                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                     PU BL ISH
                                                                      May 15, 2007
                      UNITED STATES COURT O F APPEALS             Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 K EV IN Y O U NG ,

              Petitioner - A ppellant,

 v.                                                    No. 05-6282

 M ARTY SIRM ONS, W arden,
 Oklahoma State Penitentiary,

              Respondent - Appellee.



                  Appeal from the United States District Court
                     for the W estern District of Oklahoma
                           (D.C. No. CIV-01-1551-M )


M ark Barrett, Norman, Oklahoma for Petitioner - A ppellant.

Preston Saul Draper, Assistant Attorney General (W .A. Drew Edmondson,
Attorney General of Oklahoma with him on the briefs), Oklahoma City,
Oklahoma for Respondent - Appellee.


Before KELLY, L UC ER O, and TYM KOVICH, Circuit Judges.


L UC ER O, Circuit Judge.


      Kevin Young was convicted of first degree murder for shooting and killing

Joseph Sutton during a robbery at the Charles Steak House (the “Steak House”).

A unanimous jury sentenced him to death. He filed a 28 U.S.C. § 2254 petition in
federal district court in Oklahoma, seeking relief from both his conviction and

sentence. The court denied Young’s petition, but granted him a certificate of

appealability (“COA”), pursuant to 28 U.S.C. § 2253(c), on the following claims:

(1) There was insufficient evidence to support his conviction; (2) His

constitutional rights were violated w hen the trial court failed to instruct the jury

on the lesser-included offenses of second degree murder and first degree

manslaughter; (3) Counsel was ineffective during the guilt stage of the trial in

failing to obtain the services of a crime-scene reconstructionist; and (4) Counsel

was ineffective during the sentencing stage of the trial in failing to proffer certain

mitigation evidence. W e granted Young a COA on an additional issue: W hether

witness testimony identifying Young as the assailant was improperly admitted due

to law enforcement’s use of a flawed identification procedure. Exercising

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, we AFFIRM .

                                           I

      W e are required to presume, subject to rebuttal by clear and convincing

evidence, that the factual findings of the Oklahoma Court of Criminal Appeals

(“OCCA”) are correct. 28 U.S.C. § 2254(e)(1). Those facts are as follow s:

      This case arose from a shooting during an attempted robbery at the
      Charles Steak House in Oklahoma City in the early morning hours of
      M ay 14, 1996, where Joseph Sutton ran a gambling operation in a
      back room. Sometime after midnight on M ay 14, 1996, two
      African-American men, armed with guns, entered the Charles Steak
      House, and walked into the gaming room.



                                          -2-
Karl Robinson testified the taller man said “all you SO Bs are going
to die.” George Edwards heard the same man say he was going to
kill everyone. W hen Edw ards saw the taller man pull a gun, Edwards
grabbed the gun and held it in the air while the taller man fired it
repeatedly until the gun was emptied. At this same time, the shorter
of the tw o men pulled his gun, pointed it in the air and said “we
come for the money.” Joseph Sutton threw something on the floor,
pulled his own gun, pointed it at the shorter man and tried to fire it,
but a bullet was not chambered and the gun did not fire. The shorter
man then fired on Sutton.

Sutton was shot four times and died as a result of a gunshot wound to
his abdomen. Quintin Battle, who was in between Sutton and the
shorter gunman, was shot twice during the gunfire. Battle testified
he dropped to the floor when the shooting began, because he feared
he would be shot and killed. George Edw ards suffered powder burns
on his arms and face while struggling with the taller gunman.

Both gunmen ran from the Charles Steak House after the shooting.
One ran down North Lottie, aw ay from the restaurant, holding his
arm.

W ithin minutes of the shooting, Appellant arrived at Presbyterian
Hospital emergency room with three gunshot wounds. He told
emergency personnel his name was “Roy Brown.” H e had a bullet in
his left chest, another bullet wound to his right thigh, and a third
grazing wound to his right shoulder. Hospital personnel reported the
gunshot victim to the police.

Officer Cook, who was responding to the Charles Steak House
shooting, heard dispatch report a gunshot victim at Presbyterian
Hospital. He went to the hospital and asked “Roy Brown” if he was
at the Charles Steak House. Appellant told officer Cook he had not
been there and said he was shot near a 7-11 convenience store and an
Autozone store. Appellant told officer Cook he rode a bus to the
hospital and did not know where he was shot because he was from
out of state. O fficer Cook testified he knew M etro Transit buses did
not operate after midnight and he suspected “Roy Brown” had in fact
been involved in the Charles Steak House shooting. He contacted
officers at the shooting scene and asked if any witnesses there could
identify the shooter.

                                  -3-
Appellant also spoke with Officer Smith at the hospital and gave him
a different date of birth than he gave officer Cook. He told officer
Smith he was shot near a 7-11 convenience store and an Autozone
store, but said he did not know how he got to the hospital.

W ithin thirty (30) minutes of the shooting, Karl Robinson and Ben
Griffin were brought separately to the hospital to see if they could
identify the person in the emergency room. Karl Robinson saw
Appellant lying on a gurney. Robinson was unsure whether
Appellant was one of the gunmen until he saw Appellant’s shirt on
the floor. He told the officers the shirt looked the same. Robinson
was unable to identify Appellant at the preliminary hearing, but
positively identified Appellant at trial.

Ben Griffin thought Appellant was one of the shooters and asked to
see the shirt he was wearing. After he saw the shirt, he too
affirmatively identified Appellant as one of the shooters. Griffin
could not identify Appellant at preliminary hearing and did not try to
identify him at trial.

No weapons were recovered at the scene of the shooting. However, a
.38 caliber Smith and W esson revolver containing six spent shell
casings was found in a trash can about two blocks from Presbyterian
Hospital. The woman who found the gun heard someone drop it in
her curbside garbage can around 12:30 a.m. on M ay 14, 1996. The
deceased’s Sphinx .380 semiautomatic pistol was given to police
officers by the owner of the restaurant a couple of days after the
shooting. The owner obtained the gun from the restaurant manager
who had hidden the gun and taken the deceased’s wallet and money
from his pockets immediately after the shooting. Police officers also
recovered a .9mm [sic] handgun and $500.00 from a van belonging to
Ben Griffin.

Ballistics and firearms testing were done on the recovered weapons,
projectiles and casings found at the scene and recovered from the
deceased. Four full metal jacket bullets recovered from the shooting
scene were .380 caliber and were determined to have been fired from
the deceased’s gun. Eight .380 caliber auto fired casings were found
to be consistent with having been fired from the deceased’s gun.
Two lead projectiles found at the scene had insufficient markings for
ballistics comparison. Two copper jacket projectiles could not have

                                  -4-
      been fired from any gun recovered. One projectile found at the scene
      was consistent with having been fired from the .38 caliber Smith and
      W esson revolver that was found in the trash can. Two bullets
      recovered from the deceased were consistent with having been fired
      from the .38 caliber Smith and W esson revolver. All six casings
      found in the .38 caliber Smith and W esson were positively identified
      as having been fired from that gun.

      Blood samples were collected from the shooting scene and w ere also
      taken from the deceased Joseph Sutton, Quintin Battle, the
      codefendant Antwuan Jackson, and from Appellant. Of three blood
      swabbings collected from the scene, one positively matched the
      deceased’s blood sample, another did not match any known sample,
      and the third positively matched Appellant’s blood sample. DNA
      testing confirmed a positive match of the blood sample collected
      from the shooting scene w ith Appellant’s blood sample. Two DNA
      forensic chemists testified to the positive match, and one estimated
      the combined probability results of a match would occur in the
      A frican-A merican population only one in one hundred thirty-two
      million times (1:132,000,000).

      Around 6:30 a.m. on M ay 14, Appellant was released to Oklahoma
      City police custody. A bullet remained in his back left side, below
      his shoulder blades. Over a year later, Appellant saw the county jail
      doctor complaining of pain and drainage from where the bullet was
      embedded. The doctor prescribed antibiotics, but Appellant never
      returned to have the bullet removed. Dr. Jett, a surgeon, saw
      Appellant about four weeks later for the purpose of removing the
      bullet, and determined the bullet w as no longer there. Dr. Jett
      testified a fresh wound was present where the bullet should have
      been.

Young v. State, 12 P.3d 20, 27-31 (Okla. Crim. App. 2000) (footnotes and

alterations omitted).

      On M ay 22, 1996, Young and his co-defendant, Antwuan David Jackson,

were each charged with M urder in the First D egree (malice aforethought), in

violation of Okla Stat. tit. 21, § 701.7(A) (“Count One”), Attempted Robbery with

                                        -5-
Firearms in violation of Okla. Stat. tit. 21, § 801 (“Count Two”), and Shooting

with Intent To Kill in violation of Okla. Stat. tit. 21, § 652 (“Count Three”).

Young and Jackson were tried separately, and Jackson was acquitted on all

counts. A jury convicted Y oung on all three counts.

