                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 13 2002
                           FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    KENNETH CHAD CHARM,

                Petitioner-Appellant,

    v.                                                  No. 01-6003
                                                  (D.C. No. CIV-98-256-A)
    MIKE MULLIN, Warden,                                (W.D. Okla.)
    Oklahoma State Penitentiary,

                Respondent-Appellee.


                            ORDER AND JUDGMENT           *




Before TACHA , Chief Judge, BALDOCK , and EBEL , Circuit Judges.



         Kenneth Charm appeals the district court’s decision denying him habeas

relief, see 28 U.S.C. § 2254, from his Oklahoma first-degree murder conviction

and death sentence. Among other issues, Charm challenges his trial attorney’s

conceding Charm’s guilt during first-stage opening argument. Because defense

counsel was not constitutionally ineffective in doing so, we affirm the district

court’s denying Charm relief on this, and his remaining claims for habeas relief.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.    FACTS

      Fourteen-year-old Brandy Hill had traveled to Lawton, Oklahoma, to spend

several weeks with her father during her summer vacation. On July 20, 1993,

Charm and his sixteen-year-old cousin, Ronald Jessie, visited Michael Hill, the

girl’s father. Charm and Hill were described as drinking buddies.

      As Charm and Jessie drove away from the Hill residence that afternoon,

they spied Brandy walking down the street. The two men lured her into their car.

Jessie then wrapped a piece of cloth around Brandy Hill’s neck. The men drove

the victim to a field. There, both Charm and Jessie each twice raped the girl.

Afterwards, Jessie tried to choke her to death with the piece of cloth. He could

not kill her, however. Charm then tried, still without success. Finally, Jessie

retrieved a sledgehammer from the car’s trunk and hit the girl twice in the head.

Charm then hit her several more times. The two men left Brandy Hill’s body

there in the field, where it was discovered several days later.

      Jurors convicted Charm of first-degree malice-aforethought murder,

kidnapping and first-degree rape. They sentenced Charm to fifty-four and one

hundred twenty years’ imprisonment, respectively, on the kidnapping and rape

convictions, which were enhanced in light of Charm’s nine prior felony

convictions. After finding the existence of the three charged aggravating

factors--Charm had killed the victim to avoid arrest or prosecution for kidnapping


                                         -2-
and raping her, the killing was especially heinous, atrocious or cruel, and Charm

was a continuing threat to society--the jury sentenced Charm to death on the

murder conviction.

       The Oklahoma Court of Criminal Appeals affirmed Charm’s convictions

and sentences on direct appeal, and denied him post-conviction relief. See Charm

v. State, 924 P.2d 754 (Okla. Crim. App. 1996), cert. denied, 520 U.S. 1200

(1997); Charm v. State, 953 P.2d 47 (Okla. Crim. App. 1998).


II.    STANDARDS OF REVIEW

       Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Charm will be entitled to federal habeas relief only if he can establish

that the state courts’ resolution of his claims was “contrary to, or involved an

unreasonable application of, clearly established” Supreme Court precedent, or 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). We presume

correct any state-court factual finding, absent clear and convincing evidence to

the contrary.   See id. § 2254(e)(1). If the state courts did not address the merits

of a habeas claim, however, we will review the district court’s decision     de novo ,

and that court’s factual findings for clear error.   See, e.g., Romano v. Gibson   ,

278 F.3d 1145, 1150 (10th Cir. 2002).




                                              -3-
III.   ISSUES

       A.    Ineffective representation. Charm contends his trial attorney was

constitutionally ineffective when, during the trial’s first-stage opening argument,

counsel conceded Charm’s guilt. In addition, Charm argues that his appellate

attorney was ineffective for failing to challenge, on direct appeal, this deficient

trial representation.

             1.     Trial representation.

                    a.     Procedural default. The State initially asserts that

Charm procedurally defaulted his ineffective-trial-counsel claim. Charm did not

challenge trial counsel’s first-stage representation on direct appeal. Therefore,

when Charm first raised the issue, in his state post-conviction proceeding, the

Oklahoma Court of Criminal Appeals held that, because Charm could have raised

this issue on direct appeal but did not, he had procedurally defaulted this claim.

See Charm, 953 P.2d at 49-50.

       A federal court will not review a habeas claim that the petitioner has

defaulted in state court, based upon an adequate state procedural bar independent

of federal law, unless the petitioner can show cause and prejudice excusing his

default, or that the federal court’s failure to consider the claim will result in

a fundamental miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S.

