                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                August 28, 2012
                                       PUBLISH               Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 BRIAN DARRELL DAVIS,

             Petitioner - Appellant,
       v.                                              No. 11-6022
 RANDALL G. WORKMAN, Warden,
 Oklahoma State Penitentiary,

             Respondent - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                   (D.C. NO. 5:06-CV-00139-R)


Jack Fisher, Fisher Law Office, Edmond, Oklahoma, (Lanita Henricksen,
Henricksen & Henricksen Lawyers, Inc., Oklahoma City, Oklahoma, with him on
the briefs), for Petitioner - Appellant.

Jennifer L. Crabb, Assistant Attorney General, (E. Scott Pruitt, Attorney General
of Oklahoma, with her on the brief), Office of the Attorney General for the State
of Oklahoma, Oklahoma City, Oklahoma, for Respondent - Appellee.


Before KELLY, MURPHY, and HARTZ, Circuit Judges.


HARTZ, Circuit Judge.


      An Oklahoma jury convicted Defendant Brian Darrell Davis of the first-

degree murder and rape of Josephine “Jody” Sanford, the mother of his girlfriend
Stacey Sanford. On the recommendation of the jury, Defendant received a 100-

year prison sentence for the rape and a death sentence for the murder.

      After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals

(OCCA), see Davis v. State, 103 P.3d 70, 83 (Okla. Crim. App. 2004), and

pursuing postconviction relief in state court, see Davis v. State, 123 P.3d 243, 249

(Okla. Crim. App. 2005), Defendant unsuccessfully sought relief under 28 U.S.C.

§ 2254 in the United States District Court for the Western District of Oklahoma.

The district court denied a certificate of appealability (COA) but this court

granted a COA on two issues: whether Defendant’s statements to police officers

while he was hospitalized were knowing, intelligent, and voluntary; and whether

his counsel was ineffective in failing to present scientific evidence that he was

impaired while making those statements. See 28 U.S.C. § 2253(c)(1)(A)

(requiring a COA to appeal the denial of a § 2254 application). We affirm on

these issues because the OCCA did not unreasonably determine the facts or

unreasonably apply federal law in rejecting these claims. We also deny

Defendant’s Motion for Additional Issues in COA because no reasonable jurist

could dispute the district court’s resolution of the issues raised in the motion. We

do, however, grant a COA on a claim that Defendant apparently thought was

encompassed by our prior grant of a COA—namely, the claim that his counsel

was ineffective for failing to argue that police officers coerced him into making




                                         -2-
his hospital statements by withholding pain medication. But we affirm the denial

of the claim.

I.    BACKGROUND

      A.        Factual Background

      The OCCA’s decision on direct appeal offers a detailed description of the

pertinent events:

             In the early morning hours of November 4, 2001, Davis
      returned home after socializing with some friends at a local club,
      only to find his girlfriend, Stacey Sanford, and their three-year-old
      daughter missing. He telephoned Josephine “Jody” Sanford, Stacey’s
      mother, to ask if she had seen or knew of their whereabouts. Jody
      told Davis that she did not know where they were. Ten to fifteen
      minutes later, Davis again telephoned Jody and asked her to go and
      find them. When Jody could not locate her daughter and
      granddaughter, she went to Stacey’s and Davis’s apartment.
             Davis made several conflicting statements about the events
      that followed once Jody arrived, including a different version during
      his trial testimony. However, with the exception of his first
      statement where he claimed to have no memory of what had
      happened, Davis admitted in his other statements that he fatally
      stabbed Jody. Jody’s body was discovered shortly after 9:00 a.m.
      when her daughter Stacey returned home. Stacey immediately called
      911 and local police arrived to investigate.
             Meanwhile, Davis had been involved in a single-car accident
      while driving Jody’s van near the Salt Fork River Bridge. Davis was
      seriously injured after he was ejected from the van through the front
      windshield. Davis was transported to a local hospital for treatment.
      Because there was an odor of alcohol about him, Davis was placed
      under arrest and his blood alcohol level was tested and registered
      .09%. Later on, Davis was transported to a Witchita [sic] hospital
      for further care.
             Detective Donald Bohon interviewed Davis around 5:49 p.m.
      that afternoon. In his first statement, Davis was able to recount his
      activities at the club the night before, but could not remember who
      drove him home. He recalled that Stacey and his daughter were not

                                       -3-
at home when he arrived and he remembered telephoning Jody. He
could remember Jody being in the living room with him, but after
that moment, he could not recall anything until he woke up in the
field after the accident.
       Two days later, Detectives Bohon and Bob Stieber interviewed
Davis again. Initially, Davis repeated the story he had previously
told Detective Bohon. As Stieber questioned Davis, his memory
improved. He remembered Jody talking to him about religion and his
commitment to Stacey. An angry Davis told Jody that there would
be no commitment and the two argued. Davis claimed that Jody
stood up while she continued her lecture and that he then stood up,
got angry, accused her of being in his face and told her to “back up,”
pushing her backwards. Davis claimed Jody grabbed a knife and cut
him on his thumb. Davis then hit Jody on the chin (apparently
causing the fracture to her jawbone) and tried to grab the knife,
getting cut in the process. Davis said he got the knife from Jody and
told her to get back, stabbing her in the stomach. He stated that he
and Jody began to wrestle down the hallway and that he stabbed Jody
in the leg. Once in the bedroom, Davis told Jody to stop and he put
the knife down. Jody asked Davis to let her go to which he agreed,
but then Jody ran towards the knife. He grabbed the knife first and
stabbed Jody on the left side. She then told Davis that she could not
breathe and Davis told her to lie down on the bed. Davis said he
tried to wrap her up tightly in the bedspread so she would not bleed
to death. He claimed he heard her stop breathing, but then fell
asleep. When he awoke, he panicked and fled in Jody’s van so he
could think about what to do. Shortly thereafter, the crash occurred.
When Stieber confronted him with physical evidence showing Jody
was strangled/choked, Davis conceded that he may have choked her
while they were wrestling. However, he adamantly denied having
consensual or non-consensual sex with her.
       Davis told his girlfriend, Stacey Sanford, three different
versions of what happened that morning. At first, he told her that he
believed her mother was an intruder and that he instinctively fought
with her to protect his family home. Several months later, he told
Stacey that her mother came to their apartment and that the two of
them argued because Davis believed Jody was lying about her
knowledge of Stacey’s whereabouts. He claimed he pushed Jody and
Jody went to the kitchen and retrieved a knife. Davis said that he got
his thumb cut when he tried to take the knife from Jody, and that
once he got the knife, he stabbed Jody once in the stomach. The

