                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                            October 23, 2019
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 LARRY ALAN WHITELY,

       Petitioner - Appellant,

 v.                                                           No. 18-6085
                                                      (D.C. No. 5:16-CV-00514-HE)
 JIM FARRIS, Warden,                                          (W.D. Okla.)

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, MURPHY, and CARSON, Circuit Judges.
                  _________________________________

       Petitioner Larry Whitely is a state prisoner in Oklahoma. A jury convicted

him of two counts of lewd molestation of a minor, and the judge sentenced him to

concurrent twenty-year terms of imprisonment. The Oklahoma Court of Criminal

Appeals upheld his conviction and sentence on direct appeal and ultimately affirmed

a state district court’s denial of his request for post-conviction relief. Petitioner then

filed a habeas petition under 28 U.S.C. § 2254 in the United States District Court for

the Western District of Oklahoma, which the federal district court denied. He now




       *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
appeals the federal district court’s denial of his petition. Our jurisdiction arises under

28 U.S.C. §§ 1291 and 2253. We affirm.

                                             I.

       In 2006, Petitioner’s step-daughter, K.B.—then in fifth grade—passed a note to

her friends N.M. and L.W. at school stating that her dad had been raping her. L.W. told

her mother about the note. Authorities removed K.B. and her younger sister from her

home. Tracy Koelling, a forensic interviewer, subsequently interviewed K.B. Law

enforcement officer Jeffrey Cox—a police officer with the Noble, Oklahoma police

department—observed the interview. K.B. denied worrying about anything, said she

missed her cat, and told Koelling that she felt safe in her home. Two days later, Officer

Cox himself interviewed K.B. K.B. continued to say that she missed her mother, wanted

to go home, and had nothing further to say. Officer Cox asked K.B. about the note. K.B.

denied passing the note, said a friend had passed the note, and said the friend had falsely

reported the content of the note. Cox told K.B. that he had talked to N.M. and L.W. and

that K.B. needed to tell him what was wrong. K.B. then began to cry and alleged that

Petitioner had, in fact, raped her.

       Cox told Koelling that K.B. had made more disclosures. Koelling then

interviewed K.B. a second time, two days after K.B.’s interview with Officer Cox. At

that interview, K.B. told Koelling that Petitioner had anally raped her on numerous

occasions. She said that she wrestled with Petitioner and the wrestling would sometimes

lead to forced anal rape. K.B. said that she had fought back every time. She also said

that Petitioner had not put anything on his penis, but the anal rapes had not hurt or made

                                             2
her bleed. K.B. also described Petitioner’s penis as “soft and gooey” and his ejaculate as

“really cold.”

       Oklahoma charged Petitioner with two counts of lewd molestation of a minor.

Before and after Petitioner’s trial on those charges, K.B.’s mother, Kelly Whitely (“Mrs.

Whitely”), sought the return of her children and agreed to take various steps to get her

children back. On numerous occasions before trial, employees of the Oklahoma

Department of Human Services indicated to Mrs. Whitely that it was important that she

believe and support K.B. if she wanted her children back. At various times, Mrs. Whitely

indicated to DHS employees that she did or did not believe K.B.’s allegations.

       At trial, L.W. testified regarding the note K.B. had written. She also testified that

people at school had called K.B. a liar.

       K.B. testified regarding the abuse. She testified that Petitioner had forced his

penis into her anus and that she had fought back. She also testified that she had been able

to hit Petitioner with her shoes and kick him hard enough for him to flip over backwards,

at which point she would run and hide from him in her closet or under her bed. In

addition, K.B. testified that the abuse had not hurt and that she had not bled. She

admitted that she had previously gotten in trouble for lying about other matters.

       Dr. Mark McKinnon, M.D., testified that his examination had revealed no physical

indications of sexual abuse. He also testified that in more than ninety percent of cases, no

physical signs of sexual abuse exist and that the anal region of the body heals quickly

because it is highly vascularized. He further testified that he would not be surprised if a

victim lacked signs of abuse despite having been abused anally for a long period of time.

                                             3
He explained that an abrasion could exist but not appear three weeks later on a physical

exam.

        Dr. McKinnon also conceded, though, that anal sex can cause injury and he opined

that the likelihood of an anal injury occurring would depend on the size of the object

introduced, the use or nonuse of force, the use or nonuse of lubricants, and the amount of

victim cooperation. He acknowledged, too, that frequent, forceful anal penetration would

lead to a greater risk of injury, conceded that an anal tear could leave a scar, and noted

that he had not found any such scars.

        Dr. Linda Ingraham, Ph.D., testified that Koelling had conducted a proper child

forensic interview. She then discussed various factors that could have affected K.B.’s

memory, such as bias, suggestibility, misattribution, memory recording, and positive

versus negative reinforcement. She also criticized Officer Cox’s interview; identified

various inconsistences in K.B.’s allegations that she would generally not expect; and

concluded that it was possible that the interview with Officer Cox had distorted K.B.’s

memory.

        Koelling testified about her interviews with K.B.1 She also discussed proper

techniques for interviewing child victims of sexual assault.

        Mrs. Whitely also took the stand and briefly testified. During her testimony, she

stated that she had not seen any blood on K.B.’s underwear or clothes when K.B. had

been living with her. She also indicated that she had been looking for blood because she


        1
        A video of her first interview and an edited video of her second interview
were also played for the jury and entered into evidence.
                                              4
had believed that K.B. would start menstruating soon. On cross-examination, she

testified that she was not at the trial to support Petitioner and that their divorce was

pending.

       Petitioner’s father, Larry Whitely, Sr., also took the stand. During his testimony,

Petitioner submitted pictures his father took into evidence. Those pictures indicated that

no space existed for K.B. to hide under the bed and that her closet was small.

       In his closing argument, Petitioner’s trial counsel highlighted these

inconsistencies, but the jury nevertheless convicted Petitioner on both counts. Between

the trial and sentencing, Mrs. Whitely sent a letter to the trial judge indicating that she did

not believe the allegations against Petitioner and had seen no signs of abuse. She

expressed her belief that Petitioner was innocent and asked the judge to release him or

give him the minimum punishment. At sentencing, Mrs. Whitely stood by her statements

after she was warned that her testimony could prevent her from getting her children back.

The judge sentenced Petitioner to concurrent twenty-year terms of imprisonment.

       Petitioner appealed his convictions to the Oklahoma Court of Criminal Appeals

(the “OCCA”).2 The OCCA affirmed the judgment.

       Petitioner then filed an application for post-conviction relief (the “APCR”) in state

district court. In the APCR, Petitioner asserted claims based on prosecutorial




       2
        None of the claims Petitioner asserts in this petition relate to his arguments
on direct appeal.
                                               5
misconduct, ineffective assistance of trial counsel, and ineffective assistance of appellate

counsel. Petitioner also requested discovery and a full evidentiary hearing.

       The state district court held that Petitioner waived his prosecutorial misconduct

claims and ineffective assistance of trial counsel claims because he did not assert them on

direct appeal. It denied Petitioner’s discovery request for the most part, although it

permitted Petitioner to depose his direct appeal appellate counsel. The court then held a

two-day evidentiary hearing to address Petitioner’s ineffective assistance of appellate

counsel claims but limited the hearing to what appellate counsel did or did not do.3 After

the hearing, the court denied relief on the ineffective assistance of appellate counsel

claims.

       The OCCA reversed, holding the state district court failed to address a number of

issues and applied the wrong legal standard.

       On remand, the state district court determined that appellate counsel was

ineffective because she had not engaged in any investigation outside the record before

filing Petitioner’s appeal. It then concluded that, even though it was unclear whether trial

counsel had performed ineffectively, cause existed to grant Petitioner a new appeal to

address Petitioner’s ineffective assistance of trial counsel claims.

       The state district court also noted that the OCCA had directed it to determine

“whether witnesses were deterred by the prosecution, including DHS personnel, from



       3
         The parties dispute whether we should address Petitioner’s underlying claims
as if an evidentiary hearing was held or whether the limits on the hearing rendered it
equivalent to no hearing at all. We resolve this appeal without reaching that issue.
                                               6
fully and truthfully testifying or whether the witnesses had changed their story after the

fact because they no longer had anything to lose.” Order dated Dec.19, 2014,

Oklahoma v. Whitely, No. CF-2006-250, slip op. at 2. It determined that Petitioner

had not produced sufficient evidence on that issue during the evidentiary hearing and

thus did not grant any relief with respect to the prosecutorial misconduct claim.

