                                                                        FILED
                                                United States Court of Appeals
                      UNITED STATES COURT OF APPEALS Tenth Circuit
                                                                 February 20, 2013
                                    TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
 KENNETH EUGENE HOGAN,

          Petitioner - Appellant,
                                                        No. 11-6161
 v.                                              (D.C. No. 5:07-CV-00727-R)
                                                        (W.D. Okla.)
 ANITA TRAMMELL, Interim
 Warden, * Oklahoma State Penitentiary,

          Respondent - Appellee.


                             ORDER AND JUDGMENT **


Before KELLY, TYMKOVICH, and MATHESON, Circuit Judges.


      Petitioner-Appellant Kenneth Eugene Hogan appeals from the district

court’s denial of his habeas corpus petition. 28 U.S.C. § 2254. On appeal, he

argues that (1) he was deprived of his Sixth, Eighth, and Fourteenth Amendment

rights to have the jury consider heat of passion manslaughter as his defense and as

a lesser-included offense; (2) he was denied his right to have the jury fully


      *
        Pursuant to Fed. R. App. P. 43(c)(2), Anita Trammel, who was appointed
Interim Warden of Oklahoma State Penitentiary on September 24, 2012, is
automatically substituted for Randall G. Workman as Respondent in this case.
      **
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
consider mitigation evidence; and (3) the failure to instruct the jury that his

statement to law enforcement was exculpatory violated his right to Due Process

and to present a defense. Exercising jurisdiction under 28 U.S.C. §§ 1291 &

2253(a), we affirm.



                                    Background

      This appeal arises from Mr. Hogan’s second trial for the murder of Lisa

Renee Stanley. In 1988, Mr. Hogan was convicted of first degree murder and

sentenced to death. On habeas review, this court vacated Mr. Hogan’s conviction,

finding that his due process rights were violated by the trial court’s refusal to

instruct the jury on first degree manslaughter. Hogan v. Gibson, 197 F.3d 1297,

1312 (10th Cir. 1999). The facts of Ms. Stanley’s murder are recounted in our

earlier decision, and we need not repeat them here. See id. at 1300–02.

      Mr. Hogan was re-tried and again convicted of first degree murder and

sentenced to death. The Oklahoma Court of Criminal Appeals (OCCA) affirmed

the conviction and sentence on direct appeal. Hogan v. State, 139 P.3d 907

(Okla. Crim. App. 2006). The OCCA denied two petitions for post-conviction

relief. Hogan v. State, No. PCD-2003-668 (Okla. Crim. App. Mar. 21, 2007)

(unpub.); Hogan v. State, No. PCD-2008-241 (Okla. Crim. App. Aug. 28, 2008)

(unpub.); R. 210–15, 535–39. On May 12, 2011, the federal district court denied

habeas relief. R. 752–848.

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      The district court granted a certificate of appealability (COA) on the first-

stage jury instructions on first degree heat of passion manslaughter. R. 850–52.

This court expanded the COA to include (1) the denial of mitigation evidence due

to the state’s proffered second-stage rebuttal evidence, and (2) the failure to give

an exculpatory statement jury instruction. Case Management Order at 1 (10th Cir.

Sept. 27, 2011). Still pending before this court is Mr. Hogan’s motion to expand

the COA to include a claim for ineffective assistance of counsel.



                                     Discussion

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

639 F.3d 980, 991 (10th Cir. 2011). Like the district court, we must defer to the

state court proceedings unless 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.” Id. § 2254(e)(1).

      Our review of the record persuades us that the state courts’ resolution of

Mr. Hogan’s claims was not “diametrically different” or “mutually opposed” to

Supreme Court precedent. See id. § 2254(d)(1); Williams v. Taylor, 529 U.S.

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362, 405–06, 412–13 (2000). Nor did the Oklahoma courts apply the Supreme

Court’s rules to materially indistinguishable facts and reach a different result.

Williams, 529 U.S. at 406. Finally, no unreasonable determination of the facts

pertinent to each claim occurred. See 28 U.S.C. § 2254(d)(2).

A.    First-Stage Jury Instructions on First Degree Heat of Passion Manslaughter

      Mr. Hogan argues that the trial court’s first-stage jury instructions

restricted the jury from properly considering his heat of passion manslaughter

defense. Aplt. Br. 13. He contends the trial court should have instructed the jury

that (1) manslaughter was the defense; (2) the state was required to disprove heat

of passion beyond a reasonable doubt; and (3) manslaughter may be considered at

the same time as first degree murder. Id. Reviewing for plain error, the OCCA

rejected this claim on the ground that the instructions, which were substantively

the same as those given and upheld in Black v. State, 21 P.3d 1047 (Okla. Crim.

