                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 MALCOLM RENT JOHNSON,

       Petitioner - Appellant,                        No. 96-6336
 v.                                            (D.C. No. CIV-94-121)
                                             (Western District of Oklahoma)
 GARY L. GIBSON, Warden,

       Respondent - Appellee.


                                    ORDER

                             Filed February 26, 1999


Before SEYMOUR, ANDERSON and LUCERO, Circuit Judges.


      This matter is before the court on petitioner Malcolm Rent Johnson’s

Petition for Rehearing. The petition is denied. Mr. Johnson correctly

maintains, however, that the opinion of December 28, 1998, did not correctly

address one issue raised in his appeal. The accompanying amended opinion

addresses that issue.

      The suggestion for rehearing en banc was transmitted to all of the

judges of the court who are in regular active service as required by Fed. R.

App. P. 35. As no member of the panel and no judge in regular active
service on the court requested that the court be polled, the suggestion is also denied.

      The opinion filed on December 28, 1998, is withdrawn and reissued.

A copy of the amended opinion is attached. The mandate shall issue

forthwith.

                                     ENTERED FOR THE COURT

                                     Patrick Fisher, Clerk of Court

                                     By:

                                             Keith Nelson
                                             Deputy Clerk




                                       -2-
                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       FEB 26 1999
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                                 TENTH CIRCUIT



 MALCOLM RENT JOHNSON,

       Petitioner - Appellant,
 v.                                                   No. 96-6336

 GARY L. GIBSON, Warden,

       Respondent - Appellee.


                 Appeal from the United States District Court
                    for the Western District of Oklahoma
                            (D.C. No. CIV-94-121)


Vicki Ruth Adams Werneke, Assistant Federal Public Defender (Randy A.
Bauman, Assistant Federal Public Defender, with her on the briefs), Death
Penalty Federal Habeas Corpus Division, Oklahoma City, Oklahoma, for the
Petitioner - Appellant.

William L. Humes, Assistant Attorney General (W.A. Drew Edmondson, Attorney
General of Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for the
Respondent - Appellee.


Before SEYMOUR, ANDERSON and LUCERO, Circuit Judges.


LUCERO, Circuit Judge.


      Malcolm Rent Johnson filed an amended petition for habeas corpus

pursuant to 28 U.S.C. § 2254 in February 1994, in which he raised thirty-one
grounds of constitutional error in his conviction and death sentence. The United

States District Court for the Western District of Oklahoma denied this petition in

its entirety on August 12, 1996, finding some of the asserted claims procedurally

barred and the rest meritless. Johnson now appeals the district court’s denial of

the writ, raising thirteen claims of error, alleging violations of the Fourth, Fifth,

Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In

addressing his claims, we hold, inter alia, that a party challenging as

discriminatory the exercise of peremptory challenges pursuant to     Batson v. State

of Kentucky, 476 U.S. 79 (1986), has the burden of production in seeking to rebut

as pretextual facially neutral justifications proffered by the party exercising the

challenges. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.

                                           I

      On the evening of October 27, 1981, Frank Thompson found his aunt, Ura

Alma Thompson, an elderly white woman, deceased on the floor of her Oklahoma

City apartment. Following an autopsy, the medical examiner found evidence of

forcible sexual intercourse before death. He concluded that although Thompson

was not strangled, she died of asphyxiation either because of pressure on her

chest during the intercourse or because her assailant covered her mouth and nose.

      On October 27, 1981, police arrested Johnson on an unrelated weapons

charge at his apartment, where they seized several items later identified as


                                          -2-
belonging to Thompson. On October 28, 1981, the police obtained hair, saliva,

and blood samples from Johnson. In interviews with police after his arrest,

Johnson denied knowledge of the homicide, but when told that semen found in

Thompson’s body matched his own, he reportedly responded, “you couldn’t have

found my semen in her, I didn’t come.” Trial Tr. at 913.

      At the first stage of trial, Joyce Gilchrist, a state forensic chemist, testified

that semen found on the bed coverings in Thompson’s apartment matched

Johnson’s blood type. She also testified that several strands of hair found at the

scene of the crime were “consistent microscopically” with petitioner’s hair. Trial

Tr. at 1033, 1038-39. The defense did not present any witnesses. Petitioner was

found guilty on March 22, 1982.

      At the second stage of trial, the state introduced evidence about Johnson’s

prior Illinois convictions for raping two different women, two separate charges of

armed robberies, and one burglary. Four women testified that petitioner had

raped or attempted to rape them or attempted to rob them with a firearm. These

latter offenses were unadjudicated at the time of trial.

      Sixteen of Johnson’s relatives testified that he came from a broken and

abusive home, and that at the age of two he spent two months, often under

restraint, in the hospital for an undiagnosed debilitating illness. They also

testified that Johnson, the oldest of four children, was responsible for his


                                          -3-
siblings’ care and for other household duties. His girlfriend testified that he

assumed a parental role with her five-year old son. Neither side offered

psychiatric testimony.

       The court submitted three aggravating circumstances for the jury’s

consideration: (1) prior conviction of a felony; (2) continuing threat to society;

and (3) especially heinous, cruel, or atrocious killing. The jury rejected the third

aggravator but found that the other two outweighed the evidence of mitigation.

Petitioner was sentenced to death.

                                              II

       Before we deal with the merits of petitioner’s claim, we address the

applicability of the habeas corpus amendments enacted as Title I of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), signed into law

on April 24, 1996. Mr. Johnson filed this amended petition for federal habeas

corpus relief in the district court on February 11, 1994. Thus, the pre-AEDPA

version of the Act applies.    1
                                   Cf. United States v. Kunzman , 125 F.3d 1363, 1364

n.2 (10th Cir. 1997) (citing       Lindh v. Murphy , 117 S.Ct. 2059, 2068 (1997)). We

grant petitioner a certificate of probable cause as required under the pre-AEDPA

version of the statute.