      During the second stage of the trial, the state sought the death penalty

based on three aggravating factors: (1) Young had been previously convicted of a

felony involving the use or threat of violence to a person; (2) There was a strong

probability that Young would commit criminal acts of violence that would

constitute a continuing threat to society; and (3) Y oung knowingly engaged in

conduct that posed a great risk of death to multiple persons. Young stipulated

that in 1991 he was convicted in California state court of shooting into an

occupied vehicle, second degree robbery, and assault with a firearm. In support

of the aggravating factors, the state relied on evidence it presented during the

guilt stage of the trial, and presented a letter read by the victim’s daughter as

victim impact evidence. Young presented three witnesses in mitigation. Fredrick

Smith, a record keeper for the county jail, testified that no disciplinary reports

had been filed against Y oung during his two years of incarceration. Smith

admitted, however, that he had never had any personal contact with Young, nor

spoken with anyone who had. Next, Dr. Phillip M urphy testified that, based on

tests he conducted on Young and his personal examination of the defendant, it

was his opinion that Young did not pose a continuing threat to society if he

                                          -6-
remained in a structured prison environment. Finally, Young’s sister, Linda

M cZeal, testified that Young had lived with her for most of his childhood, and

that during that time he was an intelligent, caring, helpful, and well-behaved

child. M cZeal testified that after he left her home his problems began, and he

started to run afoul of the law .

      The jury found unanimously that all three aggravating circumstances were

present, and, after weighing them against the mitigating circumstances,

recommended a death sentence on Count One. The jury also recommended

sentencing Young to 20 years’ imprisonment and 30 years’ imprisonment for

Counts Two and Three, respectively. The trial court adopted the jury’s

recommendations in full, and ordered that both terms of imprisonment would run

consecutively to Count One.

      Young appealed his convictions and sentence to the OCCA. On September

6, 2000, both his convictions and sentence were affirmed by the OCCA. Young v.

State, 12 P.3d 20. Young filed a petition for post-conviction relief in state court,

which was denied by the OCCA. Young v. State, No. PCD-2000-13 (Okla. Crim.

App. Oct. 31, 2000). On M ay 24, 2002, Young filed an application for habeas

relief in federal district court. The district court denied his petition. Young v.

M ullin, No. CIV-01-1551-M , 2005 W L 1828542 (W .D. Okla. July 29, 2005). The

court granted Young a COA, pursuant to 28 U.S.C. § 2253(c), with respect to the

following claims: (1) Oklahoma failed to present sufficient evidence to sustain

                                         -7-
his first degree murder conviction; (2) The jury should have received instructions

on the lesser-included offenses of second degree murder and first degree

manslaughter; (3) Counsel was ineffective in failing to present testimony from a

crime-scene reconstructionist that would have disputed the state’s claim that

Young must have fired the shot that killed Sutton; and (4) Counsel was

ineffective during the sentencing stage of the trial in failing to proffer certain

mitigation evidence. W e granted Young a COA on an additional issue: W hether

witness testimony identifying Young as the assailant was improperly admitted due

to law enforcement’s use of a flawed identification procedure.

                                           II

      The A ntiterrorism and Effective D eath Penalty Act of 1996 (“A EDPA”),

governs our review of Y oung’s petition, and provides:

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

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; 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). W hen a petitioner seeks relief under the first prong of

AEDPA we first ask whether the “principle of federal law invoked by the



                                          -8-
petitioner w as clearly established by the Supreme Court at the time of the state

court judgment.” Turrentine v. M ullin, 390 F.3d 1181, 1189 (10th Cir. 2004). A

decision is “contrary to” clearly established federal law “if the state court arrives

at a conclusion opposite to that reached by the Supreme Court on a question of

law or if the state court decides a case differently than the Court has on a set of

materially indistinguishable facts.” Torres v. Lytle, 461 F.3d 1303, 1311 (10th

Cir. 2006) [hereinafter “Torres II”]. A decision is an “unreasonable application”

of clearly established federal law only “if the state court identifies the correct

governing legal principle from the Supreme Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. W e do not apply

AEDPA ’s deferential review standard when a federal district court holds an

evidentiary hearing and considers new evidence that was not before the state court

at the time it reached its decision, even if the state court resolved the claim on the

merits. Id. (citing Bryan v. M ullin, 335 F.3d 1207, 1215-16 (10th Cir. 2003) (en

banc)). W hen a petitioner seeks relief under the second prong of AEDPA , the

petitioner bears the burden of showing by clear and convincing evidence that the

state court’s factual determination is erroneous. 28 U.S.C. § 2254(e)(1);

Turrentine, 390 F.3d at 1188-89. W e review the district court’s application of

AEDPA’s standards de novo. Goss v. Nelson, 439 F.3d 621, 626 (10th Cir.

2006).

         “If the state court did not decide a claim on the merits, and it is not

                                             -9-
otherwise procedurally barred, we review the district court’s legal conclusions de

novo and its factual findings, if any, for clear error.” Spears v. M ullin, 343 F.3d

1215, 1225 (10th Cir. 2003) (citation omitted). However, “when . . . the district

court’s findings of fact are based merely on a review of the state record, we do

not give them the benefit of the clearly erroneous standard but instead conduct an

independent review.” Id. (quotation omitted); see also Turrentine, 390 F.3d at

1189. As we embark upon our review of Young’s petition, we are mindful that

“our duty to search for constitutional error w ith painstaking care is never more

exacting than it is in a capital case.” M itchell v. Gibson, 262 F.3d 1036, 1063

(10th Cir. 2001) (citation omitted).

                                          III

      Young argues that admission of a witness’ in-court identification of Young

as one of the individuals w ho attempted to rob the Steak House violated his

Fourteenth Amendment due process rights and Sixth Amendment right under the

Confrontation Clause. He raises tw o distinct challenges. First, he argues that it

was contrary to, or an unreasonable application of, Supreme Court precedent for

the OCCA to hold that the in-court identification was admissible, when the

witness first identified Young during an impermissibly suggestive pre-trial, one-

person “show-up.” Second, he argues that the OCCA’s holding that the

identification was reliable was based on an unreasonable determination of the

facts in light of the record.

                                         -10-
      At trial, the government offered testimony by Karl Robinson that Young

was the shorter of the two men he saw walk into the Steak House. Robinson

further testified that he identified Young as the shorter man at the hospital shortly

after the crime occurred. Counsel for Young objected to the reliability of this

testimony, arguing that the suggestive nature of the show-up procedure used to

obtain Robinson’s initial identification tainted his testimony and rendered it

inadmissable.

      In Stovall v. Denno, 388 U.S. 293 (1967), the C ourt addressed whether a

severely injured victim’s identification of the defendant shortly after the crime

was unnecessarily suggestive, and thus inadmissible, when the police brought the

defendant to the hospital and asked the victim if “he was the man.” Id. at 295,

301-02. Defendant claimed the process was “so unnecessarily suggestive and

conducive to irreparable mistaken identification that [defendant] was denied due

process of law.” Id. at 302. Although the Court recognized that the “practice of

showing suspects singly to persons for the purpose of identification, and not as

part of a lineup, has been widely condemned,” it nonetheless held that “a claimed

violation of due process of law in the conduct of a confrontation depends on the

totality of the circumstances surrounding it.” Id. The Court found that at the

time the defendant was brought to the hospital, the officers were “[f]aced with the

responsibility of identifying the attacker, with the need for immediate action and

with the knowledge that [the victim, who had been seriously wounded,] could not

                                         -11-
visit the jail.” Id. Under the totality of the circumstances, the Court held the

identification was admissible. Id.

      Ten years later, the Court addressed whether, as Young now argues, Stovall

prohibits the admission of extrajudicial identifications resulting from one-person

show-ups in cases that do not present the same “need for immediate action.” In

M anson v. Brathwaite, 432 U.S. 98, 114 (1977), the Court rejected adopting a per

se rule excluding such evidence. Even if the identification was unduly

suggestive, the Court held that the admissibility determination – both the

admission of the extrajudicial identification and any subsequent in-court

identification – must turn on reliability. Id. Reliability, it held, is properly

assessed via consideration of five factors, which must be weighed against the

suggestiveness of the identification method: (1) the prior opportunity of a w itness

to observe the defendant during the alleged criminal act; (2) the degree of

attention of the witness; (3) the accuracy of the witness’ prior description; (4) the

witness’ level of certainty; and (5) the time between the crime and the

confrontation. Id.

      In rejecting Young’s claim, the OCCA determined that even if the

identification procedure was unnecessarily suggestive, it was admissible if it

satisfied the five-factor test outlined in M anson:

      Even if we were to find the “show up” was unduly suggestive and
      encouraged misidentification, the same would not automatically
      invalidate the subsequent in-court identification if that identification

                                          -12-
      can be established as independently reliable under the totality of the
      circumstances. This Court uses a test that includes consideration of
      all the surrounding circumstances plus the following:
      1) prior opportunity of the witness to observe the defendant during
      the alleged criminal act;
      2) degree of attention of the witness;
      3) accuracy of the witness’ prior identification;
      4) the witness’ level of certainty; and,
      5) the time between the crime and the confrontation.