App. 2001), informed the jury of Mr. Hogan’s defense. Hogan, 139 P.3d at

922–25. The OCCA acknowledged that the instructions were slightly modified

from those in Black, but found any error to be invited because the trial court gave

the instructions that Mr. Hogan proposed. Id. at 925. The district court found the

OCCA decision consistent with federal law, and that this court’s decision in

Bland v. Sirmons, 459 F.3d 999 (10th Cir. 2006), foreclosed relief. R. 765–66.

      In arguing that habeas relief is warranted, Mr. Hogan points to Mullaney v.

Wilbur, 421 U.S. 684 (1975), and our decision in United States v. Lofton, 776

                                         -4-
F.2d 918 (10th Cir. 1985). Aplt. Br. 14–15. In Lofton, we interpreted Mullaney

to require the following jury instructions when a defendant properly raises a heat

of passion defense: (1) that manslaughter is the theory of defense; and (2) that the

government must prove beyond a reasonable doubt the absence of heat of passion.

776 F.2d at 920. The problem with Lofton is that we cannot set aside a state

court decision if it does not follow a circuit court ruling. See Black v. Workman,

682 F.3d 880, 901 (10th Cir. 2012) (rejecting a similar argument). Rather, the

only ground for setting aside the OCCA decision would be if it is “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

      Mr. Hogan, however, can find little relief in Mullaney because we have

twice rejected the suggestion that a trial court’s failure to instruct the jury as he

requests warrants habeas relief. See Black, 682 F.3d at 902; Bland, 459 F.3d at

1013. Mr. Hogan urges us to disregard Black and Bland on the ground that these

cases unreasonably interpreted the requirements for heat of passion manslaughter,

see Aplt. Br. 23–26 & n.6, but we are bound by those decisions. See United

States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000).

      Moreover, a review of the record persuades us that the jury was well aware

of the State’s burden—i.e., to prove the absence of any mental state other than

deliberate intent. In Instructions 4 and 7, the trial court instructed the jury on the

elements of first degree murder and first degree heat of passion manslaughter,

                                          -5-
explaining that the State must “prove[] beyond a reasonable doubt each element

of the crime.” Trial R., Vol. IV at 735, 738. Instruction 5 defined “malice

aforethought,” the mental state of first degree murder, as “a deliberate intention to

take away the life of a human being.” Id. at 736. Instruction 10 explained that

for heat of passion to constitute first degree manslaughter, the heat of passion

“must have existed to such a degree as would naturally affect the ability to reason

and render the mind incapable of cool reflection.” Id. at 742. The OCCA found

these instructions distinguished the mental states for first degree murder and heat

of passion manslaughter such that it was clear “malice and heat of passion . . .

cannot co-exist.” Hogan, 139 P.3d at 924 (quotation omitted). The OCCA

decision was logical and certainly was not contrary to, or an unreasonable

application of, clearly established Supreme Court law.

      We also reject Mr. Hogan’s argument that the jury was precluded from

considering his defense because it was instructed to consider first degree murder

before heat of passion manslaughter. The OCCA reasonably determined that

“[a]ppellant was not deprived of having the jury consider his heat of passion

defense in tandem with the murder charge.” Hogan, 139 P.3d at 925 (quotation

omitted). Instruction 6, for example, provides in part that “[t]he external

circumstances surrounding this commission of a homicidal act may be considered

in finding whether or not deliberate intent existed in the mind of the defendant to

take a human life.” Trial R., Vol. IV at 737. Moreover, as we recently explained

                                         -6-
in Black, no Supreme Court precedent requires “an instruction stating that the

jury may consider a manslaughter charge before reaching a verdict on first-degree

murder.” 682 F.3d at 902.

      Finally, Mr. Hogan argues that the instructions prevented the jury from

considering manslaughter as a lesser-included offense in violation of Beck v.

Alabama, 447 U.S. 625 (1980). Aplt. Br. 26–30. The parties dispute whether this

issue was raised below, see Aplee. Br. 23; Aplt. R. Br. 5–6, but assuming that it

was, we reject Mr. Hogan’s argument because Instruction 13 explicitly tells the

jury to “consider the lesser included crime of Manslaughter in the First Degree” if

it has “a reasonable doubt of the defendant’s guilt of the charge of Murder in the

First Degree with Malice Aforethought.” Trial R., Vol. IV at 745. 1 Thus, the jury

was not foreclosed from considering the lesser-included offense. And to the

extent Mr. Hogan suggests that the trial court violated Beck because the first

degree manslaughter instructions were flawed, we disagree as explained above.

Thus, the OCCA decision was not contrary to, or an unreasonable application of,

clearly established Supreme Court law.

B.    Right to Present Mitigation Evidence


      1
          Mr. Hogan proposed similar language. See Trial R., Vol. V at 814 (“If
you have a reasonable doubt of the defendant’s guilt of the charge of murder in
the first degree, you must then consider the charge of manslaughter.”); id. at 815
(“If you are unable to agree unanimously that Kenneth Hogan is guilty of the
charged offense, you may proceed to consider a lesser included offense upon
which evidence has been presented.”).