       1
        The new Act amended existing habeas provisions in 28 U.S.C. §§ 2244,
2254, and 2255.

                                              -4-
                                           III

       Johnson alleges that the trial court unconstitutionally denied him, an

indigent defendant, the “basic tools of an adequate defense” in violation of his

rights under the Due Process Clause.      See Ake v. Oklahoma , 470 U.S. 68, 77

(1985) (quoting Britt v. North Carolina , 404 U.S. 226, 227 (1971)). He alleges

three specific violations of Ake : denial of funds for psychiatric assistance; denial

of funds for a forensic chemistry expert; and denial of funds for counsel to travel

to Chicago to help prepare mitigation evidence. “In reviewing the district court’s

denial of [the Ake ] claim, we review the court’s factual findings under the clearly

erroneous standard and its legal conclusions de novo.”     Castro v. Oklahoma , 71

F.3d 1502, 1510 (10th Cir. 1995). Because the Court decided       Ake after Mr.

Johnson’s trial, but while his case was still pending on direct appeal, application

of Ake to this case presents no retroactivity problem.    See id. at 1512.

                                A. Psychiatric Expert

       Johnson repeatedly requested funds to retain a psychiatric expert. The trial

court denied these requests, and petitioner presented no psychiatric evidence at

either the guilt or sentencing phase of trial. The district court denied habeas

relief, finding that Petitioner had failed to make the requisite preliminary showing

that his sanity would be a significant factor at trial.




                                            -5-
       1. Guilt Phase

       Due process requires that “when a defendant demonstrates to the trial judge

that his sanity at the time of the offense is to be a significant factor at trial, the

State must, at a minimum, assure the defendant access to a competent psychiatrist

who will conduct an appropriate examination and assist in evaluation,

preparation, and presentation of the defense.”            Ake , 470 U.S. at 83. The

defendant must, however, show more than “general allegations” and “undeveloped

assertions.”   See Liles v. Saffle , 945 F.2d 333, 336 (10th Cir. 1991). The

question in a case such as this, where “      Ake was decided after trial but while

direct appeal was pending,” is “whether, upon review of the entire record, the

habeas petitioner could have made a threshold showing under             Ake that his sanity

at the time of the offense was to be a significant factor at trial.”       Moore v.

Reynolds , 153 F.3d 1086, 1109 (10th Cir. 1998).

       We agree with the district court that petitioner does not make the threshold

showing with respect to the guilt phase. He simply fails to present, upon

consideration of the entire record, evidence that his sanity at the time of the

offense was likely to be a significant factor at trial.        Cf. Castro , 71 F.3d at 1513-

14. Although petitioner offers an expert neuropsychological evaluation as

evidence of the type of psychiatric testimony he would have presented,            this report




                                               -6-
presents no evidence tending to demonstrate that he was incompetent at the time

of the crime. See Moore , 153 F.3d at 1109.

       2. Sentencing Phase

       Johnson further contends that the denial of funds for psychiatric assistance

was unconstitutional in light of the State’s use of the “continuing threat”

aggravating circumstance. At the sentencing phase, the State did not present

psychiatric evidence on the “continuing threat” aggravator. It presented evidence

of Johnson’s prior convictions on rape, robbery, and burglary charges as well as

evidence of four unadjudicated offenses including rape, attempted rape, burglary,

and robbery. We have held, however, that “[a]n expert must be appointed if the

State presents evidence,   psychiatric or otherwise , of the defendant’s future

dangerousness or continuing threat to society during the sentencing phase, and the

indigent defendant establishes the likelihood his mental condition is a significant

mitigating factor.”   Castro , 71 F.3d at 1513 (emphasis added).

       We conclude that Johnson has met the threshold showing of a likelihood

that mental condition could have been a mitigating factor at the sentencing stage.

See Moore , 153 F.3d at 1110. He presents us with a “neuropsychological

evaluation” stating he “could be treated . . . in the prison setting” in a way that

“would control his behavior and especially remove the risk of further dangerous

behavior.” Appellant’s Br., App. 1, at 1-2. This statement, although general and


                                          -7-
conclusory, nevertheless rises to the level of evidence that “arguably suggests if

[Johnson] were to receive proper psychiatric treatment for his mental disorders,

he would be less likely to commit future crimes and, in short, would be less

dangerous to society.”    Moore , 153 F.3d at 1110. Thus, we conclude that Johnson

has established his constitutional entitlement to mental health expert assistance at

the sentencing phase of trial.     See Castro , 71 F.3d at 1515.

       The denial of this entitlement leads us to harmless error analysis, and, in

this particular context, to the following inquiry: “Do [we] harbor a significant

doubt that this evidence would have caused at least one juror to choose life rather

than death?” Moore , 153 F.3d at 1110 (quoting       Brecheen , 41 F.3d at 1373). In

this case, we can see no such doubt. Unlike in      Castro , the jury’s only question

during deliberations shows no confusion in determining whether Johnson’s crime

merited the death penalty.       Compare Castro , 71 F.3d at 1516, with Moore , 153

F.3d at 1110-11. Nor are we presented with a situation,       where reversal of the

“especially heinous, atrocious, and cruel” aggravating circumstance left the jury

with only the continuing threat circumstance.       Cf. Castro , 71 F.3d at 1516. The

jury in Johnson’s case rejected the “heinous, atrocious, and cruel” circumstance,

but found the aggravating circumstances of both continuing threat and previous

violent felony convictions. As in      Moore , “most, if not all, of the evidence

presented at the sentencing phase could . . . have been properly considered by the


                                              -8-
jury,” 153 F.3d at 1111, including Johnson’s previous rapes and other violent

crimes, as well as the manner of Thompson’s death. Against the weight of that

evidence, the mental health evidence Johnson presents to us now—none of which

explains his murder of Thompson—fails to raise a significant doubt that it would

have persuaded even one juror to choose the alternative sentence.      See id.