Young, 12 P.3d at 34 (citations omitted). This approach is entirely consistent

with the existing Supreme Court precedent discussed supra. Accordingly, the

legal principles applied by the OCCA cannot be termed contrary to existing

Supreme Court precedent. 1

      Turning to Young’s second claim, he argues that the OCCA unreasonably

applied M anson in holding that the identification was reliable. Applying the

relevant five-factor test from M anson, the OCCA stated:

      Robinson testified at trial that while he was talking to his wife on the
      telephone, he saw two men walk into the Charles Steak House and
      knew they were not “regulars.” He heard a patron yell to keep an eye
      on those guys. Because he did not know the men, he got off the


      1
        The OCCA also held, in the alternative, that the one-man show-up
procedure used in this case was not unnecessarily suggestive under Oklahoma
law. Id. In support of this decision, the court relied upon Harrolle v. State, 763
P.2d 126, 128 (Okla. Crim. App. 1988), which held that “[a]n on-the-scene
confrontation between the victim and the suspect shortly after the commission of
the crime may be justified where prompt identification is necessary to determine
whether the suspect is the offender or whether police officers should continue
their search.” H arrolle sets no clear bounds on law enforcement’s ability to
conduct a pre-arrest, one-person show-up. Yet despite the OCCA’s broad view of
when a show-up is permitted, Young has identified no “clearly established federal
law” that is contrary to Harrolle.

                                        -13-
      phone and focused his attention on the men as they walked down the
      ramp into the gaming room. Robinson was able to describe the skin
      color, height, and clothing of both men. He also heard the taller man
      say “All of you SO Bs are going to die” as the taller man pulled out
      his gun. At that point, Robinson ran into the kitchen to escape the
      gunfire. W ithin minutes of the shooting, Robinson saw Appellant at
      the hospital and told officers he recognized the shirt. Although
      Robinson was unable to identify Appellant at the preliminary
      hearing, he, as well as other witnesses, testified at trial that
      Appellant’s appearance had changed since the preliminary hearing.

      Under these circumstances, Appellant has not shown merely by
      Robinson’s inability to identify him at the preliminary hearing that
      his in-court identification at trial was unreliable. Robinson’s
      testimony at trial was certain and reflected his degree of attention
      towards the gunmen was concentrated. W e find his in-court
      identification was not so tainted and unreliable as to have been
      inadmissible.

Young, 12 P.3d at 34.

      These findings are supported by the record. Robinson testified that when

the two men first came down the ramp, he observed the men for about three or

four seconds as they walked in front of him. He focused on them because they

were not regulars, and because he heard someone in the game room say, “Check

these two guys out,” when the shooters entered. At this time, the area in question

was w ell lit. Later, when Robinson spoke with police and again during the trial,

he consistently recalled some of the clothes w orn by Young, as well as his

hairstyle and general appearance. Very soon after the shooting (estimated to be

45 minutes to an hour later), he was taken to the hospital to attempt an

identification. W hen he first saw Young at the hospital, Robinson did not think


                                        -14-
he was one of the participants. After seeing Young’s shirt, however, Robinson

identified him as the shorter man. At trial, Robinson again identified the

defendant, stating, “M y best understanding and recollection of that, it’s the same

man I seen.”

      Young directs our attention to some of Robinson’s testimony that may

properly be termed problematic. It is troubling to this court that Robinson

positively identified another individual wholly unconnected with this case as the

shorter man during a preliminary hearing. In addition, Robinson was not entirely

consistent in describing the clothing worn by Young that evening, and was vague

when questioned about what he was told by the police before being taken to the

hospital to make the identification. Notwithstanding these inconsistencies,

however, Robinson and others testified that Young’s appearance was different at

the preliminary hearing than when Robinson identified him at the hospital.

Further, Robinson testified that his memory was less certain at the preliminary

hearing, because such a long time had passed since the incident.

      At trial, defense counsel vigorously cross-examined Robinson on all of

these points, and attempted to cast doubt on the general accuracy of his

recollections. See Belton v. United States, 429 F.2d 933, 934 (10th Cir. 1970)

(recognizing that the opportunity for cross-examination alleviates some concerns

regarding an in-court identification’s reliability). The jury was instructed that

“[e]yewitness identifications are to be scrutinized with extreme care. The

                                        -15-
possibility of human error or mistake and the probable likeness or similarity of

objects and persons are circumstances that you must consider in weighing

testimony as to identity.” Although counsel called into question Robinson’s

credibility, the Court has noted that for these credibility determinations, we must

“rely upon the good sense and judgment of American juries, for evidence with

some element of untrustworthiness is customary grist for the jury mill.” M anson,

432 U.S. at 116.

      Therefore, based on the record before us, we cannot say the O CCA’s

decision that the identifications were reliable was objectively unreasonable. 2

                                          IV

      Young contends that the evidence presented at trial was insufficient to

support his conviction for M urder in the First Degree (malice aforethought). The

Supreme Court has held, that in analyzing a sufficiency of the evidence challenge,

courts must inquire “whether, after viewing the evidence [contained in the record]

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

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979). “This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to


      2
       W e do not reach the question of whether admission of this evidence was
harmless error, because we find that there was no error at all.

                                          -16-
ultimate facts.” Id. The question before us is whether the OCCA’s application of

the Jackson standard was objectively reasonable. Torres II, 461 F.3d at 1313. 3

         Oklahoma law defines first degree malice aforethought murder as follow s:

         A person commits murder in the first degree when that person
         unlawfully and with malice aforethought causes the death of another
         human being. M alice 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). As to intent, we have previously outlined

Oklahoma law on this issue:

         First, a jury is permitted to draw inferences of subjective intent from
         a defendant’s objective acts. Thus, even when a defendant . . .
         denies having the requisite intent, a jury may disbelieve the
         defendant if [the defendant’s] words and acts in the light of all the
         circumstances make [the defendant’s] explanation seem improbable.
         Second, a jury is permitted to find that a defendant intends those
         consequences which he announces a desire to accomplish.

W ingfield v. M assie, 122 F.3d 1329, 1333 (10th Cir. 1997) (quotation and

citations omitted); see also Torres v. M ullin, 317 F.3d 1145, 1153 (10th Cir.

2003).

         In rejecting Young’s claim that the evidence was insufficient to support a

malice-murder conviction, the OCCA stated:

         The question of the sufficiency of the evidence to sustain a
         conviction is to be determined by examination of the entire record.
         W hen the sufficiency of evidence is challenged on appeal, this Court


         3
        W e have previously referred to our standard of review regarding
sufficiency challenges under A EDPA as “deference squared.” Id.

                                           -17-
      will determine whether, after reviewing the evidence in the light
      most favorable to the prosecution, any rational trier of fact could
      have found the essential elements of the crime charged beyond a
      reasonable doubt.

      ....

      The evidence, view ed in a light most favorable to the State, shows
      Appellant entered the restaurant, armed with a gun, with the intent to
      commit armed robbery, and demanded money. His action in firing
      his weapon at least four times directly at Joseph Sutton support [sic]
      the jury’s conclusion that he acted with malice aforethought.

      Appellant also claims the evidence was insufficient to show identity,
      based upon his belief that the identification testimony was not
      reliable and did not conclusively show Appellant committed the
      shooting. However, we have already determined the identification
      testimony was properly admitted. The jury properly considered the
      evidence presented, was appropriately instructed on the use of
      eye-w itness identification testimony, and concluded the State’s
      evidence was sufficient to show Appellant committed the offense.

      Although there may be conflict in the testimony, if there is
      competent evidence to support the jury’s finding, this Court will not
      disturb the verdict on appeal. Review of the entire record reveals
      sufficient evidence supported the jury’s conclusions that Appellant
      killed Sutton and did so with malice aforethought. We find no merit
      in this proposition.

Young, 12 P.3d at 35 (quotation and citations omitted).

      Because the OCCA applied the correct legal standard, our inquiry is limited

to whether its determination that the evidence was sufficient to support the jury’s

verdict was reasonable. After carefully reviewing the record, we

conclude that it was.

      Substantial evidence was introduced at trial to show that Young was the


                                        -18-
shorter of the two men who entered the Steak House. Robinson and Ben Griffin

testified that they were taken to the hospital within an hour of the incident, where

they positively identified Young as the shorter man. An Oklahoma City police

officer testified that another individual who did not testify at trial, Roy Rogers,

also identified Young as one of the individuals who was there that evening,

although Rogers believed Young was the taller man. Robinson also identified

Young during the trial as the shorter man, stating, “M y best understanding and

recollection of that, it’s the same man I seen.” M ary Long, a criminalist with the

Oklahoma State Bureau of Investigation, testified that a DNA test performed on a

drop of blood recovered from the scene provided a match to Young’s DNA

profile. In her estimation, the likelihood that another A frican-American would

have the same DNA profile as that of the sample was approximately one in 5240.

The sample was then sent to an outside company, Laboratory Corporation of

America, for additional DNA testing. M eghan Clement, a representative from

Laboratory Corporation, testified that the DNA contained in the blood drop found

at the scene matched Young’s D NA. W hen combined with the test results

performed by the Oklahoma Bureau of Investigation, Clement testified, there was

a one in 132,000,000 chance that the blood drop would match another African-

American.

      All witnesses who described the shorter man gave the same general

description: A younger-looking, African-American male wearing baggy clothes,

                                         -19-
specifically a dark-colored, short-sleeved shirt with various colors or designs on

it. 4 W hen the police observed Young at the hospital, they were told that the

crumpled shirt laying at the base of his hospital bed belonged to him. A photo of

that shirt reveals it is highly distinctive, bearing a number of designs resembling

multicolored stripes of paint.

