                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                    April 16, 2012
                                    TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court

 NATHAN DUNLAP,

          Petitioner - Appellant,
                                                         No. 10-1424
 v.                                             (D.C. No. 1:08-CV-00256-JLK)
                                                          (D. Colo.)
 TOM CLEMENTS, Executive
 Director, Colorado Department of
 Corrections; JOHN W. SUTHERS,
 Colorado Attorney General,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, MURPHY, and HARTZ, Circuit Judges.


      Petitioner-Appellant Nathan Dunlap appeals from the denial of his habeas

corpus petition. 28 U.S.C. § 2254. Our jurisdiction arises under 28 U.S.C. §§

1291 & 2253(a). We affirm.



                                      Background

      In February 1996, Mr. Dunlap was convicted of four counts of capital


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
murder and various other crimes in connection with the murder of three teenagers

and a 50-year-old mother of two at a Chuck E. Cheese’s restaurant in Aurora,

Colorado. In May 1996, in accordance with jury verdicts, he was sentenced to

death on the four murder counts and consecutive terms totaling 113 years on the

other counts.

      In July 1993, Mr. Dunlap had been fired from his position as a cook at the

restaurant and wanted to “get even.” On the night of December 14, 1993, he hid

in the bathroom until closing, then emerged and shot employees Sylvia Crowell,

Colleen O’Connor, Bobby Stephens, Marge Kohlberg, and Ben Grant. Mr.

Stephens was hit in the face at close range but survived. Mr. Dunlap’s sentence

was upheld by the Colorado Supreme Court on direct review. Dunlap v.

Colorado, 975 P.2d 723 (Colo. 1999). That court also affirmed the denial of a

motion for sentence reconsideration, People v. Dunlap, 36 P.3d 778 (Colo. 2001),

as well as the denial of a motion for post-conviction relief, Dunlap v. Colorado,

173 P.3d 1054 (Colo. 2007). The federal district court denied habeas relief.

Dunlap v. Zavaras, 2010 WL 3341533 (D. Colo. Aug. 24, 2010).

      The district court granted a certificate of appealability (“COA”) on whether

the jury improperly considered a non-statutory aggravator. 28 U.S.C.

§ 2253(c)(2). This court expanded the COA to include whether counsel was

ineffective in (1) terminating a mental-illness investigation, (2) laboring under a

conflict of interest, and (3) failing to exhaust all peremptory challenges.

                                          2
                                      Discussion

      We review the district court’s legal analysis de novo, Welch v. Workman,

639 F.3d 980, 991 (10th Cir. 2011), applying the same deferential standard of

review: a petitioner is entitled to federal habeas relief only if the state decision

“was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or...was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). We

presume the factual findings of the state court are correct unless the petitioner

rebuts that presumption by “clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). On appeal, we consider Mr. Dunlap’s four issues, reciting the facts

as necessary. 1

A.    Were counsel ineffective in terminating a mental-illness investigation?

      Mr. Dunlap argues that trial counsel were ineffective when they terminated

their investigation into his possible mental illness—evidence of which, he argues,

could have mitigated his culpability enough to persuade at least one juror to vote

for life imprisonment instead of death. Aplt. Br. 22-84. Mr. Dunlap argues that

      1
         As we explain below, our review of the record persuades us that the
highest state court’s resolution of Mr. Dunlap’s claims was not “diametrically
different” or “mutually opposed” to Supreme Court precedent. See Williams v.
Taylor, 529 U.S. 362, 405–06 (2000); 28 U.S.C. § 2254(d)(1). Nor did the
Colorado court apply the Supreme Court’s rules to materially indistinguishable
facts and reach a different result. Id. at 406. Nor did any unreasonable
determination of the facts pertinent to each claim occur. 28 U.S.C. § 2254(d)(2).