                                     B. Forensic Expert

       At trial, petitioner’s counsel sought funds for a forensic expert to rebut the

testimony of forensic chemist Joyce Gilchrist, a prosecution witness who

presented evidence that hair, fiber, and semen samples found on the victim match

those of petitioner. The trial court denied the request, and the district court, on

two grounds, rejected petitioner’s     Ake challenge to the trial court’s decision.

       First, the district court found that “defense counsel effectively cross-

examined the [forensic] witnesses to fully develop the limitations of the tests

performed on the evidence.”     Johnson v. Reynolds , No. CIV-94-121-C (W.D.

Okla. Aug 12, 1996) at 31 (hereinafter Mem. Op.). Second, it concluded that “in

light of the entire record and the nature of the evidence presented by the

prosecution at trial, petitioner has failed to establish the denial of expert

assistance in developing affirmative evidence, such as testing by electrophoresis,

resulted in a fundamentally unfair trial.” Mem. Op. at 32 (citing      Yohey v.

Collins , 985 F.2d 222, 227 (5th Cir. 1993)). These are legal conclusions that we


                                            -9-
review de novo.    See Castro , 71 F.3d at 1510. Without deciding the issue of

whether defense cross-examination of an expert witness can be an adequate

substitute for the testimony of an expert not beholden to the prosecution, we agree

with the district court that the denial of expert assistance ultimately did not result

in a fundamentally unfair trial.

       In assessing due process challenges to denial of funds for non-psychiatric

experts, “we consider three factors: (1) the effect on [the petitioner’s] private

interest in the accuracy of the trial if the requested service is not provided; (2) the

burden on the government’s interest if the service is provided; and (3) the

probable value of the additional service and the risk of error in the proceeding if

such assistance is not offered.”   Moore , 153 F.3d at 1112 (quoting   United States

v. Kennedy , 64 F.3d 1465, 1473 (10th     Cir. 1995)).

       The first and second prongs of this test are easily satisfied because as the

Supreme Court has held, “[t]he private interest in the accuracy of a criminal

proceeding that places an individual’s life or liberty at risk is almost uniquely

compelling,” and although the State’s      interest in financial economy may weigh

against the provision of experts to indigent defendants,    its “interest in prevailing

at trial—unlike that of a private litigant—is necessarily tempered by its interest in

the fair and accurate adjudication of criminal cases.”     Ake , 470 U.S. at 78–79.

Thus, the critical factor in assessing whether a particular expert is a required


                                            -10-
“basic tool” of an adequate defense is the third prong of the test that deals with

the probable value and risk of error associated with the additional assistance.    See

Moore , 153 F.3d at 1112.

       In Kennedy , a federal non-capital defendant argued that by refusing to

provide funds for additional paralegals, airfare, and accounting services, the

district court violated his due process rights to “the ‘basic tools’ and ‘raw

materials integral to’ the presentation of an adequate defense.” 64 F.3d at 1473

(quoting Ake , 470 U.S. at 76). We found the third factor—the value of the

additional service and the risk associated with its absence—dispositive because

Kennedy failed to show “the value of the requested services or how their denial

caused him any substantial prejudice at trial.”     Kennedy , 64 F.3d at 1473.

       In Moore , which involved a petition for habeas corpus in a state death

penalty case, we rejected a due process claim based on the denial of a forensic

expert, and held that the petitioner’s “arguments as to what the requested experts

might have said [were] entirely speculative,”      Moore , 153 F.3d at 112, because he

had “offered little more than undeveloped assertions that the requested assistance

would be beneficial.”    Id. (quoting Caldwell v. Mississippi , 472 U.S. 320, 324 n.1

(1985)).

       Here, petitioner offers evidence—letters from two forensic experts—raising

arguments that go beyond the level of bare speculation about whether expert


                                            -11-
testimony would have rebutted the prosecution’s testimony about the hair and

fiber evidence. Other than merely undermining certain aspects of the

prosecution’s forensic evidence, however, petitioner’s proffered expert rebuttal

evidence does not purport to show that he could not have committed the crime.

Therefore, upon review of the record we conclude that petitioner fails to show

that denial of his request for expert assistance substantially prejudiced his case at

the guilt phase of trial.   See Moore , 153 F.3d at 1112; Kennedy , 64 F.3d at 1473.

                                    C. Travel Funds

       Petitioner alleges that by denying his requests for funds to travel to

Chicago, Illinois, to gather mitigating evidence for the second stage of trial, the

trial court deprived him of his right to an adequate defense. We agree with the

district court that petitioner fails to show how this ruling substantially prejudiced

his defense.   Cf. Kennedy , 64 F.3d at 1473.

                                            IV

       Petitioner claims that the prosecutor’s use of peremptory challenges to

strike all three black jurors on the venire, resulting in the selection of an all-white

jury, violated Batson v. State of Kentucky, 476 U.S. 79 (1986) . Petitioner

exhausted this claim in the state courts; it is not procedurally defaulted.