722, 729-30, 750 (1991). Charm seems to argue, however, that the state bar at


                                          -4-
issue here is not adequate because, under Oklahoma procedural rules, he could not

have sufficiently developed the direct-appeal record to present this

ineffective-trial-counsel claim. Cf., e.g., Sallahdin v. Gibson, 275 F.3d 1211,

1234-35 (10th Cir. 2002) (noting, in dicta, that Oklahoma’s procedural bar,

precluding post-conviction review of ineffective-trial-counsel claim not raised on

direct appeal, was not adequate where claim could not have been resolved solely

on trial record). Here, it does not appear that Oklahoma procedural bar is

adequate because trial counsel’s strategy was explored in post-trial proceedings.

Because the state appellate court did not address this claim’s merit, however, we

review the district court’s decision denying habeas relief de novo, 1 and any

factual findings only for clear error. See Romano , 278 F.3d at 1150;   see also

Fisher v. Gibson , 282 F.3d 1283, 1290 (10th Cir. 2002) (discussing review

standards applicable to this court’s pre-AEDPA review of ineffective-assistance

claim).




1
       The district court ultimately concluded Charm had procedurally defaulted
this ineffective-trial-counsel claim. Nonetheless, that court also addressed this
claim’s merit in considering Charm’s argument that his appellate counsel was
ineffective for failing to challenge, on direct appeal, trial counsel’s
representation.

                                         -5-
                    b.    Merits.

      During his first-stage opening argument, defense counsel made the

following statements suggesting Charm’s guilt:

      this is a case that is about a horrible human event. There is no
      question about that, and that’s what the evidence will show. We’re
      not disagreeing with the prosecutor in terms of what the evidence
      will show. In fact, I’ll tell you now that we will tell you before
      I conclude this opening statement that we believe after the prosecutor
      presents the evidence there will be a basis there for you to find
      Kenneth Charm guilty of first degree murder. I will tell you that
      now.

            I also tell you there will be a basis there in the evidence to find
      him guilty of kidnapping and rape. . . .

             ....

            We will not present evidence that . . . makes Kenneth Charm
      not guilty . . . .

             ....

             . . . We believe that the evidence will show, again, at the
      close of the State’s case as I told you when I started that there is
      a basis for you to find Mr. Charm guilty of these three offenses.
      And then we will ask you to spare his life.

Trial tr., vol. 3 at 652, 659, 661. Charm asserts several challenges to this

argument.

                          i. Trial counsel abandoned his adversarial role,

resulting in per se ineffective representation. A criminal defendant is deprived

of his Sixth Amendment right to effective representation “if counsel entirely fails


                                         -6-
to subject the prosecution’s case to meaningful adversarial testing, . . . mak[ing]

the adversary process itself presumptively unreliable.” United States v. Cronic,

466 U.S. 648, 659 (1984). “[A]n attorney who adopts and acts upon a belief that

his client should be convicted ‘fail[s] to function in any meaningful sense as the

Government’s adversary.’” Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir.

1988) (quoting Cronic, 466 U.S. at 666).

      A defense attorney who abandons his duty of loyalty to his client and
      effectively joins the state in an effort to attain a conviction or death
      sentence suffers from an obvious conflict of interest, and thereby
      fails to provide effective assistance. Usually, when a defendant
      claims ineffective assistance of counsel because his attorney’s
      performance was inadequate, he must show both constitutionally
      deficient performance and that he was prejudiced by his attorney’s
      errors. In the event of an actual conflict of interest occasioned by
      abandonment, [however,] prejudice is presumed.

Davis v. Executive Dir. of Dep’t of Corr., 100 F.3d 750, 756-57 (10th Cir. 1996)

(citations, further quotation omitted); see also Osborn, 861 F.2d at 626.

      Here, defense counsel did not abandon his “‘overarching duty to advocate

the defendant’s cause.’” Osborn, 861 F.2d at 628 (quoting Strickland v.