                                         -7-
      Mr. Hogan next argues that he was denied the right to present mitigation

evidence because (1) the trial court failed to rule in advance on the admissibility

of potential rebuttal evidence; and (2) his counsel failed to recognize that the

government’s rebuttal evidence was inadmissible under the rules of evidence. We

address each point in turn.

      1.     Erroneous Trial Court Ruling

      Mr. Hogan first challenges the trial court’s evidentiary ruling. Aplt. Br. 38.

Prior to the second-stage of Mr. Hogan’s trial, the government informed the court

that it wished to introduce new evidence about Mr. Hogan through his cousin,

Kevin Freeman. Trial Tr., Vol. VIII at 136. The government agreed to hold this

evidence for rebuttal purposes only, to which Mr. Hogan inquired about the type

of character evidence that would open the door for the rebuttal evidence. Id. at

139, 145. The court refused to issue an advance ruling. Id. at 146. Mr. Hogan

contends that this failure to advise precluded him from presenting a full

mitigation case. Aplt. Br. 41.

      The OCCA denied relief on Mr. Hogan’s claim, finding that the trial court

presented the defense “with a strategic decision” on whether to introduce

mitigation evidence. Hogan, 139 P.3d at 931–32. The district court found the

OCCA’s determination reasonable, noting that (1) state evidentiary decisions do

not present federal constitutional issues cognizable on habeas review; and (2) the

absence of mitigation evidence did not render the trial unfair because of the

                                         -8-
overwhelming evidence that the crime was heinous, atrocious or cruel. R.

769–70.

      Under the Eighth and Fourteenth Amendments, in order to constitutionally

impose a capital sentence, the sentencer may “not be precluded from considering

as a mitigating factor, any aspect of a defendant’s character or record and any of

the circumstances of the offense that the defendant proffers as a basis for a

sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604 (1978). However,

“[w]e may not provide habeas corpus relief on the basis of state court evidentiary

rulings unless they rendered the trial so fundamentally unfair that a denial of

constitutional rights results.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir.

2002) (quotation omitted).

      The OCCA decision that the trial court’s evidentiary ruling merely

presented defense counsel with a strategic decision on whether to introduce

mitigation evidence and potentially open the door to rebuttal evidence is

supported by the record. Moreover, no Supreme Court precedent requires an

advisory ruling on potential evidence. Regardless, the failure to introduce this

mitigation evidence did not render the trial fundamentally unfair—Mr. Hogan

introduced much of the substance of the testimony from corrections officers and

family members that he contends he would have introduced but for the trial

court’s ruling. See Trial Tr., Vol. IX at 86–87, 93–94, 95, 98, 100; Trial R., Vol.

V at 831. Therefore, the OCCA decision was not contrary to, or an unreasonable

                                        -9-
application of, clearly established Supreme Court precedent.

      2.     Ineffective Assistance of Counsel

      Mr. Hogan also argues that counsel was ineffective for not realizing that

the character evidence the government sought to admit would be inadmissible.

Aplt. Br. 47–48. Mr. Hogan first raised this argument in his second application

for post-conviction relief. R. 536–37. The OCCA denied the claim on the ground

that it was procedurally barred under Okla. Stat. tit. 22, § 1089(D)(8). Id. The

district court found Oklahoma’s procedural bar adequate and independent, and

concluded there was no cause and prejudice or fundamental miscarriage of justice

to excuse the default. R. 770–82.

      In order to bar federal review, a state procedural rule must be adequate to

support the judgment and independent from federal law. A state procedural rule

is adequate if it is “strictly or regularly followed and applied evenhandedly to all

similar claims.” Banks v. Workman, 692 F.3d 1133, 1145 (10th Cir. 2012)

(quotation omitted). “A state procedural default is ‘independent’ if it relies on

state law, rather than federal law.” Smith v. Workman, 550 F.3d 1258, 1274

(10th Cir. 2008) (citation omitted). In arguing the procedural bar is inadequate,

Mr. Hogan cites to a string of cases in which the OCCA irregularly applied its

procedural bar. See Aplt. Br. 54. However, we recently considered the effect of

these cases and concluded that Oklahoma’s procedural bar remains adequate. See

Thacker v. Workman, 678 F.3d 820, 835–36 (10th Cir. 2012); Banks, 692 F.3d at

                                        - 10 -
1145. Our disposition is similar on the question of independence. Mr. Hogan

suggests the procedural bar is not independent because it “is intertwined with

federal law.” Aplt. Br. 59. Once again, we recently considered this argument and

determined that Oklahoma’s procedural bar is independent. See Banks, 692 F.3d

at 1145–47. We thus reject Mr. Hogan’s challenge.