                                  -4-
argument continued and the two of them ended up in the bedroom
where Jody said let’s end this and Davis put the knife down. He
claimed that she grabbed the knife as she walked towards the door
and that he took it from her and stabbed her again.
       Two to three months later after DNA tests showed that Davis’
semen was found in Jody’s vagina, Stacey confronted Davis and he
told her a third version of what had happened. In this third version,
he said that Jody came to their apartment upset about her husband’s
infidelity. He claimed that he tried to comfort her and they ended up
having consensual intercourse. After their sexual encounter, Davis
said he was lying on the floor in the front room while Jody was in the
kitchen and that all of a sudden he was struck in the back of the head
with some object. He did not elaborate on the details of the stabbing,
indicating that the events unfolded from there.
       At trial, Davis testified that Jody came to his apartment after
she could not locate Stacey and talked to him about his need to
commit to her. Davis claimed he responded by making a remark
about Jody’s husband’s level of commitment and his rumored
infidelity. He said that Jody became emotional and acknowledged
that she knew about her husband’s affair. Davis said he felt badly
about his remark and got up and sat beside Jody and tried to comfort
her. He claimed that Jody kissed him and that they ended up going
back to the bedroom and having sex on the bedroom floor for fifteen
to twenty minutes. Afterwards Davis got up and stumbled between
the hallway and bedroom. He said that Jody was saying something
about the time and he said that the sex was not worth his time and
that he understood why Jody’s husband was having an affair. He
claimed that an angry Jody then hit him in the back of the head with
a lotion dispenser, stunning him. As Jody walked by Davis, Davis
got up and chased her down the hallway, tackling her and biting her
ankle. Jody kicked Davis in the mouth and ran to the kitchen and
grabbed a knife. Davis then ran to the living room and grabbed the
Play Station II. Davis asked Jody “what the hell are you doing?” and
hit her in the face. Davis said Jody “came back with a defensive
position” and that he used the Play Station II as a shield. Now
angrier, Davis hit Jody again and tossed the Play Station II into a
nearby chair. He backed her down the hallway while she swung the
knife wildly, cutting Davis on his arm. Davis went into the bathroom
for a towel and Jody retreated to the bedroom. He said that when he
exited the bathroom he saw Jody in the bedroom doorway and that he
ran at her, grabbed her, pulled her down and hit her in the face two to

                                  -5-
      three times. As they were fighting, Davis pushed Jody’s head against
      the wall and struck her until she finally relinquished the knife. Jody
      retreated into the bedroom and asked Davis to let her go. Davis
      claimed he told Jody to go and put the knife on the nightstand. He
      said that when Jody walked by, she grabbed the knife, which angered
      him because he believed the fight was over. He then grabbed her
      shirt, pulled her towards him and put his arm around her neck
      squeezing as tightly as he could until she dropped the knife. He said
      that he grabbed the knife, that he was angry and that he stabbed Jody
      in the back. Jody then “swung back,” struck him in the groin and he
      fell to one knee. He claimed Jody continued to hit him and that he
      stabbed her several times as he tried to fend off her attack. He
      maintained that he never intended to kill her.

Davis, 103 P.3d at 73–75.

      B.     Proceedings Below

      Defendant’s § 2254 application asserted 14 claims: (1) that Defendant did

not understand his Miranda waiver and that his later statements to the police at

the hospital were coerced by officers calling him a cold-blooded killer; (2) that

his counsel was ineffective in failing to present scientific evidence that Defendant

was impaired while making statements to the police; (3) that Defendant’s counsel

was ineffective in failing to argue that his hospital statements to police were the

product of coercion caused by withholding of pain medication; (4) that the State’s

presentation of rebuttal witnesses without pretrial notice violated due process; (5)

that presentation of the rebuttal witnesses violated his rights under the Sixth,

Eighth, and Fourteenth Amendments; (6) that the conviction of first-degree

murder was not supported by sufficient evidence; (7) that the state court’s refusal

to give instructions on circumstantial evidence violated the Sixth, Eighth, and

                                         -6-
Fourteenth Amendments; (8) that the court denied his right to confront witnesses

and to compulsory process by restricting evidence of the affair of the victim’s

husband; (9) that the cumulative impact of errors rendered the state-court

proceedings fundamentally unfair; (10) that the jury’s finding that the murder was

especially heinous, atrocious, or cruel was not supported by sufficient evidence;

(11) that his counsel was ineffective in failing to challenge the discriminatory use

of peremptory challenges during jury selection; (12) that the state court erred in

failing to make adequate findings after its hearing on the motion to suppress

Defendant’s statements to the police, and that his counsel was ineffective in

failing to assert that the lack of adequate findings violated due process; (13) that

the state court erred in allowing the introduction of Defendant’s privileged

communications to Stacey Sanford; and (14) that the state court did not have

jurisdiction to consider the aggravating circumstances set forth in a bill of

particulars because they were not properly charged.

      In this court Defendant sought a COA on claims 1 to 12, and we granted a

COA on claims 1 and 2: “[w]hether [Defendant’s] statements made to police

officers while hospitalized were knowingly, intelligently, and voluntarily made”;

and “whether [Defendant] was denied effective representation by counsel in the

trial court when counsel did not present scientific evidence that appellant was

impaired and unable to understand the events surrounding the making of those

statements.” Case Management Order at 1, Davis v. Workman, No. 11-6022 (10th

                                          -7-
Cir. May 3, 2011). He then renewed his request for a COA, but only on claims 4

to 9, although, as we discuss more fully later, he apparently thinks that he

obtained a COA on claim 3. We affirm the district court’s rulings on claims 1

and 2; grant a COA on claim 3 but deny relief; and again deny a COA on claims 4

to 9. We will address the claims in that order after first stating our standard of

review.

II.   STANDARD OF REVIEW

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), our

review in a § 2254 proceeding is highly deferential. See Cullen v. Pinholster, 131

S. Ct. 1388, 1398 (2011). For claims adjudicated on the merits in state court, a

federal court can grant relief only if the state-court 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). As the Supreme Court has

explained:

      Under the “contrary to” clause, a federal habeas court may grant the
      writ if the state court arrives at a conclusion opposite to that reached
      by [the] Court on a question of law or if the state court decides a case
      differently than [the] Court has on a set of materially
      indistinguishable facts. Under the “unreasonable application” clause,
      a federal habeas court may grant the writ if the state court identifies
      the correct governing legal principle from [the] Court’s decisions but
      unreasonably applies that principle to the facts of the prisoner’s case.


                                          -8-
Williams v. Taylor, 529 U.S. 362, 412–13 (2000). “[A]n unreasonable

application of federal law is different from an incorrect application of federal

law.” Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks

omitted). “Indeed, a federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly.” Id.

(internal quotation marks omitted). In addition, AEDPA requires deference to the

state court’s findings of fact. We presume those findings to be correct, and “[t]he

applicant shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III.   ISSUES ON WHICH WE PREVIOUSLY GRANTED A COA

       A.    Admissibility of Statements During Hospitalization

       On November 4, 2001, the same day that Jody Sanford was found dead in

Defendant’s home in Ponca City, Oklahoma, Defendant was seriously injured in a

one-car accident and transported to a hospital for treatment. He was placed under

arrest for driving under the influence of alcohol before being transferred to a

regional hospital in Wichita, Kansas. He arrived by 12:40 p.m. and was

interviewed about five hours later by Detective Donald Bohon. Two days later,

on November 6, Detectives Bohon and Bob Stieber interviewed him again. At the

beginning of each interview, he received Miranda warnings and waived his rights.




                                         -9-
The State does not contest that Defendant was in custody while he made

statements to the police on these two occasions.

      Statements to the police during a custodial interrogation are inadmissible if

the defendant did not waive his Miranda rights knowingly and voluntarily. See

Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010). Whether the waiver was

valid is a mixed question of law and fact. See Mitchell v. Gibson, 262 F.3d 1036,

1059 (10th Cir. 2001). “The inquiry has two distinct dimensions.” Moran v.