       Petitioner appealed and the OCCA again reversed the state district court because

Oklahoma’s statute governing post-conviction relief does not permit a court to grant a

petitioner a second direct appeal. It then remanded the case to the state district court to

resolve the remaining issues and make specific findings of facts and conclusions of law

as to each issue. The OCCA concluded that the state district court could review the

original record, allow depositions and affidavits for good cause, and/or conduct an

evidentiary hearing.

       On remand, the state district court determined that Petitioner’s claims lacked merit

without holding an evidentiary hearing. This time, the OCCA affirmed.

       Petitioner then filed a petition in the United States District Court for the Western

District of Oklahoma seeking habeas relief pursuant to 28 U.S.C. § 2254. The court

denied that petition and denied Petitioner a certificate of appealability.

       Petitioner appealed, and we granted a certificate of appealability allowing him to

pursue his claims.

                                              II.

       The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

requires that we apply a “difficult to meet” and “highly deferential standard” in

                                              7
federal habeas proceedings under 28 U.S.C. § 2254; it “demands that state-court

decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181

(2011) (internal quotation marks omitted). When a petitioner includes in his habeas

application a “claim that was adjudicated on the merits in State court proceedings,” a

federal court shall not grant relief on that claim unless the state-court decision:

      (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 proceeding.

28 U.S.C. § 2254(d)(1)–(2).

      Section 2254(d)(1)’s reference to “clearly established Federal law, as

determined by the Supreme Court of the United States,” “refers to the holdings, as

opposed to the dicta, of th[e] Court’s decisions as of the time of the relevant state-

court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). “Federal courts may

not extract clearly established law from the general legal principles developed in

factually distinct contexts, and Supreme Court holdings must be construed narrowly

and consist only of something akin to on-point holdings.” Fairchild v. Trammell

(Fairchild I), 784 F.3d 702, 710 (10th Cir. 2015) (internal quotation marks and

citation omitted).

      Under § 2254(d)(1), a state-court decision is “contrary to” the Supreme

Court’s clearly established precedent if it “applies a rule that contradicts the

governing law set forth in [Supreme Court] cases” or if it “confronts a set of facts


                                            8
that are materially indistinguishable from a decision of th[e] Court and nevertheless

arrives at a result different from [that] precedent.” Williams, 529 U.S. at 405–06. A

state court need not cite, or even be aware of, applicable Supreme Court decisions,

“so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).

       A state-court decision is an “unreasonable application” of Supreme Court law

if the decision “correctly identifies the governing legal rule but applies it

unreasonably to the facts of a particular prisoner’s case.” Williams, 529 U.S. at 407–

08. “The more general the rule, the more leeway courts have in reaching outcomes in

case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Conversely, “[i]f a legal rule is specific, the range may be narrow,” and

“[a]pplications of the rule may be plainly correct or incorrect.” Id. And “an

unreasonable application of federal law is different from an incorrect application of

federal law.” Williams, 529 U.S. at 410 (emphases in original).

       If we determine that a state-court decision is either contrary to clearly

established Supreme Court law or an unreasonable application of that law, or that the

decision was based on an unreasonable determination of the facts in light of the

evidence presented in the state-court proceeding, we then apply de novo review and

may only grant habeas relief if the petitioner is entitled to relief under that standard.

Milton v. Miller, 744 F.3d 660, 670–71 (10th Cir. 2014).

       Claims not “adjudicated on the merits” in state court are entitled to no

deference. Fairchild I, 784 F.3d at 711 (internal quotation marks omitted). But

                                            9
“even in the setting where we lack a state court merits determination, ‘[a]ny state-

court findings of fact that bear upon the claim are entitled to a presumption of

correctness rebuttable only by “clear and convincing evidence.”’” Grant v. Royal,

886 F.3d 874, 889 (10th Cir. 2018) (alteration in original) (quoting Victor Hooks v.

Workman (Victor Hooks II), 689 F.3d 1148, 1164 (10th Cir. 2012)).

      With these standards in mind, we turn to Petitioner’s claims.

                                          III.

      Initially, Petitioner asserts that the OCCA did not determine that his

underlying ineffective assistance of trial counsel claims and prosecutorial misconduct

claims were procedurally barred and that he properly presents those claims to us

(rather than arguing that his appellate counsel was constitutionally ineffective for

failing to assert those claims on direct appeal). We do not necessarily agree, but we

need not resolve that issue because an ineffective assistance of appellate counsel

claim lacks merit if the petitioner argues that appellate counsel should have asserted

meritless claims. Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 746–47 (10th Cir.

2016). And for the reasons discussed below, we are satisfied that none of the claims

Petitioner advances here have merit.

                       A. Ineffective Assistance of Trial Counsel
      Petitioner contends that trial counsel acted ineffectively by failing to:

(1) investigate a medical defense; (2) investigate and present expert forensic

interview testimony; and (3) present additional evidence that K.B. was dishonest,

manipulative, and attention-seeking.

                                           10
                                   1. Legal Standard
        We review claims of ineffective assistance of counsel under the framework set

forth in Strickland v. Washington, 466 U.S. 668 (1984). Byrd v. Workman, 645 F.3d

1159, 1167 (10th Cir. 2011). Under Strickland, a petitioner “must show both that his

counsel’s performance ‘fell below an objective standard of reasonableness’ and that

‘the deficient performance prejudiced the defense.’” Id. (emphasis omitted)

(quoting Strickland, 466 U.S. at 687–88). “These two prongs may be addressed in

any order, and failure to satisfy either is dispositive.” Victor Hooks II, 689 F.3d at

1186.

        “[O]ur review of counsel’s performance under the first prong of Strickland is a

‘highly deferential’ one.” Byrd, 645 F.3d at 1168 (quoting Danny Hooks v.

Workman, 606 F.3d 715, 723 (10th Cir. 2010)). “Every effort must be made to

evaluate the conduct from counsel’s perspective at the time.” Littlejohn v. Trammell

(Littlejohn I), 704 F.3d 817, 859 (10th Cir. 2013) (quoting United States v.

Challoner, 583 F.3d 745, 749 (10th Cir. 2009)). “[C]ounsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the exercise

of reasonable professional judgment.” Victor Hooks II, 689 F.3d at 1187

(quoting Byrd, 645 F.3d at 1168). And the “petitioner ‘bears a heavy burden’ when it

comes to overcoming that presumption.” Byrd, 645 F.3d at 1168 (quoting Fox v.

Ward, 200 F.3d 1286, 1295 (10th Cir. 2000)). “To be deficient, the performance

must be outside the wide range of professionally competent assistance. In other



                                           11
words, it must have been completely unreasonable, not merely wrong.” Danny

Hooks, 606 F.3d at 723 (internal quotation marks and citation omitted).

      “A state prisoner in the § 2254 context faces an even greater challenge.”

Victor Hooks II, 689 F.3d at 1187 (citing Byrd, 645 F.3d at 1168). “[W]hen

assessing a state prisoner’s ineffective-assistance-of-counsel claims on habeas

review, ‘[w]e defer to the state court’s determination that counsel’s performance was

not deficient and, further, defer to the attorney’s decision in how to best represent a

client.’” Id. (alterations in original) (quoting Byrd, 645 F.3d at 1168). “Thus, our

review of ineffective-assistance claims in habeas applications under § 2254 is

‘doubly deferential.’” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123

(2009)).

      “Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under § 2254(d).

When § 2254(d) applies, the question is not whether counsel’s actions were

reasonable. The question is whether any reasonable argument exists that counsel

satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 105

(2011) (emphasis added). And “because the Strickland standard is a general

standard, a state court has . . . more latitude to reasonably determine that a defendant

has not satisfied that standard.” Byrd, 645 F.3d at 1168 (emphasis added) (ellipsis in

original) (quoting Knowles, 556 U.S. at 123).

      “Under the prejudice prong [of Strickland], a petitioner must demonstrate ‘a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

                                           12
proceeding would have been different.’” Littlejohn v. Royal (Littlejohn II), 875 F.3d

548, 552 (10th Cir. 2017) (quoting Strickland, 466 U.S. at 694).