      We also find that Mr. Hogan cannot establish cause and prejudice to excuse

his default. Mr. Hogan asserts that the ineffectiveness of post-conviction counsel

excuses his default. Aplt. Br. 61–62. He claims that Oklahoma has created a

right to effective assistance of post-conviction counsel, and thus, Coleman v.

Thompson, 501 U.S. 722, 752 (1991), in which the Supreme Court held that a

habeas petitioner has no constitutional right to post-conviction counsel, does not

apply. Id. Mr. Hogan instead looks to Martinez v. Ryan, 132 S. Ct. 1309, 1318

(2012), where the Court held that when state law prohibits a defendant from

presenting a claim of ineffective assistance of trial counsel on direct appeal,

post-conviction counsel’s deficient performance in failing to assert the claim on

collateral review can serve as cause for the default. However, as we recently

explained, Martinez is inapplicable when Oklahoma law permits a claim of

ineffective assistance of trial counsel on direct appeal. See Banks, 692 F.3d at

1148. Therefore, we reject Mr. Hogan’s claim that his default is excused. 2

      2
        For similar reasons, we deny Mr. Hogan’s motion to expand the COA to
include a separate claim for ineffective assistance of counsel. The district court
found this claim procedurally barred. Where the district court dismisses a § 2254

                                        - 11 -
C.    Jury Instruction on Exculpatory Statements

      Mr. Hogan’s final argument is that the trial court violated his right to Due

Process and to present a defense when it refused his requested jury instruction on

exculpatory statements. Aplt. Br. 63–67; see Trial R., Vol. V at 808. Mr. Hogan

contends that he was entitled to Oklahoma’s exculpatory statement instruction

because his confession, which the government introduced at trial, was exculpatory

in nature. 3 The OCCA rejected this claim on the merits, holding that (1) the


motion on procedural grounds, the movant must demonstrate that it is reasonably
debatable whether (1) the motion states a valid claim of the denial of a
constitutional right, and (2) the district court’s procedural ruling is correct. Slack
v. McDaniel, 529 U.S. 473, 484 (2000). In light of Supreme Court precedent and
our decisions interpreting that precedent, Mr. Hogan has failed to demonstrate it
is reasonably debatable that the district court’s procedural ruling is correct.
      3
          Oklahoma’s exculpatory statement instruction provides:

      An exculpatory statement is defined as a statement by the defendant
      that tends to clear a defendant from alleged guilt, or a statement that
      tends to justify or excuse his/her actions or presence.

      Where the State introduces in connection with a confession or
      admission of a defendant an exculpatory statement, which, if true,
      would entitle him/her to an acquittal, he/she must be acquitted unless
      such exculpatory statement has been disproved or shown to be false
      by other evidence in the case. The falsity of an exculpatory statement
      may be shown by circumstantial as well as by direct evidence.

      A statement is exculpatory within the meaning of this instruction only
      if it concerns a tangible, affirmative, factual matter capable of
      specific disproof. A statement is not exculpatory within the meaning
      of this instruction if it merely restates the defendant’s contention of
      innocence.

OUJI-CR 9-15.

                                        - 12 -
instruction was not required because Mr. Hogan’s statement was “disproved by

other evidence in the case”; and (2) Mr. Hogan was not prejudiced because “the

jury was fully instructed on the State’s burden of proof, the presumption of

innocence, and the voluntariness of his statement.” Hogan, 139 P.3d at 926. The

district court found the OCCA decision consistent with federal law. R. 803–04.

      Mr. Hogan’s claim is based in state law—whether he was entitled, under

Oklahoma law, to an exculpatory statement jury instruction. However, habeas

relief does not lie for errors in state law. Wilson v. Corcoran, 131 S. Ct. 13, 16

(2010). We may only grant habeas relief if a state-law error “so infected the

entire trial that the resulting conviction violates due process.” Cummings v.

Sirmons, 506 F.3d 1211, 1240 (10th Cir. 2007) (quoting Henderson v. Kibbe, 431

U.S. 145, 154 (1977)). Furthermore, “[a]n omission, or an incomplete instruction,

is less likely to be prejudicial than a misstatement of the law.” Henderson, 431

U.S. at 155.

      The OCCA held that Mr. Hogan suffered no prejudice from the court’s

failure to instruct the jury. This finding is supported by the record. Mr. Hogan

was able to present his defense without this requested instruction—it was clear

from the other instructions that he claimed to be acting in a heat of passion and

was not guilty of first degree murder. That the jury chose to disbelieve his

defense does not mean the instructions were flawed. Thus, the OCCA decision




                                        - 13 -
was not contrary to, or an unreasonable application of, clearly established

Supreme Court precedent.

      AFFIRMED.
                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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