Washington, 466 U.S. 668, 688 (1984)). Rather, defense counsel was faced with

overwhelming evidence establishing Charm’s guilt, including foremost Charm’s

own videotaped confession describing in detail his participation in these horrific

crimes. See Hale v. Gibson, 227 F.3d 1298, 1323 (10th Cir. 2000) (holding

counsel did not abandon defendant when, during first-stage closing, counsel


                                         -7-
stated there was no doubt defendant was involved in capital crime, in light of

overwhelming evidence indicating so, but further arguing defendant might not

have been only participant), cert. denied, 533 U.S. 957 (2001); see also Davis,

100 F.3d at 758-59. And defense counsel did pursue pretrial motions on Charm’s

behalf, cross-examined the State’s witnesses, made evidentiary objections at trial

and asserted in Charm’s defense the minimal evidence available indicating that

Charm might have been intoxicated at the time of the crimes. See Cooks v. Ward,

165 F.3d 1283, 1296 (10th Cir. 1998) (holding counsel’s performance did not so

deny defendant representation such that prejudice should be presumed, where

defense counsel did conduct limited cross-examination, made evidentiary

objections and gave closing argument). To be entitled to relief under Cronic,

“the attorney’s failure must[, instead,] be complete.” Bell v. Cone, 122 S. Ct.

1843, 1851 (2002).

      Trial counsel’s apparent strategy was to maintain credibility with the jury

during the first stage so that he could strongly pursue a sentence less than death

during the penalty phase. See Trial tr., vol. 5 at 1470 (defense counsel’s

second-stage closing argument). And counsel did fully assert a case in mitigation

during the trial’s capital-sentencing stage. Defense counsel, thus, did not act

“with reckless disregard for his client’s best interests,” nor did he intentionally

“weaken his client’s case.” Osborn, 861 F.2d at 629. After examining the entire


                                          -8-
record, see Houchin v. Zavaras, 107 F.3d 1465, 1471 (10th Cir. 1997), therefore,

we cannot conclude that defense counsel abandoned Charm, “such that the

adversarial process was undermined,” Davis, 100 F.3d at 758.

                          ii. Trial counsel was ineffective in pleading Charm

guilty without his consent. Charm further argues that defense counsel was

constitutionally ineffective for essentially pleading Charm guilty without his

consent. 2 Following an evidentiary hearing, however, the federal district court

found that Charm had, in fact, consented to trial counsel’s strategy of conceding,

at the beginning of trial, that the State would present sufficient evidence for

jurors to convict Charm. See District ct. mem. op. at 16-17. In doing so, the

district court relied on defense counsel’s testimony, finding Charm’s contrary

testimony not credible. See id. These factual findings were not clearly erroneous.

See, e.g., Bryan v. Gibson, 276 F.3d 1163, 1174, 1175 (10th Cir. 2001).

      Furthermore, the pretrial proceedings in this case bolster the district court’s

factual finding that Charm consented to trial counsel’s strategy. Cf. LoBosco v.

Thomas, 928 F.2d 1054, 1057 (11th Cir. 1991) (discussing facts that buttressed,


2
       Clearly established Supreme Court authority does require the trial court,
when a defendant enters a guilty plea, to determine whether the defendant is
doing so knowingly and voluntarily. See, e.g., Boykin v. Alabama, 395 U.S. 238,
242-44 (1969). Nonetheless, Charm does not specifically argue to this court that
the trial court was required to do so under the circumstances here. Nor did Charm
assert such a claim in state court. Charm, instead, confines his argument here to
challenging only trial counsel’s representation.

                                         -9-
but were not necessary to, district court’s finding that petitioner had consented to

defense counsel’s conceding petitioner’s guilt). Following his arrest, Charm

confessed. See id. And, during a pretrial motions hearing, Charm sought the

court’s permission not to attend trial, stating “[t]here is no doubt in my mind on

my guilt or innocence, and I didn’t come up here to . . . plea[d] or nothing.

But . . . I wish not to be present. . . . [W]ithin my heart and within the Lord’s

heart I feel that I am guilty of all but . . .” Sept. 15, 1994 motions hr’g tr.

at 19-20.

              . . . I feel that I am guilty of all charges but one.[ 3] But
      . . . I wish not to be present in the court. I will stand up on top of
      this building and tell the jury when we pick[] the jury the same thing
      before the trial ever gets picked. You can chain me to a chair, put
      duct tape to my mouth but I want them to know this before any of
      that court procedure goes on. I have asked my attorney to come to
      the D.A. to inform him of . . . my guilt of two charges.

Id. at 20. When the trial court offered to let Charm plead guilty to two of the

three charges, however, Charm declined. See id.