                                        2. Claims

                                   i. Medical Defense

       Petitioner argues that trial counsel was ineffective because he failed to

investigate a medical defense to the charges and that failure prejudiced him. In

support of his contention, he directs us to the affidavit of Dr. John H. Stuemky. That

affidavit opines that:

       [S]ome of the information disclosed by the girl indicating multiple
       episodes of anal rape and that it was forced and against her will, and in
       the absence of lubricant and not hurting is also rather difficult to believe.
       This includes feeling ejaculate and that it was cold. If all of the above
       occurred—forced anal rape, multiple times, without lubricant, against her
       will, [sic] would seem more likely that there should have been physical
       findings. All of the above would be of great concern.

       Dr. Stumeky also notes that K.B.’s story of fighting back “simply does not fit

with ongoing child molestation by fathers/stepfathers” and that her “denial of pain

does not fit with her allegations of fighting back and that force was used.”4

                                   a. Prior Decisions


       4
        Respondent contends Petitioner did not properly present this evidence to the
federal district court. We assume Petitioner properly presented the evidence because
that assumption does not alter the outcome of the appeal.
       We also note, although it is not entirely clear, that Petitioner appears to argue
under this claim that he was prejudiced because Dr. Stuemky could not testify that
Officer Cox’s interview with K.B. presented a major conflict of interest and a risk of
intimidation. But Petitioner waived that argument with respect to this claim because,
before the federal district court, he only argued that the evidence was relevant to his
forensic expert claim. See Stouffer v. Trammell, 738 F.3d 1205, 1221 n.13 (10th Cir.
2013).
                                            13
      The state district court rejected this claim because Dr. Stuemky’s

      review of this matter . . . did not include a review [of] the testimony of Dr.
      McKinnon and . . . did not offer an opinion of whether he would agree or
      disagree with that testimony. In fact, although not offered in his affidavit,
      the 90% statistic is a well known opinion of Dr. Stuemky and thus his
      testimony may have tended to support the testimony of Dr. McKinnon. In
      addition, while it is not directly stated by Dr. Stuemky, it is clear that he
      believes this may be one of the 10% cases due to the allegations. It is
      interesting to note that Dr. Stuemky does not say that there would be physical
      findings in this matter only that it would “seem more likely that there should
      have been physical findings.” Dr. McKinnon was thoroughly cross-
      examined on this point and concedes in effect the same conclusion: that the
      number of episodes, with force, without lubrication may have left physical
      finding and that he found none. The information proffered by Defendant was
      clearly before the jury without the introduction of additional testimony.

Order dated Nov. 24, 2015, Whitely, No. CF-2006-250, slip op. at 7–8 (emphasis in

original). On appeal, the OCCA affirmed because, among other reasons, Petitioner

had not shown any prejudice from counsel’s omissions.

      The federal district court concluded the OCCA’s determination was not

unreasonable. It stated:

      Dr. Stuemky’s affidavit fails to challenge Dr. McKinnon’s testimony in any
      meaningful way and does not establish[] that K.B. would have absolutely had
      injury. Further, Dr. McKinnon testified that forced anal penetration without
      lubrication would likely: (1) be painful; (2) cause bleeding; and (3) create a
      greater chance of injury. See supra p. 9. In sum, assuming Dr. Stuemky
      would have testified as his affidavit is presented, the expert would not have
      provided any substantive information that the jury did not already hear.
      Accordingly, the OCCA reasonably applied Strickland’s prejudicial prong in
      finding there was not a reasonable likelihood that the results of Petitioner’s
      trial would have been different had trial counsel investigated so as to call Dr.
      Stuemky as a witness. See Hanson v. Sherrod, 797 F.3d 810, 832 (10th Cir.
      2015) (“We cannot say it was unreasonable for the OCCA to hold that [the
      cumulative evidence] would not have changed the outcome of Hanson’s
      trial.”). And, because the claim would have therefore lacked merit on direct
      appeal, the OCCA further reasonably applied Strickland in finding no
      reasonable likelihood that the outcome of the direct appeal would have been

                                            14
       different had appellate counsel challenged trial counsel’s conduct. See
       Fairchild v. Trammell, 784 F.3d 702, 715 (10th Cir. 2015) (“To prevail on a
       claim of ineffective assistance of appellate counsel, a defendant must
       establish that . . . there is a reasonable probability that, but for this
       unreasonable failure, the claim would have resulted in relief on direct
       appeal.”).

Whitely v. Farris, No. CIV-16-514-HE, 2018 WL 1733997, at *6 (W.D. Okla. Jan. 10,

2018), report and recommendation adopted, No. CIV-16-514-HE, 2018 WL 1732072

(W.D. Okla. Apr. 10, 2018).

                                       b. Analysis

       As a preliminary matter, Petitioner contends that we should review this claim

de novo because the state courts unreasonably concluded that the evidence in Dr.

Stuemky’s affidavit did not prove prejudice. He characterizes his argument as an

argument that Dr. Stuemky’s affidavit rebuts by clear and convincing evidence the

state courts’ speculative factual findings that Petitioner’s “‘different or better

experts’ were the ‘benefit of hindsight.’” He reasons that the affidavit—in light of its

statement that the absence of physical evidence and other factors are “of great

concern”—indicates that Dr. Stuemky believes the lack of physical evidence

substantially undermines K.B.’s credibility.

       It is not immediately evident to us that that the state courts made a factual

finding, as opposed to a legal determination. But even if they did make a factual

finding, Petitioner’s argument lacks merit. Although Dr. Stuemky indicated that the

absence of physical evidence—among other factors—is “of great concern,” it is not

clear that Dr. Stuemky believes the lack of physical evidence alone substantially


                                            15
undermines K.B.’s credibility.5 Resolving this issue in Petitioner’s favor would itself

require speculation.6 Under these circumstances, Petitioner has not rebutted any

factual determination by clear and convincing evidence. We thus decline to review

this claim de novo on that basis.7

      Further, we agree with the district court that the OCCA’s resolution of this

claim was not an unreasonable application of Strickland. Insofar as he indicated

physical evidence of abuse would be more likely under the circumstances presented


      5
        We note that at trial, defense counsel extensively addressed the other factors
Dr. Stuemky identified as difficult to believe and of great concern.
      6
         Petitioner also contends that by denying him an evidentiary hearing, the state
district court prevented him from resolving the court’s “speculative concern.” He
does not initially argue for de novo review on this basis, nor does he cite any legal
authority that would support such relief.
       Relatedly, Petitioner also contends that the state district court’s failure to hold
an evidentiary hearing prevented Petitioner from producing Dr. McKinnon or
obtaining his studies to prove the 90 percent statistic was not relevant. But he once
again fails to argue for de novo review or cite any legal authority showing he is
entitled to any relief.
       In the last sentences of the section of his opening brief which addresses Dr.
McKinnon’s testimony and Dr. Stuemky’s affidavit, Petitioner finally argues that
“[t]he State court[’]s finding of fact and application of established Supreme Court
precedent are unreasonable. 28 U.S.C. § 2254(d)(1) and (2)[.] The Court owes no
deference.” But that conclusory assertion still identifies no Supreme Court precedent
that the OCCA unreasonably applied.
      7
         Petitioner faults the state courts for highlighting that Dr. Stuemky did not say
that a doctor would have found physical signs of abuse. Based on that statement, he
contends that the state court required him to make a greater showing of prejudice
than Strickland requires. This argument is not persuasive. When the state district
court made that statement, it was analyzing the content of Dr. McKinnon’s testimony
and Dr. Stuemky’s affidavit to determine whether the evidence was cumulative. It
did not impermissibly require Petitioner to satisfy a heightened burden on his
ineffective assistance of counsel claim.

                                           16
in this case, Dr. Stuemky’s affidavit is essentially cumulative of Dr. McKinnon’s trial

testimony. “Generally, counsel’s failure to call witnesses whose testimony would be

corroborative or cumulative of evidence already presented at trial is not deemed

constitutionally deficient.” Snow v. Sirmons, 474 F.3d 693, 729 (10th Cir. 2007).