                                           -12-
           Johnson’s conviction was on direct appeal when the Supreme Court issued

Batson . 2 Accordingly, the Oklahoma Court of Criminal Appeals (OCCA)

remanded the Johnson proceeding for an evidentiary hearing on his claim that race

discrimination tainted the jury selection process. At the hearing, petitioner

established that the prosecution exercised its peremptory challenges in a manner

that gave rise to the inference that it “exclude[d] the [black] venire members from

the petit jury on account of their race.”   United States v. Johnson , 941 F.2d 1102,

1107 (10th Cir. 1991). The defendant therefore made a prima facie case of a

Batson violation.    See Batson , 476 U.S. at 97. The burden then shifted to the

prosecutor to present a “neutral explanation for his action.”     Id. at 100. Following

the prosecutor’s explanations,     the trial judge concluded that “the State has met its

burden of proof and . . . there was no purposeful discrimination in the exercise of

[] peremptory challenges against black persons.” Tr. of Hr’g Nov. 13, 1986, at 34

(hereinafter Batson Tr.). 3




       2
          Although Batson had not been decided at the time of voir dire in this
case, there is no dispute that it applies here. In  Griffith v. Kentucky , 479 U.S.
314, 328 (1987), the Supreme Court held that       Batson “is to be applied
retroactively to all cases, state or federal, pending on direct review or not yet
final” at the time of the Batson decision.
       3
         The Oklahoma Court of Criminal Appeals concluded that “[t]he
[prosecutor’s] explanations were both neutral and logical based upon the record
before him.” Johnson v. State , 731 P.2d 993, 999 (Okla. Crim. 1987).

                                            -13-
       On habeas review, we presume the state court’s factual determinations to be

correct unless we find that they are not fairly supported by the record.     See Sena v.

New Mexico State Prison, 109 F.3d 652, 653 (10th Cir. 1997). In addition,

Batson cautions us to review with deference the ultimate factual finding that there

was no intentional discrimination.     See Batson , 476 U.S. at 98 n.21.

       Petitioner now offers troubling evidence of the pretextual character of the

prosecutor’s ostensibly neutral reasons. A black juror and a white juror shared

similar characteristics; the prosecutor, relying on those characteristics, struck only

the black juror.   Cf. Turner v. Marshall , 121 F.3d 1248, 1251-52 (9th Cir. 1997)

(finding allegedly race-neutral reasons for peremptory challenge pretextual by

comparing shared characteristics of struck minority juror and empaneled

nonminority juror). Our review of the record, however, shows that petitioner did

not raise this pretext argument at the evidentiary hearing on the      Batson claim.

Therefore, although it appears that the record may provide support for petitioner’s

pretext argument, we cannot reverse the state court’s factual findings at this stage.

To do so would require us to hold that the     Batson inquiry imposes an independent

duty on the trial court to pore over the record and compare the characteristics of

jurors, searching for evidence of pretext, absent any pretext argument or evidence

presented by counsel. We cannot reconcile such an approach with the Supreme

Court’s directive that “the ultimate burden of persuasion regarding racial


                                             -14-
motivation rests with, and never shifts from, the opponent of the strike.”   Purkett

v. Elem , 514 U.S. 765, 768 (1995).

                                             V

       Petitioner raises a due process claim based on allegations of prosecutorial

misconduct. Petitioner claims that the prosecutor engaged in misconduct when he

referred to the police chemist’s testimony as “conclusive.” Petitioner also notes

that although the state had refused to provide him with expert assistance, the

prosecutor told the jury at sentencing that petitioner offered no medical testimony

in mitigation. Petitioner also objects to a number of other allegedly prejudicial

remarks at trial. The district court found that petitioner procedurally defaulted his

challenge to all of these remarks but one.

       First, we address the district court’s finding of procedural bar. “On habeas

review, we do not address issues that have been defaulted in state court on an

independent and adequate state procedural ground, unless cause and prejudice or a

fundamental miscarriage of justice is shown.”       Steele v. Young , 11 F.3d 1518,

1521 (10th Cir. 1993) (citations omitted). Johnson’s claims stemming from the

prosecutor’s comments about the State’s forensic evidence and Johnson’s failure

to put on medical testimony in support of mitigation are not procedurally barred.

The district court, however, found that the remaining alleged instances of

misconduct, save one, had been procedurally barred by Oklahoma’s application of


                                            -15-
a contemporaneous objection rule. At trial, Johnson’s counsel failed to object to

all of the alleged instances of misconduct except for a disparaging reference to

defense counsel. Johnson raised allegations of prosecutorial misconduct on direct

appeal, but the OCCA did not address the claim. He raised the claim again in his

application for post-conviction relief, and the OCCA ruled on it, stating: “We have

reviewed the alleged erroneous comments and find that defense counsel failed to

object to all of the remarks except one, and that when he objected to the one

comment the trial court sustained the objection and admonished the jury to

disregard it. Consequently, this assignment is without merit.”   Johnson v. State ,

No. PC-88-90, slip op. at 1 (Okla. Crim. Mar. 16, 1988). The OCCA’s language

appears to support the inference that it barred all the claims save one under a

contemporaneous objection rule.

      Johnson, however, alleges that the OCCA did not in fact apply a

contemporaneous objection rule, but instead actually reviewed all of the allegedly

erroneous comments under a “fundamental error” standard of review.

Fundamental error review implicates the merits of federal constitutional claims

and as such is not an independent state ground for decision. Johnson cites

Oklahoma cases standing for the proposition that prosecutorial misconduct is

reviewed on appeal for fundamental error even absent contemporaneous objection.

The fundamental error exception does not apply, however, to claims raised for the


                                           -16-
first time in post-conviction proceedings.     See Brecheen v. Reynolds , 41 F.3d

1343, 1354 n.10 (10th Cir. 1994).

       Johnson’s argument that the Oklahoma court in fact reviewed the claims of

misconduct on the merits is not supported by the court’s language. Moreover, the

court stated that the prosecutorial claim was “[t]he one new assignment” raised by

petitioner, further suggesting that it treated the claim as one raised for the first

time in post-conviction proceedings and thus not subject to fundamental error

review.