      Again, immediately prior to jury selection, Charm told the trial judge that

“I admitted to my guilt of the crime just like I will . . . in front of the jury. I

admitted my guilt so I don’t see no--for--for, uh, this madness.” Trial tr., vol. 1



3
      During his second-stage testimony, Charm asserted that he was guilty
of murder and he did not understand the legal requirements for kidnapping.
See Trial tr., vol. 5 at 1397. It appears, then, that he believed he was not guilty
of rape.

                                          -10-
at 18. Again, the trial court offered to let Charm plead guilty, to which Charm

did not respond. See id. at 19-20.

       Furthermore, at the federal evidentiary hearing, Charm’s defense attorney

testified that Charm had confessed to counsel his participation in these crimes and

asserted to defense counsel that “he did not want to fight the case.” Nov. 2, 1999

hr’g tr. at 42.

       The district court’s factual finding, therefore, that Charm had consented to

defense counsel’s strategy was not clearly erroneous and now precludes habeas

relief on this ineffective-trial-counsel claim. Cf. United States v. Jones, 287 F.3d

325, 330-31 (5th Cir. 2002) (denying relief on similar claim in part because

defendant had consented to defense counsel’s trial strategy); LoBosco, 928 F.2d

at 1057 (denying habeas relief where record established that defendant knew and

agreed with trial counsel’s strategy to admit guilt and then try to avoid death

sentence).

                          iii. Trial counsel’s unreasonable first-stage strategy

prejudiced Charm’s defense. Charm also argues that his trial attorney’s

first-stage representation was constitutionally ineffective under Strickland.

Strickland requires that Charm establish both that trial counsel’s performance

was deficient and that any deficiency prejudiced Charm’s defense. See

466 U.S. at 687.


                                         -11-
      For deficient performance, Charm must show that “counsel’s representation

fell below an objective standard of reasonableness.” Id. at 687-88. “Judicial

scrutiny of counsel’s performance must be highly deferential. . . . A fair

assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Id. at 689. There is, then, “a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. Charm, therefore, “must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial

strategy.” Id. (further quotation omitted). “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable.” Id. at 690.

      In this case, defense counsel’s strategy was to acknowledge, at the

beginning of trial, that the State would present sufficient evidence for the jury to

convict Charm, in order to maintain credibility with the jury for the second stage,

where defense counsel hoped to save Charm’s life. The question presented here,

then, is whether this strategy was reasonable. See, e.g., Roe v. Flores-Ortega,

528 U.S. 470, 481 (2000). “For counsel’s actions to rise to the level of

constitutional ineffectiveness, [this] strategic decision[] must have been


                                        -12-
completely unreasonable, not merely wrong, so that [it] bear[s] no relationship to

a possible defense strategy.” Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000)

(further quotations omitted). Under the circumstances of this case, defense

counsel’s strategy was reasonable. See, e.g., Hale, 227 F.3d at 1323 (holding

counsel’s conceding petitioner had some involvement in kidnapping and murder

was reasonable strategy in light of overwhelming evidence against petitioner,

where defense counsel further argued that others may also have been involved);

Trice v. Ward, 196 F.3d 1151, 1161-62 (10th Cir. 1999) (holding defense

counsel’s strategy of admitting defendant raped victim and, instead arguing

defendant did not have specific intent to commit first-degree murder, was

reasonable, in light of defendant’s confession to rape, which was corroborated

by physical evidence).

      The State’s evidence overwhelmingly established Charm’s guilt. Most

damning was Charm’s own videotaped confession, which defense counsel had

tried unsuccessfully to suppress. Moreover, in his opening argument, defense

counsel did not specifically assert that Charm was guilty, but only that the State

would present evidence upon which the jury could convict him.

      Additionally, by not letting Charm plead guilty, defense counsel insured

that a jury, rather than the trial judge, would make the capital sentencing decision.

See Okla. Stat. Ann. tit. 21, § 701.10. Trial counsel believed that, under the


                                         -13-
circumstances, if Charm had, instead, pled guilty, the trial judge would certainly

have imposed a death sentence. See Nov. 2, 1999 hr’g tr. at 39-40. Charm does

not assert any reason to think this belief was unreasonable.

      Even if we could deem this strategy unreasonable, defense counsel’s

concession did not prejudice Charm’s defense. To establish prejudice, Charm

must show that, in light of the totality of the evidence, “there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Strickland, 466 U.S. at 695. We cannot reach that

conclusion here. The State’s evidence establishing Charm’s guilt was

overwhelming. Charm confessed, on videotape and in great detail, to committing

these crimes. And the State’s other evidence directly corroborated many of the

details of Charm’s confession. Further, any evidence indicating Charm was

intoxicated at the time he kidnapped, raped, and murdered the victim was very

minimal. Even if defense counsel had not begun the trial by acknowledging that

the State’s evidence would be sufficient for jurors to convict Charm, there is no

reasonable probability jurors would have had a reasonable doubt as to his guilt.