        The other statements in Dr. Stuemky’s affidavit also add little to Petitioner’s

case. Dr. Stuemky indicates that K.B.’s story of fighting back “simply does not fit

with ongoing child molestation by fathers/stepfathers” and that her “denial of pain

does not fit with her allegations of fighting back and that force was used.” But at

trial, no one contended that K.B.’s testimony about fighting Petitioner was, in fact,

true.

        Koelling testified that: (1) K.B. was likely describing her ability to fight back

“from her perspective”; (2) there is a lot of shame in being a victim and, because of her

helplessness, K.B. was “looking for things that she did or she could have done to change

the situation”; and (3) “[s]ome of the things [K.B.] told me were difficult for me to

comprehend.” And in its rebuttal argument, the prosecution argued:

        First one I want to talk about that they want to make a big thing out of is the
        fighting back and the hiding. [K.B.] tells you that she fought back, and I
        don’t doubt that she wanted to. Don’t doubt for a minute that she wanted to
        fight back and she wanted to punch and she wanted to hit him and kick him,
        and in her mind, as she’s closing her eyes, as she’s being raped, she probably
        is fighting him and she probably is hitting him and she probably is hiding
        under her bed and she probably is hiding in her closet.

        But what’s really going on is the defendant is raping her. She probably
        fought the first few times, but after that it wasn’t worth it. It was gonna
        happen anyway. He’s in her home. He’s where she lives. She can’t hide
        from him every day, all day. Maybe should get it over with for that time that
        day, maybe he won’t do it to you that night.

                                              17
         So I bet she did fight some. But a lot of what she says about the fighting is
         children not wanting to admit that they laid there and allowed that to happen
         to them over and over and over and over again. So she’s hiding. So she’s
         fighting.

In light of this testimony and argument, it is unlikely that the jury that convicted

Petitioner did so because it believed that K.B. had routinely fought Petitioner when he

attempted to sexually assault her. Thus, a court could reasonably conclude that no

reasonable probability existed that this evidence from Dr. Stuemky—which was

predicated on K.B.’s testimony about fighting back—would alter the outcome of the trial.

         Under these circumstances, the OCCA did not unreasonably deny Petitioner’s

claim.

                                ii. Forensic Interview Expert

         Petitioner also argues that trial counsel was ineffective when he presented Dr.

Ingraham as his forensic interview expert because: (1) she was not a forensic

interview expert; (2) counsel had not gone over Dr. Ingraham’s testimony with

her; (3) she had not reviewed the Officer Cox interview before trial; and (4) her

testimony regarding memory distortion was irrelevant and reduced the significance of

K.B.’s inconsistent statements, which weakened Petitioner’s argument that K.B. was

lying.

         Petitioner supports his claims with an affidavit from Dr. Maggie Bruck, Ph.D.8

In her affidavit, Dr. Bruck states that Officer Cox: (1) “should not have been allowed


         8
        In addition, Petitioner directs us to an affidavit from his post-conviction
investigator that he claims establishes that: (1) Koelling would not have re-
                                              18
to interview K.B.”; (2) “used a number of interrogatory techniques used by police to

produce confessions from suspects”; and (3) could have caused K.B. to produce a

false statement by using those techniques on a child removed from her home who

could not contact her mother and missed her. Dr. Bruck also asserts that Dr.

Ingraham’s suggestibility/memory distortion testimony was irrelevant because K.B.




interviewed K.B. if she had been aware of Officer Cox’s interview; and (2) Koelling
admits K.B. may have fabricated her accusations. But the only reference to this
evidence in the federal district court is in Petitioner’s Statement of the case. There,
he asserts:

      On August 4, 2014, Mr. Whitely filed a motion in the trial court to
      supplement his post-conviction application with evidence from Tracy
      Koelling, the state’s forensic interviewer who testified at trial. As an
      offer of proof, Mr. Whitely submitted an affidavit prepared by Private
      Investigator Frank Gaynor, who interviewed Koelling. (R. 1443-49)

Petition Under 28 U.S.C. 2254 for Writ of Habeas Corpus By a Person in State Custody
at 4, Whitely v. Farris, No. CIV-16-514-HE, 2018 WL 1732072 (W.D. Okla. Apr. 10,
2018). He did not, however, identify the evidence in the affidavit or argue its
significance. Because Petitioner did not adequately present that evidence to the federal
district court, we do not consider it here.
        Petitioner also directs the court to the affidavit of Dr. H. D. Kirkpatrick, Ph.D.
But, with respect to that affidavit, he merely argues that:

      Post-conviction counsel also obtained an independent, unbiased forensic
      analysis of K.B.’s statements from Dr. [H. D.] Kirkpatrick. (R 534-63)
      Kirkpatrick applied a rule-out hypothesis approach and found that K.B.’s
      statements support conflicting conclusions. (R. 551-52)

He does not argue why it is significant that K.B.’s statements support conflicting
conclusions or how he was prejudiced by the absence of the evidence contained
therein. Thus, we do not consider it. See Adler v. Wal-Mart Stores, Inc., 144 F.3d
664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived.”).
                                            19
had admitted to the abuse in a note that pre-dated her interview with Officer Cox, and

that an expert should have instead testified about lies in childhood.

      Petitioner also submits the affidavit of Dr. Stuemky. In his affidavit, Dr.

Stuemky criticizes Officer Cox’s interview with K.B. He indicates that the interview

presented a major conflict of interest and a risk of intimidation because Officer Cox

had: (1) worked as a police officer in the same police department as K.B.’s parents;

and (2) interviewed K.B. late at night without any observers or any videotape.

      Lastly, Petitioner identifies portions of Dr. Ingraham’s trial testimony where

she stated that she was: (1) testifying that Officer Cox was “wrong”; and (2) not

opining that K.B. was lying.

                                   a. Prior Decisions
      The state district court rejected this claim for several reasons. First:

      Of the nine (9) points offered by Dr. Stuemky, seven (7) deal with the
      disclosures made by and interviews of the child rather than the physical
      examination itself. All seven of those concerns were addressed by defense
      counsel in the cross-examination of Dr. McKinnon. In addition, defense
      counsel addressed many of those issues with Linda Ingraham, the expert
      forensic psychologist called by the defense. Dr. Stuemky also opines that
      the first interview of the child was appropriate and well done. This
      information, if testified to, would have further supported State’s case and
      would have contradicted another proffered expert, Dr. Maggie Bruck. In
      fact, Defendant specifically alleges that bolstering the State’s case is
      problematic when he argues that trial counsel was ineffective by presenting
      Dr. Ingraham, who also testified that the forensic interviews were
      appropriately done. Either Dr. Stuemky would be supporting, yet again, the
      opinion that the interview was appropriate or, if Dr. Bruck had testified, he
      would be contradicting another defense witness. This would have been
      detrimental to the defense.

Order dated Nov. 24, 2015, Whitely, No. CF-2006-250, slip op. at 8–9.


                                           20
      Second:

      Both [Dr. Maggy Bruck and Dr. H. D. Kirkpatrick] are as well qualified in
      their fields as Dr. Ingraham and espouse alternative theories to present to the
      jury. Dr. Bruck, primarily puts forth a position of attacking the credibility of
      the child as opposed to the memory distortion theory espoused by Dr.
      Ingraham and would present information regarding the invalidity, from her
      perspective, of the forensic interviews. Dr. Kirkpatrick would present
      information about confirmatory bias thus attacking the interview techniques.
      A portion of the opinions were covered in the cross-examinations of Dr.
      McKinnon, Tracy Koelling (forensic interviewer) and Officer Cox as well as
      in the direct examination of Dr. Ingraham. Some of the opinions proffered
      clearly contradict other expert evidence given. However, particularly as it
      relates to Dr. Bruck, there are valid strategic reasons to proceed with opinions
      such as that offered at trial. In particular, attacking the credibility of [a] child
      witness is perilous. A jury may feel more sympathy for the child after the
      repeated attempts to cast her as a liar. The defense offered two theories for
      not believing the statements of the child—that the child had fabricated the
      story and that she had a distorted memory of the events. These are valid
      defense theories which provided the jury with options. Because a valid
      strategic reason exists for the manner in which the underlying case
      proceeded, it cannot be found to be below an objectively reasonable standard.
      This seems to be exactly the trap that the Strickland court warns against—
      that hindsight often provides us with many different avenues to traverse. But
      this Court does not find, based upon the totality of the trial record, that trial
      counsel’s strategic decision to offer the memory distortion theory was
      unreasonable or fell below the standard required.