                                           3
his lead trial counsel, Forrest W. Lewis, knew Mr. Dunlap’s mother had a history

of mental illness; that he, Mr. Dunlap, manifested similar symptoms after his

arrest; that hospital records showed bizarre behavior like 48-hour periods without

sleep; that after the trial two doctors offered opinions that Mr. Dunlap suffered

bipolar disorder with psychotic features; that Mr. Lewis hired a doctor to build a

mitigation case but refused to give her Mr. Dunlap’s full records; that Mr. Lewis

stopped investigating Mr. Dunlap’s mental health for purposes of mitigation and

instead focused on Mr. Dunlap’s family dysfunction. The state argues that the

defense not only conducted a superior investigation but found it strategically

imperative to forgo proffering mental-health mitigation evidence: it would have

opened the door to evidence that Mr. Dunlap was malingering; that he had been

an abusive, offensive patient; and that he repeatedly bragged of his crime.

      In Harrington v. Richter, 131 S.Ct. 770 (2011), the Supreme Court

reiterated the high hurdle a defendant faces in establishing ineffective assistance

after a state court decides to the contrary. First, because habeas review under 28

U.S.C. § 2254(d) “intrudes on state sovereignty to a degree matched by few

exercises of federal judicial authority,” federal courts can only issue the writ

where there is “no possibility fairminded jurists could disagree that the state

court’s decision conflicts with this Court’s precedents.” Id. at 786-87. Second,

the Strickland test is itself “highly deferential,” since post-trial inquiry can

“threaten the integrity of the very adversary process the right to counsel is meant

                                           4
to serve.” Id. at 788. That rule, of course, requires proof of deficient

performance and prejudice. Strickland v. Washington, 466 U.S. 668, 688, 694

(1984). Together the standards are “doubly” deferential. The question becomes

whether there is “any reasonable argument” that counsel satisfied Strickland.

Harrington, 131 S.Ct. at 788.

      The Colorado Supreme Court’s conclusion that Mr. Lewis satisfied the

standards required of counsel by Strickland is not an unreasonable application of

federal law and is supported by the evidence. The judge who conducted Mr.

Dunlap’s trial also handled the post-conviction proceedings over an extraordinary

52 days of hearings. He produced a 368-page order concluding that Mr. Lewis

was deficient in his mental-health investigation but that this did not prejudice Mr.

Dunlap.

      The Colorado Supreme Court reversed the deficiency finding, Dunlap v.

People (“Dunlap III”), 173 P.3d at, 1063, and related the following course of

events: Mr. Dunlap began acting strangely in February 1994. After Mr. Dunlap

was moved to a mental hospital, Lewis had psychiatrist Dr. Robert Fairbairn

appointed to observe Mr. Dunlap independently and help craft a mental-health

mitigation case. Id. at 1064. Yet Dr. Fairbairn concluded that Mr. Dunlap was

normal 50% of the time, malingering for 40%, and suffering some sort of

psychosis for 10-20% of the time. That summer, Dr. David Johnson, a physician

who worked at the state hospital, submitted his own set of reports. Mr. Lewis

                                          5
found it the “most consistently damaging and consistently negative and

consistently devastating set of reports that I have ever seen.” Id. Dr. Johnson not

only saw no major mental illness, but his reports detailed Mr. Dunlap’s abusive

behavior toward staff and patients while hospitalized. A second hospital doctor,

psychologist Frank Lee, identified only volitional conduct and no psychosis. Id.

at 1064 n.9.

      In February 1995, Mr. Lewis hired psychiatrist Dr. Rebecca Barkhorn as a

“mitigation expert.” Id. Her role was to get to know Mr. Dunlap and his family

with a view to expert testimony on how Mr. Dunlap’s home life encouraged his

criminality, and to again evaluate his mental health. She met with Mr. Dunlap

until December 1995 and diagnosed narcissistic personality disorder with

antisocial traits. During her evaluation, Dr. Barkhorn received the reports from

Dr. Johnson and Dr. Lee, but never the full hospital records. Mr. Lewis testified

that he withheld the full record because he wanted a fresh, untainted assessment,

and because he feared that, if she were called as a witness, the prosecution would

obtain the ruinous hospital records, Box 23, Vol. LX, 152-54. At a post-

conviction hearing, Mr. Dunlap called four doctors. The court only found two

credible; of those, they diagnosed bipolar disorder at the time of trial but

expressed no opinion on his mental health at the time of the murders. Dunlap III,

173 P.3d at 1065. The trial court concluded that the defense could not have

presented a credible expert at trial to convincingly diagnose Mr. Dunlap as

                                          6
bipolar. See Aplee. Br. at 59, 80.