Burbine, 475 U.S. 412, 421 (1986). As the Supreme Court explained:

      First, the relinquishment of the right must have been voluntary in the
      sense that it was the product of a free and deliberate choice rather
      than intimidation, coercion, or deception. Second, the waiver must
      have been made with a full awareness of both the nature of the right
      being abandoned and the consequences of the decision to abandon it.
      Only if the totality of the circumstances surrounding the
      interrogation reveal both an uncoerced choice and the requisite level
      of comprehension may a court properly conclude that the Miranda
      rights have been waived.

Id. (internal quotation marks omitted).

      Defendant advances two arguments to contest the validity of his Miranda

waiver. We first address his argument that his narcotic medication prevented him

from knowingly and intelligently waiving his rights. We then address his

coercion argument.

             1.      Effects of Medication

      Defendant contends that his morphine medication kept him from being fully

aware of the rights being abandoned during the second hospital interview. He

                                          -10-
points out (1) that he testified at trial that he was “half-asleep” with his eyes

closed when the police read him his Miranda rights at the beginning of the

interview, Aplt. Br. at 61; (2) that one of the officers acknowledged the

possibility that Defendant was in a “medicated sleep” when he was approached

for the interview, id. at 62; and (3) that an affidavit submitted in postconviction

proceedings by a defense expert, Dr. Thomas Kupiec, states that “it is certainly

plausible to expect an effect on an individual’s cognitive function following a

post-accident administration of morphine . . . .” Verified Appl. for Post-

Conviction Relief, App. 12 at 4, Davis v. Oklahoma, Case No. PCD-2003-686

(Okla. Crim. App. Mar. 4, 2005). Defendant asserts that “‘[p]lausible to expect’

is a quantitative measure meaning at least more than 50% or a reasonable

probability,” Aplt. Br. at 44 n.11; but he does not cite any testimony or other

authority to support the assertion.

      On direct appeal the OCCA upheld Defendant’s waiver, stating:

      Prior to any questioning, [Officer] Stieber read to Davis the Miranda
      warning from his Miranda card and asked Davis if he understood his
      rights and wanted to talk with him. Davis said that he understood his
      rights and that he would answer what he could. At no time during
      the interview did Davis indicate that he wanted to terminate the
      interview or consult a lawyer. Davis appeared to understand all
      questions asked and gave appropriate responses to the questions
      posed. The specificity of detail Davis was able to provide and the
      back and forth nature of the interview demonstrated that he was fully
      alert and comprehended what others said to him, thereby supplying
      strong evidence that he understood his rights as presented to him as
      well.


                                          -11-
Davis, 103 P.3d at 81. Later, on appeal in the postconviction proceedings, the

OCCA held that Dr. Kupiec’s affidavit (and other new defense evidence) would

have made no difference. It said:

      The material neither leads to a conclusion that the trial court’s ruling
      would have been different had counsel presented the information to
      the court nor that the outcome of his trial would have been different
      had the information been presented to the jury. At best, the medical
      records and expert’s report show there was a “potential for
      impairment” from the medications Davis received. The affidavits
      concerning Davis’s clarity were refuted not only by the detectives
      who interviewed Davis, but by his own medical records.

Davis, 123 P.3d at 247 (footnote omitted).

      What Defendant presents to us on appeal fails to overcome the deference

owed to the OCCA decision. The expert report is hardly definitive; it merely

states that there was a possibility of impairment. And even if Defendant was

groggy when the officers arrived, there was ample evidence that he soon became

alert. Officer Stieber testified that Defendant was “fully lucid and alert” and

understood the rights read to him. R., Vol. 2, State Court Records: Tr. of

Jackson v. Denno Proceedings at 55. Further, the interview transcript shows that

he gave relevant responses to each question asked. Perhaps most indicative of his

mental capacity were his responses immediately after being read his rights:

      Stieber: Okay, having these rights in mind, are you willing to visit
      with us a little bit and answer a few questions?

      [Defendant]: I’ll answer what I can.

      Stieber: Okay. That’s all we’re asking for.

                                        -12-
[Defendant]: Okay

Stieber: A (pause) one of the things that I do while I’m here is get
some oral swabs from ya, I brought with me some oral swab sticks
and all they are is a long Q-tip Brian.

[Defendant]: Um-huh

Stieber: (getting swabs) and what I would like to do if your willing
is take, see it ain’t nothin but a long Q-tip. I’d like to get four (4) of
these and get oral swabs from inside your mouth and your saliva.
Would that be okay with you?

[Defendant]: What is that for?

Stieber: Well, it’s to do some comparison later on down the road on
DNA, you know they get DNA from a lot of sources, but the easiest
way for the lab is just straight from saliva, spit.

[Defendant]: I got to see what the Dr. says because I been taking all
this medication and stuff.

Stieber: I asked the nurse out there just a few minutes ago and they
said that you haven’t taken anything this morning that would affect
this at all.

[Defendant]: Okay.

Stieber: That be okay with you?

[Defendant]: uh-huh

Stieber: okay, it’s painless and real simple. We’ll do them one at a
time and then when I put back in the envelope I’ll get you to initial
them a just little bit for me. If you’ll just open your mouth, can you
get it open any wider than that? Okay. I’ll get around on the inside
of your jaw, that’s not too far back is it?

[Defendant]: uh-uh


                                    -13-
      Stieber: (getting samples) There’s one. Halfway done. Okay, I’m
      going to do the other side over here on this one. One more. Okay,
      this one has two in it Brian, so I’ll just go ahead and do another one
      while I’m here.

      [Defendant]: You said four, tastes nasty, mmm

Id., Pl.’s Ex. 2 at 1–2. Defendant was functioning well enough to ask about the

medical consequences of the swab testing and to recall that the officers had

initially said that there would be four samples.

      We hold that the state court did not unreasonably determine the facts or

unreasonably apply clearly established federal law in concluding that Defendant

knowingly and intelligently waived his rights.

             2.    Alleged Coercion

      Defendant next argues that his waiver of Miranda rights was not the

product of a free and deliberate choice because the officers coerced him into

confessing to the murder by calling him a “‘cold-blooded killer.’” Aplt. Br. at 68.

The OCCA determined that although Officer Stieber “use[d] phrases like ‘cold

blooded killer’ and ‘cold blooded bastard’” during the second interview,

Defendant’s statements were not coerced. Davis, 103 P.3d at 81. It stated:

      The comments complained of were not coercive in nature; the
      detectives neither threatened Davis nor implied promises of benefits
      or leniency. Rather, the detectives explained to Davis that the
      evidence showed that he was responsible for Sanford’s death, leaving
      them to conclude that he either planned it and carried it out making
      him a cold blooded killer or that some unplanned fight erupted and
      Sanford was stabbed and killed. Only Davis could provide the
      answer and they encouraged him to do so.

                                         -14-
Id.

      As shown by the transcript of the hospital interview, 1 the OCCA decision

      1
         The interview began with lengthy questioning of Defendant’s social
activities and other events before the victim arrived at his apartment. Then,
Officer Stieber turned to the question of her death:

      Stieber: What we found in the apartment is Jody, and she’s been
      stabbed and she’s dead.

      [Defendant]: That’s Mr. Bohon said the other night.