Id. at 9–10.

      On appeal, the OCCA affirmed. It reasoned that:

      [The state district court] thoroughly examined [Petitioner’s] claims regarding
      what seems to be a battle of the experts. A review of trial counsel’s affidavit
      reveals that, in hindsight, counsel feels that he could have handled
      [Petitioner’s] trial differently, and that some of the strategic decisions he
      made did not work out as intended.

Order Granting Request to Associate Counsel and Affirming Denial of Post-

Conviction Relief, Whitely v. Oklahoma, No. PC 2015-1120, slip op. at 8 (Okla.

Crim. App. Apr. 22, 2016).

                                              21
      The federal district court also rejected this claim. It determined the OCCA’s

decision was not unreasonable because the evidence that Petitioner advanced was

essentially cumulative. It reasoned that, at trial, Dr. Ingraham (1) had extensively

criticized Officer Cox’s interview techniques; (2) had testified about her concerns

regarding the absence of details in K.B.’s allegations and various improbabilities

presented therein; (3) had not testified that the anal rape had occurred; and (4) had

not testified that K.B. was not lying and instead had taken no position on the truth or

falsity of the allegations. It further reasoned that although Dr. Bruck and Dr.

Ingraham had presented conflicting opinions regarding Koelling’s second interview,

the jurors watched the second interview and were able to determine for themselves

whether Koelling appeared biased towards disclosure.

                                      b. Analysis
      We agree with the district court’s analysis for several reasons. First, the

evidence does not show Dr. Ingraham harmed Petitioner’s case. Although Dr.

Ingraham indicated she was not opining that K.B. was lying, she also never testified

that K.B.’s allegations were true.

      Further, when she testified that Officer Cox was not “wrong,” Dr. Ingraham

was opining that his conduct may have been proper from a community safety

perspective. She did not testify that his conduct did not undermine the credibility of

K.B.’s allegations—in fact, she specifically testified that he was untrained and that

his interview was inconsistent with protocols for interviewing child victims of sexual



                                           22
abuse, had “introduced a possible source distortion,” and may have distorted K.B.’s

memory.

      In addition, the evidence of memory distortion is not clearly inapplicable to

this case. Although K.B. wrote a note to her friends before her interview with

Officer Cox, no expert indicated to the jury9 that the note (even if a lie) would have

prevented Officer Cox from distorting K.B.’s memory at his interview—and K.B.’s

post-note allegations are expansive.

      And even if Dr. Ingraham’s memory distortion testimony was not entirely

relevant, we are satisfied that testimony did not materially prejudice Petitioner. That

testimony did not clearly undermine Petitioner’s argument that K.B.’s inconsistencies

showed she was lying. Dr. Ingraham testified that she would expect K.B. to

remember pain and bleeding unless she “blocked” the experience. She further

testified that K.B. did not, in her opinion, have that type of traumatic amnesia. By

opining in that manner, Dr. Ingraham’s testimony left ample room for counsel to

argue that the inconsistencies in K.B.’s testimony showed she was lying.

      Second, Petitioner was not prejudiced in the manner that Strickland requires

by the absence of the evidence he now presents. As the district court recounted, both

Dr. Ingraham and Koelling testified extensively about the proper techniques for




      9
       Dr. Bruck’s affidavit asserts that memory distortion testimony is appropriate
only when questioners suspect wrongdoing and the child was initially silent (unlike
here where K.B. wrote the note). But no such limitation was described to the jury.
                                          23
interviewing child victims of sexual abuse, which Officer Cox clearly did not follow.

Indeed, Dr. Ingraham specifically criticized Officer Cox’s interview.

      In addition, Officer Cox testified at trial that he interviewed K.B. at night (at

approximately 9:15 p.m.),10 that Mrs. Whitely and Petitioner worked at the Noble

Police Department as dispatchers, and that K.B. had been present there on several

occasions. Even in the absence of Dr. Stuemky’s testimony on that issue, the jury

was well-equipped to evaluate the risk of intimidation or conflict of interest from

those circumstances.

      The allegations regarding the second Koelling interview also do not establish

the prejudice that Strickland requires. True, Dr. Bruck’s affidavit indicates that

during the second interview, Koelling was merely seeking to elicit as many abuse-

consistent details as possible and did not test the hypothesis that K.B. had made up

the allegations despite K.B.’s inconsistent allegations. The jury, however, watched a

video of the second interview and the jurors were able to: (1) consider the

inconsistencies; and (2) observe the extent to which Koelling did or did not challenge

K.B. and did or did not explore the hypothesis that no sexual abuse had occurred.

Thus, they were able to evaluate the interview themselves.

      Lastly, we note that Dr. Bruck did not review K.B. or L.W.’s testimony. Their

testimony was significant because K.B. and L.W. testified that K.B. was known to


      10
          Petitioner posits that Officer Cox may also have been in uniform during the
interview. But he directs us to no evidence that was the case. To the extent he
asserts that it is a reasonable inference that Officer Cox was in uniform, a jury is just
as capable of drawing that inference when considering any pressure on K.B.
                                           24
lie. Because Dr. Bruck did not review this testimony, which is specific to K.B., her

affidavit does not clearly indicate that additional expert testimony on childhood lying

was necessary.

       Thus, because the record supports a determination that Dr. Ingraham did not

materially harm Petitioner’s case and the evidence Petitioner advances now would

not have materially benefitted his case, we are satisfied that the OCCA did not

unreasonably apply Strickland.

      iii. Evidence of K.B.’s Dishonesty, Manipulation, and Attention-Seeking

       Petitioner next argues that his counsel acted ineffectively by failing to present

additional evidence of K.B.’s prior dishonesty, manipulation, and attention-seeking

behavior. Petitioner contends counsel should have called impeachment witnesses and

witnesses who could testify about K.B.’s reputation, and that the state courts

unreasonably concluded the absence of that evidence did not prejudice him.

                                    a. Prior Decisions
       The state district court analyzed this claim as part of a larger claim that “trial

counsel was ineffective for failing to present certain witnesses that would possess

relevant information that would tend to disprove” K.B.’s allegations. The state district

court denied that claim because:

       [t]he Affidavits of Danny Moss, Jeanna Moss, Shirely Orsak, and Toni
       Snyder are observations of neighbors who had no extensive contact with the
       Whitelys or the child. The testimony proffered is that they never saw
       anything that would indicate to them that abuse was occurring. (For
       example: “I never noticed anything unusual about our neighbors”, “They
       appeared to be a normal family” . . . ). These statements have minimal
       relevance at best. The Affidavits of Renee Haley, Jack Tracy, and Jack

                                            25
      Haley, all rely on hearsay as the basis for their opinions as to the child’s
      character for untruthfulness. Frances Burnett could only testify as to the
      general character for untruthfulness but had no specific instances. These
      statements would not have been admissible and therefore it was not error on
      the part of trial counsel to not sponsor those witnesses. In addition, their
      observations as to not observing any behavior on the part of the child or the
      Defendant, like those of the witnesses above, would only have minimal
      relevance. This is particularly true in light of the fact that the same
      information was presented by Larry Whitely, Sr. Furthermore, Defense
      counsel was able to provide specific instances of untruthfulness to the jury
      through the testimony of [L.W.]. Defense counsel was also able to argue that
      the victim was a “troubled” and “untruthful” child in his closing argument.
      Counsel’s conduct was not objectively unreasonable.

Order dated Nov. 24, 2015, Whitely, No. CF-2006-250, slip op. at 10–11. The

OCCA affirmed without any additional analysis.

      The federal district court held that Petitioner was not entitled to relief because:

      Petitioner’s attorney elicited testimony from K.B.’s friend that people at
      school called K.B. a liar, see Tr. Vol. II at 381, and K.B. herself admitted
      that she had been in trouble for lying. Tr. Partial Proceedings (dated Jan. 24,
      2007) at 97. And, while K.B. claimed not to remember the meeting,
      Petitioner’s attorney was able to suggest through his questioning that K.B.
      had visited with Jack Tracy about her lying. Id. Additionally, trial counsel
      called Petitioner’s father, Larry Whitely, who presented evidence that K.B.
      could not have hidden in the closet or under the bed as she had suggested.
      See Tr. Vol. IV at 791-92. Finally, in questioning Dr. Ingraham, Petitioner’s
      attorney elicited evidence that K.B., after making her allegations, “was
      getting attention” “which is important to a child.” Id. at 743. In closing
      argument, trial counsel used all this information to emphasize K.B.’s alleged
      dishonesty and the incredibility of her allegations. See Tr. Vol. V at 858,
      860-61.