See, e.g., Hale, 227 F.3d at 1322-23; Cooks, 165 F.3d at 1293; cf. Anderson v.

Calderon, 232 F.3d 1053, 1090 (9th Cir. 2000), cert. denied, 122 S. Ct. 580

(2001), abrogation on other grounds recognized, Osband v. Woodford,

No. 00-99016, 2002 WL 987535, at *7 (9th Cir. May 15, 2002); Clozza v.


                                         -14-
Murray, 913 F.2d 1092, 1098, 1100-01 (4th Cir. 1990); Messer v. Kemp, 760 F.2d

1080, 1090-91 (11th Cir. 1985).

             2.     Appellate representation. Charm further asserts that his

appellate counsel was ineffective for failing to challenge, on direct appeal, trial

counsel’s first-stage opening argument conceding Charm’s guilt. Direct-appeal

counsel will be constitutionally ineffective if she was objectively unreasonable

in failing to raise the ineffective-trial-representation claim and if there is a

“reasonable probability that, but for counsel’s unreasonable failure” to raise this

claim, Charm “would have prevailed on his [direct] appeal.” Smith v. Robbins,

528 U.S. 259, 285 (2000) (applying Strickland). The Oklahoma Court of Criminal

Appeals did address this claim’s merit, denying relief. See Charm, 953 P.2d

at 49-50. In doing so, however, the state appellate court did not apply this legal

standard. See id. We, therefore, review this claim de novo, applying Strickland.

See Romano, 278 F.3d at 1150. See generally Revilla v. Gibson, 283 F.3d 1203,

1220 n.14 (10th Cir. 2002) (reviewing ineffective-assistance claim de novo where

state appellate court applied incorrect legal standard).

      “In order to properly address th[is] issue[], we must look to the merits of

the omitted issue.” Hain v. Gibson, 287 F.3d 1224, 1231 (10th Cir. 2002) (further

quotation omitted). In light of the preceding discussion concluding Charm’s

underlying ineffective-trial-counsel claim lacks merit, however, there is no


                                          -15-
reasonable probability that, had appellate counsel raised this claim, Charm would

have prevailed on direct appeal.

       B.     Lesser-included-offense instruction. Beck v. Alabama, 447 U.S.

625 (1980), provides that a death sentence may not “constitutionally be imposed

after a jury verdict of guilt of a capital offense, when the jury was not permitted

to consider a verdict of guilt of a lesser included non-capital offense, and when

the evidence would have supported such a verdict.” Id. at 627 (further quotation

omitted). Charm contends that, in his case, the trial court violated Beck and, thus,

deprived him of due process, by failing to instruct the jury on the lesser-included

offense of first-degree manslaughter. Applying Beck, the Oklahoma Court of

Criminal Appeals held that there was insufficient evidence to warrant instructing

the jury on first-degree manslaughter. See Charm, 924 P.2d at 759-60. That

decision was reasonable. 4 See 28 U.S.C. § 2254(d).


4
        Charm never requested that the trial court instruct the jury on first-degree
manslaughter. Rather, at trial, he unsuccessfully sought instructions on
second-degree-depraved-mind murder and first-degree felony murder. This court
has held that a petitioner will not be entitled to habeas relief under      Beck if he did
not request the specific lesser-included-offense instruction at trial.      See Hooks v.
Ward , 184 F.3d 1206, 1234-35 (10th Cir. 1999). In Hooks , however, this court
was reviewing that Beck claim de novo . See id. at 1223. Here, on the other hand,
the Oklahoma Court of Criminal Appeals did address, in the first instance,
whether there was sufficient evidence to support giving the unrequested
first-degree-manslaughter instruction. Because our focus, under AEDPA,
is the reasonableness of the state court’s decision,       see Valdez v. Ward , 219 F.3d
1222, 1242-43 (10th Cir. 2000), cert. denied , 532 U.S. 979 (2001), here we
                                                                             (continued...)