       Consequently, given that the court applied a procedural bar, the question

then is whether that bar was an adequate state ground for the denial of relief. If

Oklahoma does not consistently apply a contemporaneous objection rule to claims

of prosecutorial misconduct, then this cannot be an adequate state ground for

barring the claim.   See Steele , 11 F.3d at 1522. However, the cases cited by

Johnson as permitting “fundamental error” review, even absent contemporaneous

objection, all arise on direct appeal and not in post-conviction proceedings.     See,

e.g. , Paxton v. State , 867 P.2d 1309, 1330 (Okla. Crim. 1993) (direct appeal);

McCarty v. State , 765 P.2d 1215, 1220 (Okla. Crim. 1988) (same);         Hammer v.

State , 760 P.2d 200, 203 (Okla. Crim. 1988) (same);      West v. State , 764 P.2d 528,

529 (Okla. Crim. 1988) (same);     Williams v. State , 658 P.2d 499, 500 (Okla. Crim.

1983) (same) . We have previously noted that the Oklahoma Court of Criminal


                                             -17-
Appeals’ application of procedural bar in post-conviction proceedings to

“fundamental error” issues not presented on direct review does not appear to be

inconsistent.   See Steele , 11 F.3d at 1522 n.5.

       Petitioner accurately points out, however, that he did not fail to raise the

numerous alleged instances of prosecutorial misconduct, but rather the OCCA

simply did not address them.    See Johnson v. State , 731 P.2d 993, 1001-1002

(Okla. Crim. 1987) (addressing appellant’s arguments C.IV and E.I, but not

discussing appellant’s Section D, relating to prosecutorial misconduct). Moreover,

petitioner raised this omission in a petition for rehearing as provided for by the

Rules of the Oklahoma Court of Criminal Appeals. Petitioner raised the

prosecutorial misconduct claim at all possible junctures on direct appeal, and he

offers evidence that Oklahoma courts do review such claims for fundamental

error—a review that necessarily includes review for federal constitutional error

and is not independent,   see Brecheen 41 F.3d at 1353-54—even absent

contemporaneous objection at trial. Accordingly, we cannot conclude that the

court’s application of the contemporaneous objection rule in post-conviction

proceedings was an adequate and independent instance of procedural bar.       See

Brecheen , 41 F.3d at 1354 & n.10. Yet, we should note that while we conclude

that there is no procedural bar to review of the remarks not objected to at trial, that

failure is nevertheless relevant to our analysis of the fundamental fairness or


                                          -18-
unfairness of the entire trial under    Donnelly v. DeChristoforo , 416 U.S. 637

(1974).

       We turn to the merits of petitioner’s claims of prosecutorial misconduct.

Johnson contends that the allegedly improper remarks regarding forensic and

psychiatric assistance violated a specific constitutional right to an adequate

defense. Perforce, he argues, to establish a claim for habeas relief he need not

show that the entire trial was rendered fundamentally unfair.          See Mahorney v.

Wallman , 917 F.2d 469, 472 (10th Cir. 1990). As we have concluded that the

denial of expert assistance did not infringe on a specific constitutional right,    see

infra Section III, we must review the allegedly improper conduct to determine

whether it “so infected the trial with unfairness as to make the resulting conviction

a denial of due process.”       Donnelly , 416 U.S. at 643. In making that

determination, we consider all of the surrounding circumstances, including the

strength of the State’s case.     See Coleman v. Brown , 802 F.2d 1227, 1237 (10th

Cir. 1986).

       With respect to the prosecutor’s disparaging remarks about defense counsel,

after careful review of the totality of circumstances of the trial, we agree with the

district court that the comments, while improper, did not—given the trial court’s

admonition to the jury to disregard the remark—render petitioner’s trial




                                             -19-
fundamentally unfair.    See Donnelly , 416 U.S. at 643-44; Brecheen , 41 F.3d at

1354-55.

       Johnson also contends that the district court erred in considering separately

the three surviving allegations of prosecutorial misconduct: exploitation of his

indigence at the first and second phases of trial, and the disparaging remarks about

defense counsel. He additionally claims that the district court erred in failing to

consider, cumulatively with these instances, those instances it found procedurally

barred. We agree that, under these circumstances, application of the procedural

bar rule was inappropriate. Yet even considering the entire catalog of allegedly

prejudicial prosecutorial comments taken as a whole, the alleged misconduct is

similar to that which we held, in   Brecheen , not to constitute a due process

violation under Donnelly , 416 U.S. at 643 . See Brecheen , 41 F.3d at 1354-56.

Particularly in light of the totality of the evidence presented at trial, trial counsel’s

failure to object to all but one of the comments, and the trial court’s immediate

admonition to the jury when counsel did object, we conclude that the allegedly

improper remarks at issue do not, individually or collectively, rise to the level of

prejudice that the Supreme Court has suggested could amount to a due process

violation. See Darden v. Wainwright , 477 U.S. 168, 181-82 (1986);        Brecheen , 41

F.3d at 1356.




                                           -20-
                                          VI

      Petitioner insists that the State’s failure to prove and the trial court’s failure

to properly instruct the jury regarding his intent to kill violated his rights under

the Eighth Amendment.     See Enmund v. Florida , 458 U.S. 782 (1982) (holding

class of murderers who did not intend to kill cannot be constitutionally guilty of

capital murder). This claim, which appears to us essentially a challenge to

Oklahoma’s capital felony murder statute, has been dispositively answered. The

Supreme Court in Tison v. Arizona , 481 U.S. 137 (1987), rejected the claim that

Enmund required felony murder statutes to incorporate a specific “intent to kill

requirement” as prerequisite to a death sentence:

      [T]he reckless disregard for human life implicit in knowingly
      engaging in criminal activities known to carry a grave risk of death
      represents a highly culpable mental state, a mental state that may be
      taken into account in making a capital sentencing judgment when that
      conduct causes its natural, though also not inevitable, lethal result.

Id. at 157. See also United States v. McVeigh , 153 F.3d 1166, 1195 (10th Cir.