      The Colorado Supreme Court held: “Evaluating the situation from trial

counsel’s viewpoint at the time, and according great deference to counsel’s

decision, we find the limited mental health mitigation investigation was supported

by reasonable professional judgment.” Dunlap III, 173 P.3d at 1068. This

holding is entitled to deference. Counsel began preparing for mitigation

immediately upon appointment; they hired a private investigator for the duration

of trial, who (with staff) traveled to eight states to interview family members and

others and hunt for mitigating evidence; they reviewed Mr. Dunlap’s school,

hospital, and juvenile history records; they sought Mr. Dunlap’s mother’s medical

records but she refused to release them; they persisted in getting independent

experts appointed. Above all, counsel made a reasonable decision to refrain from

a mental-health proffer in the belief that whatever benefits might accrue were

decisively outweighed by the crushing harm it would inflict. They felt it

“paramount” to keep the door closed on Mr. Dunlap’s hospital behavior:

      [he] was physically and verbally abusive toward staff, stalked
      another patient, demeaned mentally ill patients, flashed gang symbols
      at peers, was incontinent, acted like a chicken, threw food, chewed
      holes in his mattress, and made repeated statements about the Chuck
      E. Cheese crimes, including disparaging remarks about the victims.


Dunlap III, 173 P.3d at 1066. Mr. Dunlap told a nurse that the victims meant

nothing to him and that he would kill again. Id. at n. 14. He told Dr. Lee that he



                                          7
considered himself a “legend,” id., and declared: “I’m gonna play crazy as long as

I can.... The police have no case against me, they’re stupid.” Box 25, Book 3,

DEPCX-3_1_2, at 4. Mr. Lewis believed Mr. Dunlap’s statements about the

crime and lack of remorse “would just be something that even our best juror

wouldn’t be able to get over.” Dunlap III, 173 P.3d at 1066-67. As for the

hospital report, Mr. Lewis said, “I tried to look at it as a juror and I saw it not

only as a non-Axis-I diagnosis, but I saw it as fairly pervasively stating the case

for malingering.” Id. at 1066 n. 13. For this reason, counsel, a year before trial,

decided to rest its mitigation case on Mr. Dunlap’s troubled childhood. The

Colorado Supreme Court faulted Mr. Lewis for not handing over the complete

record to Dr. Barkhorn, but concluded the decision was reasonable, since by the

time she was hired, Mr. Lewis had been thoroughly discouraged from pursuing

this line of mitigation. Dunlap III, 173 P.3d at 1068. And Dr. Barkhorn only

testified that with the full record she would have diagnosed bipolar disorder with

psychotic features—still insufficient, in Mr. Lewis’s view, to save Mr. Dunlap’s

life. See, e.g., Box 23, Vol. LX, at 65-69; Vol. LXII, at 134-43, 150-64; Vol.

LXV, at 115-20. Evidence of mental illness can arouse sympathy and diminish

culpability—or it can raise the specter of an irrational, incorrigible predator. See

Cullen v. Pinholster, 131 S.Ct. 1388, 1410 (2011). The defense team agreed

unanimously that the bipolar argument would have exposed Mr. Dunlap to

evidence so damning as to give the jury additional grounds for death. Aple. Br.

                                            8
at 52; see, e.g., Box 23, Vol. LX, at 71-72, 173-74, 206-10; Vol. LXI, at 125-26,

188-90; Vol. LXII, at 137-39; LXV, at 114.