                                           -16-
      The relevant inquiry here is “whether the evidence presented at trial would

permit a rational jury to find [Charm] guilty” of first-degree manslaughter “and

acquit him of first-degree murder.” Mitchell v. Gibson, 262 F.3d 1036, 1050

(10th Cir. 2001) (further quotation omitted). 5 Oklahoma law, in relevant part,

defines first-degree manslaughter as a homicide “perpetrated without a design to

effect death, and in a heat of passion, but in a cruel and unusual manner, or by

means of a dangerous weapon; unless it is committed under such circumstances

as constitute excusable or justifiable homicide.” Okla. Stat. tit. 21, § 711(2).

“The elements of heat of passion are 1) adequate provocation; 2) a passion or

emotion such as fear, terror, anger, rage or resentment; 3) [the] homicide occurred

while the passion still existed and before a reasonable opportunity for the passion

to cool; and 4) a causal connection between the provocation, passion and

homicide.” Hogan, 197 F.3d at 1308 (further quotation omitted) (citing

Oklahoma cases). On the other hand, under applicable Oklahoma law, “[a] person

commits murder in the first degree when that person unlawfully and with malice

4
 (...continued)
will also consider whether the evidence supported a first-degree-manslaughter
instruction.
5
       This court has not yet decided whether this inquiry presents a legal issue,
reviewed under 28 U.S.C. § 2254(d)(1), or a factual question reviewed instead
under 28 U.S.C. § 2254(d)(2) and (e)(1).      See, e.g., Hogan v. Gibson , 197 F.3d
1297, 1306 (10th Cir. 1999). We need not resolve that issue here, either, because
Charm would not be entitled to habeas relief under either standard.      See, e.g.,
Valdez , 219 F.3d at 1242.

                                        -17-
aforethought causes the death of another human being. Malice is that deliberate

intention unlawfully to take away the life of a human being, which is manifested

by external circumstances capable of proof.” Okla. Stat. tit. 21, § 701.7(A)

(Supp. 2002).

      The record here is simply devoid of any evidence indicating any adequate

provocation specifically, or heat of passion generally, producing Brandy Hill’s

death. The evidence, therefore, did not warrant a first-degree-manslaughter

instruction. The state appellate court, thus, reasonably denied Charm relief on

this Beck claim. See 28 U.S.C. § 2254(d).

      C.    Was there sufficient evidence to support the aggravating factors?

Charm argues there was insufficient evidence to support the jury’s finding the

existence of the three charged aggravating factors. In this habeas proceeding, the

relevant question presented is “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

[presence of the aggravating factor] beyond a reasonable doubt.” Fields v.

Gibson, 277 F.3d 1203, 1220 (10th Cir. 2002) (applying Jackson v. Virginia,

443 U.S. 307 (1979)) (further quotation omitted); see also Lewis v. Jeffers,

497 U.S. 764, 780-83 (1990). The Oklahoma Court of Criminal Appeals,

however, in addressing these claims, applied a different legal standard,

considering instead only whether there was “competent” evidence to support


                                        -18-
the aggravators. Charm, 924 P.2d at 770. We will, therefore, review these claims

de novo, applying Jackson. See Romano, 278 F.3d at 1150; see also Fields,

277 F.3d at 1220 (noting that, prior to AEDPA, this court reviewed similar claim

de novo).

             1.    Continuing threat. Under Oklahoma law, the

continuing-threat aggravator may be established solely on the basis of the callous

nature of the crime itself. See, e.g., Sallahdin, 275 F.3d at 1232. Here, then, the

facts of the kidnapping, rape and murder alone are sufficient to support this

aggravating factor. See, e.g., James v. Gibson, 211 F.3d 543, 559 (10th Cir.

2000). In addition, however, the defense’s own psychologist testified that Charm

was a continuing threat to society. See Trial tr., vol. 5 at 1311. The State’s

psychologist, too, asserted that Charm’s personal insecurity made it possible that

he would become aggressive or assaultive. And while his nine prior felonies had

generally been nonviolent, Charm had received prison disciplinary reports for

fighting, threatening to kill another inmate and possessing a homemade weapon.

See, e.g., James, 211 F.3d at 559 (determining evidence was sufficient to support

jury’s finding this aggravator, relying in part on threats defendant made while in

custody and his possession of homemade weapons while in prison). In addition,

during his confession, Charm threatened to kill his wife. And he had previously

threatened to kill a former work supervisor. Furthermore, a few days after this


                                        -19-
kidnapping, rape and murder, Charm robbed a convenience store by pretending to

have a weapon and threatening to kill the clerk. The record, therefore, was

sufficient for a rational jury to find beyond a reasonable doubt that Charm was

a continuing threat to society.

