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

                                     TENTH CIRCUIT                          April 1, 2013

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 CHARLES FREDERICK WARNER,

           Petitioner - Appellant,
                                                             No. 11-6236
 v.                                                 (D. Ct. No. 5:07-CV-00807-C)
                                                             (W.D. Okla.)
 ANITA TRAMMELL, Interim Warden,
 Oklahoma State Penitentiary,*

           Respondent - Appellee.



                                 ORDER AND JUDGMENT†


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.


       In 2003, an Oklahoma jury found Charles Warner guilty of the rape and murder of

an 11-month-old child. The jury returned a death sentence for the murder conviction.

       *
       Pursuant to Fed. R. App. P. 43(c)(2), Anita Trammell, the Interim Warden of
Oklahoma State Penitentiary, is automatically substituted for Randall G. Workman as
Respondent in this case.
       †
         This order and judgment is not binding precedent, except under the doctrines of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.
After unsuccessfully seeking state appellate and post-conviction relief, Mr. Warner filed

an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The United

States District Court for the Western District of Oklahoma denied his § 2254 application.

       Mr. Warner pursues only one issue on appeal: whether the Oklahoma trial court

violated his due process rights by failing to clarify, in response to a jury question, the

meaning of life without parole. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we

affirm the district court’s denial of relief on this issue.

                                     I. BACKGROUND

                                 A. Trial Court Proceedings

       In 1997, Mr. Warner was charged with the first degree rape and murder of an 11-

month-old girl.1 He was tried and convicted in Oklahoma state court on both counts and

sentenced to death. The Oklahoma Court of Criminal Appeals (“OCCA”) reversed his

conviction and sentence because of juror bias and ineffective assistance of trial counsel.

Warner v. State, 29 P.3d 569, 572-74, 575 (Okla. Crim. App. 2001).

       In June 2003, Mr. Warner was retried on the first degree rape and murder charges.

The jury found him guilty of both crimes. The jury sentenced Mr. Warner to 75 years of

imprisonment for the rape conviction. The trial proceeded to a penalty phase to

determine Mr. Warner’s sentence for the murder conviction.


       1
        The facts of the murder are recounted in Warner v. State, 144 P.3d 838, 856-57
(Okla. Crim. App. 2006). This appeal does not turn on the facts supporting Mr. Warner’s
conviction, so we need not repeat them here.

                                               -2-
       At the penalty phase, the State sought to prove beyond a reasonable doubt two

statutory aggravating circumstances that would qualify Mr. Warner for the death penalty:

(1) “[t]he murder was especially heinous, atrocious, or cruel,” Okla. Stat. tit. 21,

§ 701.12(4); and (2) “[t]he existence of a probability that [Mr. Warner] would commit

criminal acts of violence that would constitute a continuing threat to society,” id.

§ 701.12(7); see also id. § 701.11 (stating that the death penalty cannot be imposed unless

the jury finds beyond a reasonable doubt the existence of at least one statutory

aggravating circumstance). The State incorporated evidence from the trial’s guilt phase

as proof that the murder was especially heinous, atrocious, or cruel. The majority of the

State’s penalty phase evidence sought to prove that Mr. Warner posed a continuing threat

to society.

       At the close of the penalty phase, the defense proposed the following instruction

about the jury’s sentencing options under Oklahoma law:

                You are instructed that these sentences mean what they say. That
       is[,] if you sentence the Defendant to life imprisonment without the
       possibility of parole, he will actually be sentenced to imprisonment in the
       State Penitentiary for the balance of his natural life without the possibility
       of parole.
                Under the Constitution of this State, the Parole Board cannot
       recommend parole nor can the Governor grant parole to a person sentenced
       to life imprisonment without the possibility of parole.
                If, on the other hand, you sentence the Defendant to life
       imprisonment, he actually will be sentenced to imprisonment in the State
       Penitentiary for life. He may or may not at some point in time become
       eligible for parole.
                In your deliberations, you are not to speculate that these sentences
       mean anything other than what I have just told you . . . .

                                             -3-
OCCA Original Record, Vol. VI at 1023.