      Other circumstantial evidence linked Young to the crime. Shortly after the

shooting, the police were notified that an individual with multiple gun shot

wounds was seeking treatment at Presbyterian Hospital, located a short distance

from the Steak House. W hen they arrived and questioned him at the hospital,

Young gave the officers a false name and birth date. Young told one officer that

he was from Nashville, Tennessee, and took a bus to the hospital. He told another

that he did not recall how he arrived at the hospital, and that he was from out of

town. It is undisputed that there were no public buses running at that time –

rather, the last stopped at 7:15 p.m. There is also no dispute that at the time

Young made these statements he was not under the influence of pain medication.


      4
         Of the identifying witnesses, only one provided an inconsistent
description of the shooter’s clothing. Quintin Battle testified that the shorter
shooter was wearing a cap, a tan coat, and street clothes. Battle also testified,
however, that he had only a glimpse of the gunman out of the corner of his eye as
the gunman exited the Steak House, that he could not see the shooters when they
first entered the game room, and that it was hard for him to remember details
because the event had occurred over two years before he testified. Thus, the jury
must have chosen to reject Battle’s testimony regarding what the shooter was
wearing in favor of the three other witnesses who provided consistent accounts of
the shorter man’s clothing.

                                        -20-
      Although no witness actually observed Young pull the trigger and fire upon

Sutton, Battle, who was closest to the shorter man and the victim when the

shooting began, testified that the shorter man walked over to the restroom area,

raised a revolver in the air, and stated “[w]e come for the money” and “don’t

move” 5 – language that Battle took as threatening. After hearing those

commands, Battle turned his back to the shooter and looked toward the victim.

Sutton then pulled something out of his pocket and threw it on the floor.

Immediately thereafter, Sutton reached in another pocket, pulled out a .380

caliber semi-automatic pistol, aimed it at the shorter man, and pulled the trigger.

Battle fell to the floor, and heard a click, but did not hear a bullet fire. Sutton

racked his pistol’s slide to load a bullet into the chamber. At this point, Battle,

who was still laying on the ground, heard shots fired back and forth. Because he

had turned his back to the shooter, Battle testified that he did not know if the

shooter had low ered his weapon and pointed it at either him or Sutton before

Sutton drew his gun. After the shots ceased, Battle witnessed the shooter leave.

Sutton, he observed, was laying on the floor.

      The day following the shooting, police received a call from someone who

lived approximately two blocks from Presbyterian Hospital. She testified that late

that evening she heard a sound outside of something being dropped into her



      5
          Griffin also testified that the shorter man brandished a small revolver.

                                          -21-
garbage can. Looking out the window, she saw an African-American man in a

vehicle pulling away from the curb. The next morning she found a .38 caliber

Smith and W esson revolver in her garbage can. Gordon Robertson, a senior

firearms examiner for the Oklahoma City Police Department, testified that he

tested the two firearms linked to the shooting (Sutton’s .380 caliber semi-

automatic pistol and the .38 caliber Smith and W esson recovered from the trash

can) and the bullets recovered from scene, and reached the following conclusions:

(1) Four projectiles w ere definitively identified as being fired from the semi-

automatic; (2) Three projectiles were so damaged that he could not perform any

comparisons; (3) Three projectiles w ere consistent with being fired from a single

firearm, but that firearm had not been recovered; (4) Three projectiles, including

the fatal bullet retrieved from the victim, had characteristics consistent with being

fired from the Smith and W esson, although he could not conclusively link them to

that gun.

      As to intent, evidence shows that Young entered the Steak House with a

fully loaded revolver. He walked to the restroom area, made a threatening

statement, and fired his gun toward Sutton. Robinson testified that it sounded

like several guns were being fired, and that he heard approximately 15-20 shots.

Edwards testified that he heard “way more” than two to four shots fired from

behind him. Dr. Chai Choi, a forensic pathologist who performed the autopsy on

Sutton, testified that Sutton was shot four times. The fatal wound, Dr. Choi

                                        -22-
testified, entered Sutton in the back of his body. M oreover, all of Sutton’s

wounds had a downward trajectory, indicating that the shots were fired by a

standing shooter.

      Finally, the evidence showed that Young removed the bullet from his back

in order to avoid turning it over to the State. Dr. Jerry Childs, who examined

Young when he sought medical attention the night of the incident, testified that he

was treated for three gunshot wounds. One of the bullets was lodged just under

Young’s skin in the area below his left shoulder blade, and was not removed. Dr.

Charles Harvey, a physician employed at the Oklahoma County Jail, testified that

Young came to see him complaining about the bullet. Although Dr. Harvey

scheduled a surgery to remove the bullet one week later, Young never returned or

followed up. Later, a judge granted the government’s motion to require Young to

undergo an examination to see if the bullet lodged in his back could be removed.

W hen Young appeared for his examination the bullet w as gone. Dr. M ason Jett,

who examined Young, testified there was a relatively fresh wound where the

bullet should have been. Both Dr. Jett and Dr. Childs testified that it was

extremely unlikely the bullet could have worked its way out naturally.

      Young makes tw o arguments as to why this evidence is insufficient to

sustain his conviction. First, he claims that the identification evidence is

unreliable and should not have been admitted. As we held supra, however,

Robinson’s in-court identification of the defendant was admissible, and Young

                                        -23-
does not challenge the extrajudicial identifications made by Griffin and Rogers.

Second, Y oung contends that the evidence was insufficient because two

witnesses, Griffin and Robinson, testified that they never heard or saw the shorter

man do or say anything during the shooting. However, Griffin testified that he

ran out the door immediately after the shots were fired. Robinson testified that as

soon as he saw Edw ards grab the tall man’s gun, he fled. Neither of these

individuals were in the immediate vicinity of Young after he moved near the

restroom door and out of sight.

      Accordingly, we conclude that there was sufficient evidence that a rational

jury could find Young guilty of first degree murder w ith malice aforethought. 6

                                         V



      6
        At trial, the prosecution argued in the alternative that even if Young was
not the shooter, but merely a participant in the armed robbery, he was guilty
under O klahoma law as an aider and abettor of the m urder. Under O klahoma’s
criminal code, any person who aids or abets the commission of a murder is
considered a principal of the crime. Okla. Stat. tit. 21, § 172. The OCCA has
specified that in order to sustain a conviction of M urder in the First Degree under
an aider and abettor theory, the government “must prove: (1) that the defendant
personally intended the death of the victim; and (2) that the defendant aided and
abetted with full knowledge of the perpetrator’s intent.” Spears, 343 F.3d at 1238
(citing W ingfield, 122 F.3d at 1332). The trial court instructed the jury regarding
Oklahoma’s aiding and abetting law. On appeal, Young contends that the
evidence is insufficient to establish he had the requisite intent as an aider and
abettor to be convicted of first degree murder, citing our prior decision in
Sanders/M iller v. Logan, 710 F.2d 645 (10th Cir. 1983). W e need not reach this
issue, however, because we are satisfied that a reasonable jury could, based on the
evidence before it, conclude Young shot Sutton with the intent to kill.


                                        -24-
      Young’s third claim is that the OCCA’s decision that Young was not

entitled to an instruction on the lesser included offenses of second degree murder

and first degree manslaughter w as in violation of clearly established federal law.

On collateral attack, we review a state court’s determination that the evidence did

not support a lesser-included-offense instruction to determine whether it was

unreasonable. See Valdez v. W ard, 219 F.3d 1222, 1242 (10th Cir. 2000).

      In Beck v. Alabama, 447 U.S. 625 (1980), the Court made “clear that state

rules barring properly supported lesser included offense instructions in a capital

case are constitutionally impermissible because such rules ‘diminish the

reliability of the guilt determination’ and ‘enhance the risk of an unwarranted

conviction.’” Id. at 638 (alteration omitted). The Court held “a sentence of death

[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. However, “[a] petitioner is required to establish not only the

denial of a lesser included offense instruction, but also that he presented

sufficient evidence to warrant such an instruction.” Hogan v. Gibson, 197 F.3d

1297, 1306 (10th Cir. 1999) (citing Beck, 447 U.S. at 637). To succeed on a

claim under Beck, a petitioner must show that the evidence presented at trial

would permit a rational jury to find him guilty of the lesser included offense and

acquit him of first degree murder. Hogan, 197 F.3d at 1307. Oklahoma has held

                                        -25-
that all lesser forms of homicide are considered lesser included offenses of first

degree murder. Shrum v. State, 991 P.2d 1032, 1036 (Okla. Crim. App. 1999).

      At trial, Young presented two defense theories that, in his view of the

record, would permit a rational jury to convict him of a lesser included offense.

He first argues that a jury could conclude he was at the Steak House, but did not

shoot anyone or fire his w eapon, which would support a conviction for M urder in

the Second Degree (depraved mind). In the alternative, he argues a jury could

find that he engaged in a gun battle with Sutton, but only did so because Sutton

first drew a gun on him, causing the robbery to spin out of control. That theory

could support a conviction for First Degree M anslaughter. 7 The district court

denied his requests for lesser included offense instructions, and the OCCA

affirmed. W e conclude that the O CCA’s decision on this issue w as not contrary

to, or an unreasonable application of, clearly established federal law.

                                          A

      Young contends he is entitled to an instruction on M urder in the Second

Degree (depraved mind) because a rational jury could conclude, based on the

evidence presented at trial, that the taller man fired the shot that killed Sutton.