1998) (“‘[I]ntent to kill’ need not be incorporated into the jury instructions during

the guilt phase of a capital case if it is not an element of the charged crime.”).

The jury was instructed that it should find the defendant guilty if it found beyond

a reasonable doubt that he “did . . . . willfully and unlawfully kill Ura Alma

Thompson, [b]y asphyxiation with his hands inflicting mortal wounds which

caused her death . . . . [w]hile in the commission of Forcible Rape in the First


                                         -21-
Degree.” Direct Crim. Appeal, R. at 129. Such an instruction is sufficient to

satisfy the requirements of    Tison , and the evidence presented at trial supports this

conclusion. See McVeigh , 153 F.3d at 1196.

                                            VII

       Johnson claims that his death sentence violated     Beck v. Alabama , 447 U.S.

625 (1980), because the trial court failed to instruct the jury on lesser included

offenses of second degree murder and first degree manslaughter. The district court

found this claim procedurally barred, but Johnson argues that his appellate

counsel’s failure to raise this ostensibly dispositive issue amounted to

constitutionally ineffective assistance sufficient to show cause and prejudice to

overcome procedural default.      See Banks v. Reynolds , 54 F.3d 1508, 1515 (10th

Cir. 1995) (“An appellate advocate may deliver deficient performance and

prejudice a defendant by omitting a ‘dead-bang winner.’”) (quoting        United States

v. Cook , 45 F.3d 388, 394-95 (10th Cir. 1995)). Thus, the inquiry into cause and

prejudice upon an allegation of ineffective assistance of appellate counsel requires

assessment of whether the omitted claims were indeed “clearly meritorious.”         See

Banks , 54 F.3d at 1515.

       In United States v. McVeigh , the defendant argued that it was

unconstitutional under   Beck to force the jury to choose between convicting him of

a capital offense and acquitting him.     See 153 F.3d at 1197. We ruled that the case


                                            -22-
was “unlike Beck, however, because the jury here was not compelled to impose the

death penalty on McVeigh if it convicted him of the charged offenses; rather, it

had the opportunity to reject the death penalty during the sentencing phase.”         Id.

(citing Hopkins v. Reeves , 118 S.Ct. 1895, 1901-02 (1998)). The jury in

Johnson’s case, like that in    McVeigh , had the opportunity to reject the death

penalty during the sentencing phase. Thus Johnson’s           Beck argument is clearly

insufficient to constitute the sort of “dead-bang winner” sufficient to show cause

and prejudice to overcome procedural bar.

                                              VIII

       We consider next whether the trial court lacked subject matter jurisdiction

to try the defendant because he was charged with felony murder by an information

that did not set forth all of the elements of the underlying felony of rape, and

therefore was fatally and jurisdictionally defective under Oklahoma law.             The

district court found this claim to be procedurally barred under state law because

petitioner raised it for the first time on application for post-conviction relief.         See

Johnson v. State , 823 P.2d 370, 372 (Okla. Crim. 1992) (holding claims

procedurally barred).

       Petitioner contends that, because the Oklahoma Court of Criminal Appeals

recognizes jurisdictional flaws sua sponte, citing        Duvall v. State , 869 P.2d 332

(Okla. Crim. 1994), procedural bar is not applied consistently to “the type of claim


                                              -23-
at issue.” See Steele , 11 F.3d at 1522 (“We have found state procedural bar rules

inadequate to preclude federal review where the state court has not applied the bar

‘strictly or regularly’ to the type of claim at issue.”) He argues further that

application to his case of    Parker v. State , 917 P.2d 980 (Okla. Crim. 1996), which

overturned previous Oklahoma law holding defects in an information to be

jurisdictional in nature, is barred on retroactivity grounds. Therefore, he contends,

his claim should be treated as jurisdictional and hence not barred by an allegedly

inadequate state procedural bar.     Cf. Brecheen , 11 F.3d at 1522. Alternatively,

petitioner argues the issue is meritorious and default is traceable to ineffective

assistance of appellate counsel, and thus cause and prejudice exist to overcome

procedural bar.    See Banks , 54 F.3d at 1514-15.

       Even assuming, arguendo, that petitioner’s claim is not procedurally barred,

it fails to constitute a claim upon which habeas relief can be granted. Insofar as

petitioner challenges the adequacy of the information under Oklahoma law, this is

a question of state law.     On federal habeas review, we are not empowered to

correct all errors of state law.   See Jackson v. Shanks , 143 F.3d 1313, 1317 (10th

Cir. 1998). “[W]e may grant habeas relief to a state prisoner only if state court

error deprived him of fundamental rights guaranteed by the Constitution of the

United States.”    Id. (citation and internal quotation omitted). A charging

instrument may violate the Sixth Amendment by failing to provide a defendant


                                            -24-
with adequate notice of the nature and cause of the accusations filed against him.

See, e.g. , Hunter v. State , 916 F.2d 595, 598 (10th Cir. 1990). The information in

this case, however, was adequate to provide petitioner with notice of the charges

against him. Therefore, even if not procedurally barred, the defects alleged here

do not rise to the level of a federal constitutional violation.

                                             IX

       The claim that the trial court submitted duplicative and cumulative

aggravating circumstances to the jury is meritless. As the federal district court

correctly noted, the aggravating circumstance of future dangerousness and prior

felony conviction are not duplicative. The former is supported by evidence of the

petitioner’s potentiality for future dangerous acts, the latter by evidence of

petitioner’s past acts.   See, e.g. , Berget v. State , 824 P.2d 364 (Okla. Crim. App.

1991).

       Petitioner relies on   McCullah v. United States , 76 F.3d 1087 (10th Cir.