       Concerned that this proposed instruction was legally incorrect, the trial court

refused to give it. Instead, it instructed the jury that it had three sentencing options:

“Under the law of the State of Oklahoma, every person found guilty of Murder in The

First Degree shall be punished by death, or imprisonment for life without the possibility

of parole, or imprisonment for life with the possibility of parole.” Id. at 1066.

       During deliberations, the jury sent the trial court the following question: “Is there

ANY WAY or chance for [Mr. Warner] to get out of prison if he is sentenced to life

without parole? EVER?” ROA, Vol. 1, Pt. 2 at 314. Defense counsel asked the court to

tell the jurors “that these sentences mean what they say” and to give the previously

proposed instruction explaining the sentencing options. Trial Transcript, June 25-26,

2003, Vol. VIII at 1550. The State argued that the OCCA’s precedent endorsed “not

giving an explanation of what [life without parole] means or might mean some day.” Id.

The trial court responded to the jury as follows: “You have all of the law and evidence

necessary to reach a verdict.” ROA, Vol. 1, Pt. 2 at 313.

       The jury determined that the State proved beyond a reasonable doubt the existence

of both aggravating circumstances. It sentenced Mr. Warner to death.

                                 B. Post-Trial Proceedings

       Mr. Warner appealed to the OCCA. Among other claims, he argued that the trial

court violated his constitutional rights by failing “to define ‘life without parole’ to the

jury” in response to its question. Warner v. State, 144 P.3d 838, 885 (Okla. Crim. App.
                                              -4-
2006). The OCCA held that the trial court’s response was appropriate under the OCCA’s

precedent. Id. at 886. It denied Mr. Warner’s appeal, and the Supreme Court denied

certiorari review. Warner v. Oklahoma, 550 U.S. 942 (2007). Mr. Warner sought state

post-conviction relief, which the OCCA also denied.

       On April 3, 2008, Mr. Warner filed a 28 U.S.C. § 2254 application for a writ of

habeas corpus in federal district court. He asserted 17 grounds for relief. In Ground II,

Mr. Warner argued that the trial court’s failure to explain to the jury the meaning of life

without the possibility of parole violated his constitutional rights. The district court

denied his § 2254 application.

       The district court granted Mr. Warner a certificate of appealability (“COA”) for

three issues raised in his § 2254 application. This court granted a COA for three

additional issues, including the following: “Did the trial court’s response to the jury’s

request for information regarding the meaning of life without parole properly clarify the

jury’s confusion?” Case Management Order at 1 (November 8, 2011). The appeal before

us concerns only this issue.

                                     II. DISCUSSION

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

our review of § 2254 claims that a state court resolved on the merits. In enacting

AEDPA, Congress created a “difficult to meet and highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given the

benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citations
                                             -5-
omitted) (quotations omitted).

       If a state court adjudicated the petitioner’s claim on the merits, we may grant

habeas relief on that claim only if the state court’s decision “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).2 Our review of the federal

district court’s legal analysis of the state court decision is de novo, Bland v. Sirmons, 459

F.3d 999, 1009 (10th Cir. 2006), and is confined “to the record that was before the state

court that adjudicated the claim on the merits.” Pinholster, 131 S. Ct. at 1398.

       Mr. Warner argues that, in response to the jury’s question asking whether he could

be released if sentenced to life without parole, the trial court gave an answer that violated

his due process rights under the Fourteenth Amendment. He contends that the OCCA’s

denial of this claim was contrary to, or an unreasonable application of, the Supreme

Court’s holding in Simmons v. South Carolina, 512 U.S. 154 (1994).

       We first discuss Simmons and this court’s precedent interpreting that decision.3

We then address Mr. Warner’s arguments on appeal.


       2
        We may also grant relief if the state court decision “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)(2). Mr. Warner does not argue that the OCCA’s
ruling was based on an unreasonable determination of the facts.
       3
         We recognize that this “circuit[’s] precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,’” and thus “cannot form
the basis for habeas relief under AEDPA.” Parker v. Matthews, 132 S. Ct. 2148, 2155
(2012) (quoting 28 U.S.C. § 2254(d)(1)). But we may consult our case law “to ascertain
                                                                              Continued . . .
                                             -6-
                                        A. Simmons

       In Simmons, the petitioner was convicted of the murder of an elderly woman. 512

U.S. at 156. The conviction resulted in sentencing options of death or life imprisonment.