      On occasion, the Supreme Court has condemned an attorney’s failure to

thoroughly investigate sentencing-phase mitigation evidence as constitutionally

deficient assistance. But the operative facts in those cases bear no comparison

here. Those cases involve inexcusable neglect, not a long-considered strategic

decision. In Williams v. Taylor, 529 U.S. 392, 395-96 (2000), the lawyer’s

investigation began a week before trial and, if properly done, would have

uncovered a “nightmarish childhood” and borderline retardation; the failure was

partly due to an erroneous belief that state law barred his access to records. In

Wiggins v. Smith, 539 U.S. 510, 524-25, 534-35 (2003), the attorneys, through

“inattention,” abandoned an investigation that would have revealed abuse,

alcoholism, molestation, and diminished mental capacity; they looked only at

presentence and social-service reports. In Rompilla v. Beard, 545 U.S. 374, 383-

84 (2005), counsel failed to review the file of his client’s prior rape conviction,

even after the prosecution warned of its plan to use it to establish aggravation. In

Porter v. McCollum, 130 S.Ct. 447, 453 (2009), counsel only met briefly with his

client before the penalty phase and neglected to obtain his school, medical, and

military records or to interview his family members. And in Sears v. Upton, 130

S.Ct. 3259, 3264 (2010), the investigation, which didn’t exceed a day, was limited

to talking to witnesses selected by the defendant’s mother.

                                           9
      As explained by the Colorado Supreme Court, Mr. Dunlap’s counsel did not

fail to conduct a mitigation investigation or ignore a promising lead or scramble

to prepare against evidence of aggravation; rather, Mr. Lewis and co-counsel

pursued one course, found it perilous, and switched to another: “[T]here were so

many doors in this case that could be opened that we knew would undoubtedly be

devastating to our client.... Every day, every minute, every witness, every hour

you’re making those kind of balancings and those kind of decisions.... And it’s

still overwhelming...it was the most difficult strategic case I could ever imagine[,]

that I’ve ever had or ever will have.” Dunlap, 173 P.3d at 1068 n.16. “There

comes a point,” instructs the Supreme Court, “where a defense attorney will

reasonably decide that another strategy is in order.” Cullen, 131 S.Ct. at 1407.

      Mr. Dunlap’s current counsel says of the mental-health evidence, simply:

“It was not damaging.” Aplt. Reply Br. 12. Rather, it was the missing

explanation for Mr. Dunlap’s “otherwise inexplicable behavior.” Id. The record

does not support the assertion that the evidence was unproblematic; at best, the

evidence cuts both ways. The Colorado Supreme Court’s conclusion that Mr.

Lewis exercised reasonable professional judgment must be upheld. Dunlap, 173

P.3d at 1067. Lawyers often disagree on trial strategy, a fact disregarded in the

vast number of ineffectiveness claims. We treat each case on its own merits but

we also “indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

                                         10
In this respect we note that Mr. Lewis has tried more than 50 first-degree murder

cases over 20 years of practice and spared clients the death penalty in each of his

ten capital cases. He commendably devoted years of skill and dedication to an

uncommonly desperate cause—like petitioner’s counsel today.

B.    Did counsel have a conflict of interest and was Mr. Dunlap’s waiver valid?

      Mr. Dunlap next argues that Mr. Lewis labored under an actual conflict of

interest. Aplt. Br. 84-116. In November 1995, Mr. Lewis received from Mr.

Dunlap a letter sent him by an ex-cellmate named Miguel Kirkpatrick—who also

happened to be a former client of Mr. Lewis’s—accusing Mr. Dunlap of labeling

him a snitch. Mr. Lewis mailed it to Mr. Kirkpatrick’s lawyer, who forwarded it

to prosecutors. Mr. Dunlap claims Mr. Lewis did so to help Mr. Kirkpatrick get a

better plea deal. Mr. Lewis, when the issue arose months later, didn’t disclose the

letter to appointed conflict counsel or tell him of the judge’s supposed willingness

to exclude Mr. Kirkpatrick as a witness if Mr. Dunlap did not waive his right to

unconflicted counsel. Mr. Dunlap concludes that he received ineffective

assistance and that his waiver was not voluntary, knowing, and intelligent. The

state disputes the existence of a conflict on grounds that Mr. Lewis had no duty to

Mr. Kirkpatrick; that Mr. Dunlap in any event waived his rights; and that Mr.

