellate counsel performed ineffectively on direct appeal, including

at the evidentiary hearing. The OCCA again denied relief.

      Wood next filed a habeas petition under 28 U.S.C. § 2254 in the Western

District of Oklahoma. The district court denied the petition. We granted Wood




                                        -2-
certificates of appealability on whether his trial and appellate counsel performed

ineffectively. 1

        During the course of this appeal, we decided Pavatt v. Royal, 859 F.3d 920

(10th Cir. 2017), opinion amended and superseded on denial of rehearing on July

2, 2018 by Pavatt v. Royal, 2017 WL 9771976 (10th Cir. 2017), a challenge to

Oklahoma’s application of the heinous, atrocious, and cruel aggravator in that

case. Based on Pavatt, we granted an additional COA on whether the HAC

aggravating circumstance could be constitutionally applied to the facts of this

case.

        For the reasons discussed below, we AFFIRM the district court’s denial of

the petition for habeas relief.

                                  I. Background

        We begin by explaining the underlying facts and the numerous previous

proceedings.




        1
         On August 15, 2016, Wood filed a Request to Merits Panel for Leave to
Certify Additional Issues for Appeal, in which he asked us to grant COAs on a
number of issues. We previously granted the request in part. See Order, July 21,
2017. We deny the remainder of the request—specifically, Wood’s request for a
COA on Claim Two (prosecutorial misconduct violated his right to a fair trial),
and Claim Four, Part (B)(2) (insufficient evidence supported the aggravating
circumstance of knowingly causing a great risk of death to more than one person).
After carefully reviewing the record, we conclude “jurists of reason” could not
disagree with the district court’s denial of relief on both claims. Buck v. Davis,
137 S. Ct. 759, 773–74 (2017).

                                         -3-
      A.    The Crime

      On December 31, 2001, Tremane Wood rang in the new year at a brewery

in Oklahoma City. 2 Wood’s brother Zjaiton, 3 Zjaiton’s girlfriend Lanita, and

Wood’s ex-girlfriend Brandy joined him. At some point during the festivities,

Lanita and Brandy began talking with two fellow brewery patrons—Ronnie Wipf

and Arnold Kleinsasser. Wipf and Kleinsasser invited the women back to their

motel to continue celebrating. After conferring with Wood and Zjaiton, the

women agreed to leave with their new acquaintances.

      But something nefarious was afoot. Before leaving, Wood, Zjaiton, and the

women concocted a plan. The women would pretend to be prostitutes and, once

Wipf and Kleinsasser secured the money to pay them, the Wood brothers would

show up at the motel and rob the two men.

      The women put the plan into action. At the motel, Wipf and Kleinsasser

agreed to pay them $210 to have sex. The men had no cash on hand, however, so

they all drove to an ATM. Meanwhile, Wood and Zjaiton waited outside the

motel. Once the women, Wipf, and Kleinsasser arrived back at the room, Wood

and Zjaiton pounded on the door. Mr. Wipf opened the door and the brothers




      2
       To cite the record, this opinion follows the reference system from
Wood’s brief. See Aplt. Br. at 2.
      3
       For clarity, we refer to Tremane Wood as “Wood” and his brother Zjaiton
Wood as “Zjaiton.”

                                        -4-
barged in. Both were armed—Wood with a knife and Zjaiton with a gun. 4 The

women ran out the door and a fight ensued.

        At first, Wood fought Mr. Wipf alone. But Zjaiton eventually joined the

fray and helped Wood fight Wipf. After Zjaiton had joined the fight, Kleinsasser

saw that Mr. Wipf was covered in blood. At some point during this brawl, Mr.

Wipf was fatally stabbed in the chest. Autopsy diagrams and pictures of Wipf’s

body reveal his face was bloody and bruised, and he had a deep cut on his right

hand.

        B.    Wood’s Murder Trial

        Oklahoma charged Wood, Zjaiton, Lanita, and Brandy with numerous

crimes, including first-degree felony murder. The state sought the death penalty

against both Wood and Zjaiton, arguing that four aggravating circumstances

warranted the death sentence. One of those circumstances was that the murder

was especially heinous, atrocious, or cruel.




        4
         No one at trial specifically testified that Wood possessed the knife and
Zjaiton the gun. But the OCCA made this factual finding based on testimony
about each man’s physical appearance. Wood v. State, 2007 OK CR 17, 158 P.3d
467, 472 n.6. And under 28 U.S.C. § 2254(e)(1), we presume the state court’s
factual determinations are correct unless the petitioner rebuts them with clear and
convincing evidence. Wood has not attempted to do so.

                                        -5-
      John Albert represented Wood at the guilt and sentencing phases of trial. 5

Eventually, the court severed Wood’s trial from the other defendants’. At the

guilt phase, the jury convicted Wood of first-degree felony murder. 6

      At the sentencing phase, three witnesses testified on Wood’s behalf. Andre

Taylor, a family friend, testified that Wood was well liked, was not a bad person,

and loved his children.

      Dr. Hand, a licensed psychologist, also testified. He first emphasized how

chaos defined Wood’s family life. To demonstrate this, he cited numerous

Department of Human Services (DHS) records in which Wood’s mother, Linda,

claimed her husband and Wood’s father, Raymond Gross, abused her. And Dr.

Hand explained that when Wood did get in trouble, he was usually following

Zjaiton’s lead. When cross examined, however, Dr. Hand stumbled a bit. The

prosecution asked him about Wood’s juvenile records, specifically those detailing

Wood’s previous assault charge. Though Dr. Hand recalled reviewing a large

stack of records, he could not recall those specific ones.

      Lastly, Wood’s mother Linda testified. She painted a dark portrait of her

relationship with Gross. They had, she said, “a very abusive relationship. I had

been beaten many, many times in front of my children. Tied up. Dragged down

      5
        Lance Phillips also represented Wood. But because Phillips mainly
followed Albert’s directions, the parties focus on Mr. Albert’s representation.
      6
       The jury also convicted Wood of robbery with firearms and conspiracy to
commit a felony (robbery).

                                         -6-
the highway. My bones broke.” Tr., 04/05/2004, at 91. But Linda, too,

floundered a bit on cross examination. The prosecution attacked her allegations

of abuse, emphasizing how DHS had found most of them invalid.

      The jury sentenced Wood to death.

      C.       Direct Appeal to the OCCA

      Wood retained new lawyers for his direct appeal to the Oklahoma Court of

Criminal Appeals. Wood also applied for a Rule 3.11 evidentiary hearing to

develop additional evidence about his claim trial counsel performed ineffectively.

In support of the application, Wood put forward seventeen affidavits and over

1,200 pages of juvenile records.

      The OCCA granted the application and remanded the case to the trial court,

instructing it to hold an evidentiary hearing and answer five factual questions. 7

The court then held a three-day hearing during which Wood presented twenty-

three witnesses. Ten witnesses testified about Wood’s life history, including his

mother, his father, and his brothers Andre and Zjaiton. Much of this testimony hit

on the same themes Linda and Dr. Hand had testified to at trial—albeit, in far

more detail.


      7
        The five questions were: (1) whether the evidence in the application was
reasonably available to trial counsel; (2) what, if any, records trial counsel or Dr.
Hand reviewed; (3) whether evidence that was available at trial but not used
would have affected the trial; (4) whether trial counsel’s failure to investigate was
sound trial strategy; and, (5) whether trial counsel’s failure to use available
evidence undermined confidence in the trial’s outcome.

                                         -7-
      But the evidentiary hearing did not merely recite the trial testimony with a

few extra details; new evidence did emerge. For example, Andre Wood testified

that Gross abused Wood as well as Linda. And Gross testified for the first time.

He admitted to once handcuffing Linda to his car as punishment for sleeping with

his nephew. He also confessed to pushing Linda in front of his sons. But Gross

denied other instances of abuse, such as knocking Linda’s teeth out or dragging

her on the ground after he handcuffed her. Similarly, Gross admitted he had

whipped his sons before, but insisted he never did so sadistically.

      Trial counsel, Mr. Albert, also signed an affidavit and testified at the

hearing. In his affidavit, he acknowledged time constraints caused him to “not

prepare enough of a mitigation case to effectively represent and defend” Wood.

EH Vol. 1 Ex. M. In his testimony, Mr. Albert similarly admitted he failed to hire

an investigator. But he stressed that he had interviewed Wood, Linda, and

Zjaiton. And he emphasized that he and Dr. Hand had successfully employed this

same strategy in other cases.

      Wood’s counsel at the evidentiary hearing also wanted to introduce

testimony from Dr. Kate Allen, a sociologist with a doctoral degree in family

sociology who had worked as a social worker and professor for thirty-five years.

The trial court granted the state’s objection to Dr. Allen testifying. She was not

qualified as an expert witness, the trial court concluded, and her testimony would

have been cumulative.

                                         -8-
      After hearing three days of testimony, the trial court entered findings of

fact answering the OCCA’s questions. The OCCA then permitted the parties to

submit ten-page supplemental briefs to challenge these findings. Wood’s counsel

did so, and the brief attacked the court’s answers to the five questions. The brief

did not, however, mention the exclusion of Dr. Allen’s testimony.

      The OCCA ultimately affirmed Wood’s conviction and sentence.

      D.     Post-Conviction Appeal in the OCCA

      Next, Wood moved for post-conviction relief in the OCCA on a number of

grounds. As relevant here, Wood alleged his appellate counsel performed

ineffectively on direct appeal, including during the Rule 3.11 evidentiary hearing.

The OCCA denied relief on all of these claims. 8

      E.     Wood’s Habeas Petition

      Wood filed a 28 U.S.C. § 2254 petition in the Western District of

Oklahoma, raising ten issues. The district court denied relief on all of them.

Wood then sought certificates of appealability on numerous claims; we granted

COAs on two issues. First, whether Wood’s trial counsel performed ineffectively

at the sentencing stage by (1) failing to adequately, investigate, select, prepare,

and present mitigation lay witnesses, (2) failing to prepare and present the



      8
         Wood later filed a second application for post-conviction relief, but the
OCCA denied all the claims because Wood could have brought them in his first
application but failed to do so. These claims are not at issue here.