Id. at 157, 165. The life imprisonment option did not mention parole eligibility, though

in fact the petitioner would not have been eligible for parole. Id. at 158, 162.

       During the trial’s penalty phase, the prosecution argued the petitioner would pose

a continuing threat to others. Id. at 157. Because the prosecution put the petitioner’s

future dangerousness at issue, defense counsel argued to the trial court that jurors might

be concerned whether the petitioner could be paroled if sentenced to life imprisonment.

Defense counsel urged the court to explain to the jury that the petitioner would be

ineligible for parole. Id. at 159-60. The trial court refused to give the defense’s proposed

instruction that if the jury “recommend[ed] that [the petitioner] be sentenced to life

imprisonment, he actually will be sentenced to imprisonment in the state penitentiary for

the balance of his natural life.” Id. at 160.

       During deliberations, the jury asked the trial court whether “the imposition of a

life sentence carr[ied] with it the possibility of parole?” Id. The court responded, over

the petitioner’s objection, as follows: “You are instructed not to consider parole or parole

eligibility in reaching your verdict. . . . That is not a proper issue for your consideration.
______________________________________
Cont.

the contours of clearly established Supreme Court precedent.” Littlejohn v. Trammell,
704 F.3d 817, 828 n.3 (10th Cir. 2013).

                                                -7-
The terms life imprisonment and death sentence are to be understood in their [plain] and

ordinary meaning.” Id. The jury sentenced the petitioner to death, and the South

Carolina Supreme Court affirmed the conviction and sentence. Id. at 161.

       The United States Supreme Court reversed. It said that “[w]here the State puts the

defendant’s future dangerousness in issue, and the only available alternative sentence to

death is life imprisonment without possibility of parole, due process entitles the

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

he is parole ineligible.” Id. at 178 (O’Connor, J., concurring in the judgment); see also

Smallwood v. Gibson, 191 F.3d 1257, 1280 n.15 (10th Cir. 1999) (noting that Justice

O’Connor’s concurrence reflects the Court’s holding in Simmons). The Court has since

reinforced this holding. See Shafer v. South Carolina, 532 U.S. 36, 51 (2001) (“We

therefore hold that whenever future dangerousness is at issue in a capital sentencing

proceeding under South Carolina’s new scheme, due process requires that the jury be

informed that a life sentence carries no possibility of parole.”); see also Kelly v. South

Carolina, 534 U.S. 246, 248 (2002).

       In Simmons, the jury was given a choice between two sentences, death or life

imprisonment. And because the jury might have been led to believe incorrectly that the

defendant could be paroled if sentenced to life imprisonment, jurors were faced with “a

false choice between sentencing petitioner to death and sentencing him to a limited

period of incarceration.” Smith v. Mullin, 379 F.3d 919, 938 (10th Cir. 2004) (quotations

omitted); see also Johnson v. Gibson, 254 F.3d 1155, 1166 (10th Cir. 2001). In contrast
                                             -8-
to South Carolina’s sentencing scheme in Simmons and Shafer, Oklahoma law provides

capital juries with three sentencing options: (1) death, (2) life imprisonment without the

possibility of parole, or (3) life imprisonment. Okla. Stat. tit. 21, § 701.9(A); Hamilton v.

Mullin, 436 F.3d 1181, 1191 (10th Cir. 2006). We have held that Oklahoma’s three-

option sentencing scheme is consistent with Simmons because “the options do not create

a false choice between sentencing [a] petitioner to death and sentencing him to a limited

period of incarceration.” Id. (quoting Mayes v. Gibson, 210 F.3d 1284, 1294 (10th Cir.

2000)).

       Although Oklahoma’s sentencing scheme is consistent with Simmons, “we have

held that a due process violation can be created by the trial court, which in some

instances may engender juror confusion, thereby creating a ‘false choice,’ even in light of

instructions that may correctly state the law.” Littlejohn v. Trammell, 704 F.3d 817, 827

(10th Cir. 2013).4 We therefore interpret Simmons to permit habeas relief where

       (1) the prosecution [sought] the death penalty; (2) the prosecution place[d]
       the defendant’s future dangerousness at issue; (3) the jury ask[ed] for
       clarification of the meaning of life imprisonment, or a synonymous
       statutory term; and (4) the judge’s response threaten[ed] to cause a jury’s
       misunderstanding so the jury [could] perceive a false choice of
       incarceration when future dangerousness [wa]s at issue.