Lewis had no right to destroy evidence on Mr. Dunlap’s behalf.

      A line of cases—Holloway v. Arkansas, 435 U.S. 475 (1978), Cuyler v.

Sullivan, 446 U.S. 335 (1980), Wood v. Georgia, 450 U.S. 261 (1981), Mickens

                                         11
v. Taylor, 535 U.S. 162 (2002)—stands for the propositions that an actual conflict

of interest denies a defendant effective assistance; that the burden is on the party

alleging the conflict; and that, if a conflict in fact impaired the representation,

prejudice is presumed. In Holloway, the trial judge essentially forced a joint

representation over the attorney’s objection. In this case, by contrast, the trial

judge conducted a conflict hearing, appointed independent conflict counsel, and

sought waivers from Mr. Lewis’s former and current clients. In Sullivan, Wood,

and Mickens, the trial courts did not inquire about the conflicts. The relevant rule

here, from Sullivan, is that the “possibility of conflict is insufficient to impugn a

criminal conviction. In order to demonstrate a violation of his Sixth Amendment

rights, a defendant must establish that an actual conflict of interest adversely

affected his lawyer’s performance.” 446 U.S. at 350.

      The Colorado Supreme Court, like the court in both the trial and collateral

proceedings, saw nothing amiss: Mr. Lewis represented Mr. Kirkpatrick in an

unrelated criminal matter, a year before trial, and promptly withdrew when he

learned that his two clients had attempted an escape together. Dunlap III, 173

P.3d at 1069-70. Only after Mr. Lewis withdrew from his representation of Mr.

Kirkpatrick did Mr. Dunlap confess to Mr. Kirkpatrick; Mr. Kirkpatrick then

brought these statements to the DA. Id. at 1070. About six months later, in

August 1995, the prosecution (to protect its record) raised its concern about a

conflict. Id. The court said it would consider barring Mr. Kirkpatrick if that was

                                           12
the only way to resolve the conflict short of finding new lawyers—the matter was

now two years old and trial was imminent. Id. at 1071. Most importantly, at a

December conflict hearing, Mr. Dunlap said he wished to retain Mr. Lewis. Id.

Special counsel Jeffrey Pagliuca, appointed to advise Mr. Dunlap, found no

conflict and tendered Mr. Dunlap’s waiver. Id. at 1071-72. Mr. Dunlap waived

again in open court. Id. at 1072.

      The Colorado Supreme Court held that under its precedent a conflict can

arise when a defense attorney has previously represented a prosecution witness;

the main problem in such cases is that the duty of confidentiality to the former

client can hinder cross-examination. Id. at 1070. But it can be waived, subject to

a test that balances defendant’s choice of counsel and the public interest in the

integrity of proceedings. The court found that Mr. Dunlap’s preference, along

with Mr. Kirkpatrick’s waiver, eliminated the conflict. Id. at 1073. As for the

claim that Mr. Lewis was deficient in failing to inform Mr. Pagliuca of the court’s

comment about excluding Mr. Kirkpatrick, the court found that Pagliuca himself

likely informed Mr. Dunlap of the possibility of exclusion should he choose not to

waive. Id. at fn. 22. It also found that the trial court’s chief concern was delay,

not any conflict in potentia. Id. at 1073. The court dismissed, as “speculation,”

the claim that Mr. Lewis passed on the letter to aid Mr. Kirkpatrick. Id. at 1074.

And it noted that “producing evidence” against one’s client is not per se a

violation; that the letter, as evidence, was not as “strong” as Mr. Dunlap claims

                                          13
(the letter showed that Mr. Kirkpatrick was upset with Dunlap, nothing more);

and that Mr. Lewis turned over the letter to Kirkpatrick’s attorney, not the

government (though its receipt was foreseeable). Id. The court felt Lewis’s

hand-over was an “isolated incident.” Id.