Oklahoma law permits a conviction of First Degree M urder (aider and abettor)


      7
       Young also argued that he was not at the Steak House that evening, but
was the victim of a random shooting near a 7-11 convenience store and an
Autozone. If the jury credited this version of events, of course, it could not have
convicted him of any lesser included offense.

                                         -26-
even if another shooter fired the fatal shot, so long as Young also fired bullets at

the victim. See Spears, 343 F.3d at 1238-39. Young contends that a rational jury

could conclude that he was not a participant in the shooting at all, however, but

fled the scene.

         The elements of second degree depraved mind murder under Oklahoma law

are (1) a death, (2) caused by conduct that was imminently dangerous to another

person, (3) the conduct was that of the defendant, (4) the conduct evinced a

depraved mind in extreme disregard of human life, and (5) the conduct is not done

with the intention of taking the life or harming any particular individual. Okla.

Stat. tit. 21, § 701.8(1); Phillips v. State, 989 P.2d 1017, 1034 (Okla. Crim. App.

1999).

         Recognizing that the relevant inquiry under Beck is whether the evidence

supported a conviction for a non-capital offense, see Young, 12 P.3d at 38-39, the

OCCA concluded that the evidence did not support a second degree depraved

mind murder instruction because there was no evidence Young did not intend to

kill Sutton during the robbery:

         [W ]e find Appellant was also not entitled to instructions on second
         degree depraved mind murder. W hile w e w ould concede A ppellant’s
         im minently dangerous conduct caused the death of Joe Sutton, we
         simply cannot interpret the evidence to show he committed such
         conduct without a particularized intent. A design to effect death
         [i.e., premeditation] is inferred from the fact of killing, unless the
         circumstances raise a reasonable doubt w hether such design existed.
         Premeditation sufficient to constitute murder may be formed in an
         instant. M alice aforethought may be proved by circumstantial

                                          -27-
      evidence.

      Appellant entered the business with the intent to rob its occupants
      with the use of a deadly weapon. He stood directly in front of Joe
      Sutton, raised his weapon, and demanded money. He fired upon
      Sutton when Sutton tried unsuccessfully to defend himself. The
      physical evidence showed the gunshot wound that killed Sutton
      entered through the right side of the back of his chest. M alice can be
      inferred from these facts and the evidence did not require an
      instruction on depraved mind second degree murder.

Id. at 39-40 (citations and quotations omitted) (alteration in original). Thus, the

OCCA concluded that the evidence did not support Young’s theory that he was

not involved in the shooting.

      During the trial, Battle, the individual closest to the shorter man and the

victim, testified that once Sutton drew his weapon he heard shots fired between

the shorter man and the victim. He further testified that only after the shooting

stopped did he see the shorter man leave the area. It is undisputed that all of

Young’s injuries were front-entry wounds, indicating that he was facing Sutton as

shots were exchanged. Those w ounds simply cannot be reconciled with Young’s

theory that he attempted to flee as soon as shots were fired, in which case some of

the bullets that struck him would have entered from the rear or the side. In

addition, forensic evidence revealed that there were at least three weapons used

during the gunfight, and there was no evidence of shots fired by anyone but

Sutton and the two robbers. Therefore, Young must have fired his weapon before

fleeing. The Smith and W esson revolver, which circumstantial evidence linked to


                                         -28-
the robbery, contained six spent shell casings.

      Young cites the following evidence in the record in support of his theory

that he fled without firing, and lacked any intent to kill: (1) Edwards, who was

struggling with the taller man, testified that the taller man called out to the shorter

man for help, but the shorter man refused to provide it; and (2) Bullets from

Sutton’s gun were found in the far wall, indicating that Sutton fired shots towards

the exit. As to the first point, the evidence is undisputed that the shorter man had

already been shot three times before the taller man requested assistance. As to

Young’s second point, the fact that bullets from Sutton’s gun were recovered

from the far wall undoubtedly cuts in his favor. Yet in light of the undisputed

evidence that the shorter man engaged in the gun battle, we are foreclosed from

concluding it was unreasonable for the OCCA to hold that a rational jury could

not find Young’s flight theory credible.

                                           B

      Young argues that he was constitutionally entitled to an instruction on first

degree manslaughter because, based on the evidence before it, a rational jury

could conclude that the robbery spun out of control, Sutton fired the first shot,

and then Young tried to defend himself. Homicide is M anslaughter in the First

Degree when “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 . .

. .” Okla. Stat. tit. 21, § 711(2); Brown v. State, 777 P.2d 1355, 1357 (Okla.

                                         -29-
Crim. App. 1989). First degree manslaughter may also occur when a homicide is

“perpetrated unnecessarily either while resisting an attempt by the person killed

to comm it a crime, or after such attempt shall have failed.” § 711(3). 8 Under

Oklahoma law, the evidence must be such that a rational jury could find that the

defendant did not intend to kill the victim in order for a jury to convict a

defendant of first degree manslaughter. Hogan, 197 F.3d at 1307 (“Heat of

passion and the lack of design to effect death are related requirements: The heat

of passion must render the mind incapable of forming a design to effect death

before the defense of manslaughter is established.”) (quotations omitted); see also

M itchell, 262 F.3d at 1049-1051.

      Again, the O CCA held that no rational jury could convict Young of first

degree manslaughter because the evidence could only support a finding that

Young intended to kill Sutton:

      Appellant claims sufficient evidence was presented to support
      instructions on first degree heat-of-passion manslaughter, because it
      showed he fired on Sutton out of fear after Sutton “drew and fired, or
      at least attempted to fire.” Appellant argues his shooting of Sutton
      was triggered by his fear and therefore supported an instruction on
      heat-of-passion manslaughter. He claims an instruction on
      manslaughter by resisting criminal attempt was also warranted by the
      evidence showing he shot Sutton to keep Sutton from shooting him.


      8
        Although no cases have interpreted this provision of O klahoma’s
manslaughter statute, the Committee Comments contained in the Oklahoma
Uniform Jury Instructions make clear that the provision is only applicable when
the “defendant did not initiate the difficulty.” O klahoma U niform Jury
Instructions Crim. 2d 4-102 cmt.

                                         -30-
       W e disagree with Appellant’s description of the evidence. By all
       accounts, Appellant and his co-intruder instigated the whole incident
       when they entered the Charles Steak House with the intent to commit
       robbery; they were armed, made threats, and demanded money.
       Things w ent amiss when Appellant’s intended robbery victim tried to
       thwart the robbery and defend himself with his own weapon.
       Sutton’s weapon, however, did not fire and Appellant fired at him.
       The medical examiner testified the four gunshot wounds to Sutton’s
       body were in a right to left and downward trajectory, and the gunshot
       wound which caused Sutton’s death entered the back of his chest.
       The medical examiner also testified the exit wound of the number
       two bullet demonstrated Sutton’s body was up against something
       hard which kept it from exiting. The physical evidence suggests
       Appellant continued to shoot Sutton after he had fallen to the ground.

       ....

       Here, the circumstances surrounding the shooting clearly show
       Appellant and his cohort planned and instigated the entire deadly
       situation. Further, the evidence suggests Appellant shot Sutton while
       Sutton was on the ground. He was not entitled to instructions on a
       reduced degree of homicide simply because an intended victim chose
       to defend himself.

Young, 12 P.3d at 39.

       To the extent Young challenges the OCCA’s holding that, under Oklahoma

law, an individual who provokes an attack by the victim and then shoots the

victim cannot be convicted of first degree manslaughter, Oklahoma’s

interpretation of state law is binding on this court, and thus unreviewable.

C hapm an v. LeM aster, 302 F.3d 1189, 1196 (10th Cir. 2002) (“On habeas review ,

the [state] court’s interpretation of the state . . . statute is a matter of state law

binding on this court.”).

       To the extent Young challenges as unreasonable the OCCA’s factual

                                            -31-
finding that a rational jury could not conclude, based on the evidence before it,

that Sutton fired at Young unprovoked, we disagree. All of the evidence

introduced at trial indicated that even if Sutton drew his firearm before Young

shot him, Young provoked the violent encounter. Young entered the Steak H ouse

with a loaded firearm, demanded money while raising his gun in the air, and shot

Sutton multiple times when Sutton attempted to defend himself.

      Young cites Hogan for the proposition that he was entitled to a first degree

manslaughter instruction. In Hogan, evidence showed that the victim and

defendant began arguing, during which confrontation the victim ran into the

kitchen, grabbed a kitchen knife, and began swinging it at the defendant. 197

F.3d at 1301. Defendant seized the knife, chased the victim as she ran away, and

stabbed her repeatedly. Id. Shortly after the incident, defendant confessed,

describing the encounter as follows: “[I]t wasn’t . . . it was like I wasn’t even

there . . . just somebody else . . . it wasn’t even me . . . It was stabbing her and I

couldn’t stop him.” Id. at 1302. The trial court found that Hogan was not

entitled to a first degree manslaughter instruction under Beck, and the OCCA

affirmed. W e granted habeas relief.