Id. at 828 (quotations omitted).


       4
        We discuss here the OCCA’s decision in Littlejohn v. State, 85 P.3d 287 (Okla.
Crim. App. 2004), and this circuit’s habeas decision in Littlejohn v. Trammell, 704 F.3d
817 (10th Cir. 2013). For clarity, we refer to these decisions by their full names
throughout this opinion.

                                             -9-
       Many Simmons claims in this court have focused on the fourth showing: whether

the trial judge’s response to a jury question about life without parole threatened to create

misunderstanding such that jurors could falsely conclude their sentencing options were

death or a limited period of incarceration. See, e.g., Littlejohn v. Trammell, 704 F.3d at

828-29; Welch v. Workman, 639 F.3d 980, 1005 (10th Cir. 2011), cert. denied, 132 S. Ct.

292 (2011); Mollett, 348 F.3d at 915-916; Johnson, 254 F.3d at 1165. If the jury asked

for clarification about the meaning of life without parole under Oklahoma’s sentencing

scheme, we have held the trial court does not violate the defendant’s due process rights

by failing to provide further explanation. See McCracken v. Gibson, 268 F.3d 970, 980-

81 (10th Cir. 2001). We also have held the trial court may refer the jury back to the

instructions. See Welch, 639 F.3d at 1005; McCracken, 268 F.3d at 980-81 & n.3;

McGregor v. Gibson, 219 F.3d 1245, 1256 (10th Cir. 2000), overruled en banc on other

grounds by 248 F.3d 946 (10th Cir. 2001); Mayes, 210 F.3d at 1287, 1294. Further, we

have said that a trial court’s statement that it cannot answer the jury’s question is “non-

responsive” and properly refers the jury back to the instructions, creating no “false

choice” under Simmons. Welch, 639 F.3d at 1005 (holding no Simmons violation where

the trial court said it was “not allowed to answer” the jury’s parole question); see also

Littlejohn v. Trammell, 704 P.3d at 829.

       But we have found Simmons due process violations where, in response to a jury’s

life-without-parole question, an Oklahoma trial judge explicitly instructed the jury it was

not to consider the defendant’s parole eligibility. See Mollett, 348 F.3d at 915-16
                                            -10-
(granting habeas relief where the trial court “affirmatively instruct[ed] the jury” that

“[m]atters of parole are beyond the [purview] of the jury or the court to consider”);

Johnson, 254 F.3d at 1164-67 (granting habeas relief where the jury asked, “Is life

without parole firm—Does it mean [the petitioner] can never be paroled[?]” and the trial

court responded, “It is inappropriate for you to consider the question asked”).

                             B. Mr. Warner’s Simmons Claim

       The parties agree that the first three requirements of a due process claim under

Simmons are satisfied in this case: (1) the prosecution sought the death penalty, (2) it

placed Mr. Warner’s future dangerousness at issue by arguing he was a continuing threat

to society, and (3) the jury asked for clarification about the possibility of Mr. Warner’s

release under a sentence of life without parole. The issue on appeal is whether the trial

court’s response to the jury threatened to create a misunderstanding such that jurors

perceived a false choice between a death sentence and a limited period of incarceration.

       We first address Mr. Warner’s argument that the trial court violated his due

process rights under Simmons because it failed to clarify the meaning of life without

parole. Second, we analyze another argument Mr. Warner presses on appeal: that the

trial court’s response was “code” referring to a previous oral instruction, and that the

combination of the “code” and the oral instruction likely led jurors to think they should

not consider parole eligibility.

1. Failure to Clarify Life Without Parole

       On direct appeal from his conviction, Mr. Warner argued that the trial court erred
                                             -11-
by “refusing to instruct the jury on the meaning of life without the possibility of parole”

after the jury asked about the possibility of his release. Br. of Aplt. at 90, Warner v.

State, D-2003-829 (Okla. Crim. App. July 26, 2004). The OCCA rejected his claim. It

reasoned that the district court’s response—“[y]ou have all of the law and evidence

necessary to reach a verdict”—was appropriate under its precedent, particularly its

decision in Littlejohn v. State, 85 P.3d 287 (Okla. Crim. App. 2004).