      Stieber: Cause if I wanted to be mean to ya I could’ve brought you
      an ugly ass Polaroid of her body laying there bleeding.

      [Defendant]: Uh-huh.

      Stieber: I didn’t want to do that to you, okay. (Pause) Jody’s laying
      there in your apartment, she’s laying there in the living room floor,
      she’s been stabbed, she’s very dead.

      [Defendant]: Uh-huh.

      Stieber: You tell us there’s nobody else in that apartment, but you
      and her, and then you a little bit later, are in a bad car wreck, south
      of town, in her van. We’re here to try to figure out what happened in
      that apartment between you and Jody Sanford

      [Defendant]: Right

      Stieber: for things to go to shit and end up this way.

      [Defendant]: I know that.

      Stieber: Okay, but it’s one of two choices. Since you two are the
      only ones’ in the apartment and she’s dead it’s obvious that you are
      the one that is responsible for her death. It’s one choice or the other
      Brian, it’s either that you are a cold blooded killer, which I don’t
                                                                       (continued...)

                                        -15-
1
    (...continued)
believe you are, and you planned this thing for whatever reason, or
something ugly and bad happened in that apartment and you and Jody
got into some type of fight for whatever reason, and the thing went to
shit and the end result, was unintentional on your part, but she ended
up getting stabbed and she died. Now you tell us.

[Defendant]: It’s like

Stieber: No, you tell us Brian, was this, are you a cold-blooded
bastard and this thing was planned?

[Defendant]: No, Bob I didn’t think so, me and her always, she
always do stuff for me.

Stieber: Okay

[Defendant]: It’s like you know, whatever, you know how I get
marks like this on my thumb and then marks like this across my arm.
I don’t know. I’m thinking is it from me going through the
windshield of the van like this, or what, I don’t know.

Stieber: Let’s talk about that. You just made the motion with your
hand up in front of you face going through the windshield, but your
hand isn’t cut up that way.

[Defendant]: Did I do that or, I don’t know.

Stieber: Okay, let’s go back to my original question. Either you’re a
cold blooded bastard and you planned on killing her for whatever
reason, or things went to shit and this was the bad result of things
getting ugly. Did you plan on killing her when you called her and
she came over her that night?

[Defendant]: No, I didn’t plan that. I, from our relationship we always had
cool, everything’s been cool between us.

Stieber: Okay so we can just, we can forget about that theory. Am I right?

                                                               (continued...)
                                 -16-
did not unreasonably determine the facts or unreasonably apply clearly

established federal law. Defendant cites no Supreme Court authority suggesting

that it is coercive to tell a suspect truthfully that the evidence would imply that he

was guilty of a heinous crime unless he gives an explanation. As the OCCA

stated, the officers did not threaten Defendant or promise leniency.

      We affirm the district court’s decision upholding the state court’s

determination that Defendant’s statements were admissible.

      B.        Trial Counsel’s Failure to Present Scientific Evidence of
                Impairment


      1
          (...continued)
      [Defendant]: Yeah. Cause I’m not a cold blooded killer, I’m, there’s
      a lot of people that I don’t feel like Tyrone and them, the stuff that
      happened to me when I, you know with Shaliya and Stacy. Yeah, I’d
      love to get them back for that but, they; justice was served on them.

      Stieber: Okay, so you’re not a cold-blooded killer and you didn’t
      plan on killing her so we can just forget about that.

      [Defendant]: Just forget about that, yes.

      Stieber: So, let’s look at the other option. The other option is
      something happened there between you two and you guys got into it
      for whatever reason and you ended up, maybe it’s self-defense. I
      don’t know.

      [Defendant]: What I know is that she was talking to me and that’s
      when I had my hands up on my head.

R., Vol. 2 State Court Records: Tr. of Jackson v. Denno Proceedings, Pl.’s Ex. 2
at 20–21 (emphasis added).



                                         -17-
      Defendant argues that his trial counsel was ineffective in failing to present

scientific evidence that would have shown his mental impairment when he gave

his statements at the hospital. 2 Although Dr. Kupiec testified as a defense expert

at trial that the Versed and morphine given to Defendant are both sedatives and

analgesics, Defendant complains that trial counsel failed to give Dr. Kupiec the

medical records, including medication charts, that would have enabled Dr. Kupiec

to speak more precisely about Defendant’s condition while being interviewed.

      To succeed on an ineffectiveness-of-counsel claim, Defendant must make

two showings: “that counsel’s representation fell below an objective standard of

reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), rendering

his or her performance deficient, see id. at 687; and that the deficiency prejudiced

the defense through errors “so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable,” id. To demonstrate prejudice, a defendant “must

show that there is a reasonable probability that, but for counsel’s unprofessional

errors,” id. at 694, the jury “would have had a reasonable doubt respecting guilt.”

Id. at 695. When reviewing a state court’s application of Strickland, we must be

especially attuned to the deference required by § 2254(d). In particular, we

review the state court’s decision regarding prejudice only to determine whether it

      2
       Defendant’s opening brief complains of the failure of “trial or appeal
counsel [to] provide[] [Defendant’s] medical records to Dr. Kupiec.” Aplt. Br. at
42 (emphasis added). But the brief never explains what more his state appellate
counsel could have done. Because the appellate-counsel issue has not been
adequately briefed, we do not address it.

                                         -18-
“unreasonably concluded that [Defendant] was not prejudiced.” Cullen, 131 S.

Ct. at 1408.

      To try to establish prejudice, Defendant relies on an affidavit of Dr. Kupiec

submitted in his postconviction proceedings. He cites Dr. Kupiec’s statement that

“repeated dose administration appears to result in an enhanced analgesic effect of

morphine, and if administered this way, it would also have more effects on

cognition and psychomotor performance.” Verified Appl. for Post-Conviction

Relief, App. 12 at 3 (footnote omitted), Davis v. Oklahoma, Case No.

PCD-2003-686. He also notes the doctor’s testimony that “[t]he elimination half-

life of morphine ranges from 1.5 to 4.5 [hours,]” id., to argue that he was

impaired during the interview on November 6, when he received a morphine

injection at 5 a.m., about three hours before the start of the interview. Defendant

implicitly suggests that this evidence would have caused the trial judge or the jury

to exclude his hospital statements as involuntary. (The jury was instructed that it

should not consider a statement by Defendant unless it found that the statement

was voluntary.)

      The OCCA rejected the argument in Defendant’s postconviction

proceedings. See Davis, 123 P.3d at 247–48. As previously noted, the court said

that, at the most, the medical records and expert’s report showed a “potential for

impairment” from the medications. Id. at 247 (internal quotation marks omitted).




                                        -19-
It ruled that the outcome of the trial would not have been different if the evidence

had been presented.

      Defendant has not made the necessary showing that the OCCA

“unreasonably concluded that [he] was not prejudiced” by counsel’s failure to

present at trial the additional evidence of impairment. Cullen, 131 S. Ct. at 1408.

We note at the outset that even if the hospital records and expert report would

have led to exclusion of his November 4 statement, the verdict would not have

changed. In that statement Defendant said that he did not remember what

happened. The prosecution made no attempt to exploit that statement at trial, and

we fail to see how it could have prejudiced Defendant.