      The district court found the Colorado Supreme Court’s holdings—that

Dunlap waived his right to conflict-free counsel and that Mr. Lewis’s supposed

residual loyalty to Mr. Kirkpatrick was a question of fact that Mr. Dunlap had the

burden to prove—were “eminently reasonable.” Dunlap, 2010 WL 3341533, at

*17. We agree and see no conflict with federal law. The trial court took great

pains to ensure that Mr. Dunlap understood his rights, see Dunlap, 173 P.3d at

1072, and, just as important, it worked to guarantee that Mr. Dunlap was able to

keep the lawyer he wanted. As for the delivery of the letter supposedly proving a

conflict, it seems doubtful that Mr. Lewis, after his promptitude in withdrawing

from Mr. Kirkpatrick’s matter after the escape attempt, and his assiduity in

defending Mr. Dunlap over two-and-a-half years, would consciously supply

evidence that he would later need to fend off at trial.

C.    Was counsel ineffective in failing to exhaust all peremptory challenges?

      Under Colorado law, a lawyer selecting a jury must exhaust his peremptory

challenges if he wishes to preserve the right to appeal the denial of a challenge

for cause. Mr. Lewis did not so exhaust. Mr. Dunlap argues that if he had, and if

those denials were found erroneous on appeal, he “could have automatically

                                          14
vacated [the] death sentence.” Aplt. Br. 130. The state claims Mr. Lewis decided

that exhausting his peremptories (on pretextual grounds, of course) risked seating

unacceptable jurors, and that this decision was a reasonable exercise of judgment.

      Mr. Dunlap acknowledges Mr. Lewis’s anxiety that by excusing juror A,

the now-seated juror B could be worse—and he might then be left without

challenges. But Mr. Dunlap argues that because Mr. Lewis’s challenge for cause

to juror A could possibly have been erroneously denied—the appellate court

finding that the juror was determined to impose the death penalty—this error,

under a standard of “reasonable probability,” could have mandated reversal. The

Colorado Supreme Court rejected his claim under Colorado precedent; the district

court found no clearly established federal law to the contrary, beyond possibly a

broad application of Strickland itself, Dunlap, 2010 WL 3341533, at *18. We see

no conflict between federal law and the determination of the Colorado Supreme

Court: it found that Mr. Lewis made a reasonable strategic choice, Dunlap III, 173

P.3d at 1084-85, and credited his testimony that “we had achieved a jury panel

that I felt we could accept and there were a number of jurors coming up in the

order of jurors who I felt were unacceptable to us....” Id.

      The dispute is this: Mr. Dunlap claims Mr. Lewis should have preserved a

claim for appeal (notwithstanding the unlikelihood of success); Mr. Lewis felt

duty-bound to accept the best jury he could get. His decision was a product of

instinct, experience, venire research, strategy, and courtroom observation. He

                                         15
saw this as a “penalty phase case,” an effort in the face of overwhelming evidence

of guilt to save Mr. Dunlap’s life. Aple. Br. 114; see Box 23, Vol. LXI, 154-59.

He had asked each venire member to complete a 13-page questionnaire; he

received permission to investigate them before jury selection (which included

driving past their homes, observing whether children seemed to live there, taking

note of their bumper stickers, and researching their backgrounds in computer

databases); finally, he devised profiles of desirable jurors, sought Mr. Dunlap’s

impressions of those he saw, and scored them on a 1-10 scale. Aple. Br. at 114-

15; Box 23, Vol. LXI, 159-60, 67-68. During selection Mr. Lewis could see who

was up after a strike and at all times wanted to have more challenges left than the

state. “Our best hope,” he testified, “was one person on that jury who would not

vote death”—preferable, he thought, to “relying on legal issues in an appellate

court,” which he characterized as a gamble that he “refuse[d]” to make with Mr.

Dunlap’s life. Box 23, Vol. LXI at 181, 165-66.