       In Littlejohn v. State, the OCCA upheld a challenge to a nearly identical

response—that the jury had all the law and evidence it needed to reach a verdict—from

the same trial judge to a jury’s life-without-parole question. Referring to Tenth Circuit

precedent interpreting Simmons, the OCCA held that the trial court’s response “did not

have the effect of creating the false choice dilemma” between death and limited

incarceration and that Mr. Littlejohn’s case was distinguishable from cases in which trial

courts explicitly instructed jurors not to consider parole eligibility. Id. at 292.

       In this case, the federal district court determined that the OCCA’s denial of Mr.

Warner’s claim was not contrary to, or an unreasonable application of, the holding in

Simmons. The federal district court said “the trial judge’s response referred the jury back

to its instructions” and in doing so “did not threaten to create a misunderstanding within

the jury such that it would perceive a false choice between sentencing [Mr. Warner] to

death and sentencing him to a limited period of incarceration.” ROA, Vol. 1, Pt. 3 at 543.

       We agree that the OCCA’s denial of Mr. Warner’s claim was not contrary to, or an

unreasonable application of, the Supreme Court’s holding in Simmons. We have held
                                             -12-
that, under Oklahoma’s three-option sentencing scheme, trial courts do not violate a

defendant’s due process rights under Simmons by refusing to further clarify the meaning

of life without parole and instead referring the jury back to its instructions. See Welch,

639 F.3d at 1005; McCracken, 268 F.3d at 980-81 & n.3; McGregor, 219 F.3d at 1256;

Mayes, 210 F.3d at 1287, 1294. Here, the trial court did not violate Mr. Warner’s due

process rights by telling jurors they had everything in front of them to reach a verdict.

This response merely failed to “clarify the life without parole instruction[, which] cannot

be ‘taken to mean that parole was available but that the jury, for some unstated reason,

should be blind to this fact.’” Welch, 639 F.3d at 1005 (quotations omitted).

       Moreover, our recent decision in Littlejohn v. Trammell forecloses Mr. Warner’s

claim. In that case, we reviewed the OCCA’s Littlejohn v. State decision as part of a

federal habeas proceeding. See Littlejohn v. Trammell, 704 F.3d at 826-31. The trial

court’s response to Mr. Littlejohn’s jury was the same as the response given to Mr.

Warner’s jurors. We held it was not unreasonable for the OCCA to conclude that the

“trial judge’s response . . . was consistent with Simmons in that it was not ‘insufficient,

misleading or erroneous’ and did not suggest to the jury that it was forbidden to consider

parole.” Id. at 831 (quoting Littlejohn v. State, 85 P.3d at 292).

       Recognizing that our decisions foreclose his due process claim, Mr. Warner asks

us to reexamine their holdings. However, we are bound by these prior panel decisions

absent en banc review or superseding Supreme Court authority. See Rezaq v. Nalley, 677

F.3d 1001, 1012 n.5 (10th Cir. 2012).
                                             -13-
       Further, Mr. Warner notes that the OCCA has said that juror confusion about

parole eligibility continues to persist even under Oklahoma’s three-option scheme. See

Littlejohn v. State, 85 P.3d at 292-93. As a solution, the OCCA has instructed that

       in future cases where the jury during deliberations asks, in some form or
       fashion, whether an offender who is sentenced to life imprisonment without
       the possibility of parole is parole eligible, the trial court should either refer
       the jury back to the instructions, tell the jury that the punishment options
       are self[-]explanatory, or advise the jury that the punishment options are to
       be understood in their plain and literal sense and that the defendant will not
       be eligible for parole if sentenced to life imprisonment without the
       possibility of parole.

Id. (citations omitted).

       But the OCCA’s suggestions do not constitute clearly established Supreme Court

precedent and therefore cannot warrant federal habeas relief. Moreover, the trial court’s

response here fits within the OCCA’s recommendation that courts refer jurors back to the

instructions. In addressing the same issue in Littlejohn v. Trammel, we concluded that

although there was “some appeal” to the argument that “a fair number of jurors [still] do

not [fully] comprehend the plain meaning of the life imprisonment without the possibility

of parole sentencing option [in Oklahoma], we are constrained to apply precedent that . . .

compels the denial of relief.” 704 F.3d at 831 (citations omitted) (quotations omitted).