      Initially, we recognized that under Oklahoma law, “a defendant is entitled

to a manslaughter instruction only if the evidence at trial would allow a jury to

rationally conclude the defendant’s rage rendered him or her incapable of forming

a design to effect death.” Id. at 1308 (citing Allen v. State, 821 P.2d 371, 374

                                          -32-
(O kla. Crim. App. 1991)). W e also noted that under Oklahoma law , “homicide in

response to a victim’s unprovoked attack with a dangerous w eapon may constitute

first-degree manslaughter.” Id. (citations omitted). Based on our review of the

record, we concluded there was evidence presented at trial from which a

reasonable jury could conclude that Hogan did not provoke the encounter, or that

Hogan was acting under the heat of passion to a degree that precluded him from

forming an intent to kill. Id. at 1309.

      By contrast, in this case no evidence was introduced in support of Y oung’s

theory that he did not intend to kill Sutton. Young provided no alternative

version of events to the jury, either via his own testimony or other evidence. N o

expert testified that an individual with Young’s characteristics or background was

likely unable, as a matter of temperament, to form an intent kill. M oreover, none

of the multiple w itnesses w ho testified to the events surrounding the gun battle

testified that Young appeared to be acting in the heat of passion when he shot

Sutton. Rather, a rational jury could only conclude that either (1) Young acted

with a preformed intent to kill Sutton even before Sutton drew his gun, or (2)

Young shot Sutton after Sutton drew his gun with the intent to kill or wound him

before Sutton could fire back.

      Accordingly, the O CCA’s decision that Young was not entitled to a jury

instruction on first degree manslaughter w as not unreasonable.




                                          -33-
                                          VI

      Young next argues that trial counsel was ineffective in failing to introduce

testimony from a crime scene reconstructionist suggesting that the taller man fired

the fatal shot. He also contends that appellate counsel was ineffective in failing

to raise trial counsel’s ineffectiveness on appeal. Young raised this claim for the

first time during post-conviction proceedings before the OCCA. Because the

OCCA applied a legal principle that is contrary to clearly established federal law

in evaluating Young’s ineffective assistance claim 9 – as the state concedes – no

deference is given to the OCCA’s decision under 28 U.S.C. § 2254(d). Thus, the

district court properly reviewed this claim de novo. See Spears, 343 F.3d at 1248.

Under these circumstances, “[w]e review the district court’s legal conclusions de

novo and its factual findings, if any, for clear error.” Id. at 1225.

      Ineffective assistance claims are reviewed under the framew ork set forth by

the Court in Strickland v. W ashington. To prove ineffective assistance of counsel

at either the trial or appellate stage, a defendant must show, by a preponderance

of the evidence, that (1) counsel’s performance fell below an objective standard

of reasonableness, and (2) prejudice, such that there is a reasonable probability



      9
        The OCCA relied on W alker v. State, 933 P.2d 327, 332 (Okla. Crim.
App. 1997). In Cargle v. M ullin, 317 F.3d 1196, 1205 (10th Cir. 2003), we held
that the W alker test does not comport with clearly established federal law on this
issue, namely the Supreme Court’s holding in Strickland v. W ashington, 466 U.S.
668 (1984).

                                         -34-
that but for counsel’s errors, the outcome of the trial would have been different.

Strickland, 466 U.S. at 688, 692-93.

       Young argues that counsel’s representation fell below an objectively

reasonable standard because he did not secure a crime scene reconstructionist to

testify that the fatal shots were likely fired by the taller man. During an

evidentiary hearing before the district court, Edward Hueske, an expert in crime

scene reconstruction, testified (Hueske had previously submitted a written report

to the OCCA during Young’s state collateral appeal). His review of the forensic

evidence led him to conclude: (1) There was no evidence to substantiate a theory

that the taller man fired all of his shots into the ceiling; (2) He would have had no

problem testifying to that effect at the time of Young’s trial; (3) At least three

weapons w ere fired during the incident; (4) A t least 17 shots w ere fired; (5) Six

lead bullets were recovered – two from the deceased and four from the scene; and

(6) The location of the other lead bullets suggests that the taller man fired the

fatal lead bullets.

       W e need not decide whether counsel was constitutionally ineffective in

failing to hire the services of a crime scene investigator, however, because Young

has failed to prove that he was prejudiced by omission of this evidence, such that

there is a reasonable probability of a different outcome at trial. 10 “A reasonable


       10
            Counsel’s primary defense theory was that Young was not at the Steak
                                                                      (continued...)

                                         -35-
probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. The touchstone of this inquiry is whether “counsel’s

conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Id.

      Hueske’s report and testimony have little probative value. As the OCCA

concluded on collateral appeal, the report primarily establishes that the police

could have done a more thorough job in analyzing and recording details about the

crime scene. The report lists a variety of steps police could have taken to

establish a more accurate picture of the crime through the forensic evidence. Yet

Hueske conceded at the evidentiary hearing that because police did not develop

“bullet trajectories for the bullet holes that were in the various walls,” he was left

with “the very limited capability of what [he] could do.” H ueske continued:

      Basically all I could do is look at different descriptions of the bullets
      and try to look for some sort of general pattern. And then, based on
      that, I could then come up with some suggested scenarios. That’s the
      best that I could do under the constraints of the lack of


             10
                (...continued)
House that evening. In support of that theory, he presented four witnesses to
bolster Y oung’s claim that he w as the victim of a random shooting elsew here. It
is unclear w hether counsel’s failure to present evidence in support of an alternate
theory is necessarily ineffective. See, e.g., Davis v. Terry, 465 F.3d 1249, 1255-
56 (11th Cir. 2006) (holding counsel was not ineffective in failing to investigate
other potential evidence, when counsel was fully prepared for trial and presented
a valid defense of mistaken identity). W e need not reach this issue, however,
because counsel also vigorously cross-examined the state’s w itnesses about their
ability to identify Young, and not the taller man, as the shooter.


                                         -36-
      documentation.

He conceded that the crime scene was “lacking significantly in the things that

would be required to carry out a shooting reconstruction.”

      Beyond these general limitations in his ability to accurately reconstruct the

crime scene, he also testified that his limited opinions were contingent on the

assumption that the fragments and other forensic evidence were “in fact in the

location that they originally were following the shooting.” The evidence is

undisputed that multiple individuals entered the crime scene before police could

secure the area. During cross-examination Hueske testified that he w as also

required to assume for purposes of his analysis that the taller man’s gun was

loaded with a single type of ammunition, despite the possibility that an assailant

might have multiple types of ammunition in his firearm. W hen questioned further

about whether certain projectiles were fired from the taller man’s firearm, Hueske

stated, “I w ould have no way of knowing, so I can’t really address that. . . .

[A]nything is possible, because I have no direct knowledge of what the evidence

is.” He stated in his report that “neither of the two intruders can be either

identified or excluded as having fired the fatal shots into the decedent.” In the

same report he admitted that the Smith and W esson revolver found near the

hospital could have fired the fatal shot, but could reach no conclusion from the

forensic evidence on who fired that revolver.

      Although he testified during the evidentiary hearing that there was no direct

                                         -37-
evidence as to which shooter carried the Smith and W esson revolver,

uncontradicted testimony established that the shorter man was holding a small

revolver, and the taller man was holding a long-barreled revolver. Hueske

corroborated the state’s theory that the shorter man fired the fatal shots, stating

that the nature of the fatal wounds indicated the shooter was standing and fired at

a downward angle. M ost importantly, Hueske conceded that “a real crime scene

reconstruction isn’t an option” in this case, and would not have been available to

Young’s counsel when he was investigating potential defense theories. In sum,

even if we were to exclude all possible inferences from the Hueske report and

testimony that might damage Young’s case, and take as true those statements that

could be deemed exculpatory, the only favorable inference to be drawn from

Hueske’s statements is that the taller man likely fired at Sutton, and those shots

may have been fatal.

      Yet even if we w ere to assume a jury might agree w ith Hueske’s

conclusions on that point, the government’s case did not hinge on the jury finding

that the taller man did not shoot Sutton. Edwards testified that while he was

wrestling on the ground with the taller man, he tried to force the man’s wrist

upward each time the man tried to fire a shot. Contrary to Young’s argument on

appeal, the prosecutor did not attempt to use this evidence to show that Young

must have fired the fatal shot, because Edwards in fact forced the taller man’s

bullets into the ceiling. Instead, the state argued that the evidence showed that

                                         -38-
Young walked into a crowded room with a loaded weapon, assumed a position by

the w all, raised his gun into the air, and demanded money. W hen Sutton drew a

weapon to defend himself, witness testimony established that the two men began

firing at each other. O nly when the shots ended did Young try to leave the area.

Forensic evidence established that the small revolver found near the hospital

where Young sought treatment could have fired the bullets that killed the victim.

Even if it was a bullet from the taller man’s gun that killed Sutton, the state

argued, the evidence established that Young was guilty under an aider and abettor

theory because he fired some shots at the victim, and thus had the intent to kill.

      Petitioner cites M offett v. Kolb, 930 F.2d 1156, 1160-61 (7th Cir. 1991),

apparently for the proposition that an attorney’s failure to present evidence that

another individual was the shooter is always prejudicial. In that case, the attorney

failed to introduce evidence that a w itness to the shooting made statements that a

third party, not the defendant, had fired the gun at the victim. Id. at 1161.