                                         -9-
mitigation expert witness Dr. Hand, and (3) failing to investigate, obtain, and

present Linda Wood’s medical records, and Wood’s juvenile, school, medical,

mental health, and DHS records. And second, whether Wood’s appellate counsel

on direct appeal performed ineffectively by failing to challenge the exclusion of

Dr. Allen’s testimony in the supplemental brief.

      Wood then requested leave to certify additional issues. We granted his

request for a COA on the claim appellate counsel performed ineffectively at the

evidentiary hearing for three additional reasons: (1) failing to obtain and use

documents that would have undercut Gross’s denials of abuse, (2) not alerting the

court about Mr. Albert’s subsequent disciplinary proceedings, and (3) failing to

point out the trial court’s factual errors in supplemental briefing to the OCCA.

      After briefing concluded, Wood asked us to certify two additional issues in

light of our circuit’s decision in Pavatt v. Royal, 859 F.3d 920 (10th Cir. 2017),

opinion amended and superseded on denial of rehearing on July 2, 2018 by

Pavatt v. Royal, 2017 WL 9771976 (10th Cir. 2017). We granted a COA on one

of the issues—whether constitutionally sufficient evidence supported the

application of the heinous, atrocious, or cruel aggravating circumstance.

                            II. Standard of Review

      When reviewing whether the federal district court erred in denying habeas

relief, we review its legal analysis de novo and its factual findings for clear error.



                                         -10-
Smith v. Duckworth, 824 F.3d 1233, 1241–42 (10th Cir. 2016). But in

proceedings under 28 U.S.C. § 2254, the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) significantly limits our review. Under AEDPA,

when a state court adjudicated a petitioner’s claim on the merits, we cannot grant

relief unless that adjudication:

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

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceedings.

§ 2254(d)(1)–(2).

      “Clearly established Federal Law” refers to the Supreme Court’s holdings,

not its dicta. See, e.g., Williams v. Taylor, 529 U.S. 362, 412 (2000). A state-

court decision is only contrary to clearly established federal law if it “arrives at a

conclusion opposite to that reached by” the Supreme Court, or “decides a case

differently” than the Court on a “set of materially indistinguishable facts.” Id. at

412–13. But a state court need not cite the Court’s cases or, for that matter, even

be aware of them. So long as the state-court’s reasoning and result are not

contrary to the Court’s specific holdings, § 2254(d)(1) prohibits us from granting

relief. See Early v. Packer, 537 US. 3, 9 (2002) (per curiam).

      A state court’s decision unreasonably applies federal law if it “identifies

the correct governing legal principle” from the relevant Supreme Court decisions

                                          -11-
but applies those principles in an objectively unreasonable manner. Wiggins v.

Smith, 539 U.S. 510, 520 (2003). Critically, an “unreasonable application of

federal law is different from an incorrect application of federal law.” Williams,

529 U.S. at 410 (2000). “[E]ven a clearly erroneous application of federal law is

not objectively unreasonable.” Maynard v. Boone, 468 F.3d 665, 670 (10th Cir.

2006). Rather, a state court’s application of federal law is only unreasonable if

“all fairminded jurists would agree the state court decision was incorrect.” Frost

v. Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014).

      Finally, a state-court decision unreasonably determines the facts if the state

court “plainly misapprehend[ed] or misstate[d] the record in making [its] findings,

and the misapprehension goes to a material factual issue that is central to

petitioner’s claim.” Byrd v. Workman, 645 F.3d 1159, 1170–72 (10th Cir. 2011).

But this “daunting standard” will be “satisfied in relatively few cases.” Id. That

is because the state court’s decision must be “based on an unreasonable

determination of the facts.” Id. 9


      9
         Complicating the § 2254(d)(2) inquiry is that under § 2254(e)(1), “[s]tate
court factual findings are presumed correct unless the petitioner shows by clear
and convincing evidence they are not.” Sharp v. Rohling, 793 F.3d 1216, 1228
n.10 (10th Cir. 2015) (citing 28 U.S.C. § 2254(e)(1)). The “interplay between
§ 2254(d)(2) and § 2254(e)(1) is an open question” in this circuit. Id. And it is
“unclear which standard imposes a greater burden on the petitioner.” Id.

     We do not decide this open question in this case. Under either standard,
Wood cannot escape § 2254(d)(2)’s bar on relief for any of the arguments he
                                                                    (continued...)

                                        -12-
          AEDPA thus “erects a formidable barrier to federal habeas relief.” Burt v.

Titlow, 571 U.S. 12, 16 (2013). Congress crafted such a deferential standard to

ensure review under § 2254 serves only as “‘a guard against extreme malfunctions

in the state criminal justice systems,’ not a substitute for ordinary error correction

through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting

Jackson v. Virginia, 443 U.S. 307, 322 n.5 (1979)).

          With the limited nature of our review in mind, we turn to Wood’s claims.

                                       III. Analysis

          Wood raises three general claims. First, that his trial counsel performed

ineffectively. Second, that his appellate counsel on direct appeal performed

ineffectively. And finally, that applying the HAC aggravator to the facts of this

case violated the Constitution.

          A.       Ineffective Assistance of Trial Counsel

          We first summarize the trial-counsel-ineffectiveness standard before

turning to Wood’s claim his trial counsel performed ineffectively.

                   1.     Legal Standards

          In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court laid

out the now-familiar framework for ineffective assistance of counsel claims.

Under it, Wood must demonstrate both that his counsel performed deficiently and


          9
              (...continued)
raises.

                                             -13-
that he suffered prejudice from this deficient performance. Strickland, 466 U.S.

at 687.

      Counsel performs deficiently if his representation falls “below an objective

standard of reasonableness” under prevailing professional norms. Id. at 688–89.

At the sentencing stage of a capital trial, counsel has a duty to “thoroughly

investigat[e] and present[] mitigating evidence.” Cargle v. Mullin, 317 F.3d

1196, 1221 (10th Cir. 2003). Failing to do so can constitute deficient

performance. Id. And counsel’s deficient performance at the sentencing stage

prejudices the defendant if, but for counsel’s unprofessional errors, “there is a

reasonable probability that one juror would have chosen a sentence other than

death.” Matthews v. Workman, 577 F.3d 1175, 1190 (10th Cir. 2009).

      Importantly, when we evaluate counsel’s performance we must do so

through a “most deferential” lens. Richter, 562 U.S. at 105. Though there are

ordinarily “countless ways to provide effective assistance,” it is still “‘all too

tempting’ to ‘second-guess counsel’s assistance after conviction or adverse

sentence.’” Id. at 106 (quoting Strickland, 466 U.S. at 689). We must resist this

temptation and instead make “every effort . . . to eliminate the distorting effects

of hindsight.” Strickland, 466 U.S. at 689. We thus “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id.




                                          -14-
      “Surmounting Strickland’s high bar” is therefore “never an easy task.”

Richter, 562 U.S. at 105. Yet raising Strickland claims in a habeas petition makes

success all the more difficult. That is because, taken together, AEDPA and

Strickland render our review “doubly deferential.” Knowles v. Mirzayance, 556

U.S. 111, 123 (2009). We “take a ‘highly deferential’ look at counsel’s

performance, through the deferential lens of § 2254.” Cullen v. Pinholster, 563

U.S. 170, 190 (2011) (quoting Strickland, 466 U.S. at 689).

             2.     Discussion

      We granted a COA on Wood’s claim his trial counsel performed

ineffectively at the sentencing stage by failing to (1) adequately investigate,

select, prepare, and present mitigation lay witnesses; (2) prepare and present the

mitigation expert witness Dr. Hand; and (3) investigate, obtain, and present Linda

Wood’s medical records, and Wood’s juvenile, school, medical, mental health,

and DHS records. We address each issue in turn.

                   a.     Investigating, Selecting, and Preparing Lay Witnesses

      We first consider Wood’s claim that his trial counsel performed

ineffectively by failing to investigate and present additional witnesses. The

OCCA denied relief on this claim, concluding Wood’s trial counsel did not

perform deficiently, and Wood suffered no prejudice. In concluding counsel did

not perform deficiently, the OCCA emphasized that “[e]vidence of [Wood’s]

chaotic home life and background was presented to the jury through both an

                                         -15-
expert and lay witness.” Wood v. State, 2007 OK 17, 158 P.3d 467, 481 (Okla.

Crim. App. 2007). Though the OCCA conceded that “other witnesses not called

at trial could have provided further detail to support the mitigation evidence,” it

nonetheless found “the trial court correctly concluded that the material testimony

from those credible witnesses not called at trial was nonetheless presented to the

jury.” Id. Further, the OCCA held Wood suffered no prejudice because he

“failed to show that the outcome of his case would have been different had the

credible evidence developed at the evidentiary hearing been presented during his

sentencing proceeding.” Id.

       Wood argues AEDPA does not bar relief for a number of reasons. None

has merit.

       First, Wood contends we can grant relief because the OCCA’s decision was

“based on an unreasonable determination of the facts.” § 2254(d)(2). More

specifically, he insists the OCCA’s finding that the “material testimony from

those credible witnesses not called at trial was nonetheless presented to the jury”

qualifies as an unreasonable factual determination. Wood, 158 P.3d at 481. But

the OCCA’s determination about what evidence was “material” is not a factual

finding at all.

       In Williams, the Supreme Court explained that the prejudice inquiry is a

“mixed question of law and fact.” 529 U.S. at 371. And the Court recognized

that the “factual part of the mixed question” was whether evidence had, in fact,

                                         -16-
been “presented at trial.” Id. at 398. The “legal part” of the prejudice analysis, in

contrast, related to the “strength of the . . . evidence.” Id. 10 Accordingly, the

OCCA could have made a factual error if it concluded evidence had been

presented at trial when it, in fact, had not been. But Wood alleges no such error.