        We reach the same result here. The OCCA’s denial of Mr. Warner’s due process

claim was not contrary to, or an unreasonable application of, the Supreme Court’s

holding in Simmons, and we deny habeas relief on this issue.




                                             -14-
2. “The Code”

       On appeal, Mr. Warner presents another argument for a due process violation

under Simmons. As previously noted, the trial court told jurors they “ha[d] all of the law

and evidence necessary to reach a verdict.” ROA, Vol. 1, Pt. 2 at 313. But two days

earlier, at the close of the trial’s guilt phase, the court gave jurors the following oral

instruction:

               If you have a question, write it down. . . . I’ll answer what I can. A
       lot of questions I can answer now that I could not until a few years ago, but
       I’m going to give you the code.
               If you ask me a question and you get an answer back that says you
       have all the law and evidence necessary to reach a verdict, what that means
       is [1] you’ve heard the evidence that you decide, okay, [2] you’ve got a
       copy of the instructions and look at the instructions, or [3] you’re asking me
       something that I’m not by law allowed to answer, okay.
               I’ll answer what I can, but if you get an answer back that says that,
       think about it. Is it in the evidence, is it in here, or should we be talking
       about it. Okay?

Trial Transcript, June 23, 2003, Vol. VI at 1250 (emphases added).

       From this, Mr. Warner contends that the trial court used “the code”—“[y]ou have

all of the law and evidence necessary to reach a verdict”—in response to the jury’s life-

without-parole question. He argues that the court’s earlier oral instruction explained that

“the code” meant any of three things: (1) the answer was in the evidence, (2) the answer

was in the instructions, or (3) “should we be talking about it[?]”5 In Mr. Warner’s view,


       5
         To be clear, Mr. Warner argues that the trial court responded to the jury’s life-
without-parole question with “the code” and that the earlier oral instruction informed the
jury of the various meanings of “the code.”

                                              -15-
there is a reasonable likelihood that jurors interpreted the trial court’s use of “the code” as

suggesting the third option and concluded they should not consider whether Mr. Warner

could be released if sentenced to life without parole. Therefore, Mr. Warner insists, his

case is “materially indistinguishable” from Simmons and cases where this court has found

due process violations. See Aplt. Br. at 38; see also Mollett, 348 F.3d at 916; Johnson,

254 F.3d at 1166-67.

       This court granted Mr. Warner a COA on the issue of whether the “trial court’s

response to the jury’s request for information regarding the meaning of life without

parole properly clarif[ied] the jury’s confusion.” Case Management Order at 1 (Nov. 8,

2011). We view this COA grant as broad enough to encompass Mr. Warner’s “code”

argument.

       But Mr. Warner’s argument presents procedural complications. The State

contends that Mr. Warner failed to exhaust the “code” argument in state court and waived

it in federal district court by failing to present it as part of his Simmons claim. Section

2254 requires applicants to exhaust all remedies available in state court before filing a

habeas corpus application. 28 U.S.C. § 2254(b)(1)(A). In addition, we have declined to

address arguments that a habeas petitioner failed to raise in the district court. See Parker

v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005).

       Nevertheless, § 2254 allows us to deny Mr. Warner’s application on the merits

notwithstanding a failure to exhaust. 28 U.S.C. § 2254(b)(2). And although we generally

do not consider arguments on appeal that were not raised in the district court, “[w]hether
                                             -16-
to address the argument despite the litigant’s failure to raise it below is subject to this

court’s discretion based on the circumstances of the individual case.” United States v.

Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007); see also id. (“This court has characterized

its willingness to exercise its discretion to hear issues not raised below “only in the most

unusual circumstances.” (quoting Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721

(10th Cir. 1993)). We exercise our discretion in the unusual circumstances of this death

penalty appeal to deny Mr. Warner’s argument on the merits.6

       Mr. Warner argues the trial court’s use of “the code” likely led jurors to think they

should not consider parole eligibility, thus violating his due process rights under

Simmons. We disagree.

       In response to the jury’s life-without-parole question, the trial court said the jury

had “all of the law and evidence necessary to reach a verdict.” ROA, Vol. 1, Pt. 2 at 313.