      As for the second interview, Dr. Kupiec’s new statements merely recite

some general principles about how morphine functions in the body, but do not

specify how Defendant would have been affected on that particular day. The

OCCA could properly decide that the additional evidence would not have

overcome the contrary evidence already considered in our earlier discussion of

whether the Miranda waiver was knowing and voluntary. We cannot say that the

OCCA unreasonably ruled that the new evidence would not likely have convinced

the trial judge or jury to exclude Defendant’s November 6 statement.

      In the alternative, Defendant requests an evidentiary hearing to present

additional evidence that his statements should have been excluded. But we have

already considered all the evidence that he presented to the Oklahoma courts, and

                                        -20-
under AEDPA our review of the OCCA decision on this issue must be confined to

the state-court record. See id. at 1398 (“[R]eview under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated the claim on the

merits.”); Black v. Workman, 682 F.3d 880, 895 (10th Cir. 2012) (“[E]ven if a

federal-court evidentiary hearing is not barred by [28 U.S.C.] § 2254(e)(2), the

evidence so obtained is inadmissible in reviewing a claim adjudicated on the

merits in state court.”).

IV.   ADDITIONAL ISSUE ON WHICH WE GRANT COA—FAILURE OF
      COUNSEL TO ARGUE COERCION BY WITHHOLDING
      MORPHINE

      Defendant contends that his trial and appellate counsel were ineffective for

failing to present evidence and argue that his hospital statements were coerced by

the officers’ refusing to allow him to receive morphine for his pain until they had

completed their questioning. The parties dispute whether we have granted a COA

on this claim. We think the State has the better of the argument. But Defendant’s

reply brief alternatively requests a COA, which we grant. Although our doing so

at this stage could prejudice the State, because it has not briefed (and would not

be expected to have briefed) the merits of the issue, we find no merit to the claim,

eliminating any prejudice.

      Before we turn to the merits of the claim, we address two more procedural

issues. We hold that the claim is not procedurally barred and that our standard of




                                        -21-
review is de novo. To reach these conclusions, we must examine the proceedings

before the OCCA.

      In Defendant’s appeal to the OCCA of the denial of postconviction relief,

he raised the claim that his counsel had been ineffective by failing to argue that

the detectives coerced him into making his statements by withholding the

administration of morphine. The OCCA denied relief without discussing the

merits, stating that its decision on direct appeal had already decided the substance

of this coercion argument, and therefore the principle of res judicata barred

Defendant from relitigating the same claim in the guise of an ineffective-

assistance-of-counsel argument. See Davis, 123 P.3d at 248. A state court’s

invocation of res judicata does not, however, create a procedural bar to relief

under § 2254. See Cone v. Bell, 129 S. Ct. 1769, 1781 (2009) (“When a state

court declines to review the merits of a petitioner’s claim on the ground that it has

done so already, it creates no bar to federal habeas review.”). Moreover, contrary

to the OCCA’s belief, the record of Defendant’s direct appeal to the OCCA

discloses that Defendant never argued, and the OCCA never considered, a claim,

either directly or in the course of an ineffective-assistance claim, that his hospital

statements were coerced by the withholding of morphine. Because there has been

no state-court adjudication on the merits of the claim, AEDPA’s § 2254(d) does

not apply. See Byrd v. Workman, 645 F.3d 1159, 1166 (10th Cir. 2011). Further,




                                         -22-
the district court did not address the merits. No prior court having addressed the

merits, our review is necessarily de novo.

      Now, to the merits. To assess Defendant’s ineffective-assistance-of-

counsel claim, we first examine the strength of the claim omitted by his

counsel—the claim that he was coerced by the withholding of morphine.

Defendant bases that claim on the following evidence and argument. First, he

cites two pieces of evidence that he was told on November 4 that he would not

receive any morphine until his interview was over. One is a hospital nurse’s note

at 5:30 p.m. on November 4 saying that he was told by a nurse that an “officer

wanted to talk [with him] prior to any pain meds being administered[.]” Verified

Appl. for Post-Conviction Relief, App. 6 at 2, Davis v. Oklahoma, Case No. PCD-

2003-686. The other is the following exchange with Detective Bohon during the

25-minute interview (which began about 20 minutes after the nurse’s note):

      [Defendant]: I’m telling the truth. That’s all I can remember I wish I
      could, but I can’t. All I remember is being by those trees and then
      those people surrounding me picking me up and putting me in the
      ambulance. I hardly remember talking to the Highway Patrol when
      they came because they had me on morphine.

      Bohon: put you on some medication yeah

      [Defendant]: Yeah

      Bohon: Yeah, that’s why I waited for awhile because I wanted to
      make sure the medicine had worn off because I wanted you to be able
      to remember the best you can and understand what I was saying.

      [Defendant]: I understand what you’re saying.

                                        -23-
      Bohon: As soon as we get done here they will help you out with
      somemore, but I had to have you as clear headed as I could for this.

R., Vol. 2, State Court Records: Tr. of Jackson v. Denno Proceedings, Pl.’s Ex. 1

at 10 (emphasis added). Defendant contends that from the statements by the

nurse and Bohon, he “was trained . . . that the only way he could end the

interview was to be submissive, answer the questions and he got morphine.”

Aplt. Br. at 61.

      Second, although Defendant never testified expressly that he spoke to the

officers only to get morphine for his pain (indeed, when asked at trial whether

Detective Stieber threatened him in any way, he answered, “Just the comment

. . . . Either you’re a cold-blooded killer or a mean mother fucker.” R., Vol. 2

State Court Records: Tr. of Jury Trial, Vol. 7-A at 16), he argues that he implied

this on the following two occasions during his cross-examination:

      Q. Are you telling this jury, in any way, that your statement to
      Detective Stieber [on November 6] was not voluntary?

      A. At one point it wasn’t, at the beginning, but I have to be
      submissive in the hospital cause of being treated and things like that.

Id. at 15–16 (emphasis added).

      Q. Mr. Davis, when Bob Stieber came to see you on the 6th and
      probably when Bohon came on the 4th, were you scared about what
      was going to happen to you?

      A. No, I wasn’t scared. I was just tired and I was hurting, I wanted
      to be left alone, but had to be submissive to get treatment.

Id., Vol. 7-B at 52 (emphasis added).

                                        -24-
      Defendant also points to the occasions during his November 6 interview

when Bohon and Stieber continued to question him despite his complaints that he

was in pain. His first indication of pain was about an hour and a half into the

interview:

      Stieber: The knife that was laying there by that towel, that’s the one
      that both of you ended up getting cut with? It’s the same one?

      [Defendant]: Yeah.

      Stieber: Okay,

      [Defendant]: ????? [sic] It was a big long knife. (Sighs) Can I get
      some shot now, cause I’m in pain?

      Stieber: Yeah, we’re just about done.

      [Defendant]: (sighs) ???? [sic] something for pain.

      Steiber: Yeah, I’m trying to think of any other details.

Id., Tr. of Jackson v. Denno Proceedings, Pl.’s Ex. 2 at 58. A nurse entered the

room about two minutes later and remained for two minutes, during which the

nurse administered antinausea and blood-thinner medication and discussed with

the officers the procedures for taking a photograph of Defendant’s arm wounds.