      In light of this evidence, and based in large part of the generalness of the
      proffered testimony, Petitioner simply cannot establish any reasonable
      probability that the outcome of his trial would have been any different if trial
      counsel had called these witnesses, or, in the case of Kelly Whitely, asked
      her different questions. Accordingly, the OCCA reasonably applied
      Strickland in finding no prejudice in trial counsel’s failure to call these
      witnesses, and subsequently, in appellate counsel’s failure to raise this claim
      on direct appeal.

                                            26
Whitely, 2018 WL 1733997, at *11, report and recommendation adopted, 2018 WL

1732072.

                                        b. Analysis
       The district court did not err by denying relief on this claim. While Petitioner

directs us to additional evidence of K.B.’s dishonesty, that evidence is largely cumulative

of the testimony produced at trial and highlighted in trial counsel’s closing argument. In

addition, Dr. Ingraham testified that attention is important to children. Although the

evidence that Petitioner now asserts is stronger and more specific to K.B., when we apply

our deferential standard of review, the record does not compel a determination that a

reasonable probability of a different outcome exists. Thus, having considered the

evidence proffered and presented in this case, we are satisfied that the state courts did not

unreasonably apply Strickland.

                               B. Prosecutorial Misconduct

       Petitioner brings two prosecutorial misconduct claims. First, he contends that

the prosecutor used false testimony to secure his conviction. Second, he argues that

the government improperly coerced Mrs. Whitely. We address each claim in turn.



                                             1.

       Petitioner’s first prosecutorial misconduct claim is that the Oklahoma state

courts unreasonably applied Napue v. Illinois, 360 U.S. 264 (1959), when they

resolved his claim that the prosecution relied on false testimony to secure his


                                             27
conviction. Specifically, he contends that Mrs. Whitely testified falsely when she

indicated she was not “here today in support of [Petitioner].”11

         To establish a Napue violation, a petitioner must show that “(1) [a witness’s]

testimony was in fact false, (2) the prosecution knew it to be false, and (3) the

testimony was material.” United States v. Caballero, 277 F.3d 1235, 1243 (10th Cir.

2002).

         Petitioner directs us to several items of evidence to support his claim. First, he

directs us to his own affidavit, in which he asserts that:

         My wife was present each day at the trial to support me, she had supper
         with me and she stayed with me two or three nights at the motel I stayed
         at during the trial. She continuously believed that I was innocent. I know
         this because she communicated it to me.

         Second, Petitioner submits certain records from the Oklahoma Department of

Human Services. Those records indicate: (1) during an interview on February 5,

2006, Mrs. Whitely said, in reference to the allegations, “I just can’t see it,” later

“seemed to be leaning toward believing [K.B.] and accepting the possibility that the

allegations [were] true,” and subsequently stated that her “gut was telling her” the

events described in K.B.’s allegations did not occur; (2) on May 31, 2006, a DHS

employee and K.B.’s attorney observed Petitioner and Mrs. Whitely hugging and


         11
          Petitioner also argues that Mrs. Whitely testified falsely when she testified
that a divorce action was pending. Significantly, Petitioner first raised the divorce
testimony in federal court in his objections to the Magistrate Judge’s report and
recommendation. “Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996).

                                             28
kissing each other for eight minutes after a court hearing; (3) on August 25, 2006,

when the DHS employee confronted Mrs. Whitely about the May 31, 2006 events,

Mrs. Whitely said she believed Petitioner “at that time but now has no doubts that

[Petitioner] hurt [K.B.]”; and (4) during an assessment of Mrs. Whitely’s home on

August 28, 2006, Mrs. Whitely made a comment that led a DHS employee to believe

that Mrs. Whitley did not believe Petitioner abused K.B. Those events occurred

before the trial in this matter.

       Third, Petitioner cites witness testimony at his sentencing, which indicates that

Mrs. Whitely did not believe K.B.’s allegations against him.

       Petitioner also directs us to the prosecution’s closing argument. There, the

prosecution argued that the jurors “didn’t hear [K.B.’s] mom come in here and you

didn’t hear her mom say she was a liar. And she would be the one who would know

more than anyone.”

       The Respondent argues, among other things, that the prosecutors did not

violate Napue because the “alleged false testimony was about [Mrs. Whitely’s]

subjective state of mind during the trial” and, as such, “[t]he only person who could

ever know whether Mrs. Whitely’s answer was true or false [wa]s Mrs. Whitely.”

       We conclude that this claim lacks merit even if we review it de novo.12 But

before we explain why we conclude that the prosecution did not violate Napue, we must



       12
          Petitioner argues that the state courts did not address this claim and that he
is entitled to de novo review. We do not resolve that issue because, as we noted
above, his claim also fails when we review it de novo.
                                           29
emphasize the limited nature of our holding. In this opinion, we do not determine

whether Napue may ever apply to subjective intentions or beliefs. We also do not decide

whether the prosecution may violate Napue when a witness’s statements regarding their

subjective belief or intentions at trial conflict with prior unequivocal statements regarding

the witness’s beliefs or intentions prior to trial. Our holding here is more modest; we

merely hold that where a witness: (1) makes equivocal or contradictory statements

regarding her intentions or beliefs prior to trial; (2) then testifies regarding her current

subjective intentions or beliefs at the time of trial in a manner inconsistent with some of

those prior statements and consistent with others; and (3) no other evidence indicates that

the prosecution knew the witness’s testimony was false, the petitioner has not made a

sufficient showing that the prosecution knew the trial testimony was false.

       We reach this conclusion for several reasons. First, the subjective nature of this

inquiry renders it difficult for the prosecution to determine whether a witness is lying,

even if the witness’s prior statements are inconsistent with the witness’s statement

regarding her current beliefs and intentions. And if the witness has made contradictory or

equivocal statements in the past, it would be even more difficult for the prosecution to

know the truth or falsity of the statement at trial.

       Second, under these circumstances, the evidence available to the prosecutor

regarding the witness’s subjective intentions and beliefs is essentially ambiguous. When

presented with ambiguous evidence, the prosecution is entitled to argue the view of that

evidence most favorable to it. See United States v. Blueford, 312 F.3d 962, 968 (9th Cir.

2002) (“It is certainly within the bounds of fair advocacy for a prosecutor, like any

                                              30
lawyer, to ask the jury to draw inferences from the evidence that the prosecutor believes

in good faith might be true. But it is decidedly improper for the government to propound

inferences that it knows to be false, or has very strong reason to doubt, particularly when

it refuses to acknowledge the error afterwards to either the trial court or this court and

instead offers far-fetched explanations of its actions.”). If we were to hold that, in a case

like this, the government must inform the jury that the less favorable view of ambiguous

evidence was correct, we would infringe on the prosecution’s right to present its case.

       Here, Petitioner has not shown that the prosecution knew that Mrs. Whitely’s

testimony was false. As we previously discussed, Petitioner directs the court to certain

evidence to support his claim. But it is clear that the prosecution did not know Mrs.

Whitely’s sentencing testimony during the trial. Petitioner also does not direct us to any

evidence that the prosecution was aware of the facts Petitioner asserts in his affidavit.

Thus, the only evidence pertinent to the prosecution’s knowledge at trial is the evidence

contained in the DHS records. That evidence is equivocal and reflects shifting positions

by Mrs. Whitely. Based only on that evidence, no reasonable factfinder could conclude

that the prosecution knew Mrs. Whitely’s testimony was false.

                                              2.

       Petitioner also argues that the prosecution, in violation of his due process

rights, prevented Mrs. Whitely from testifying that she did not believe K.B.’s

allegations by repeatedly informing her that her children would not be returned to her

if she supported Petitioner.



                                             31
      To establish a violation of his due process rights, Petitioner must “provide

evidence that there was actual government misconduct in threatening or intimidating

potential witnesses and that such witnesses otherwise would have given testimony both

favorable to the defense and material.” United States v. Allen, 603 F.3d 1202, 1211 (10th

Cir. 2010).