Its oral instruction two days earlier at a separate trial phase informed the jury that this

response was “the code” and meant (1) “you’ve heard the evidence that you [need to]

decide,” (2) “you’ve got a copy of the instructions and look at the instructions,” or (3)

“you’re asking me something I’m not by law allowed to answer.” Trial Transcript, June

23, 2008, Vol. VI at 1250.

       In Littlejohn v. Trammell, the habeas petitioner asserted a nearly identical “code”

claim involving these three options. There, the trial judge responded to the jury’s

       6
       The State acknowledges that the “code” argument is “presumably stronger” than
Mr. Warner’s arguments in the district court. See Aplee. Br. at 16.

                                             -17-
question about parole by saying, “[Y]ou have all the law and evidence necessary to reach

a verdict,” and had separately informed jurors that this response meant the answer to their

question was (1) in the instructions, (2) in the evidence, or (3) something “that’s

inappropriate for [the court] to answer.” 704 F.3d at 829. We held that, even assuming

the jury interpreted the trial court’s use of “the code” to mean the third option, there was

no Simmons violation:

       We believe . . . that the trial judge’s response simply reinforced the plain
       meaning of the otherwise permissible instructions. The response said
       nothing—by its precise terms or by its substance—about the removal from
       the jury’s sentencing consideration of parole eligibility as a permissible
       factor. At worst, it suggested that it may be inappropriate for the judge to
       answer a question, which conceivably, in context, could be a question about
       parole. The response did not reasonably suggest to the jury that the
       question of parole eligibility rested elsewhere than in its hands, or that a
       decision to recommend life without the possibility of parole would cause
       the sentence to be placed in the hands of another, or otherwise permit Mr.
       Littlejohn to be released. This does not bring Mr. Littlejohn’s case within
       the stable of our decisions finding due process violations where “the trial
       court informs the jury that it is not to consider the issue of whether the
       defendant is parole ineligible.” Welch, 639 F.3d at 1005.

704 F.3d at 829 (citations omitted).

       As in Littlejohn v. Trammell, we conclude that Mr. Warner’s due process rights

were not violated if the trial court’s use of “the code” may have led jurors to believe that

the answer to their question was in the evidence, in the instructions, or something the trial

court could not discuss.

       Mr. Warner argues his “code” claim is distinguishable from the one in Littlejohn v.

Trammell. He focuses on a comment the trial court made after laying out the three

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possible meanings of “the code.” Shortly after telling jurors that “the code” meant any of

three things—the answer was in the evidence, in the instructions, or something the court

could not discuss—the trial court added that if jurors received “the code,” they should

ask, “Is it in the evidence, is it in [the instructions], or should we be talking about it[?]”

Trial Transcript, June 23, 2008, Vol. VI at 1250 (emphasis added). Mr. Warner focuses

on the last phrase and argues that the trial court’s use of “the code” likely led jurors to

think they should not be talking about parole.

       The parties agree that the proper standard for this issue is whether there is a

reasonable likelihood that the jury construed the trial court’s use of “the code” and its

explanation of “the code” in the earlier oral instruction in a way that violates Mr.

Warner’s due process rights under Simmons. See Estelle v. McGuire, 502 U.S. 62, 72

(1991) (“[I]n reviewing an ambiguous instruction . . . we inquire whether there is a

reasonable likelihood that the jury has applied the challenged instruction in a way that

violates the Constitution.” (quotations omitted)). Even assuming the jury remembered

the oral instruction made two days earlier at a separate phase of trial, we conclude there is

no such reasonable likelihood.

       First, the trial court’s comment that the jury should ask itself, “Is it in the

evidence, is it in [the instructions], or should we be talking about it[?]” came immediately

after, and was parallel to, the court’s explanation of the meaning of “the code”: (1)

“you’ve heard the evidence that you [need to] decide,” (2) “you’ve got a copy of the

instructions and look at the instructions,” or (3) “you’re asking me something I’m not by
                                              -19-
law allowed to answer.” Trial Transcript, June 23, 2008, Vol. VI at 1250. Although Mr.

Warner insists that jurors likely took “should we be talking about it[?]” to mean that

parole was not for their consideration, this ignores the rest of the trial court’s oral

instruction. In context, “should we be talking about it[?]” appears to be shorthand for the

third meaning of “the code”—“you’re asking me something I’m not by law allowed to

answer.”