Instead, he claims the OCCA made an erroneous factual determination when it

categorized as immaterial the evidence developed at the evidentiary hearing but

not presented at trial. This categorization plainly relates to the “legal part” of the

prejudice analysis—the strength of the purportedly immaterial evidence, and

whether it would have affected the proceeding’s outcome. Simply put, since the

factual determination Wood claims is unreasonable is not a factual determination,

§ 2254(d)(2) is inapplicable.

      Second, Wood contends the OCCA unreasonably applied Strickland by

concluding his trial counsel did not perform deficiently by failing to call more lay

witnesses, and that he suffered no prejudice from this failure. We need not

consider the OCCA’s deficient-performance analysis because we can resolve this

issue based solely on the OCCA’s conclusion on prejudice. After a careful

review of the record, we cannot conclude that “all fairminded jurists would agree”

the OCCA unreasonably applied Strickland when it concluded trial counsel’s

      10
          We realize Williams was repeating the Virginia Supreme Court’s
distinction between the “factual part of the mixed question” and the “legal part.”
Williams, 529 U.S. at 398 (citing Williams v. Warden of the Mecklenburg Corr.
Cent., 254 Va. 16, 24 (1997)). But the Court noted this approach was “correct[],”
thus endorsing the distinction itself. Id.

                                          -17-
failure to call additional lay witnesses did not prejudice Wood. Grant v. Royal,

886 F.3d 874, 909 (10th Cir. 2018). Indeed, the OCCA properly recognized that

the themes developed at the evidentiary hearing were also developed at Wood’s

sentencing, albeit in less detail. And while some testimony at the hearing could

be considered “new”— such as allegations Gross abused Wood and his brother,

not just Linda—this evidence still related to the same themes counsel developed

at trial: Wood’s formative years were, as Dr. Hand testified, defined by chaos,

and abuse allegations swirled around his home. The testimony developed at the

evidentiary hearing was thus cumulative of the evidence trial counsel actually

presented during the sentencing stage.

      This is not to say Wood’s trial counsel offered a textbook mitigation

defense. We agree Wood’s mitigation case might have been stronger had some of

the witnesses from the evidentiary hearing testified during sentencing. But

because the evidence and themes developed at the hearing were substantially

similar to those developed at trial, the OCCA’s conclusion Wood suffered no

prejudice was objectively reasonable. Accordingly, AEDPA’s deferential

framework prevents us from disturbing the state court’s decision.

      Third, Wood advances two arguments that relate to the fact the court at the

evidentiary hearing barred Dr. Allen from testifying as an expert witness. To

start, we doubt these contentions fit within the COA we granted on the issue,

which was limited to trial counsel’s alleged failure to investigate and call

                                         -18-
additional lay, not expert, witnesses. But even if these arguments do fall within

the COA, neither has any merit.

       Wood first argues the OCCA unreasonably applied Strickland because it

failed to consider Dr. Allen’s testimony and report. Wood contends that

Strickland required the OCCA to consider the “totality of the evidence”

developed at the evidentiary hearing, which included this report and testimony.

466 U.S. at 695. But Dr. Allen did not testify at the evidentiary hearing because

the court concluded she was not qualified to do so. Accordingly, the OCCA could

not have considered this testimony because Dr. Allen never actually testified; the

evidence Wood faults the OCCA for not considering simply did not exist. And

while the court admitted Dr. Allen’s report into the record at the evidentiary

hearing, it did so only to ensure its decision not to allow her to testify could “be

fully reviewed at a later time.” Tr., 2/27/06, at 220. The OCCA thus could not

consider this report as evidence of trial counsel’s alleged ineffectiveness. It

instead could only have considered the report if Wood challenged the OCCA’s

exclusion of Dr. Allen’s testimony in his supplemental brief. But he did not do

so. The OCCA therefore did not need to (and in fact could not) consider Dr.

Allen’s report. 11



       11
         Wood also argues the OCCA’s decision is contrary to Wiggins v. Smith,
539 U.S. 510 (2003), for this same reason. Because the Strickland argument fails,
so too does the Wiggins argument.

                                         -19-
      Wood also contends the trial court’s refusal to allow Dr. Allen to testify at

the Rule 3.11 hearing directly conflicts with Lockett v. Ohio, 438 U.S. 586 (1978)

(plurality), and Eddings v. Oklahoma, 455 U.S. 104 (1978). But we are reviewing

the OCCA’s decision affirming Wood’s sentence and conviction; we are not

reviewing any and every issue decided by the state trial court at an evidentiary

hearing. And the OCCA did not rule on whether the trial court properly barred

Dr. Allen from testifying because Wood failed to raise this error in his

supplemental brief. This claim therefore cannot serve as a basis for meeting

§ 2254(d)’s requirements.

                   b.     Preparing and Presenting Dr. Hand

      We also granted a COA on whether Wood’s trial counsel performed

ineffectively by failing to prepare and present Dr. Hand’s expert testimony.

Wood claims his counsel failed to obtain all of his juvenile records before trial

and, as a result, could not adequately prepare Dr. Hand before his testimony. In

Wood’s view, this had disastrous consequences. On cross examination, Dr. Hand

floundered when confronted with the juvenile records detailing Wood’s prior

assault charge: he admitted that, though he had reviewed many juvenile records,

he did not recall those specific ones. Thus, Wood insists his trial counsel

performed ineffectively by failing to obtain and utilize these records.

      The OCCA again rejected Wood’s trial-ineffectiveness claim based on both

Strickland prongs: counsel did not perform deficiently and Wood endured no

                                        -20-
prejudice. In so concluding, the OCCA stated the district court’s finding that “the

defense psychological expert had possession of [Wood’s] background records,

including his relevant juvenile records” was “supported by the record.” Wood,

158 P.3d at 480. Wood argues AEDPA does not apply because this qualifies as

an unreasonable determination of fact under § 2254(d)(2). He highlights how the

OCCA found trial counsel did not have Wood’s Central Oklahoma Juvenile

Center (COJC) records, which detailed Wood’s academic and personal success

during his time at the Center. Thus, when the OCCA stated trial counsel had all

of Wood’s “relevant juvenile records,” it necessarily found the COJC records

were not “relevant.” This, Wood insists, qualifies as an unreasonable

determination of fact.

      But whether the CJOC records were “relevant” is not a factual

determination. Evidence is considered relevant if it has a “tendency to make a

fact more or less probable” or is “of consequence in determining” something.

Fed. R. Evid. 401. Whether the CJOC records were relevant, then, relates to

whether the records supported Wood’s mitigation case. This is a quintessentially

legal determination. See Williams, 529 U.S. at 398.

      Even if the OCCA’s comment on relevance did constitute a factual

determination, and even assuming this determination was unreasonable,

§ 2254(d)(2) would still bar relief. This is because “an ‘unreasonable

determination of the facts’ does not, itself, necessitate relief.” Byrd, 645 F.3d at


                                         -21-
1170–72 (quoting Collier v. Norris, 485 F.3d 415, 423 (8th Cir. 2007)). Rather,

to receive relief under § 2254(d)(2) the OCCA’s adjudication of this claim must

have been “based on” the unreasonable determination. Id.

      The OCCA did not base its prejudice conclusion on its finding about what

records were relevant. Rather, that conclusion was based on the fact that even if

all the “credible evidence developed at the evidentiary hearing” had “been

presented during [Wood’s] capital sentence proceeding,” the proceeding’s

outcome would not have been different. Wood, 158 P.3d at 481. In other words,

the OCCA based its prejudice conclusion on the strength, weakness, and

cumulativeness of the mountain of evidence presented at the evidentiary

hearing—namely, the twenty new witnesses who testified and the thousands of

documents produced. Its prejudice conclusion did not rest on its finding about

whether an exceedingly small subset of that evidence—the CJOC records—were

relevant. Consequently, the OCCA’s decision was not based on its finding that

the CJOC records were not “relevant.”

      Thus, § 2254(d)(2)’s bar on relief is not satisfied on this basis.

                   c.     Wood’s Juvenile Records and Linda’s Medical Records

      AEDPA bars relief on the claim Wood’s counsel failed to investigate and

present all of Wood’s juvenile records for the reasons we just described: the

OCCA did not unreasonably determine the facts by concluding Wood’s counsel

possessed all the relevant juvenile records.


                                        -22-
      Beyond its general argument about the records we already addressed,

Wood’s briefing does not advance any specific arguments about Linda’s medical

records. We thus do not grant relief on this basis. 12

                                      *    *     *

      In sum, § 2254(d) prohibits us from granting relief on Wood’s claim his

trial counsel performed ineffectively. We therefore must affirm the district

court’s denial of the petition on that issue.

      B.      Ineffective Assistance of Appellate Counsel on Direct Appeal

      Wood also contends his appellate counsel performed ineffectively on direct

appeal, including at the Rule 3.11 hearing, in five ways: (1) by not challenging, in

the supplemental brief, the trial court’s conclusion Dr. Allen could not testify at

the evidentiary hearing; (2) by failing to obtain and use documentary evidence of

Raymond Gross’s abuse that would have undermined his testimony; (3) by not

updating the record with evidence his trial counsel had been suspended from the

practice of law and held in contempt of court in a different state proceeding; (4)



      12
          Wood also claims the state trial court made many unreasonable factual
determinations in its findings of facts about the evidentiary hearing. See Aplt.
Br. at 61–64. But AEDPA requires us to review the OCCA’s opinion. See Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018) (explaining that under AEDPA, federal
courts ordinarily review the “reasoned opinion” by the “last state court to decide”
the “prisoner’s federal claim”). And § 2254(d)(2)’s bar on relief is only lifted if
the OCCA’s decision was “based on” an unreasonable factual determination. See
Byrd, 645 F.3d at 1172. We fail to understand how the OCCA based its denial of
Wood’s trial ineffectiveness claims on factual findings made by a different court
that the OCCA never mentioned in its opinion.

                                          -23-
by not using the supplemental brief to correct the factual errors the evidentiary

hearing court made in its findings of facts; and (5) by neglecting to raise a claim

trial counsel performed ineffectively by failing to object to juror separation.

