Richard GLOSSIP, Petitioner-Appellant, v. Anita TRAMMELL, Warden, Oklahoma State Penitentiary, Respondent-Appellee, 530 F. App'x 708

ORDER AND JUDGMENT MICHAEL R. MURPHY, Circuit Judge. An Oklahoma jury found Richard Glos-sip guilty of first degree murder and sentenced him to death. On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed Glossip’s conviction and death sentence. Glossip v. State, 157 P.3d 143 (Okla.Crim.App.2007). After exhausting his state post-conviction remedies, Glossip filed the instant 28 U.S.C. § 2254 habeas corpus petition in federal district court. The district court denied habeas relief in an extensive order.

Glos-sip appeals the district court’s denial of habeas relief, raising six overarching issues. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, this court affirms the district court’s denial of Glos-sip’s habeas petition. FACTUAL BACKGROUND The following general factual background is taken from the opinion of the OCCA on direct appeal. Any additional facts particularly relevant to Glossip’s individual habeas claims are set out more fully below in the discussion

section of this opinion: In January of 1997, Richard Glossip worked as the manager of the Best Budget Inn in Oklahoma City, and he lived on the premises with his girlfriend D-Anna Wood. Justin Sneed, who admitted killing Barry Van Treese, was hired by Glossip to do maintenance work at the motel. Barry Van Treese, the murder victim, owned this Best Budget Inn and one in Tulsa. He periodically drove from his home in Lawton, Oklahoma to both motels. The Van Treese family had a series of tragedies during the last six months of 1996, so Mr.

Van Treese was only able to make overnight visits to the motel four times in that time span. His usual habit was to visit the motel every two weeks to pickup the receipts, inspect the motel, and make payroll. The State presented testimony about the physical condition, financial condition, and the day to day operations of the motel. At the beginning of 1997, Mr. Van Treese decided to do an audit of both motels after it was determined that there were shortfalls. Before Mr.

Van Treese left for Oklahoma City, Donna Van Treese, Barry’s wife, calculated Glossip’s net pay at $429.33 for the period ending January 5th, 1997, because Glossip had $211.15 in draws. [Footnote 2: Glossip’s salary was $1500.00 per month, which was divided twice monthly. The net amount was after other usual deductions.] On January 6, 1997, she and Mr. Van Treese reviewed the books and discovered $6,101.92 in shortages for the Oklahoma City motel in 1996. Mrs. Van Treese testified her husband intended to ask Glossip about the shortages. Sometime in December, Mr.

Van Treese told Billye Hooper, the day desk manager, that he knew things needed to be taken care of, and he would take care of them the first of January. Hooper believed Van Treese was referring to Glossip’s management of the motel. Justin Sneed, by all accounts, had placed himself in a position where he was totally dependent on Glossip. Sneed started living at the motel when he came to Oklahoma City with a roofing crew from Texas. Sneed quit the roofing crew and became a maintenance worker at the motel. He made no money for his services, but Glossip provided him with a room and food. Sneed admitted killing Mr.

Van Treese because Glossip offered him money to do it. The events leading up to the lolling began with Van Treese’s arrival at the motel on January 6. Van Treese arrived at the Best Budget Inn in Oklahoma City on January 6, 1997, around 5:80 p.m. Around 8:00 or 9:00 p.m., Van Treese left Oklahoma City to go to the Tulsa Best Budget Inn to make payroll and collect deposits and receipts. Hooper testified Van Treese was not upset with Glossip and did not say anything to her about shortages before he left for Tulsa. Van Treese did tell Hooper he planned to stay for a week to help remodel rooms.

William Bender, the manager of the Tulsa motel, testified that Mr. Van Treese was very upset. He had never seen him that angry. Van Treese inspected the daily report for the motel, and he checked to see if the daily report matched rooms actually occupied. He told Bender that there were missing registration cards, missing receipts and unregistered occupants at the Oklahoma City motel. He told Bender that he told Glossip that he had until Van Treese arrived back at Oklahoma City to come up with the missing receipts.