                                    a. Prior Decisions

      The state district court rejected this claim for several reasons:

      In his affidavit, trial counsel states that he did not ask certain questions of
      [Mrs.] Whitely because he believed her fear of DHS might consume her.
      This was a valid strategic reason not to ask particular questions-counsel did
      not know whether [Mrs.] Whitely’s testimony would assist his client.
      Furthermore, the affidavit of Kelly Whitely now proffered is inconsistent
      with other statements. In particular, that the child always lied and made bad
      grades. The affidavit offered by the child’s teacher indicates that she was her
      “top student”, was not dishonest and was a very moral child. See Affidavit
      of Julie Curry. This was also indicated by the Affidavit of [M.M.] (offered
      by the Defendant) when she stated that [K.B.] never lied about big stuff and
      only told little white lies. In addition, the Affidavit of Michael Baker (offered
      by the Defendant) calls into question the character and credibility of Kelly
      Whitely. All of this evidence, offered by the Defendant, tends to cast doubt
      on the credibility of the statement of Kelly Whitely offered long after she
      “had nothing left to lose”.

      These issues also are relevant to the claim of Prosecutorial Misconduct raised
      by the Defendant. [Mrs.] Whitely states that she was pressured into not
      supporting her husband, the defendant, for fear of reprisals from DHS.
      However, nothing in the record indicates that the statements made by the
      prosecution or DHS were false nor that anyone indicated to [Mrs.] Whitely
      that she should make false statements in court. The Court in Roy v. State,
      2006 OK CR 4 7, stated that “Relief will be granted on a prosecutorial
      misconduct claim only where the prosecutor committed misconduct that so
      infected the defendant’s trial that it was rendered fundamentally unfair, such
      that the jury’s verdicts should not be relied upon. In this matter, because the
      statements of [Mrs.] Whitely are highly susceptible to credibility attacks (as
      stated above) and that there is no evidence that a legal action on behalf of the


                                             32
       State in removing her children caused her to testify falsely, the claim of
       prosecutorial misconduct must also fail.

Order dated Nov. 24, 2015, Whitely, No. CF-2006-250, slip op. at 11–12.

       The OCCA affirmed. In its opinion, it noted that:

       The victim’s mother, Kelly Whitely, claimed that she felt pressured into not
       supporting her husband, Whitely, based on DHS’s threats of reprisal. [The
       state district court] noted there was no supporting evidence in the record for
       the claims that statements made by the prosecution or DHS were false, nor
       was there any evidence to support a finding that Kelly Whitely was
       encouraged to make false statements at trial. The court determined that Kelly
       Whitely’s affidavit offered in support of Whitely’s application for post-
       conviction relief contained statements which were inconsistent with
       statements made by other witnesses, and are “highly susceptible to credibility
       attacks”. [The state district court] also found that there was no evidence that
       Kelly Whitely was coerced into giving false testimony at trial based on a
       threat of legal action to remove her children from her custody. The court
       found the claim of prosecutorial misconduct did not warrant relief.

Order Granting Request to Associate Counsel and Affirming Denial of Post-

Conviction Relief, Whitely, No. PC 2015-1120, slip op. at 5. The OCCA then

indicated that it agreed with the lower’s court’s resolution of the issue. Id. at 6. The

OCCA later elaborated that:

       [Trial counsel] also confirms that [Petitioner] wanted to testify in his defense,
       but that he . . . ultimately convinced [Petitioner] not to take the stand. [Trial
       counsel’s] statement regarding Kelly Whitely reads as follows:

              16. I realize also that the jury missed some critical information
              from my client’s wife who is also [K.B.’s] . . . mother.
              Although I had some reasons, at the time, for what I did and
              did not ask Kelly Whitely, I think it would have had a major
              impact on the jury if the jury had known that Kelly Whitely did
              not believe the allegations against my client and that [K.B.]
              lied on many occasions.

       The affidavit clearly indicates, while not being specific, that [trial counsel]
       had reasons for not asking Kelly Whitely questions which she now indicates

                                              33
       in her affidavit she would have been willing to answer. As noted in this
       Court’s prior order, the question to be resolved is whether or not Kelly
       Whitely refused to answer these questions because she was truly intimidated
       by D.H.S. and the prosecution or whether at this point, having nothing to
       lose, she has changed her story. The real question is, had Kelly Whitely
       testified that she disbelieved the victim and believed her husband, would the
       results at [Petitioner’s] trial have been different.

       Although he asserts that Kelly’s testimony might have had an impact on the
       jury, defense counsel . . . states that he had an unspecified reason for limiting
       his questioning of Kelly Whitely. We cannot find this strategic behavior to
       be objectively unreasonable. Additionally, as noted by [the state district
       court], several of the affidavits offered by [Petitioner] in his post-conviction
       application call into question Kelly Whitely’s credibility and her character
       for truthfulness. The post-conviction claim is that Kelly was faced with a
       difficult choice when appearing at [Petitioner’s] trial. We do not disagree.
       However, after the trial and prior to knowing that D.H.S. would not be
       returning her children to her custody, Kelly wrote a letter to the district court
       prior to [Petitioner’s] sentencing advising the court that she did not believe
       [Petitioner] committed the offenses and expressing her belief that [K.B.] was
       lying. It is difficult to reconcile Kelly Whitely’s claim that she was too
       intimidated to testify at trial because she feared losing her children but she
       was not afraid of losing them when she chose to write a letter on [Petitioner’s]
       behalf prior to sentencing.

Id. at 8–9.

       The federal magistrate judge recommended that the district court deny relief

on this claim. The magistrate judge’s report and recommendation reasoned that:

       First, as noted above, Petitioner must initially show that the State actually
       and substantially interfered with Mrs. Whitely’s decision to testify. See
       supra p. 26, 123 S. Ct. 357. But Mrs. Whitely did in fact testify, and as a
       defense witness. See Tr. Vol. IV at 819-26. According to Mrs. Whitely’s
       testimony, she regularly checked K.B.’s undergarments for blood, believing
       K.B. would soon begin menstruating, and never found any. Id. at 820-21.
       Moreover, Petitioner claims that had trial counsel asked her at trial, Mrs.
       Whitely “would have testified” about K.B.’s lying. Pet. at 52-53. Finally,
       as the OCCA noted, Mrs. Whitely wrote a letter to the district court,
       approximately one-month after trial, claiming that she did not believe K.B.
       and asking the court to overturn the verdict. Or. at 158 (filed stamped Feb.
       22, 2007). Then, in March 2007, Mrs. Whitely testified at Petitioner’s

                                              34
      sentencing and after repeated cautions from the district court that her
      statements could be used against her in the DHS case, Mrs. Whitely said she
      was “going to stand by my letter.” Tr. of Partial Proceedings (dated March
      29, 2007) at 4-6, 10-11, 13-17. The OCCA found, essentially, that this
      evidence showed a lack of substantial coercion and this Court presumes that
      factual finding to be correct. See, e.g., Johnson v. Zavaras, 141 F.3d 1184,
      1998 WL 141968, at *1 (10th Cir. Mar. 30, 1998) (unpublished op.) (holding,
      in the context of a confession, “an underlying factual determination that the
      police did not engage in coercive conduct is presumed correct”). Petitioner
      has not provided clear and convincing evidence to overcome that
      presumption of correctness.

      Second, Petitioner must show that Mrs. Whitely’s testimony would have
      been material and favorable to his defense, and not merely cumulative to
      other witnesses’ testimony. See supra p. 26, 123 S. Ct. 357. As discussed
      above, trial counsel elicited testimony regarding K.B.’s alleged dishonesty,
      and while certainly her mother could have given “favorable testimony,” this
      is insufficient to show prosecutorial misconduct through coercion of a
      witness. Id. Petitioner has failed to demonstrate that his specific right to put
      forth a defense was so prejudiced as to be a denial of that right, and therefore,
      the OCCA’s rejection of Petitioner’s prosecutorial misconduct claim on this
      issue was a reasonable application of federal law.

Whitely, 2018 WL 1733997, at *13–14, report and recommendation adopted, 2018 WL

1732072 (emphasis in original).