      Strickland’s same deferential framework (which is doubly deferential when

coupled with AEDPA) applies to ineffectiveness claims based on appellate

counsel’s performance. Thus, to demonstrate ineffective assistance of appellate

counsel, a petitioner “must establish both (1) that his counsel's performance fell

below an objective standard of reasonableness, and (2) that there is a reasonable

probability that, but for counsel's unreasonable errors, the outcome of his appeal

would have been different.” Ellis v. Hargett, 302 F.3d 1182, 1186–87 (10th Cir.

2002) (citing Williams, 529 U.S. at 390–91 and Strickland, 466 U.S. at 688, 694).

      Under this doubly deferential framework, Wood is not entitled to relief on

any of these five claims.

             1.     Challenging the Exclusion of Dr. Allen’s Testimony

      As we already explained, the trial court barred Dr. Allen from testifying as

an expert at the evidentiary hearing because it concluded she was unqualified and

her testimony would have been cumulative. After the evidentiary hearing court

issued its findings of fact, it allowed the parties to submit ten-page supplemental

briefs raising any issues from the hearing. Wood’s supplemental brief failed to

challenge the exclusion of Dr. Allen’s testimony.




                                         -24-
       The OCCA again denied relief because counsel did not perform deficiently

and Wood was not prejudiced. In so concluding, Wood contends the OCCA

unreasonably applied Strickland. 13 We disagree. We need not consider the

OCCA’s deficient-performance analysis. Since the OCCA applied Strickland in

an objectively reasonable manner when it concluded Wood suffered no prejudice,

AEDPA precludes us from granting relief. See Strickland, 466 U.S. at 2069

(explaining courts need not “address both components of” the Strickland inquiry

if “the defendant makes an insufficient showing on one”).

       It was reasonable for the OCCA to conclude appellate counsel’s failure to

challenge the exclusion of Dr. Allen’s testimony in the supplemental brief caused

Wood no prejudice. This is because Dr. Allen’s testimony would have been

substantially cumulative of other evidence already presented at both the hearing

and at trial.

       Dr. Allen planned to testify about six topics: (1) Wood’s early childhood

development and the effect his parents’ rocky relationship had on him; (2) that

Wood suffered from an attachment disorder; (3) how Zjaiton took over parenting

Wood; (4) how Wood did well in structured situations but relapsed to his old bad

habits when he went home; (5) that Wood suffered from depression, PTSD, and



       13
          Oklahoma claims Wood did not make this argument in his habeas
petition and thus forfeited it. We need not consider forfeiture, though, because
even assuming Wood preserved this argument, it lacks merit.

                                        -25-
anxiety; and (6) how Wood’s biracial heritage affected his development. At both

the evidentiary hearing and at trial, other witnesses’ testimony touched on these

same topics. Linda and Andre, for example, testified about Wood’s childhood

and how his parents’ abusive relationship affected it. Many witnesses, moreover,

testified about Zjaiton’s influence on Wood, and Wood’s success in structured

environments. And while no one testified that Wood suffered from PTSD

specifically, at trial Dr. Hand testified that Wood was paranoid and suffered from

depression and anxiety. It was therefore not objectively unreasonable for the

OCCA to find Dr. Allen’s largely cumulative testimony would likely not have

affected the proceeding’s outcome.

      Wood’s argument to the contrary misconstrues the prejudice inquiry. He

focuses on how, had appellate counsel included this issue in the supplemental

brief, “it is likely Wood would have prevailed on the issue.” Aplt. Br. at 48

(emphasis added). In other words, Wood argues the OCCA would have concluded

that, under Oklahoma law, the evidentiary court erred by not permitting Dr. Allen

to testify. But the prejudice analysis turns on whether the result of the entire

“proceeding would have been different,” which here is the OCCA’s denial of

relief on direct appeal because trial counsel did not perform ineffectively by

failing to use the supplemental brief to challenge the exclusion of Dr. Allen’s

testimony. Cargle, 317 F.3d at 1202 (emphasis added). And for the reasons we

discussed above, Wood cannot make this showing.

                                        -26-
             2.    Failing to Obtain and Use Documents Substantiating the
                   Abuse Allegations Against Gross

      Wood next argues his appellate counsel was constitutionally ineffective at

the Rule 3.11 hearing because he failed to “undercut [Gross’s] minimization and

denial of abuse with readily available records.” Aplt. Supp. Br. at 8. More

precisely, Wood insists his appellate counsel should have questioned Gross during

his direct examination about the following documents: Gross’s divorce decree,

divorce records, protective orders issued against him, and his criminal history. 14

Yet counsel only introduced one of those documents into the record at the

evidentiary hearing—the divorce decree. By failing to discover and utilize these

other documents, Wood contends his counsel performed ineffectively.

      The OCCA denied relief because counsel did not perform deficiently and

Wood suffered no prejudice. In so concluding, it emphasized that the divorce

decree contained only allegations. Likewise, the protective orders offered “no

proof that abuse occurred as they memorialize only [Linda’s] allegations in

support of her petition.” App. at 659. The OCCA therefore “fail[ed] to see how

the allegations of abuse contained in these documents would have bolstered



      14
         When determining if § 2254(d) applies and bars relief, our review is
“limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 179, 182 (2011). We therefore only
consider the evidence before the OCCA on Wood’s post-conviction appeal.
Linda’s medical records were not presented to the OCCA, so we cannot consider
them.

                                        -27-
[Linda’s] testimony or changed the trial court’s findings of fact or the outcome of

the evidentiary hearing.” Id. at 651 (emphasis added).

      The OCCA never used the words “deficient performance” or “prejudice.”

But the substance of its concluding statement reaches both Strickland prongs. If

the documents “would not have bolstered [Linda’s] testimony,” counsel could not

have performed deficiently by failing to impeach Gross with them. Id. And if

impeaching Gross with the documents would not have affected the direct appeal’s

outcome, then Wood suffered no prejudice from his counsel’s failure to do so.

The OCCA’s holding therefore reached two distinct conclusions—one on

deficient performance and one on prejudice. 15

      Wood argues AEDPA does not bar relief because the OCCA unreasonably

applied Strickland in two ways.

      He first claims the OCCA failed to, as Strickland requires, consider the

cumulative prejudicial effect of his counsel’s errors. But the OCCA had no need

to consider cumulative prejudice because it only concluded appellate counsel

performed deficiently in one instance. And in any event, the OCCA did consider



      15
          To be sure, the OCCA’s discussion is no model of clarity. It is possible
the OCCA failed to specify which Strickland prong it relied on and simply denied
relief. But even if we read the decision in that light, we would reach the same
result. For when a “state court did not specify whether” an ineffective assistance
of counsel claim failed “because there was no deficient performance under
Strickland or because [the defendant] suffered no Strickland prejudice,” AEDPA
applies to both Strickland prongs. See Premo v. Moore, 562 U.S. 115, 123
(2011).

                                       -28-
cumulative prejudice—it was an inherent part of its prejudice analysis. We

address this argument more fully below in Part III.B.4.

       Nor would “all fairminded jurists agree” the OCCA unreasonably applied

Strickland when it concluded that appellate counsel did not perform deficiently by

failing to discover and use these documents, and that this failure did not prejudice

Wood. We need not analyze the OCCA’s conclusion on deficient performance

because it did not unreasonably apply Strickland by concluding Wood suffered no

prejudice.

      Before analyzing this argument, it is helpful to consider how this case’s

procedural history makes proving prejudice difficult. Counsel’s deficient

performance prejudices a defendant if there is “a reasonable probability that, but

for counsel’s unprofessional error(s), the result of the proceeding would have

been different.” Cargle, 317 F.3d at 1202 (emphasis added). Ordinarily, proving

prejudice is no easy task. Doing so is all the more difficult here, however,

because the relevant “proceeding” is Wood’s direct appeal of his conviction and

sentence. To conclude Wood was prejudiced by his appellate counsel’s failure to

use these documents at the evidentiary hearing, then, the OCCA had to conclude

there was a reasonable probability that, had counsel done so, the result of Wood’s

entire direct appeal would have been different. That is, questioning Gross about

these documents at the evidentiary hearing would have likely caused the OCCA

on direct appeal to conclude Wood’s trial counsel performed ineffectively.


                                        -29-
      It is therefore no exaggeration to say that these documents would need to

have a talismanic quality—or, put differently, be nearly outcome-determinative on

the trial-counsel-ineffectiveness claim—in order for Wood to have suffered

prejudice from his counsel’s failure to obtain and use them. After all, in rejecting

Wood’s trial-counsel-ineffectivess claim, the OCCA considered the avalanche of

evidence presented at the evidentiary hearing—testimony from twenty-three

witnesses and thousands of pages documents. Thus, if these documents would

have likely changed the OCCA’s thorough conclusion considering all this other

evidence, they would have to be extraordinarily powerful.

      The documents fall below this high bar. We agree that all these documents

cast doubt on Gross’s minimizations of abuse. But other testimony at both the

evidentiary hearing and Wood’s sentencing proceeding served this same purpose.

That is, Gross’s minimization of the abuse allegations during his testimony at the

evidentiary hearing was already undercut by other testimony at both the

evidentiary hearing and at sentencing. Simply stated, these documents did not

contain a newfound smoking gun—rather, they were filled with the same abuse

allegations against Gross many others had already made.

      For one thing, introducing these documents would have been cumulative of

Andre Wood’s and Linda Wood’s testimony at the Rule 3.11 hearing. There, both

of them directly countered Gross’s minimizations of abuse. Andre recalled Gross

knocking Linda’s front teeth out and seeing his “dad sitting there slapping [his]


                                        -30-
mom around or punching her in the face.” Tr., 2/23/06, at 159. He often thought

Gross “was going to kill” his mother. Id. And he described how his mother

withstood “beatings that most grown men couldn’t walk away from.” Id.

Likewise, at the evidentiary hearing Linda recalled the litany of times Gross

abused her. She described seeking help from a battered women’s shelter four or

five times due to Gross’s abuse. And she cited the numerous scars Gross left her

with. She has false teeth because Gross “hit [her] in the mouth.” Id. at 142. A

scar on her head came from Gross whacking her “with the butt of a gun.” Id. at

143. And Gross once broke her nose by “slam[ming] it into the hood of a car.”

Id.