Because there was no direct evidence linking the defendant to the shooting, the

court held that counsel’s failure to present testimony directly contradicting the

prosecution’s theory of which man w as the shooter was prejudicial, when that

evidence was exculpatory. Id. Here, by comparison, Young was not prejudiced

by the exclusion of Hueske’s report or testimony, because none of the conclusions

Hueske draws from the forensic evidence contradicts the most critical aspect of

the government’s case – that notwithstanding who or w hat was struck by bullets

                                         -39-
from the taller man’s gun, Young also fired at Sutton with the intent to kill.

      Like the district court, we conclude that because of the nature of the

evidence relied upon by the state to establish that Young may have fired the fatal

shot, testimony by a crime scene reconstructionist could not have affected the

outcome of the trial. Because Young has not carried his burden under the second

prong of Strickland to prove trial counsel’s alleged failures prejudiced his

defense, we need not reach the issue of whether counsel on appeal was ineffective

for failing to raise an ineffective assistance claim. See Jones v. Gibson, 206 F.3d

946, 959 (10th Cir. 2000).

                                         VII

      Finally, Young claims that trial counsel was constitutionally ineffective

during the penalty stage for failing to present mitigation evidence on the

environmental, cultural, and societal impact of growing up in south-central Los

Angeles, California. W e apply a heightened standard of scrutiny when evaluating

the performance of attorneys during a capital sentencing hearing. Cooks v. W ard,

165 F.3d 1283, 1294 (10th Cir. 1998).

      As an initial matter, the parties dispute whether the district court had

license to hold an evidentiary hearing on this issue, in light of the O CCA’s

adjudication of this claim on the merits. Unlike his ineffective assistance claim

with respect to the guilt phase of the trial, Young argues that counsel was

ineffective for failing to present mitigation evidence on direct appeal. In support

                                         -40-
of his claim, he submitted a motion pursuant to OCCA Rule 3.11(B)(3)(b) to the

OCCA for an evidentiary hearing. Young attached to this motion a variety of

materials intended to support his claim that the mitigation evidence presented at

the guilt phase was so inadequate as to constitute ineffective assistance.

      Describing those materials in turn, Young first attached an affidavit by

John Floyd, an investigator with the Oklahoma County Public Defender’s Office,

outlining the prevalence of death and violence in Young’s childhood environment,

and noting that Young’s family was peripatetic when he was growing up. Second,

Young attached a paper titled African American M ales and Capital M urder: A

Death Penalty M itigation Strategy, by James H . Johnson, Jr., Walter C . Farrell,

Jr., and M arty Sapp – all of whom have served as defense expert witnesses in

capital cases. That paper argues that because of the trials of growing up in the

gang- and poverty-ridden environs of “south central” Los Angeles, murderers

from that community should reasonably be given a life sentence without parole as

opposed to the death penalty. Third, Young submitted an affidavit by Chuck

Loughlin, an investigator with the Oklahoma County Public Defender’s Office,

attesting that during his interviews with jurors following the trial, they indicated

that Young’s lack of remorse as well as their limited knowledge of his past

affected their decision to impose the death penalty. Fourth and finally, Young

attached an affidavit by James H . Johnson, Jr., attesting that Young’s penalty

phase defense was “inadequate, largely because it failed to address impacts –

                                         -41-
singularly or in concert” – of factors in Young’s life. The factors Johnson listed

were: (1) the lack of warmth or emotional support from Young’s biological

parents during his formative years, (2) his unstable family situation and time

spent in south-central Los Angeles, (3) his “chronic residential mobility,” and (4)

Young’s lack of any psychological counseling to deal with his many mental

health issues.

      The OCCA denied his motion for an evidentiary hearing. On direct appeal,

the OCCA stated:

      Appellant argues he was denied effective assistance of counsel
      during the second stage of trial as a result of counsel’s failure to
      present mitigation evidence. To successfully prove ineffective
      assistance of counsel, Appellant must show : (1) that defense
      counsel’s performance was deficient; and (2) that he was prejudiced
      by the deficient performance. Failure to prove either of these
      elements is fatal to Appellant’s entire claim.

      Young argues trial counsel was ineffective for failing to present
      mitigating evidence, and specifically for failing to seek out and
      present available evidence relating to the social impact on the
      physical, mental, emotional, and moral development of children
      raised in inner-city ghettos. Young attempts to support this claim by
      referring to extra-record material filed in support of his M otion for
      Evidentiary Hearing on Sixth Amendment Claims. Therein,
      Appellant requested an evidentiary hearing pursuant to Rule
      3.11(B)(3)(b)(i), Rules of the Oklahoma Court of C riminal Appeals.

      Rule 3.11(B)(3)(b)(i) allows an appellant to request an evidentiary
      hearing when it is alleged on appeal that trial counsel was ineffective
      for failing “to utilize available evidence which could have been made
      available during the course of the trial . . . .” Once an application
      has been properly submitted along with supporting affidavits, this
      Court reviews the application to see if it contains “sufficient
      evidence to show this Court by clear and convincing evidence there

                                        -42-
      is a strong possibility trial counsel was ineffective for failing to
      utilize or identify the complained-of evidence.”

      In support of his application, Appellant offered the affidavits of two
      investigators, an affidavit and Curriculum Vitae from James H.
      Johnson, Jr., Ph.D., and an essay or paper authored by Dr. Johnson.
      One investigator’s affidavit focuses on Appellant’s family and social
      history. The other investigator’s affidavit suggests several jurors felt
      there was little information about Appellant’s past and they did not
      perceive any remorse on Appellant’s part. Dr. Johnson’s essay
      focused on the criminal behavior of young African American males
      raised in the inner city, specifically Los Angeles, California, and
      emphasized the need to evaluate that behavior based upon the
      broader family, community and social contexts.

      Review of the application and the supporting affidavits shows trial
      counsel could well have utilized this evidence and it may have been
      prudent for him to do so. However, Appellant has not shown by
      clear and convincing evidence a strong possibility that defense
      counsel was ineffective for failing to utilize or identify this evidence.
      The jurors were in fact presented with evidence concerning
      Appellant’s social background and family history through the
      testimony of his sister, although the evidence was not presented in
      the same context it would have been if presented by the learned Dr.
      Johnson. W e do not believe the extra-record material establishes by
      clear and convincing evidence that trial counsel was ineffective for
      not presenting this mitigation evidence through Dr. Johnson.
      Accordingly, this proposition of error and Appellant’s M otion for
      Evidentiary Hearing on Sixth Amendment Claims are denied.

Young, 12 P.3d at 44-45 (citations and footnotes omitted).

      Young then moved for an evidentiary hearing in federal district court to

further substantiate his allegations that counsel was ineffective by failing to

investigate and present mitigation evidence. 28 U.S.C. § 2254(e)(2) prohibits a

federal district court from conducting an evidentiary hearing on a habeas claim

that petitioner failed to develop in state court. However, “[i]f . . . the petitioner

                                         -43-
did not fail to develop the factual basis of his claim in State court, § 2254(e)(2) is

not applicable and a federal habeas court should proceed to analyze whether a

hearing is appropriate or required under pre-AEDPA standards.” Bryan, 335 F.3d

at 1214 (quotations, citations, and alterations omitted). A petitioner does not fail

to develop his claim “unless there is a lack of diligence, or some greater fault” on

his or her part. W illiams v. Taylor, 529 U.S. 420, 432 (2000). Under pre-

AEDPA standards, a “[p]etitioner is entitled to an evidentiary hearing on the issue

of ineffective . . . counsel so long as his allegations, if true and not contravened

by the existing factual record, would entitle him to habeas relief.” Hammon v.

W ard, 466 F.3d 919, 927 (10th Cir. 2006) (quotation omitted).

      The district court determined that Young diligently sought an evidentiary

hearing in state court, and thus could not be deemed to have “failed to develop the

factual basis” of the ineffective assistance claim. It then assessed whether Young

satisfied the second prong of the inquiry, such that he would be entitled to relief.

The court stated, “[a]lthough Petitioner might normally satisfy the above

standard, the Court does not find an evidentiary hearing is warranted under the

circumstances.” It reached this conclusion because Young had filed affidavits

supporting his allegations of ineffective assistance of counsel from family

members and his living trial counsel 11 , and failed to give “any explanation or


      11
           Young’s lead trial counsel, Barry Albert, died between the conclusion of
                                                                       (continued...)

                                         -44-
indication of additional information or evidence he anticipates would be provided

in an evidentiary hearing.” Instead, the court chose to exercise its discretionary

authority under 28 U.S.C. § 2246 to expand the record to include the submitted

affidavits and materials. W hen the state objected to this approach on numerous

grounds, the district court reversed course and granted Young’s motion for an

evidentiary hearing. Despite the court’s belated decision to grant a hearing,

neither of the court’s orders reach the question of whether Y oung’s allegations, if

true, would entitle him to relief on the merits of his ineffective assistance claim.

      In this case, Young diligently sought to develop the factual basis for his

ineffective assistance claim, and submitted affidavits substantiating his

allegations to the OCCA. Thus, the district court was permitted to hold an

evidentiary hearing only if Young’s “allegations, if true and not contravened by

the existing factual record, would entitle him to habeas relief.” Hammon, 466

F.3d at 927.