1996), in support of his contention that the aggravating factors found in his case

were duplicative. However, in      McCullah , one statutory factor, intent to kill or to

employ lethal force, “substantially overlap[ped]” the other, non-statutory,

factor—that the defendant has “committed the offenses as to which he [was]

charged in the indictment”—a circumstance that necessarily incorporated the

element of intent.    Id. at 1111. Additionally, in   McCullah , the district court


                                            -25-
submitted one statutory factor, intentional conduct intending that the victim be

killed, along with a second, intentional conduct done with knowledge of grave

risk of death, that was necessarily subsumed within the first.       See id.

       Likewise, in Davis v. Executive Director of Dept. of Corrections        , 100 F.3d

750 (10th Cir. 1996), we addressed “two aggravators addressing the same basic

conduct,” id. at 774—felony murder and murder in the course of kidnaping, where

the kidnaping was necessarily the felony underlying the felony murder factor. The

aggravating factors of past felony and future dangerousness do not, in their

definition, necessarily incorporate common factors, nor do they necessarily

address the same basic conduct. Here, although the jury may have relied on some

of the same evidence—namely petitioner’s past felony convictions—in finding the

aggravating circumstance of future dangerousness, it did not necessarily have to

find one in order to find the other.   See id. Therefore, this is not a situation where

a single aggravator has been counted twice, thereby unconstitutionally         skewing

the jury’s process of weighing aggravating and mitigating factors.        Cf. Stringer v.

Black , 503 U.S. 222, 230-32 (1992).

                                             X

       We have previously rejected petitioner’s challenge to the use of

unadjudicated offenses to support the continuing threat aggravating circumstance.

See Williamson v. Ward , 110 F.3d 1508, 1523 (10th Cir. 1997).


                                            -26-
                                            XI

      Pre-indictment delay rises to the level of a constitutional violation when it

results in substantial prejudice to the defense, or upon a showing that the reasons

for the prosecutor’s delay were improper.        See Gutierrez v. Moriarty , 922 F.2d

1464, 1473 (10th Cir. 1991). Neither requirement has been established in the case

before us. We agree with the district court that petitioner’s claim arising from his

7-day detention prior to being taken before a magistrate does not rise to the level

of prejudice or improper purpose rendering the delay a constitutional violation.

                                            XII

      Johnson argues that the district court erred in denying his request for an

evidentiary hearing on the issues raised by the denial of funds for expert

assistance. In support, Johnson states he was prevented from developing and

presenting evidence in support of claims regarding denial of funds for a forensic

expert, denial of funds for a psychiatrist, denial of funds to investigate mitigating

evidence, ineffective assistance of appellate counsel, and ineffective assistance of

trial counsel. More specifically, Johnson alleges that he was denied the

opportunity to present evidence demonstrating ineffective assistance of trial

counsel arising out of the denial of funds for expert assistance and travel to gather

mitigation evidence.




                                            -27-
       We review the district court’s denial of an evidentiary hearing for abuse of

discretion. See Lasiter v. Thomas , 89 F.3d 699, 702 (10th Cir. 1996). The district

court found that no issues of fact were disputed, and thus the habeas petition could

be resolved “on the basis of the record and the law,” requiring no evidentiary

hearing. Mem. Op. at 2. “If no facts are disputed and the issues can be resolved

on the basis of the record and the law, no evidentiary hearing is required.”

Scrivner v. Tansy , 68 F.3d 1234, 1242 (10th Cir. 1995). Our independent review

shows that the record was sufficient to resolve all issues raised by Johnson.

Despite petitioner’s attempts to characterize his request for an evidentiary hearing

as stemming from an ineffective assistance claim, the alleged instances of

deficient performance on which petitioner seeks an evidentiary hearing all pertain

to the denial of funds for psychiatric expert assistance and travel. The issue of

whether Johnson had a constitutional right to funds for expert assistance is a legal

one, see Castro , 71 F.3d at 1510, as is the question of whether erroneous denial of

such assistance was constitutionally harmless,      see id. at 1515-16. Therefore, in the

absence of disputed material facts, Johnson did not have a right to an evidentiary

hearing, and the district court did not abuse its discretion in denying him one.    See

Lasiter , 89 F.3d at 703; Scrivner , 68 F.3d at 1242; cf. Siripongs v. Calderon , 35

F.3d 1308, 1314 (10th Cir. 1994).




                                            -28-
                                            XIII

       In a July 5, 1996, motion, petitioner sought to dismiss his appointed lead

counsel in the federal habeas action, Thomas M. Lahiff, and substitute Lahiff’s co-

counsel, Vicki Werneke of the Office of the Federal Public Defender, as lead

counsel. We consider the argument that the district court’s denial of petitioner’s

pro se motion to dismiss appointed counsel and appoint substitute counsel

constitutes grounds for remand to the district court.   4
                                                            The district court denied the

motion on the grounds “[p]etitioner fails to indicate service of the motion on

current counsel and the motion was filed by petitioner long after the briefing was

completed on his petition for habeas relief.” Mem. Op. at 73. Shortly thereafter,

on August 27, 1996, the district court granted Lahiff’s motion to withdraw, stating

that “[t]he Office of the Federal Public Defender will continue to represent Mr.

Johnson.” R., Doc. 39, at 1.

       Although habeas petitioners have no independent Sixth Amendment right to

counsel, see Pennsylvania v. Finley , 481 U.S. 551, 555 (1987), they are afforded

by statute, 21 U.S.C. § 848(q)(4)(B), “a mandatory right to qualified legal counsel



       4
         In amending 28 U.S.C. § 2254, AEDPA added 28 U.S.C. § 2254(i), which
provides that “[t]he ineffectiveness or incompetence of counsel during Federal or
State collateral post-conviction proceedings shall not be a ground for relief in a
proceeding arising under section 2254.” In cases such as this one, however, we
follow instead the dictate of Lindh v. Murphy , 117 S.Ct. 2059, 2067-68 (1997), to
apply pre-AEDPA law. See infra Section II.