      Further, asking Gross about the allegations in these documents would also

have been cumulative of Linda’s and Dr. Hand’s testimony at the sentencing

itself. During the sentencing phase, Linda told the jury how she and Gross had “a

very abusive relationship.” Tr., 04/05/2004, at 91. Indeed, she recounted being

“beaten many, many times in front of my children. Tied up. Dragged down the

highway. My bones broke.” Id. And Dr. Hand testified that he “reviewed a file

of the Department of Human Services’ records that include[d] referrals for abuse

and neglect that go back to when” Wood was five years old. Id. at 43.

      Thus, introducing these documents would not have broken new ground. To

be sure, the documents Wood cites support the charges of abuse against Gross.

Linda’s petition for a protective order, for example, alleged that her “husband hit

                                        -31-
me [four] times with his fist in my face.” PCA Ex. 9A. And Gross’s criminal

history revealed he had been charged with pointing a gun at Linda to threaten and

intimidate her. PCA Ex. 12A. The allegations in these documents thus sprinkle

extra credibility on Andre and Linda’s testimony. But they are not substantially

more powerful than the testimony actually presented at both the Rule 3.11 hearing

and the sentencing. Accordingly, the OCCA did not unreasonably apply

Strickland when it held Wood was not prejudiced by appellate counsel’s failure to

obtain and use these documents.

      Wood also claims the OCCA unreasonably determined the facts by

“ignor[ing] the independent corroboration of abuse contained in Gross’s criminal

records.” Aplt. Sup. Br. at 10. We fail to understand how ignoring evidence can

be considered a factual determination. But in any event, the OCCA based its

denial of relief on the “documents Wood provide[d].” App. at 659 (emphasis

added). The OCCA therefore expressly considered all the documents Wood

pointed it to, including Gross’s criminal records. True, the OCCA specifically

referenced some of the documents, such as the divorce petition, but did not

mention the criminal records. This does not matter. “The Supreme Court has

never required state courts to be verbose for AEDPA purposes.” Curiel v. Miller,

830 F.3d 864, 870 (9th Cir. 2016).

      Finally, Wood argues that, by describing the allegations of abuse in the

divorce records and restraining order as “practically meaningless,” the OCCA

                                       -32-
“failed to consider whether a reasonable probability existed that their use by

appellate counsel might have changed the trial court’s factual findings.” Aplt.

Sup. Br. at 10. We agree the OCCA did not consider the effect impeaching Gross

would have had on the evidentiary hearing’s factual findings. But this was

because the OCCA’s prejudice inquiry rightly turned on what effect impeaching

Gross would have had on the OCCA’s decision on direct appeal, not on factual

findings at an evidentiary hearing.

      To conclude, we emphasize that the OCCA on Wood’s post-conviction

appeal had these documents detailing Gross’s abuse before it, along with all the

other testimony about Gross’s abuse that was developed at the evidentiary hearing

and sentencing. Viewing the documents in this context, the OCCA stated they

were “insufficient to convince us that appellate counsel was ineffective.” App. at

659. Having closely reviewed these documents and the record from the

evidentiary hearing ourselves, we cannot conclude the OCCA’s conclusion was

unreasonable under § 2254(d).

             3.    Failure to Update the Record with Mr. Albert’s Suspension
                   and Disciplinary Proceedings

      Third, Wood argues his appellate counsel performed ineffectively by failing

to update the record with his trial counsel’s subsequent disciplinary proceedings.

These proceedings flowed from Mr. Albert’s abuse of alcohol and cocaine, which

began in March and April of 2005, about a year after Wood’s trial and sentencing,


                                        -33-
but about a year before the Rule 3.11 evidentiary hearing. State ex rel. Okla. Bar

Ass’n v. Albert, 2007 OK 31, 163 P.3d 527, 539. Just days after the Rule 3.11

hearing, at which Mr. Albert testified, an Oklahoma County court held him in

contempt for failing to enter a substance-abuse treatment program. During those

proceedings, the court repeatedly admonished Mr. Albert for lacking candor.

Eventually, the Oklahoma Supreme Court suspended Mr. Albert from the practice

of law .

       The OCCA concluded appellate counsel’s failure to update the record did

not render his performance ineffective. In its view, “evidence of trial counsel's

involvement in a contempt proceeding in unrelated cases and his suspension from

the practice of law two years after Wood's conviction does not prove that trial

counsel was ineffective during Wood’s trial.” App. at 656.

       Again, Wood argues AEDPA’s bar on relief does not apply for a number of

reasons. None has merit.

       First, he contends the OCCA unreasonably applied Strickland because it

failed to consider the cumulative prejudicial effect of the many alleged errors.

But the OCCA did not need to consider cumulative prejudice because it found no

deficient performance. And the OCCA did, in fact, consider cumulative

prejudice, as we explain in Part III.B.4.

       Second, he argues the OCCA unreasonably applied Strickland when it

concluded Wood was not prejudiced by his counsel’s failure to update the record.

                                        -34-
He emphasizes that Mr. Albert’s contempt proceeding “bore directly upon

[Albert’s] truthfulness and occurred within two weeks of when he testified at

Wood’s Rule 3.11 hearing.” Aplt. Supp. Br. at 12. As a consequence, had the

OCCA known about these disciplinary actions, Wood argues it would have

doubted Mr. Albert’s testimony because (1) he may have been abusing drugs and

alcohol when he testified at the evidentiary hearing, and (2) he likely lacked

candor during the hearing, just as he had in the disciplinary proceedings. Yet the

OCCA concluded this evidence “would have made no difference on the outcome

of appeal.” App. at 656. This, Wood insists, was an unreasonable application of

Strickland.

      We disagree. The OCCA reasonably applied Strickland when it concluded

Wood endured no prejudice from his counsel’s failure to update the record with

Albert’s suspension. The reason for this is simple: Albert’s testimony and

affidavit helped Wood’s argument that Albert performed deficiently, so

undercutting Albert’s credibility by introducing his subsequent disciplinary

troubles could have hurt Wood’s case.

      At the evidentiary hearing, appellate counsel introduced an affidavit Mr.

Albert signed in which he largely fell on his sword. In it, Mr. Albert admitted he

“did not review the records properly in order to present a meaningful mitigation

case, and that due to my lack of proper review, in hindsight, I see that I was not

effective.” EH Vol. 1 Ex. M. And Mr. Albert similarly conceded that he “relied

                                         -35-
upon Tremane Wood to properly explain and develop the mitigation portion of the

defense, and in hindsight, I see that I could have achieved a better and effective

result for Tremane Wood had I been more involved.” Id.

      When he testified at the evidentiary hearing, Mr. Albert affirmed the

admissions in his affidavit. He acknowledged he “could have achieved a better”

result for Wood had he been more prepared at sentencing. Tr., 2/27/06, at 248.

And Mr. Albert explained that he had “too many cases” while representing Wood,

and he had consequently “decided to quit doing death penalties” after Wood’s

case. Id. at 247. All in all, Mr. Albert acknowledged he “could have done better”

in the case. Id. at 251.

      So Mr. Albert’s affidavit and testimony largely strengthened Wood’s

argument that Albert performed ineffectively at trial. Undercutting Mr. Albert’s

credibility by bringing up these disciplinary issues could have thus washed away

his helpful testimony and hurt Wood’s case. Given this, the OCCA’s conclusion

Wood suffered no prejudice was reasonable.

      We recognize that Mr. Albert’s upcoming disciplinary proceedings could

have influenced his testimony. That is, Mr. Albert could have been defensive

during the evidentiary hearing and held back even more helpful testimony because

he feared it would be used as evidence in the disciplinary case against him. Had

counsel let the OCCA know about these disciplinary proceedings, Wood asserts



                                         -36-
the OCCA would have presumed Mr. Albert was downplaying his ineffectiveness

and, in turn, would have been more likely to conclude he performed ineffectively.

      We agree this chain of events is theoretically possible. But we cannot

conclude the OCCA unreasonably applied Strickland by concluding this scenario

was not reasonably probable. When determining if § 2254(d) applies and bars

relief, our review is “limited to the record that was before the state court that

adjudicated the claim on the merits.” Cullen, 563 U.S. at 182. 16 And the fact of

the matter is, Wood presented no evidence during the post-conviction proceeding

that Mr. Albert was defensive or not fully forthcoming at the evidentiary hearing

because he was worried about an adverse finding affecting his disciplinary

proceeding. Without such evidence, it was not objectively unreasonable for the

OCCA to conclude this scenario was not reasonably probable.

      Third, Wood points to allegations that Mr. Albert had begun “consuming

large amounts of alcohol during the work day in early 2004, when he was

representing Wood in the penalty phase.” Aplt. Sup. Br. at 13 (citing PC Not. of

Suppl. Auth., Att. ¶¶ 3, 6 11/19/07). Surely, says Wood, his appellate counsel

performed ineffectively by failing to alert the OCCA—which was considering

whether Mr. Albert performed ineffectively at trial—of these allegations that Mr.




      16
        We therefore cannot and do not consider Mr. Albert’s updated affidavit,
which was submitted for the first time in federal district court.

                                         -37-
Albert was abusing alcohol around the time of Wood’s trial and sentencing. The

OCCA’s conclusion to the contrary, he says, unreasonably applied Strickland.

      We disagree. To be sure, evidence of alcohol abuse can be, and often is,

strong evidence of attorney misconduct. But the evidence Wood cites is not

particularly powerful. Wood cites factual findings from another disciplinary

proceeding in which various individuals claimed that in January 2004, Mr. Albert

began drinking beers in the afternoon on some workdays and, in turn, missed

some afternoon court appearances.

      Critically, though, none of this testimony is connected in any way to

Wood’s trial. Indeed, no one claims Mr. Albert drank alcohol before meeting

with Wood, was intoxicated during Wood’s trial, or that alcohol interfered in any

way with Mr. Albert’s representation of Wood. And strikingly, despite the fact

that one of the main charges in the document is that Mr. Albert missed court

appearances because of his drinking, Wood cites no evidence Mr. Albert missed

any court appearances in his case. Simply put, these allegations of alcohol abuse,

while troubling, lack any link to Wood’s case.