      Because the OCCA decided this claim on the merits, Young would

ordinarily be entitled to habeas relief only if he could show that the OCCA

decision was contrary to, or an unreasonable application of, clearly established

federal law, or rested on an unreasonable determination of the facts. Spears, 343

F.3d at 1225. However, if the OCCA used the wrong standard in evaluating


      11
        (...continued)
his direct appeal and his pursuit of collateral relief from the OCCA.

                                        -45-
Young’s claim, the district court owed the OCCA no deference and properly

conducted an evidentiary hearing on this matter. Id. at 1248.

      As noted above, the well-settled standard for proving ineffective assistance

of counsel requires a petitioner to show, by a preponderance of the evidence, that

(1) counsel’s performance fell below an objective standard of reasonableness, and

(2) prejudice, such that there is a reasonable probability that but for counsel’s

errors, the outcome of the trial would have been different. Strickland, 466 U.S. at

688, 693-94. W hen petitioner challenges counsel’s conduct during the sentencing

phase of the trial, petitioner must show “a reasonable probability that, absent the

errors, the sentencer . . . would have concluded that the balance of aggravating

and mitigating circumstances did not warrant death.” Battenfield v. Gibson, 236

F.3d 1215, 1234 (10th Cir. 2001).

      The OCCA did not apply the Strickland test, however, but instead required

Young to show prejudice by “clear and convincing evidence.” Young, 12 P.3d at

44-45. The district court was thus correct to hold an evidentiary hearing, and

review the claim de novo. Nevertheless, we conclude that the record, including

the evidence proffered at the evidentiary hearing, does not support an inference of

counsel’s constitutional ineffectiveness during mitigation.

       Our “principal concern” in assessing defense counsel’s performance,

moreover, is “not whether counsel should have presented a mitigation case,” but

“whether the investigation supporting counsel’s decision not to introduce

                                         -46-
mitigating evidence . . . was itself reasonable.” W iggins v. Smith, 539 U.S. 510,

522-23 (2003). Counsel’s failure to perform any investigation into the

defendant’s background to seek out relevant information is not a strategic

decision afforded deference, and can constitute ineffective assistance of counsel.

See, e.g., id. at 524 (holding that to perform effectively at the mitigation stage of

a capital case, counsel must attempt “to discover all reasonably available

mitigating evidence and evidence to rebut any aggravating evidence that may be

introduced by the prosecutor”) (citation omitted); W illiams v. Taylor, 529 U.S.

362, 396-97 (2000); Anderson v. Sirmons, 476 F.3d 1131, 1145-46 (10th Cir.

2007) (collecting cases holding that counsel’s failure to perform an adequate

investigation into a defendant’s background, without any strategic basis for doing

so, constitutes ineffective assistance of counsel). It is equally clear, however, that

“counsel need not interview every possible witness to have performed

proficiently.” Owens v. United States, ___ F.3d ___, 2007 W L 1083136, at *14

(1st Cir. 2007) (quoting Riley v. Payne, 352 F.3d 1313, 1318 (9th Cir. 2003); see

also Lema v. United States, 987 F.2d 48, 55 (1st Cir. 1993).

      Young contends that his counsel’s investigation of potentially mitigating

evidence was constitutionally insufficient. Specifically, Young argues that his

counsel did not adequately investigate his childhood and adolescent experiences

with violence and gang activity. The strongest evidence in support of this claim

is that there is nothing regarding mitigation in Young’s file, and, in particular, no

                                         -47-
comprehensive social history on the petitioner.

      The district court rejected this claim. Although Young is correct that many

documents that should be in his file have gone missing (a problem that is

exacerbated by the fact that his lead counsel, Albert, is now deceased), the district

court found that both circumstantial and direct evidence established counsel had

conducted some investigation into Young’s background and was aware of this

information. Counsel filed motions before the trial court seeking to limit any

references to Young’s gang history, and objected at trial to testimony including

any such references. Young’s counsel also submitted a witness list identifying

three witnesses who shared Young’s background, all of whom would testify that

Young was a good person until he became involved with a set of Los Angeles

gangs, as w ell as other evidence suggesting Young would not pose a danger to

society in a structured prison environment. 12 Counsel also obtained a

psychological evaluation for Y oung from Dr. M urphy, who testified at trial.

      In addition, there is circumstantial evidence that counsel did more than a

cursory investigation into Young’s history. John Floyd, an investigator in the

Oklahoma County Public D efender’s office, testified that Albert performed his

own mitigation work, and that as an experienced attorney, he was fully capable of

performing mitigation work. Both Floyd and Vincent Antonioli (an attorney who


      12
        For reasons that are not clear from the record, only one of the listed
witnesses, Young’s sister Linda M cZeal, testified.

                                         -48-
assisted Albert during trial) testified that at the time of the trial Albert had been

practicing law for over 20 years, had a good reputation in the community, and had

received numerous awards for his abilities.

      Antonioli testified that he did not recall any investigator being involved in

the case during the second stage of the trial, and further did not have any

recollection as to what evidence was obtained regarding mitigation. He did recall

speaking with Linda M cZeal the day before her testimony. He also recalled that

he was aware of Young’s involvement with gangs in California. Further, he saw

some indication in the file that Albert had discussed mitigation with Young prior

to the second-stage proceedings. He testified that, in his experience, the “idea of

a poor family background, including abuse and exposure to violence” is the sort

of thing that he would bring to a jury’s attention during the penalty stage.

However, he conceded that, in light of evidence that a defendant was given an

alternative to being in a gang, “[t]he fact that someone chooses to engage in

violence is not favorable to someone facing the death penalty.” Ultimately,

Antonioli concluded that he could not recall what was discussed or done

regarding mitigation, but testified that “[i]t would be unlike [Albert] on his death

bed to give up trying to save somebody’s life.”

      Counsel’s failure to build a more detailed record of Young’s troubled past

appears firmly grounded in his strategy to argue the death penalty was reserved

for the “worst of the worst” offenders, a category in which Young did not belong.

                                          -49-
Counsel put forth testimony from Fredrick Smith, an employee of the Oklahoma

County Detention Center, who testified that Young had no disciplinary problems

while imprisoned. Dr. M urphy testified that Young had no psychiatric problems,

was not particularly violent or anti-social, had at least a normal if not above-

average intellect, was well-dispositioned, and would not be a danger in a

structured prison environment.

      W hen the prosecutor attempted to introduce evidence of Young’s violent

past, particularly his association with gangs, counsel objected. M cZeal, Young’s

sister, stated that counsel told her to “say something good about Kevin.” She

testified about Kevin’s difficult family situation, including the early deaths of his

mother and grandmother, how he was the youngest of 16 children, and how he

lived with two of his sisters until he reached age 18. She further testified that

despite these troubles, Young was a “no-problem child” who never got into fights

and did well in school, even helping other students with their homework. Young

attended a “very, very good school,” she testified, and was raised in a prominent

neighborhood after his grandmother died. She related one story about Young to

highlight his good nature – that he always took trash out for an elderly lady near

his home and never accepted a fee. W ith respect to his gang membership, M cZeal

stated that she suspected Young became involved in a gang later in his life, and

that his association with gangs was responsible for his criminal behavior.

      All of this evidence was in service of counsel’s effort to discredit the

                                         -50-
state’s “continuing danger to society” aggravator. Had Albert introduced the type

of propensity evidence discussed supra, Philip A nderson (one of the prosecutors

who tried the case) testified that he would have been prepared to engage in a

cross-examination regarding Young’s individual participation with gangs and his

ability to take himself out of that environment. Because Young was able to live

with M cZeal in the suburbs, but chose to return to south-central Los Angeles,

Anderson testified he would have sought to establish that Young made a

conscious decision to remain in a gang and engage in violent activity. Albert’s

strategy – as Anderson recalled and as evidenced by the record – was to convince

the jury that Young is not a violent person.

      Based on the evidence presented at the evidentiary hearing, counsel could

have relied on the opposite strategy, identifying Young as someone with a

propensity to commit acts of violence, but who is less morally culpable for doing

so based on his background and circumstances. However, Albert chose to pursue

an alternative theory, making exactly the type of strategic decision the Supreme

Court and this court have held is not ineffective assistance of counsel.

      Furthermore, it appears that Young may have had some impact on counsel’s

failure, if any, to delve deeper into his family history. See, e.g., Brecheen v.

Reynolds, 41 F.3d 1343, 1370 (10th Cir. 1994) (“[T]he reasonableness of

counsel’s actions may be determined or substantially influenced by the

defendant’s own statements or actions.”) (quoting Strickland, 466 U.S. at 691).

                                         -51-
Floyd testified that when he interviewed Young, Young did not mention any of

the serious physical abuse that allegedly occurred when he resided with his Aunt

Roberts during his early childhood. Dr. M urphy testified that Albert told him

Young chose not to have any family members present during the second stage of

the trial.

       “As is always the case, trial counsel could have done more.” Turrentine,

390 F.3d at 1209. W e cannot say, however, that based on the record before us,

counsel “made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Sallahdin v. M ullin, 380

F.3d 1242, 1247 (10th Cir. 2004) (quoting Strickland, 466 U .S. at 687). Because

we do not conclude that counsel’s performance fell below an objective standard of

reasonableness, we need not decide whether counsel’s errors were prejudicial.

                                       VIII

       W e A FFIR M .




                                       -52-