             2.     Avoid arrest or prosecution. The jury found that Charm

killed the victim to avoid arrest or prosecution. “Under Oklahoma law,” the

avoid-arrest aggravating factor “focuses on the defendant’s intent, which can be

proven either through his own statements or circumstantial evidence, and

additionally requires proof of a predicate crime, other than the murder, for which

the defendant seeks to avoid arrest or prosecution.” Romano, 278 F.3d at 1154.

      Here, the kidnapping and rape supply the necessary predicate crimes.

Further, the victim knew both her attackers. See, e.g., Romano v. Gibson,

239 F.3d 1156, 1179 (10th Cir.) (determining evidence was sufficient for jury to

find this aggravator, where defendant told acquaintance he would have to kill

victim after robbing him, because victim knew and could identify petitioner),

cert. denied, 122 S. Ct. 624, 628 (2001). Additionally, according to Charm’s own

confession, after the rapes, Jessie had asked Charm what they were going to do

with the victim. It was only then that Jessie began choking her. Because Jessie

was unable to kill her, however, Charm then tried to choke her to death.

According to Charm, “she wouldn’t die.” Trial tr., vol. 3 at 847. Finally, after


                                        -20-
stating that somebody was going to come, Jessie retrieved the sledgehammer from

the car’s trunk and hit the victim in the head several times with it. After noting

that “she was still moving,” Charm remarked, “‘[m]an, we’re going to go to jail,’”

and then he hit her, too, to “make sure she was dead.” Id. at 847, 863-64.

See LaFevers v. Gibson, 182 F.3d 705, 723 (10th Cir. 1999) (determining

evidence was sufficient for jury to find this aggravating factor under similar

circumstances). The two men then hid the victim’s body and returned to Michael

Hill’s home to establish an alibi. This evidence was more than sufficient for a

rational trier of fact to find this aggravating factor beyond a reasonable doubt.

             3.    Especially heinous, atrocious or cruel. “A murder is

especially heinous, atrocious or cruel under Oklahoma law if it is preceded by

torture or serious physical abuse. Torture includes the infliction of either great

physical anguish or extreme mental cruelty, while physical abuse requires

evidence of conscious physical suffering.” Toles v. Gibson, 269 F.3d 1167, 1183

(10th Cir. 2001) (further quotation omitted). Here, again, the evidence was

sufficient for the jury to find this aggravating factor beyond a reasonable doubt.

Charm and Jessie abducted the victim, wrapping a piece of cloth around her neck.

According to Charm’s own confession, the victim kept pleading with them, asking

them over and over again to please take her home and not hurt her. See Jones v.

Gibson, 206 F.3d 946, 953 (10th Cir. 2000) (noting that under Oklahoma law,


                                         -21-
victim’s uncertainty as to her fate will suffice to establish mental anguish or

torture). In addition, according to the medical examiner, the victim sustained

physical injuries during the kidnapping and rapes, including scratches or a bruise

over her right eye and on her right cheek, neck, abdomen and chest, and her left

wrist, front and back, as well as her left elbow and arm. See Moore v. Gibson,

195 F.3d 1152, 1177 (10th Cir. 1999) (determining evidence was sufficient to

support jury’s finding that murder was especially heinous, atrocious or cruel

under similar circumstances). The injuries to her left wrist were consistent with

defensive wounds. See Fox, 200 F.3d at 1299 (determining evidence was

sufficient to support this aggravating factor where, among other things, victim

suffered defensive wounds). Additionally, trauma to her vaginal area

corroborated the confessed rapes. Charm also confessed that the victim continued

pleading during the rapes, asking that they not hurt her. See id. (testimony that

victim cried out and begged for his life during attack supports finding victim

endured conscious physical suffering). After the rapes, both Charm and Jessie

each attempted, unsuccessfully, to strangle the victim. Finally, they each hit her

several times over the head with a sledgehammer. While it is unclear when,

between the strangulation and the bludgeoning, the victim finally lost

consciousness, the preceding events were more than sufficient to establish both




                                         -22-
torture and conscious physical suffering during the attack. See, e.g., Hooks,

184 F.3d at 1240.


IV.   CONCLUSION

      For these reasons, we AFFIRM the denial of habeas relief.


                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Chief Judge




                                        -23-