      And on direct appeal, moreover, Wood’s theory of the case did not turn on,

or indeed even relate to, Mr. Albert performing ineffectively because he abused

alcohol. Rather, Wood argued that for whatever reason—alcohol or otherwise—

Mr. Albert failed to present a thorough mitigation defense by calling additional

witnesses. The OCCA disagreed, and concluded Mr. Albert did not perform

                                        -38-
deficiently. And even if he had, it held Wood suffered no prejudice because the

extra evidence Wood could have offered would not have affected the proceeding’s

outcome. We do not see why allegations of alcohol abuse would have affected

this conclusion.

      In sum, allegations of alcohol abuse are a serious charge. But the charge is

militated if it has no reasonable relationship to the defendant’s case. Because

these allegations lack any connection to Mr. Albert’s representation of Wood, the

OCCA’s conclusion no prejudice flowed from counsel’s failure to update the

record with this information is not an unreasonable application of Strickland.

      Fourth, Wood claims the OCCA contravened Strickland by applying the

wrong prejudice standard. In concluding Wood suffered no prejudice, the OCCA

said “Wood [could] not show that the outcome of his appeal would have been

different.” App. at 656. But, Wood protests, Strickland defines the prejudice

inquiry differently—as whether there is “a reasonably probability” the

proceeding’s outcome would have been different, Strickland, 466 U.S. at 694, not

whether it “would have been,” App. at 656. The OCCA therefore applied the

wrong prejudice standard, says Wood, rendering its decision contrary to

Strickland.

      Wood admits he never raised this argument below and thus forfeited it, but

he asks us to use our discretion to consider it. But even if we exercised our

discretion to consider the argument, it lacks merit. Elsewhere in its opinion, the

                                        -39-
OCCA recited the correct prejudice standard. App. at 655 (“Under [Strickland],

Wood must not only overcome the presumption of competence but show that there

is a reasonable probability that, but for counsel’s unprofessional error, the result

of the proceeding would have been different.”). And under AEDPA’s deferential

framework, we “presum[e] that state courts know and follow the law.” Woodford

v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). We therefore do not think the

OCCA’s occasional use of shorthand to describe the prejudice standard renders its

decision contrary to Strickland. See id.

             4.     Failure to Challenge Factual Findings in the Supplemental
                    Brief

      Next, Wood argues his appellate counsel performed ineffectively by failing

to challenge the trial court’s factual errors at the evidentiary hearing in his

supplemental brief. He advances two arguments as to why § 2254(d) does not

prevent us from granting relief.

      He first contends the OCCA unreasonably applied Strickland because it

failed to consider the cumulative prejudicial effect of his counsel’s alleged

errors. 17 In short, he points to Strickland’s requirement that courts “consider the


      17
          To be clear, Wood’s argument is not based on the cumulative-error
doctrine, under which courts considers the prejudicial effect of “distinct
categories of error[s].” Cargle v. Mullin, 317 F.3d 1196, 1206 (10th Cir. 2003);
see United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002) (explaining how
the cumulative-error analysis “aggregates all errors found to be harmless and
analyzes whether their cumulative effect on the outcome of the trial is such that
                                                                       (continued...)

                                           -40-
totality of counsel’s errors in assessing whether a defendant was thereby

prejudiced.” Aplt. Supp. Br. at 5. Yet he claims the OCCA only considered the

prejudicial effect of each alleged error in isolation. Put differently, in Wood’s

view the OCCA considered whether each alleged error, standing alone, prejudiced

him. This unreasonably applied Strickland, he says, because the OCCA had to

consider whether the combined effect of these errors prejudiced Wood.

      But courts need only consider the cumulative prejudicial effect of counsel’s

alleged errors if they first conclude counsel performed deficiently in numerous

ways. See Ellis v. Raemisch, 872 F.3d 1064, 1090 (10th Cir. 2017). So if the

OCCA found “only one possible instance of deficient performance,” then it had

no need to consider cumulative prejudice. Id.

      Here, the OCCA did not need to consider cumulative prejudice because it

concluded appellate counsel did not perform deficiently. On the claim related to

counsel’s failure to challenge Dr. Allen’s exclusion in the supplemental brief, the

OCCA concluded counsel did not perform deficiently. See App. at 661 (noting

that appellate counsel employed a “reasonable strategy” in selecting what, and

what not, to raise in the supplemental brief). Similarly, on the claim about

counsel’s failure to obtain and use documents substantiating Gross’s abuse, the


      17
        (...continued)
collectively they no longer can be determined to be harmless”). Instead, he
claims the OCCA unreasonably applied Strickland by failing to consider the
cumulative prejudicial impact of numerous alleged errors by his counsel.

                                         -41-
OCCA concluded counsel did not perform deficiently and Wood also suffered no

prejudice. And on the claim relating to Mr. Albert’s disciplinary records and

alcohol use, the OCCA likewise found nothing to show counsel was “ineffective

during Wood’s trial.” App. at 652. Finally, on the claim that counsel failed to

challenge the trial court’s factual findings, the OCCA held counsel did not

perform deficiently. The OCCA therefore did not need to consider cumulative

error. Ellis, 872 F.3d at 1090. Its decision consequently cannot be contrary to, or

an unreasonable application of, Strickland for failing to engage in this analysis.

      Even if the OCCA did need to consider cumulative prejudice, Wood would

still not be entitled to relief. At least in the AEDPA context, considering the

cumulative prejudicial effect of counsel’s numerous errors is an inherent part of

the prejudice inquiry. By Strickland’s own terms, concluding the petitioner

suffered no prejudice involves considering the totality of the circumstances,

including whether “counsel’s unprofessional errors” likely affected the

proceeding’s outcome. Strickland, 466 U.S. at 703 (emphasis added). And when

we analyze state-court decisions through AEDPA’s deferential lens, we must

“presum[e] that state courts know and follow the law” and give “state-court

decisions . . . the benefit of the doubt.” Woodford, 537 U.S. at 24. As a result,

where, as here, a state court analyzes numerous errors separately and concludes

each one did not prejudice the defendant, we presume this analysis considers the

prejudicial impact of all the alleged errors together. Put differently, giving the

                                         -42-
state-court decision the benefit of the doubt requires assuming that when the court

says numerous alleged errors did not prejudice the defendant, it has considered

both the individual and cumulative prejudicial effect of each alleged error.

       At bottom, Wood asks us to impose an opinion-writing requirement on state

courts. Under his reasoning, when a state court concludes multiple alleged errors

did not prejudice the defendant, its opinion must have a separate section or

sentence explicitly stating that, cumulatively, these errors were not prejudicial. If

it does not, the court unreasonably applied Strickland. This rule is at war with the

Supreme Court’s constant refrain that AEDPA does not empower federal courts to

“impose mandatory opinion-writing standards on state courts.” Johnson v.

Williams, 568 U.S. 289, 300 (2013); see also Lafler v. Cooper, 566 U.S. 156, 183

(2012) (Scalia, J., dissenting) (noting that while a “state court’s analysis was

admittedly not a model of clarity . . . federal habeas corpus is a ‘guard against

extreme malfunctions in the state criminal justice system,’ not a license to

penalize a state court for its opinion-writing technique”) (quoting Richter, 562

U.S. at 102); cf. Richter, 562 U.S. at 99 (“Opinion-writing practices in state

courts are influenced by considerations other than avoiding scrutiny by collateral

attack in federal court.”). 18


       18
         This rule is also supported by Johnson v. Williams, 568 U.S. 289,
300–11 (2013). In that case, the Court held that when a state court “fails to
address separately” a claim a party raised, federal courts “must presume that the
                                                                      (continued...)

                                         -43-
      We accordingly give the OCCA’s thorough decision the benefit of the

doubt and conclude that when it decided none of these four errors caused Wood

any prejudice, it considered both the individual and cumulative effect of the

alleged errors.

      Wood offers a second possible reason why AEDPA does not preclude us

from granting relief: the OCCA unreasonably applied Strickland by concluding

appellate counsel acted strategically by failing to correct the evidentiary hearing

court’s factual findings in the supplemental brief. In support, he cites Cargle v.

Mullin, 317 F.3d 1196 (10th Cir. 2003). That case held that to determine if

appellate counsel performed ineffectively by failing to raise issues in a brief,

courts should “look to the merits of the omitted issue.” Id. at 1202. The OCCA,

Wood contends, never considered the merits of the issues his appellate counsel

omitted from the supplemental brief, rendering its analysis unreasonable. We

agree the OCCA never explicitly considered the merits of these issues. But this

does not entitle Wood to relief. AEDPA does not empower us to “impose

mandatory opinion-writing standards on state courts.” Johnson, 568 U.S. at 300.



      18
         (...continued)
federal claim was adjudicated on the merits.” 568 U.S. at 300–11. This same
reasoning applies here. If giving state-court decisions the “benefit of the doubt,”
Woodford, 537 U.S. at 24, requires presuming state courts addressed claims they
failed to even mention, it follows that we should also presume that when a state
courts says multiple errors caused the defendant no prejudice, the court
considered both the individual and cumulative effect of those errors.

                                         -44-
And we presume that state courts know and follow the law. See Woodford, 537

U.S. at 24. With this presumption, we conclude the OCCA did not unreasonably

apply Strickland by failing to explicitly consider the merits of the omitted issues

when it concluded appellate counsel’s failure to include these issues in the

supplemental brief did not render his performance deficient. 19

              5.     Failure to Object to Juror Separation

      Wood claims his appellate counsel performed ineffectively in a fifth and

final way: by failing to raise a claim that his trial counsel performed ineffectively

by failing to object to the jurors leaving the courtroom after the court charged

them and before they began deliberations.