                                            -29-
and related services ‘[i]n any [federal] post conviction proceeding.’”    McFarland

v. Scott , 512 U.S. 849, 854 (1994) (footnote omitted). We agree with the Eighth

Circuit that this statute implicates the same substitution-of-counsel standards as

does the Sixth Amendment.       See Hunter v. Delo , 62 F.3d 271, 274 (8th Cir. 1995).

These standards require that “[t]o warrant a substitution of counsel, the defendant

must show good cause, such as a conflict of interest, a complete breakdown of

communication or an irreconcilable conflict which leads to an apparently unjust

verdict.” United States v. Padilla , 819 F.2d 952, 955 (10th Cir. 1987). The

district court is under a duty to “make formal inquiry into the defendant’s reasons

for dissatisfaction with present counsel when substitution of counsel is requested.”

Id. at 956 n.1.

       Although it appears that the district court failed to make the required

inquiry, petitioner’s claim is moot, as he is now represented by the substitute

counsel he requested. His claims that Lahiff’s performance was, essentially, so

ineffective as to violate   McFarland v. Scott are too lacking in specificity to

support a conclusion that he was prejudiced by Lahiff’s allegedly deficient

performance. Although we agree with petitioner that counsel could have raised his

Batson and subject matter jurisdiction claims in a more comprehensive fashion in

his petition, given our resolution of those issues today, we cannot say he was

prejudiced by the presentation of those issues below.


                                            -30-
                                        XIV

       We have previously rejected the argument that a trial court violates the

Eighth and Fourteenth Amendment by failing to inform the jury that it has the

option of returning a life sentence even upon a finding of an aggravating

circumstance.   See Duvall v. Reynolds , 139 F.3d 768, 789-91 (10th Cir. 1998).

The jury instruction to which Johnson objects is identical to the instruction upheld

against Eighth and Fourteenth Amendment challenges in      Duvall . See 139 F.3d at

790.

                                         XV

       The final issue before us is the contention that the prosecution withheld, in

violation of Brady v. Maryland , 373 U.S. 83 (1963), exculpatory evidence

corresponding to three items requested in peititoner’s Motion for Discovery:

       17. The name of any criminal defendants prosecuted in the last
       eighteen (18) months by the Oklahoma County District Attorney’s
       Office for raping women fifty-five (55) years or older.
       18. A list of any alleged suspect to this crime before the
       apprehension of Malcolm Johnson.
       19. All information regarding any unsolved rapes occurring on the
       north side of Oklahoma City from January 1, 1980 to January 15,
       1982 involving rapes of women over fifty-five (55) years old.

Direct Crim. Appeal R. at 19.

       To establish a Brady violation, the petitioner must show that evidence was:

(1) suppressed by the prosecution; (2) favorable to petitioner; and (3) material.

See Stafford v. Ward , 59 F.3d 1025, 1027 (10th Cir. 1995). The third element,

                                         -31-
materiality, requires “a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.”

Id. (quoting United States v. Hughes , 33 F.3d 1248, 1251 (10th Cir. 1994)). We

take the district court’s view that petitioner has failed to establish the materiality

of the information requested.     See Kyles v. Whitley , 514 U.S. 419, 434-37 (1995)

(discussing elements of materiality analysis).

       Petitioner is correct that a request for specific information, as opposed to a

general request for “all   Brady evidence,” can lower the threshold of materiality

necessary to establish a violation.   See Smith v. Secretary of New Mexico Dept. of

Corrections , 50 F.3d 801, 826-27 (10th Cir. 1995). But even in light of this

consideration, we agree that defendant has failed to show a reasonable probability

of a different result had the alleged information been disclosed. Petitioner argues

that evidence of other rape defendants and suspects might have rebutted the

evidence of prior, uncharged rapes brought against him during the sentencing

phase. This argument is simply too speculative to establish a reasonable

probability of a different outcome. Petitioner fails to show how the information

regarding unsolved rapes would have been material to his case.

       We consider the contention that the prosecution withheld information

regarding one Lamar Hamilton—information perhaps suggesting that he was

possibly a suspect in the additional, uncharged rapes used against Johnson during


                                           -32-
the sentencing phase of trial. Failure to disclose the arrest of other suspects for

the same crime can violate   Brady . See Banks v. Reynolds , 54 F.3d 1508, 1517-18

(10th Cir. 1995). Petitioner concedes, however, that the prosecution did furnish

trial counsel with Hamilton’s name.     This would appear to satisfy item 18 of his

specific requests. We are not told of the materiality of additional information

regarding Hamilton’s arrest records.

       Petitioner apparently contends that his inability to point to specific

exculpatory evidence stems from the failure of his previous habeas counsel to file

a motion for discovery in the district court. While such a failure, if unexcused,

might go to a claim of ineffective assistance, assuming such a claim were

cognizable in this context, it cannot create a showing of exculpatory, material

evidence where there is none.

       Nor are we told of the material relevance of copies of “the crime incident

report, the report from Mr. Johnson’s arrest, and the inventory sheet of the items

removed from Mr. Johnson’s apartment.” Appellant’s Supp. Br. at 6.        Brady does

not require the prosecution to “make a complete and detailed accounting to the

defense of all police investigatory work on a case.”   Banks , 54 F.3d at 1517

(quoting Moore v. Illinois , 408 U.S. 786, 795 (1972)). The district court’s

determination that petitioner has failed to show how these items are either

favorable or material will not be disturbed.


                                            -33-
      Considering the allegedly suppressed evidence collectively,       see Kyles , 514

U.S. at 436-37, we conclude that the government in this case did not fail to

disclose known, favorable evidence “rising to a material level of importance.”      Id.

at 438-39.

                                              XVI

      The judgment of the district court is      AFFIRMED .




                                              -34-