      Mr. Dunlap discusses the biases of two potential jurors—both finally struck

by Mr. Dunlap’s peremptories—but the Colorado Supreme Court did not review

their fitness to serve. The implicit consideration is that if jurors were objected to

but nonetheless removed by peremptory strike, the defense cannot complain, so

long as it accepted the jury with peremptories still in its quiver. Steven Gayle,

Mr. Lewis’s co-counsel, thought Mr. Lewis should have exhausted but could not

identify any jurors that would have supported a reversal. Box 23, Vol. LXI, 173-

                                          16
78. The Colorado Supreme Court’s conclusion that Mr. Lewis was not ineffective

for not exhausting peremptory challenges does not conflict with federal law.

D.    Did the jury improperly consider a non-statutory aggravating factor?

      Mr. Dunlap’s last argument is that he was denied his Eighth Amendment

right against cruel and unusual punishment when the jury erroneously heard

extensive evidence, at the death-eligibility stage, that suggested that he posed a

continuing threat. Aplt. Br. 147-73. Under Colorado law, the quality of not

being a continuing threat is a mitigating factor that only the accused can raise.

Mr. Dunlap argues that the 30 or so witnesses called to “rebut” the notion that he

was not a continuing threat in effect created a new, non-statutory aggravating

factor.

      The Colorado Supreme Court held that it was error to allow the jury to

consider this “rebuttal” evidence at the death-eligibility stage, People v. Dunlap

(“Dunlap I”), 975 P.2d 723, 740 (Colo. 1999). In doing so it overruled a decision

that the trial court relied on, People v. Saathoff, 790 P.2d 804 (Colo. 1990). In

Colorado, a capital jury generally proceeds through four steps: find any

aggravating factors, find any mitigating factors, weigh them against each other,

and then choose between life imprisonment or death. Dunlap I, 975 P.2d at 736.

The first three concern “eligibility” for death. “Aggravating circumstance

evidence” (unlike prosecution evidence that relates to a statutory aggravator) is

admissible only in step four, the life-or-death stage. Id. at 740. The “rebuttal”

                                         17
evidence in this case included six prior aggravated robberies (three

unadjudicated), victim responses to the robberies, Mr. Dunlap’s excitement and

bragging about them, gang activity, a drive-by shooting, threats against witnesses,

crack cocaine sales, a tattoo with a smoking gun and the words “By Any Means

Necessary,” and his escape attempt. Yet the Colorado Supreme Court found the

error harmless, because limiting instructions “precluded the jury from weighing

the evidence in question as aggravating evidence during steps one through three.”

Id. at 742. These instructions told the jury that it could not consider evidence

concerning mitigating factors as aggravation and that it could only weigh the

aggravating factors against the mitigating factors. Id. at 743.

      Mr. Dunlap cites Brown v. Sanders, 546 U.S. 212, 217 (2006), for its

statement that, in a “weighing” state, as Colorado is in its first three steps, jury

consideration of an “invalid eligibility factor necessarily skew[s] its balancing of

aggravators with mitigators.” Yet this quotation omits an important qualification

that follows: “unless a state appellate court determined the error was harmless.”

Id. Here, the state court did so determine.

      Assuming arguendo that this error violated the U.S. Constitution, a federal

habeas court reviews for harmlessness under the standard of Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993), which asks whether the error had a

“substantial and injurious effect” on the jury’s verdict. For the reasons identified

by the Colorado Supreme Court, we must agree that the error was harmless.

                                           18
Moreover, the jury expressly found (beyond a reasonable doubt) seven other

aggravating factors for each victim: previous felony conviction for second-degree

kidnapping involving the use of a deadly weapon; murder committed while lying

in wait; murder in the course of committing aggravated robbery; murder for

pecuniary gain; knowingly creating a grave risk of death to another person while

committing murder (Mr. Bobby Stephens); and murder for the purpose of

avoiding or preventing lawful arrest. The result of the Colorado Supreme Court

does not conflict with federal law.

      The motion to expand the COA was considered and is denied.

      AFFIRMED.
                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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