      The district court adopted the report and recommendation. In its order, it stated:

      Of the various matters relied on by petitioner here, the evidence as to DHS’s
      dealings with Mrs. Whitely is the most troubling to this court. However, the
      OCCA accurately noted that Mrs. Whitely testified in her husband’s favor at
      the later sentencing hearing despite the same pressures being potentially
      present, and there is therefore a plausible basis for the OCCA’s conclusion
      that that appellate counsel was not constitutionally ineffective for not raising
      that issue on appeal. While this court might not have reached that conclusion
      if making the determination in the first instance, that is not the nature of the
      court’s determination here. Rather, the question is whether the OCCA’s
      resolution of the issue was unreasonable under the deferential AEDPA
      standard, and it was not.

Whitely, 2018 WL 1732072, at *2 (footnotes omitted).


                                             35
                                       b. Analysis
       Petitioner argues that the OCCA’s determination is an unreasonable application of

Webb v. Texas, 409 U.S. 95 (1972).13 In that case, the Supreme Court determined that

the government violated a defendant’s due process rights when a defense witness refused

to testify due to improper government interference. Id. at 95–98. By contrast, Mrs.

Whitely never refused to testify. In fact, as we previously noted, she provided some

exculpatory testimony when questioned by defense counsel.

       Petitioner nevertheless asserts that Webb establishes that the government violated

his due process rights when, allegedly due to government pressure on Mrs. Whitely,

(1) defense counsel decided not to ask her certain questions because he was unsure

whether Mrs. Whitely would answer truthfully, and (2) Mrs. Whitely did, in fact, answer

certain questions untruthfully.

       When determining whether a state court holding violates clearly established

federal law, as determined by the Supreme Court, we narrowly construe the Supreme

Court’s holdings. See Fairchild I, 784 F.3d at 710. For that reason, the first issue—

whether defense counsel’s response to government pressure on Mrs. Whitely rendered the

governmental pressure a violation of due process—is a legal principle that falls outside

the reach of Webb. Nothing in Webb indicates that Petitioner may assert a due process


       13
           Petitioner also contends that the OCCA’s decision is incompatible with
Lynumn v. Illinois, 372 U.S. 528 (1963). That case only addresses whether the
government’s conduct was coercive. Because we determine that Petitioner is not entitled
to relief even if we determine the government’s conduct was coercive, we need not
determine if the OCCA’s decision contravenes Lynumn.

                                            36
claim because his trial counsel refrained from asking a witness certain questions rather

than asking the questions and seeking relief, if necessary, based on the witness’s

responses. Because Webb does not authorize such a claim, Petitioner has not shown that

the state courts unreasonably applied clearly established federal law with respect to the

testimony that Mrs. Whitely claims she would have provided in response to questioning

from counsel.

       The second issue—whether clearly-established federal law provides that a

defendant’s due process rights are violated when government pressure results in false

testimony—presents a more difficult question. But we need not resolve that question

here because we conclude that any error was harmless.

       In the § 2254 context, we generally may only grant habeas relief if, after applying

de novo review, we determine that the error “had substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,

637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). That

harmless error standard requires a greater showing of prejudice than the standard that

state courts apply on direct appeal. See id.

       We have not previously addressed whether Brecht applies to Webb claims. But a

number of other circuits apply harmless error analysis to such claims. See, e.g., Earp v.

Davis, 881 F.3d 1135, 1145 (9th Cir. 2018); United States v. Foster, 128 F.3d 949, 953

(6th Cir. 1997); United States v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991); United

States v. Pinto, 850 F.2d 927, 932–33 (2d Cir. 1988); United States v. Weddell, 800 F.2d

1404, 1411 (5th Cir. 1986), opinion amended on denial of reh’g, 804 F.2d 1343 (5th Cir.

                                            37
1986); Peeler v. Wyrick, 734 F.2d 378, 381–82 (8th Cir. 1984). Moreover, we apply

Brecht to Napue claims. See Mitchell v. Gibson, 262 F.3d 1036, 1062 n.13 (10th Cir.

2001). And we see no meaningful basis for applying Brecht to Napue claims in the

§ 2254 context but not to Webb claims in that context. Thus, we apply Brecht to this

claim.14



       14
            In Brecht, the Supreme Court noted that its decision did not

       foreclose the possibility that in an unusual case, a deliberate and especially
       egregious error of the trial type, or one that is combined with a pattern of
       prosecutorial misconduct, might so infect the integrity of the proceeding as
       to warrant the grant of habeas relief, even if it did not substantially influence
       the jury’s verdict.

Brecht, 507 U.S. at 638 n.9. We consider the application of this exception sua sponte
because we raise the Brecht standard sua sponte.
        Significantly, we have never held that a habeas case presented such an error.
Indeed, in Duckett v. Mullin, 306 F.3d 982 (10th Cir. 2002), we held this exception did
not apply when: (1) a prosecutor “had made improper remarks such as, in arguing for the
death sentence, asking the jury whether it would serve ‘justice [to] send this man down to
prison, let him have clean sheets to sleep on every night, three good meals a day, visits by
his friends and family, while [the victim] lies cold in his grave?’”; (2) the prosecutor
“‘ha[d] been chastised for participating in the same type of improper argumentation in
other cases’”; (3) “‘our past experiences with this prosecutor le[ft] us convinced that his
inappropriate commentary at trial was intentional and calculated’”; and (4) we noted both
that “the prosecutor’s ‘persistent misconduct . . . has without doubt harmed the reputation
of Oklahoma’s criminal justice system and left the unenviable legacy of an indelibly
tarnished legal career’” and that “[o]ur nation’s confidence in the fair and just
administration of the death penalty is disserved by prosecutors who cynically test the
bounds of the harmless-error doctrine.” Underwood v. Royal, 894 F.3d 1154, 1176–77
(10th Cir. 2018) (alterations and ellipsis in original) (quoting Duckett, 306 F.3d at 992–
94). We nevertheless concluded that the prosecutorial misconduct did not so infect the
integrity of the proceeding that the entire trial was unfair. Duckett, 306 F.3d at 995.
        We are satisfied that this case also does not present such an error for two
reasons. First, as we determined above, no reasonable factfinder could conclude the
prosecution knew Mrs. Whitely’s testimony was false. Second, although we do not
decide whether the government’s interaction with Mrs. Whitely constituted coercion,
                                              38
      The statement at issue here—that Mrs. Whitely was not at the trial to support

her husband—was ambiguous. While that statement could lead a jury to conclude

that she believed the allegations against Petitioner, the statement does not compel

such a conclusion.15 Further, K.B. testified at trial that: (1) she and her mother had

talked about whether her mother believed the allegations and, when asked whether

she thought her mother believed her, said “No, not really”; and (2) she did not want

to live with her mother, and one of her main problems she had with her mother was

that her mother did not believe her.

      Mrs. Whitely also provided exculpatory evidence for Petitioner. For example,

she testified that she had never seen “any blood or anything like that in [K.B.’s]

underwear or on her clothes,” and that she was looking for blood because she had

expected K.B. to start menstruating. Mrs. Whitely did not testify that she was aware

of any facts that indicated the allegations were true.

      The prosecution argued that the jurors “didn’t hear [K.B.’s] mom come in here

and you didn’t hear her mom say she was a liar. And she would be the one who

would know more than anyone else.” That argument was arguably inappropriate

because neither the defense nor the prosecution had asked Mrs. Whitely whether K.B.

was a liar. But, at the same time, we are not convinced that any prejudice from that



even if it did, that conduct was not especially egregious in light of the parallel child
placement proceedings.
      15
        Indeed, the same is true of Mrs. Whitely’s testimony that a divorce was
pending between her and the Petitioner.
                                           39
argument resulted from Mrs. Whitely’s testimony that she was not at the trial to

support Petitioner.

      Under these circumstances, we conclude that Mrs. Whitely’s testimony that

she was not at the trial to support Petitioner—even if that testimony was false—had

no substantial or injurious effect or influence on the jury’s verdict. That testimony

was therefore harmless.

                                          IV.

      For the reasons stated above, we AFFIRM the district court’s denial of federal

habeas relief under 28 U.S.C. § 2254.



                                            Entered for the Court


                                            Joel M. Carson III
                                            Circuit Judge




                                          40