       We conclude that the trial court’s “should we be talking about it[?]” comment was

a reference to its more explicit explanation that “the code” could mean that the court was

not by law allowed to answer the jury’s question. And as discussed earlier in this opinion

and in Littlejohn v. Trammell, 704 F.3d at 829, a court’s response that it cannot answer

the jury’s life-without-parole question does not violate a defendant’s due process rights

under Simmons.

       Second, Mr. Warner assumes that the jury did not take the court’s use of “the

code” to mean one of the other options, particularly that the answer was in the

instructions. He argues that “[t]he instructions contained only the list of three

punishment options that had produced the jury’s question in the first place, so the jury

could not reasonably have concluded that the answer was in the instructions.” Aplt.

Reply Br. at 10.

       But it does not follow that, because jurors asked whether Mr. Warner could ever

be released if sentenced to life without parole, they could not have interpreted the court’s

use of “the code” as referring them back to the instructions. By its terms, “the code”
                                              -20-
referred jurors to “the law and evidence” before them. ROA, Vol. 1, Pt. 2 at 313

(emphasis added). The guilt phase oral instruction explaining “the code” twice told

jurors to look to the instructions before suggesting that they ask themselves “should we

be talking about it[?]” And although jurors may have been unsure whether Mr. Warner

could be released if sentenced to life without parole, it is reasonable to conclude that

further review of the instructions would have answered their question. Jurors were given

the option of sentencing Mr. Warner to (1) death, (2) “imprisonment for life without the

possibility of parole,” or (3) “imprisonment for life with the possibility of parole.”

OCCA Original Record, Vol. VI at 1066 (emphases added). It is reasonable to conclude

that, upon further consulting the instructions, jurors recognized the differences between

the two life imprisonment options rather than believing their only sentencing options

were death or a limited period of incarceration.

       Third, Mr. Warner compares the trial court’s use of “the code” to the trial courts’

responses in Simmons, Mollett, and Johnson, all of which found due process violations.

But in those cases, the trial courts explicitly informed jurors they were not to consider

parole eligibility.

       In Simmons, the trial court responded to the jury’s question about parole eligibility

by saying, “You are instructed not to consider parole or parole eligibility in reaching your

verdict. Do not consider parole or parole eligibility. That is not a proper issue for your

consideration.” 512 U.S. at 160. In Mollett, this court found a due process violation

where the trial court told jurors that “[m]atters of parole are beyond the [purview] of the
                                             -21-
jury or the court to consider.” 348 F.3d at 908. Likewise, the trial court in Johnson

responded to the jury’s parole question by saying that “[i]t is inappropriate for you to

consider the question asked.” 254 F.3d at 1166.

       In arguing that his claim resembles those in Simmons, Mollett, and Johnson, Mr.

Warner pieces together multiple inferences that his jury must have made. He argues that

(1) the trial court told the jury that it had all the law and evidence necessary to reach a

verdict; (2) the jury recalled that this response was “the code”; (3) the jury remembered

that “the code” meant one of three things and that the court commented they should ask

themselves “should we be talking about it[?]”; (4) the jury interpreted “the code” to mean

“should we be talking about it[?]” rather than any of the other options the trial court laid

out, including “you’re asking me something that I’m not by law allowed to answer” and

the answer is in the instructions; and (5) jurors interpreted “should we be talking about

it[?]” to mean they should not be talking about the possibility of Mr. Warner’s release.

This argument relies on a chain of inferences and is in stark contrast to the “stable of our

decisions,” Littlejohn v. Trammell, 704 F.3d at 829, where jurors were told directly that

they should not consider the issue of parole. We cannot conclude that there is a

reasonable likelihood that Mr. Warner’s jury engaged in this chain of reasoning or that

the combination of the trial court’s use of “the code” and its earlier oral instruction

presented jurors with a false choice between sentencing Mr. Warner to death or a limited

period of incarceration.


                                             -22-
                                 III. CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Mr. Warner’s

§ 2254 application.

                                        ENTERED FOR THE COURT



                                        Scott M. Matheson, Jr.
                                        Circuit Judge




                                          -23-