      At both the guilt and sentencing phase of trial, after the court charged the

jurors, it permitted them to leave the courtroom to move their cars. Wood claims

this violates Oklahoma Statute Title 22 § 857, which requires a court officer to

keep the jurors together after the court charges them. 20 If trial counsel objects to


      19
           Because we can only consider the record before the OCCA, we do not
consider appellate counsel’s affidavit, which was submitted for the first time in
the district court. Cullen, 563 U.S. at 182.
      20
           The full statute states:

              After hearing the charge, the jury may either decide in
              court, or may retire for deliberation. If they do not agree
              without retiring, one or more officers must be sworn to
              keep them together in some private and convenient
              place, and not to permit any person to speak to or
                                                                         (continued...)

                                         -45-
jurors separating in violation of § 857, the error is presumed to prejudice the

rights of the defendant, “and the burden falls to the [s]tate to prove otherwise.”

Johnson v. State, 2004 OK CR 23, 93 P.3d 41, 47. If the state fails to prove “no

prejudicial injury resulted” from the separation, this “vitiates the verdict.” Page

v. State, 332 P.2d 693, 695 (Okla. Crim. App. 1958). But if trial counsel failed to

object to the separation, this “waives any potential error.” Elliot v. State, 753

P.2d 920, 922–23 (Okla. Crim. App. 1988).

      Wood’s trial counsel failed to object to the jurors separating on both

occasions. Yet on direct appeal, Wood’s appellate counsel did not argue trial

counsel performed ineffectively for this reason. Wood claims his appellate

counsel’s failure to do so rendered his performance constitutionally ineffective.

      Even on de novo review, Wood is not entitled to relief. “When considering

a claim of ineffective assistance of appellate counsel for failure to raise an issue,

we look to the merits of the omitted issue.” Neill v. Gibson, 278 F.3d 1044, 1057

(10th Cir. 2001). The omitted issue’s merits determine both deficient

performance and prejudice. Cargle, 317 F.3d at 1202. To rule on Wood’s



      20
           (...continued)
                 communicate with them, nor do so themselves, unless it
                 be by order of the court, or to ask them whether they
                 have agreed upon a verdict, and to return them into court
                 when they have so agreed, or when ordered by the court.

Okla. Stat. tit. 22, § 857 (emphasis added).

                                           -46-
ineffective assistance of appellate counsel claim, then, we must assess the merits

of the ineffective assistance of trial counsel claim his counsel failed to raise.

      We conclude the trial-counsel-based claim lacks merit, so the appellate-

counsel-based claim fails. In Warner v. State, 2006 OK CR 40, 144 P.3d 838,

875, jurors separated to move their cars after deliberation had begun. The OCCA

held this “infrequent and short” separation “did not constitute a separation of the

jury during deliberations within the meaning of § 857.” 144 P.3d at 875. Indeed,

the OCCA recognized that jurors briefly separating to move their cars “was a

common occurrence for juries in Oklahoma County that deliberated into the

evening.” Id. Warner therefore demonstrates that under Oklahoma law, jurors

separating to move their cars does not qualify as a separation under § 857.

Wood’s trial counsel consequently did not perform ineffectively for failing to

object to the jurors separating to move their vehicles, since no violation of § 857

had occurred. In turn, Wood’s appellate counsel did not perform ineffectively by

failing to raise this non-meritorious claim.

                                 *    *   *

      In sum, Wood is not entitled to relief on the claim his appellate counsel

performed ineffectively on direct appeal. 21


      21
         We realize that, because Wood contended AEDPA’s bar on relief no
longer applied, he spent much of his briefing arguing the merits of both his trial
and appellate counsel ineffectiveness claims assuming we would apply de novo
                                                                      (continued...)

                                          -47-
      C.     The HAC Aggravator

      In light of Pavatt v. Royal, 859 F.3d 920 (10th Cir. 2017), 22 we granted a

COA on whether constitutionally sufficient evidence was presented to the jury to

prove beyond a reasonable doubt that the capital aggravating circumstance that

murder of Mr. Wipf was especially heinous, atrocious, or cruel. As an initial

matter, Oklahoma argues we should deny relief because Wood failed to exhaust

this argument, forfeited it, abandoned it, and § 2254(d) limits our ability to grant

relief. We need not address these arguments, however, because even assuming

this issue is properly presented to us and we could consider the issue under de

novo review, we deny relief.

      To understand Wood’s claim based on Pavatt, some background is

necessary. We first explain the two ways in which a petitioner can challenge the

evidence supporting the imposition of an aggravator. We then turn to Pavatt and

apply its approach to the facts of this case. 22

      21
        (...continued)
review. Because AEDPA prevents us from granting relief, we need not consider
those arguments.
      22
         This opinion was amended and superseded on the denial of rehearing by
Pavatt v. Royal, 2017 WL 9771976 (10th Cir. 2017). Our analysis accordingly
focuses on the amended Pavatt opinion.
      22
          Pavatt will be reheard en banc. See Pavatt, 14-6117, Order, July 13,
2018. Even so, Oklahoma contends that “Pavatt was incorrect to conclude that an
aggravator may be found invalid as applied to the facts of a particular case.”
                                                                      (continued...)

                                          -48-
            1.     Background Law

      Under Oklahoma law, a jury may only impose the death penalty when it

unanimously finds at least one statutory aggravating circumstance beyond a

reasonable doubt, and also concludes the mitigating circumstances do not

outweigh the aggravating circumstances. See Ross v. Ward, 165 F.3d 793, 799

(10th Cir. 1999). When a jury finds an aggravating circumstance exists, capital

defendants can challenge the aggravator in two ways.

      First, a defendant can bring a sufficiency of the evidence claim under

Jackson v. Virginia 443 U.S. 307, 316 (1979). It violates the Fourteenth

Amendment’s guarantee of due process if a jury sentences a defendant to death

based on an aggravator, even though there was insufficient evidence for any

rational juror to have concluded the aggravator was met. Pavatt, at * 6–8.

Because state law defines aggravators, this question turns on state law. Id.




      22
        (...continued)
Aplt. Second Supp. Br. at 7. Lewis v. Jeffers, Oklahoma says, forecloses this type
of as-applied challenge—at least where a state court applied a constitutionally
acceptable narrowing construction of the aggravator by giving the jury the
“serious physical abuse” instruction our circuit approved in Hatch v. State of Okl.,
58 F.3d 1447, 1468 (10th Cir. 1995), overruled on other grounds by Daniels v.
United States, 254 F.3d 1180, 1568 n.1 (10th Cir. 2001) (en banc). But we need
not address Oklahoma’s argument based on Lewis or, more broadly, consider
whether Pavatt was correctly decided. Instead, we simply assume Pavatt’s
analytical approach to the constitutionality of aggravating circumstances is
correct, and conclude Wood is not entitled to relief under it.

                                        -49-
      Second, petitioners can challenge an aggravating circumstance as

unconstitutionally vague. It violates the Eighth and Fourteenth Amendments for

death sentences to be arbitrarily imposed. See Lewis v. Jeffers, 497 U.S. 764, 774

(1990). As a consequence, if an aggravating circumstance is so vague it could

apply to any and every murder, then sentencing a defendant to death because that

aggravator was met violates the Constitution. See, e.g., Godfrey v. Georgia, 446

U.S. 420, 227–28 (1980).

      The Supreme Court applied this reasoning in Maynard v. Cartwright when

it held the same Oklahoma HAC aggravating circumstance at issue here was

unconstitutionally vague. 486 U.S. 356, 359–61 (1988). Even so, after Maynard

our circuit has repeatedly upheld death sentences based on the HAC aggravator.

We do so when the aggravator’s vagueness has been “cure[d]” by “a narrowing

construction.” Hatch v. State of Okl., 58 F.3d 1447, 1468 (10th Cir. 1995),

overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1568 n.1

(10th Cir. 2001) (en banc). As we previously explained, Oklahoma courts have

narrowed the HAC aggravator so it could only apply if “the murder involve[d]

‘torture of the victim or serious physical abuse.’” Hatch, 58 F.3d at 1468

(quoting Stouffer, 742 P.2d at 563). And a victim only suffers serious physical

abuse if he or she endures “conscious physical suffering” before death. Meldock

v. Ward, 200 F.3d 1314, 1321 (10th Cir. 2000) (quoting Cheney v. State, 909 P.2d

74, 80 (Okla. Crim. App. 1995)).

                                        -50-
        In Pavatt, we nonetheless held the OCCA unconstitutionally construed the

HAC aggravator in that case. Pavatt explained that our prior acceptance of that

aggravator, when it was narrowly construed, did not “immunize [the OCCA’s]

decision[] from review of whether it ha[d] departed from that acceptable

construction.” Pavatt, at *11. “[E]ven when a State has previously applied a

constitutionally valid narrowing construction of an aggravator,” Pavatt concluded,

a “death penalty imposed under the aggravator must still be based on a

construction that in a ‘principled way’ can distinguish the case from the many in

which the penalty was not imposed.” Id. at *12 (quoting Godfrey, 446 U.S. at

433).

        Pavatt then asked whether, by applying the HAC aggravating circumstance

to the facts of that case, the OCCA construed the aggravator in a manner that

complied with the Constitution. Id. at *11–12. It held the OCCA had not. Id. at

*12. That was because the OCCA failed to construe the aggravator “so that it

distinguishes in a principled way” the differences between “crimes deserving

death and the many cases in which the death penalty is not imposed.” Id. In

other words, Pavatt held that if the HAC aggravator could apply to that case, then

it could apply to “[v]irtually any murder in which the victim did not die

instantly,” “the act of murder did not immediately render the victim

unconscious[,] and the wounds could have caused pain.” Id. Thus, Pavatt held

that by applying the HAC aggravator to the facts of that case, the OCCA “did not

                                        -51-
apply a constitutionally acceptable interpretation of Oklahoma’s HAC

aggravator.” Id.

                   2.     Application of Pavatt to the Facts of this Case

      Under Pavatt, Wood is not entitled to relief. Wood advances two

arguments. First, he argues that, like the victim in Pavatt, Mr. Wipf endured only

the suffering that necessarily accompanies every murder. Wood accordingly

contends the OCCA contravened the Constitution by construing the HAC

aggravator so that it could apply to the facts of this case. Second, even if the

evidence establishes that Mr. Wipf suffered, Wood argues no evidence shows

he—as opposed to Zjaiton—inflicted that suffering.