The nurse returned about nine minutes later with a consent form for taking the

photograph. On neither of these occasions did Defendant ask the nurse for pain

medication. Then, about two minutes after the nurse’s return, an orthopedic

surgeon came to check on Defendant:




                                        -25-
[Doctor]: Now, they’ll be coming to get you a pretty soon, for [hip
surgery]. How ya doin? Is there a lot of pain or are you doing okay?

[Defendant]: My back is hurtin.

[Doctor]: Your back is hurting. But your legs not so much.

[Defendant]: Well, if I move it yeah.

[Doctor]: Yeah, but when your laying still it’s okay?

[Defendant]: but my back’s botherin me.

[Doctor]: Low back?

[Defendant]: yeah.

[Doctor]: There are no fractures there, it’s probably from just laying
in bed and not being able to move very much.

[Defendant]: yeah

[Doctor]: Unfortunately

[Defendant]: Okay

...

[Doctor]: Okay, well I’ll let them finish that’s all I needed to check
on right now.

[Defendant]: Well, can I, am I going to be able to some medication
after this or

[Doctor]: Pain medication

[Defendant]: Okay

Stieber: We are just about through,

[Doctor]: It’s fine with me, whatever you need to do.

                                  -26-
Id. at 69–70. Finally, Defendant notes his trial testimony that when the officers

read him his Miranda rights at the start of the November 6 interview, he was,

“Tired, in pain, wanting to sleep.” Id., Tr. of Jury Trial, Vol. 7-B at 61.

      Defendant’s claim that he was coerced by the withholding of morphine is

flawed on many levels. First, the evidence that Defendant felt coerced by the

withholding of morphine is very weak, if not nonexistent. The only statements

that he points to regarding his state of mind are two ambiguous comments during

his cross-examination. Asked whether he was testifying that his statement to

Stieber on November 6 was not voluntary, he responded: “At one point it wasn’t,

at the beginning, but I have to be submissive in the hospital cause of being treated

and things like that.” Id., Vol. 7-A at 15–16 (emphasis added). And asked if he

was afraid about what was going to happen to him when the officers came to

interview him, he answered: “No, I wasn’t scared. I was just tired and I was

hurting, I wanted to be left alone, but had to be submissive to get treatment.” Id.,

Vol. 7-B at 52 (emphasis added). Nothing in the record expands upon those

statements, which make no reference to morphine.

      Second, Defendant’s claim is conceptually confusing, almost incoherent.

Ordinarily, when one thinks of a coerced confession, one thinks of law-

enforcement officers telling the suspect that he must confess, or else. That,

however, is not Defendant’s claim, and nothing in the record even hints at such a

communication from the officers to Defendant. Defendant points to the

                                         -27-
November 4 statements by the nurse and Bohan that he would not receive any

morphine until the interview was over. But the evidence regarding that interview

shows the opposite of such alleged coercion: the sooner he quit talking, the

sooner he would get morphine. Bohan left after 25 minutes, shortly after

Defendant said, “I’m hurting and I’m tired,” id., Tr. of Jackson v. Denno

Proceedings, Pl.’s Ex. 1 at 11, even though Defendant had been saying that he

could remember nothing about the victim’s death. What Defendant would learn

from this encounter is that he could get his morphine quickly if he feigned a lack

of memory, so the officer would give up and leave. (We say “feigned” advisedly,

because Defendant testified at trial that he actually remembered everything when

he was interviewed on November 4. See id., Tr. of Jury Trial, Vol. 7-A at

12–14.). And nothing changed the rules for the November 6 interview. No one

told Defendant that the officers would not leave until he confessed. To the

contrary, the only time that Defendant indicated that he did not want to

talk—saying, “ I, I don’t have to tell ya nothin, I don’t have to,” id., Tr. of

Jackson v. Denno Proceedings, Pl.’s Ex. 2 at 74—Stieber agreed, stating, “I know

you don’t have to,” id. Perhaps Defendant could (but does not) claim that he was

coerced into silence on November 4 because the only way to get morphine was to

quit talking; but that must be an unprecedented claim of coercion, and even if his

feigning memory loss was coerced, Defendant was not prejudiced because, as




                                          -28-
noted earlier, the prosecutor did not attempt at trial to exploit Defendant’s alleged

lack of memory on November 4.

      Third, there is no evidence in the record that Defendant was suffering

significant pain during the critical part of the November 6 interview. His first

mention of pain was about 90 minutes into the interview. What he said after that

point would not have affected the outcome of the trial; he had already described

his struggles with the victim. Given Defendant’s willingness to mention his pain

at that point, it would be surprising if he had kept silent while suffering earlier in

the interview, particularly when, as Stieber testified, medical personnel entered

the room during the interview to check on Defendant four or five times.

      For Defendant to prevail on his claim of ineffective assistance of counsel,

he must establish that any competent attorney would have raised the morphine-

coercion claim and that he was prejudiced by the failure of his attorneys to do so.

See Strickland, 466 U.S. at 687–88. But the coercion claim was so far-fetched

that Defendant fails on both counts. His attorneys were not acting unreasonably

in failing to pursue the claim, and there is no reasonable chance that his hospital

statements would have been suppressed (and a different verdict rendered) if they

had done so.

      In his opening brief in this court, Defendant suggests that he should be

granted an evidentiary hearing on this coercion claim. He argues in a footnote:




                                          -29-
      If Petitioner was granted a state evidentiary hearing he could have
      cross-examined the officers using the records that were not submitted
      until post-conviction. He could have asked Dr. Kupiec or one of the
      doctors from the hospital to compare audio tapes of Brian Davis’
      voice patterns from the trial when he was in pain and under the
      influence of morphine to the tapes of his interviews in the hospital to
      determine his level of impairment and distress. He could have called
      the nurses and doctors as witnesses to reveal their conversations with
      the officers as they constructed their plan to suspend Petitioner Pain
      medication.

Aplt. Br. at 34 n.8. Because the OCCA did not address this coercion issue on the

merits and § 2254(d) therefore is inapplicable, evidence from a federal-court

evidentiary hearing could be considered in resolving the issue. It does not

necessarily follow, however, that Defendant is entitled to an evidentiary hearing.

We have said that “[d]istrict courts are not required to hold evidentiary hearings

in collateral attacks without a firm idea of what the testimony will encompass and

how it will support a movant’s claim.” United States v. Cervini, 379 F.3d 987,

994 (10th Cir. 2004). Defendant’s presentation to this court may not satisfy this

standard. We need not resolve the matter, however, because Defendant forfeited

the issue by not seeking an evidentiary hearing on the morphine-withholding

coercion claim in district court. Although he moved for an evidentiary hearing

below, his motion contains no reference to this claim; it relates only to the

contention that he was too impaired to waive his Miranda rights. Defendant

presents no “reason to deviate from the general rule that we do not address




                                         -30-
arguments presented for the first time on appeal.” United States v. Moya, 676

F.3d 1211, 1213 (10th Cir. 2012) (internal quotation marks omitted).

V.    REQUEST FOR COA ON ADDITIONAL ISSUES

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [application] should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id. And for those of Applicant’s claims that the OCCA

adjudicated on the merits, “AEDPA’s deferential treatment of state court

decisions must be incorporated into our consideration of [his] request for [a]

COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      We now turn to Defendant’s request for a COA on claims 4 to 9.