      Both arguments fail. To understand why, it is helpful to first summarize

the trial testimony detailing Mr. Wipf’s death and the altercation that occurred

before it. Three pieces of evidence are key.

      First, Kleinsasser, Mr. Wipf’s friend who was in the hotel room, testified

that he witnessed a fight between Wood, Zjaiton, and Wipf, during which Mr.

Wipf became covered in blood and screamed in pain. Kleinsasser testified that

two men “burst[] in the door,” one with a gun and one with a knife. Tr., 3/31/04

at 131. Other evidence proved Wood had the knife and Zjaiton the gun. “[A]s

soon as they opened the door,” Kleinsasser recalled, Mr. Wipf “started struggling

with” Wood. Id. at 135. Wood and Wipf “were struggling and fighting,” and

Wipf was “screaming in pain or terror.” Id. at 136. Meanwhile, Zjaiton pointed

                                        -52-
the gun at Kleinsasser and demanded the money. Id. at 133. Eventually, Zjaiton

joined Wood in fighting Mr. Wipf, and the three men moved towards the

bathroom.

      Kleinsasser testified that Wood then walked away from Mr. Wipf and

towards him. Wood thumped Kleinsasser on the head with the handle of the knife

and demanded more money. When Kleinsasser said he had no more, Wood

walked back over to Mr. Wipf.

      As Wood, Zjaiton, and Mr. Wipf exited the bathroom, Kleinsasser saw Mr.

Wipf’s whole body “covered in blood.” Id. at 139. Before he ran out of the

room, Kelinassar saw Wood, Zjaiton, and Wipf “fighting amongst themselves” in

a “big fight” just in front of the bed. Id. at 140–41. Mr. Wipf continued to

scream as Kleinsasser ran out of the room.

      Second, the state’s autopsy report and photographs of Mr. Wipf’s body

reveal he had many cuts and bruises besides the fatal stab wound. The autopsy

report shows Mr. Wipf had a significant number of cuts on his right eye, chin, and

on his right hand. The state’s photographs confirm this in gruesome detail.

      Third, the medical examiner, Dr. Jordan, reviewed the autopsy drawing of

the injuries and the photographs of Mr. Wipf’s body. He explained that the

injuries around Wipf’s eyes were “very fresh” contusions and abrasions. Tr.,

4/2/2004 at 8. And the cuts on Wipf’s hand, he said, were consistent with

“defensive wounds”—which, the examiner agreed, are “something like if you are

                                        -53-
about to be struck with a knife and hold your hand up to defend yourself.” Id. at

15. On cross examination, however, Dr. Jordan conceded the cuts on Wipf’s face

could also have been caused by him falling down and not bracing himself. On

redirect, Dr. Jordan again iterated that Mr. Wipf’s non-lethal injuries “[c]ould

have been caused by being in a fight.” Id. at 19–20.

      Wood first argues this evidence demonstrates Mr. Wipf’s death involved

only the amount of suffering that necessarily accompanies every murder. We

disagree. Sufficient evidence exists that prior to his death, Mr. Wipf endured far

more suffering than every murder victim experiences. An eyewitness testified

that Mr. Wipf was engaged in a fistfight with two men. And the photographs

reveal that Wipf suffered serious injuries during the fight—the Wood brothers

badly beat and bruised his face, and his hand had deep cuts on it. All this

evidence demonstrates that before Mr. Wipf died, he endured serious pain and

suffering. This is unsurprising since he was involved in a two-on-one fistfight in

which both of his opponents were armed. Contrary to Wood’s argument, then, we

conclude Mr. Wipf’s death did not involve merely the kind of suffering that

necessarily accompanies every murder. Accordingly, applying the aggravator to

these facts does not mean the aggravator could apply to every murder.

      Wood focuses on the fact that no one saw Wood stab Mr. Wipf. He

therefore theorizes that Mr. Wipf was stabbed after Kleinsasser left the room and

died instantaneously. In his view, this makes his case indistinguishable from

                                        -54-
Pavatt. In that case, the evidence did not show it probable that the victim

survived long enough after he was shot with a shotgun to suffer. Pavatt, at *11.

So too here, says Wood, no evidence demonstrates Mr. Wipf survived after being

stabbed; he may well have died instantly like the victim in Pavatt.

       Even if we assume that Mr. Wipf was, in fact, stabbed after Kleinsasser

fled the room and died instantaneously, Mr. Wipf endured conscious physical

suffering before being stabbed. Indeed, Kleinsasser directly testified to the brutal

beating Mr. Wipf endured from the Wood brothers. And although the medical

examiner testified that the cuts on Wood’s face could have been by caused by Mr.

Wipf falling down after being stabbed, the examiner gave no such testimony

about the deep cut on his hand. Thus, that Mr. Wipf endured conscious physical

suffering before the fatal wound was inflicted distinguishes this case from

Pavatt. 23


       23
         Wood argues that only the stabbing itself could have caused Mr. Wipf to
endure serious physical abuse. See Aplt. Second Supp. Mem. Br., at 4 (arguing
the “only possible serious physical abuse occurred as a result of the lethal stab
wound”).

       First, he highlights how Oklahoma’s brief in response to his request to
grant additional COAs stated that the cuts on Mr. Wipf’s body “were not serious.”
Resp. to Pet. Supp. Request to Merits Panel for Leave to Certify Additional Issues
for Appeal, at 17. In Wood’s view, with this short statement Oklahoma conceded
that Mr. Wipf could not have endured conscious physical suffering before he was
stabbed. We disagree. Viewed in the proper context, we think Oklahoma’s
admission that the cuts of Mr. Wipf’s hands were not “serious” was only meant to
state the obvious—those cuts were not fatal. We therefore will not strain to read
                                                                      (continued...)

                                        -55-
      Wood cites a number of cases which, he contends, demonstrate the beating

Mr. Wipf endured before his death does not constitute serious physical abuse.

None of the cases, however, persuade us.

      In Stouffer v. State, for example, the OCCA held sufficient evidence did not

support the HAC aggravator because there was “no reason to believe from the

evidence that [the victim] was conscious after” she was shot. 742 P.2d 562, 564

(Ok. Cr. App. 1987). In other words, in that case there was no evidence the


      23
          (...continued)
this short, cherry-picked sentence to be much more consequential than it seems on
its face.

       Second, Wood emphasizes that before the jury, “the prosecution relied only
[on] the single fatal stab wound as the basis for the HAC aggravating
circumstance.” Aplt. Second Supp. Mem. Br., at 7. His argument seems to be
that because this was the only theory presented to the jury, it is also the only
theory we can consider when determining whether there was sufficient evidence
for the HAC aggravator to be constitutionally imposed.

       To start, Wood cites no authority that suggests we can only consider the
theory the prosecution explicitly argued. More critically, though, we think our
analysis must turn on what evidence was before the jury—and, in turn, what
theories of conscious physical suffering that evidence could support. After all,
Pavatt focused on the OCCA’s analysis and how it construed the aggravator in
light of the evidence presented at trial. See Pavatt, at *12. And here, the OCCA
based its conclusion that sufficient evidence supported the aggravator’s
imposition on all the evidence at trial, including “[p]hotographs depicting Wipf’s
injuries from being beaten.” Wood, 158 P.3d at 476. Its analysis did not solely
focus on the prosecution’s theory. The Jackson v. Virginia inquiry, too, focuses
on what a “rational trier of fact could have found” based on the evidence, not
whether reasonable jurors could have believed the prosecution’s specific theory.
See 443 U.S. at 320 (emphasis added). Thus, we think our inquiry should turn on
what theories the evidence could support, rather than what the prosecution argued
to the jury.

                                       -56-
victim endured serious physical abuse because she died instantaneously. Here, in

contrast, even assuming Mr. Wipf immediately died from his stab wound, he

nonetheless endured serious physical abuse before his death when Wood and

Zjaiton brutally beat him.

      Two other cases Wood relies on, Cudjo v. State, 925 P.2d 895 (Okla. Crim.

App. 1996), and Hawkins v. State, 891 P.2d 586 (Okla. Crim. App.), are equally

inapplicable. In both cases, the OCCA concluded insufficient evidence supported

the application of the HAC aggravator because there was no evidence the victim

experienced any suffering “beyond the scope of the act of killing itself.” Cudjo,

925 P.2d at 901–02 (emphasis added); see also Hawkins, 891 P.2d at 596–97 (“No

evidence of serious physical abuse, that is, gratuitous violence inflicted on the

victim beyond the act of killing, is present in this case.” (emphasis added)). But

in this case, Mr. Wipf did not only suffer when the knife was fatally thrust into

his chest. To the contrary, before his killing he was brutally beaten by two men.

Accordingly, Cudjo and Hawkins are not on point.

      Wood’s second argument likewise fails. He argues that even if Mr. Wipf

experienced conscious physical suffering prior to his death, nothing demonstrates

he, rather than Zjaiton, caused this suffering. This argument ignores

Kleinsasser’s testimony. Indeed, Kleinsasser testified that Wood and Wipf

immediately began fighting when the Wood brothers entered the room. And

Kleinsasser further detailed how Wood, sometimes accompanied by Zjaiton, was

                                         -57-
fighting Mr. Wipf while Wipf screamed in pain. This eyewitness testimony

establishes that Wood, perhaps with Zjaiton at times, caused Wipf to endure

conscious physical suffering before his death.

      In sum, applying Pavatt’s approach does not entitle Wood to relief. 24

                                  IV. Conclusion

      Wood is not entitled to relief on any of his claims. We therefore AFFIRM

the district court’s denial of habeas relief.




      24
        While it is unclear whether Wood also argues insufficient evidence
supports the HAC aggravator’s application under Jackson v. Virginia, that
argument would also fail. As we discussed above, the record is replete with
evidence that Mr. Wipf endured conscious physical suffering before his death—in
the form of receiving a brutal beating from Wood that left his body bloody and
bruised. Given this, a rational juror could have concluded sufficient evidence
supported the aggravating circumstance’s application.

                                          -58-