      A.     Claims 4 & 5: Rebuttal Witness Testimony

      Defendant requests a COA on two related claims challenging the admission

of the rebuttal testimony of Russell Busby, who was not disclosed on the state’s

pretrial list of witnesses. Busby, the chief investigator for the District Attorney,

testified as an expert to rebut Defendant’s trial version of events. Based on his

                                         -31-
review of photographs and reports of the crime scene, as well as consultations

with the medical examiner’s office, he expressed his opinion (1) that the absence

of blood stains on the bedroom carpet showed that all the knife wounds to the

victim could not have been inflicted, as Defendant testified, while she was

standing in the bedroom by the bathroom door, and (2) that the two parallel

wounds on his arm did not appear to be defensive wounds. Defendant contends

(1) that the lack of pretrial notice of the intention to call Mr. Busby deprived him

of a due-process right created by Oklahoma law requiring prior notice of the

expert witness, as well as of the fundamental fairness that is the essence of due

process, see Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); and (2) that

permitting the State not to disclose such a witness violated due-process principles

articulated in Wardius v. Oregon, 412 U.S. 470, 475 (1973) (“[I]n the absence of

a strong showing of state interests to the contrary, discovery must be a two-way

street. The State may not insist that trials be run as a ‘search for truth’ so far as

defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its

own witnesses.”).

      The OCCA held that Busby’s testimony was admissible, stating that it “was

relevant to refute Defendant’s claims made for the first time during his trial

testimony concerning the manner and locations of the knife attack that were

different than his pre-trial statements.” Davis, 103 P.3d at 77. The district court




                                          -32-
agreed, reasoning that the state was previously unaware of the version presented

at trial.

        We agree that AEDPA requires affirmance. First, the Oklahoma notice

requirement did not create a federal due-process right. See Elliott v. Martinez,

675 F.3d 1241, 1244–45 (10th Cir. 2012) (a state-created procedural right is not a

liberty interest protected under the Constitution’s Due Process Clause).

Therefore, even if the state rule was violated, Defendant cannot obtain relief on

that ground under § 2254, which limits review to claims based on federal law.

See Turrentine v. Mullin, 390 F.3d 1181, 1195–96 (10th Cir. 2004) (“[A] federal

court under § 2254 may not grant relief unless there was an error of federal law,

in other words, unless this error amounted to a violation of the federal

constitution.”).

        Second, there is nothing so unfair as to violate due process in permitting

the government to put on a rebuttal witness to challenge defense testimony that

could not be anticipated before trial. And Defendant has cited no Supreme Court

decision suggesting that such a rebuttal witness must be disclosed before trial.

Wardius, which dealt with a notice-of-alibi rule, did not address rebuttal

testimony. Defendant argues that the OCCA unreasonably determined the facts in

saying that his testimony could not have been reasonably anticipated and that

Busby was therefore a proper rebuttal witness. He relies on Stacey Sanford’s trial

testimony that in the second of three versions of events conveyed to her by

                                          -33-
Defendant (and presumably reported to the state before trial), he said that one of

the stabbings occurred in the bedroom. But this evidence is hardly clear and

convincing evidence that the OCCA got it wrong. See 28 U.S.C. § 2254(e)(1)

(determination of factual issue by state court is presumed correct and presumption

can be overcome only by clear and convincing evidence). The second version

recited by Stacey was too vague to be contradicted by the physical evidence

testified to by Busby. Busby’s testimony was useful only because of the

specificity of Defendant’s trial version of the stabbings.

      Moreover, Defendant has not cited to any Supreme Court decision clearly

establishing that due process requires the state to disclose expert testimony before

trial when the defendant has not been required to disclose its witnesses on the

same subject. The holding in Wardius is only that the government cannot require

the defendant to disclose an alibi defense witness unless the government will also

disclose its witnesses rebutting that defense. Defendant was not required to

provide any pretrial discovery regarding the locations of the stabbings. No

reasonable jurist could debate the district court’s conclusion that Defendant is not

entitled to relief on this claim.

      B.      Claim 6: Sufficiency of the Evidence of First Degree Murder

      Defendant argues that there was insufficient evidence to support a finding

of guilt if his statements to the police or Busby’s rebuttal testimony is held to be

inadmissible. But (1) we have rejected his challenges to the admission of the

                                         -34-
evidence; and (2) when considering a challenge to the sufficiency of the evidence,

we consider all evidence admitted at trial, even if admitted improperly, see

Lockhart v. Nelson, 488 U.S. 33, 40–41 (1988) (a reviewing court should consider

erroneously admitted evidence in determining whether double jeopardy bars

retrial due to insufficient evidence). No reasonable jurist could debate the district

court’s rejection of this claim.

      C.       Claim 7: Jury Instruction on Circumstantial Evidence

      Defendant argues that because the evidence of malice aforethought was

entirely circumstantial, he had a due-process right to the following requested jury

instruction:

      The State relies in part for a conviction upon circumstantial
      evidence. In order to warrant conviction of a crime upon
      circumstantial evidence, each fact necessary to prove the guilt of the
      defendant must be established by the evidence beyond a reasonable
      doubt. All the facts necessary to such proof must be consistent with
      each other and with the conclusion of guilt the State seeks to
      establish. All of the facts and circumstances, taken together, must be
      inconsistent with any reasonable theory or conclusion of a
      defendant’s innocence. All of the facts and circumstances, taken
      together, must establish to your satisfaction the guilt of the defendant
      beyond a reasonable doubt.

OUJI-CR 9-5, Vernon’s Okla. Forms 2d 456 (2003 ed.) (brackets omitted). See

Riley v. State, 760 P.2d 198, 199 (Okla. Crim. App. 1988) (“[C]onvictions based

entirely upon circumstantial evidence cannot be sustained unless the evidence

presented excludes every reasonable hypothesis except that of guilt.”). The

OCCA rejected the argument on the ground that there was both direct and

                                         -35-
circumstantial evidence of guilt. See Davis, 103 P.3d at 79. The district court

agreed and found no error.

      In any event, even if state law required the instruction, a violation of a state

rule is not in itself a ground for relief under § 2254. See Turrentine, 390 F.3d at

1195–96. And Defendant has not directed our attention to any decision of the

United States Supreme Court requiring a circumstantial-evidence instruction as a

matter of constitutional law. No reasonable jurist could debate the district court’s

rejection of this claim.

      D.     Claim 8: Evidence of Affair of Victim’s Husband

      Defendant argues that his rights to confrontation and compulsory process

were violated when the trial court did not allow him to question witnesses about

an alleged affair of the victim’s husband. He maintains that evidence of the affair

would have supported his testimony that the victim was crying over her husband’s

affair, Defendant tried to comfort her, they engaged in consensual sex, and she

(already feeling rejected by her husband) attacked him when he criticized her

sexual performance. The OCCA rejected the argument, writing:

             Before calling Tom Sanford[, the victim’s husband,] to testify,
      the State moved in limine to prohibit the defense from questioning
      him about whether or not he had engaged in an extra-marital affair.
      The State argued that Tom Sanford’s participation in any
      extra-marital affair was not relevant to the case. The defense argued
      it had the right to address the subject since the State had presented
      evidence of it through Stacey Sanford 6 and such evidence was
      relevant to Jody Sanford’s state of mind to show whether she would
      have given consent to have sex with Davis. The State responded that

                                         -36-
      it had not offered evidence that an affair had actually taken place,
      only that Davis had told Stacey that her mother was upset about an
      affair. The trial court ruled that evidence of an actual affair was not
      relevant, but even if it were, the prejudicial effect outweighed any
      probative value it might have had.
             It is well established that the scope of cross-examination and
      the admission of evidence lie in the sound discretion of the trial
      court, whose rulings will not be disturbed unless that discretion is
      clearly abused, resulting in manifest prejudice to the accused. There
      is no such abuse of discretion in the present case. Whether Jody
      Sanford had heard a rumor of an affair and whether she believed it as
      true would not have been rendered more or less probable by the
      admission of evidence indicating whether or not Tom Sanford had
      actually engaged in an extra-marital affair. The issue was Jody
      Sanford’s existing state-of-mind to which Davis testified. Davis
      repeated his claim under oath that Sanford was upset about her
      husband’s alleged affair in support of his claim that they had
      consensual sex. Therefore, evidence from Sanford that he actually
      engaged in an affair was not relevant to the issues in controversy.
             The same is true for Raymond Pollard[, a friend of Defendant,]
      and Stacey Sanford. The defense sought to question Pollard in its
      case-in-chief about seeing Tom Sanford in the company of a woman,
      not his wife. Such evidence was irrelevant to the issue of consent or
      Sanford’s state of mind at the time of her death. Likewise, the
      defense wanted to ask Stacey if she had heard the rumors Davis had
      heard about her father being involved in an extra-marital affair and
      whether she knew if her mother had heard or knew of the rumors.
      Defense counsel did not indicate that he had any knowledge to
      support an offer of proof that Stacey knew her mother was aware of
      any alleged affair and was affected by it in the days before her death.
      Based on this record, it cannot be said the trial court abused its
      discretion in limiting defense counsel’s questioning of these
      witnesses. Accordingly, we find this claim has no merit.

Davis, 103 P.3d at 79–80 (citations and footnote omitted). Footnote 6 states:

      Stacey had earlier testified about Davis’ third statement to her in
      which he admitted, after being confronted with DNA evidence, to
      having sex with her mother before he killed her. Davis told Stacey
      that her mother was upset about her husband cheating on her and that
      Davis’ attempts to comfort her led to consensual sexual intercourse.

                                        -37-
Id. at 79 n.6.

       The district court analyzed Defendant’s constitutional claims as follows:

               The Confrontation Clause of the Sixth Amendment “guarantees
       the right of an accused in a criminal prosecution to be confronted
       with the witnesses against him.” Davis v. Alaska, 415 U.S. 308, 315
       (1974) (internal quotation omitted). “[A] primary interest secured by
       [the Confrontation Clause] is the right of cross-examination.” Id.
       (citation omitted). “[A] defendant’s right to confrontation may be
       violated if the trial court precludes an entire relevant area of
       cross-examination.” Richmond v. Embry, 122 F.3d 866, 871 (10th
       Cir. 1997) (internal quotation omitted). However, the right to
       cross-examination is not unlimited. “[T]rial judges retain wide
       latitude . . . to impose reasonable limits on such cross-examination
       based on concerns about, among other things, harassment, prejudice,
       confusion of the issues, the witness’ safety, or interrogation that is
       repetitive or only marginally relevant.” Delaware v. Van Arsdall,
       475 U.S. 673, 679 (1986). There is no recognized constitutional
       right for criminal defendants to “present evidence that is not relevant
       and not material to his defense.” United States v. Solomon, 399 F.3d
       1231, 1239 (10th Cir. 2005).
               Petitioner’s claim also involves the Compulsory Process
       Clause of the Sixth Amendment. (Pet. at 80-84.) “A defendant’s
       right to due process and compulsory process includes the right to
       present witnesses in his or her own defense.” Richmond, 122 F.3d at
       871 (citing Washington v. Texas, 388 U.S. 14, 18-19 (1967)). “[T]he
       state may not arbitrarily deny a defendant the ability to present
       testimony that is ‘relevant and material and . . . vital to the defense.’”
       Id. at 872 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858,
       867 (1982)). A party seeking to establish a violation of the right to
       compulsory process must establish that the exclusion of the proffered
       testimony resulted in fundamental unfairness. Id. As the Tenth
       Circuit explained:
              In order to establish a violation of his due process right
              to present evidence, a defendant must show that the
              evidence excluded by the trial court’s ruling might have
              affected the trial’s outcome; in other words, he must
              show that the evidence, if admitted, would have created
              reasonable doubt that did not exist without the evidence.


                                          -38-
      Patton v. Mullin, 425 F.3d 788, 797 (10th Cir. 2005) (citing
      Valenzuela-Bernal, 458 U.S. at 868).
             The Court finds the OCCA’s determination is a reasonable
      application of clearly established federal law. The evidence in
      question was, at best, marginally relevant to Petitioner’s case. That
      Tom Sanford had an affair, or whether other witnesses were aware of
      rumors of an alleged affair, may tend to support Petitioner’s version
      of events, in the sense that Jody may have been distraught over
      allegations of her husband’s infidelity. However, the connection is
      tenuous. The proffered testimony would not indicate whether Jody
      had actual knowledge of a possible affair or rumors of an affair. In
      other words, it was not relevant to Jody’s state of mind on the night
      in question. The OCCA’s determination that the trial court was
      within its discretion is not unreasonable.
             Moreover, the evidence fails to meet the “materiality” standard
      required for a constitutional violation. Richmond, 122 F.3d at 872;
      see also Patton, 425 F.3d at 798 (holding that petitioner failed to
      establish the materiality of excluded evidence). In the context of all
      the evidence presented at trial, including Petitioner’s own admissions
      to the stabbing, Busby’s testimony refuting Petitioner’s last version
      of events, and the physical evidence of Jody’s homicide, the
      exclusion of allegations of an alleged affair of Tom Sanford did not
      render Petitioner’s trial fundamentally unfair. Testimony suggesting
      Mr. Sanford had an affair would not have created reasonable doubt
      where none existed before. Richmond, 122 F.3d at 872. As the
      evidence was marginally relevant and not material to Petitioner’s
      defense, the Court finds the OCCA’s determination is not contrary to,
      nor an unreasonable application of, clearly established federal law.

R., Vol. 1 pt. 3 at 432–34.

      In our view, no reasonable jurist could debate the district court’s

conclusion that Defendant was not entitled to relief on this claim.

      E.     Claim 9: Cumulative Error

      Finally, Defendant contends that the cumulative impact of errors rendered

the state-court proceedings fundamentally unfair. See Workman v. Mullin, 342


                                        -39-
F.3d 1100, 1116 (10th Cir. 2003) (“Cumulative error is present when the

cumulative effect of two or more individually harmless errors has the potential to

prejudice a defendant to the same extent as a single reversible error.” (internal

quotation marks omitted)). The OCCA ruled that cumulative error did not render

Defendant’s trial unfair. See Davis, 123 P.3d at 248. Discerning no error, the

district court agreed. No reasonable jurist could debate the district court’s

conclusion that the OCCA did not unreasonably apply federal law or unreasonably

find facts in rejecting this claim.

VI.   CONCLUSION

      We AFFIRM the district court’s denial of claims 1, 2, and 3. For all other

claims for which Defendant has sought a COA from this court, we DENY the

request.




                                         -40-