Then he was going to give Glossip another week to come up with the missing registration cards and to get the receipts in order. He also told Bender that if Glossip were fired Bender would manage the Oklahoma City motel. Van Treese left the Tulsa motel and arrived back at the Oklahoma City motel at about 2:00 a.m. on January 7. Sneed, also known as Justin Taylor, testified that in exchange for maintenance work, Glossip let him stay in one of the motel rooms. Sneed said he only met Van Treese a few times, and he saw him at the motel with Glossip on the evening of January 6,1997.

Sneed testified that around 8:00 a.m. on January 7, 1997, Glossip came to his room. Glossip was nervous and jittery. Glossip wanted Sneed to kill Van Treese and he promised him $10,000.00 for killing Van Treese. Sneed testified that Glossip had asked him to kill Van Treese several times in the past and the amount of money kept getting bigger and bigger. Glossip suggested that Sneed take a baseball bat, go into Van Treese’s room (room number 102), and beat him to death while he slept.

Glossip said that if Van Treese inspected the rooms in the morning, as he intended to do, he would find that none of the work had been done. Glossip told Sneed that both of them would be out of a job. Sneed went over to the Sinclair Station next door and bought a soda and possibly a snack. He then went back to his room and retrieved the baseball bat. Sneed said he went to Van Treese’s room and entered using a master key that Glossip had given him. Van Treese woke up and Sneed hit him with the bat. Van Treese pushed Sneed, and Sneed fell into the chair and the bat hit and broke the window.

When Van Treese tried to get away, Sneed threw him to the floor and hit him ten or fifteen times. Sneed also said that he pulled out a knife and tried to stab Van Treese a couple of times, but the knife would not penetrate Van Treese. Sneed received a black eye in the fight with Van Treese. He later told others that he fell in the shower and hit his eye. A long time resident of the motel, John Beavers, was walking outside when [he] heard strange noises coming from room 102. He then heard the glass breaking. Beavers believed there was a fight going on in room 102.

After Sneed killed Van Treese he went to the office and told Glossip he had killed Van Treese. He also told him about the broken window. Sneed said that he and Glossip went to room 102 to make sure Van Treese was dead. Glos-sip took a $100 bill from Van Treese’s wallet. Glossip told Sneed to drive Van Treese’s car to a nearby parking lot, and the money he was looking for would be in an envelope under the seat. Glossip also told him to pick up the glass that had fallen on the sidewalk. Sneed retrieved the car keys from Van Treese’s pants and drove Van Treese’s car to the credit union parking lot.

He found an envelope with about $4000.00 cash under the seat. He came back and swept up the glass. He put the broken glass in room 102, just inside the door. He said that Glossip took the envelope from him and divided the money with him. He also testified that Glos-sip helped him put a shower curtain over the window, and he helped him cover Van Treese’s body. According to Sneed, Glossip told him, that if anyone asked, two drunks got into a fight, broke the glass, and we ran them off.

Sneed testified that Glossip told him to go buy a piece of Plexiglas for the window, and some Muriatic acid, a hacksaw, and some trash bags in order to dispose of Van Treese’s body. D-Anna Wood testified that she and Glossip were awakened at around 4:00 a.m. by Sneed. She testified that Glos-sip got out of bed and went to the front door. When he returned, Glossip told her that it was Sneed reporting that two drunks got into a fight and broke a window. She testified that Glossip then returned to bed. Glossip told police during a second interview, that Sneed told him that he killed Van Treese.

He denied ever going into room 102, except for assisting with repairing the window. He said he never saw Van Treese’s body in the room. The next morning, Billye Hooper arrived at work and was surprised to see that Glossip was awake. She also noticed that Mr. Van Treese’s car was gone. She asked Glossip about the car, and Glossip told her that Mr. Van Treese had left to get supplies for remodeling rooms. A housekeeper testified that Glossip told her to clean the upstairs rooms, and he and Sneed would take care of the downstairs, where room 102 was located. Later that afternoon, employees found Mr.

Van Treese’s car in a credit union parking lot near the motel, and a search for Van Treese began. Glossip and D-Anna Wood were at Wal-Mart shopping. They returned to the motel, because Hooper paged them and told them to come back. The police were contacted sometime after Mr. Van Treese’s car was found. Cliff Everhart, who worked security for Mr. Van Treese in exchange for a 1% ownership, was already at the motel. He told Sneed to check all of the rooms. Sneed indicated that he did so. Ever-hart, Glossip and Wood drove around looking for Van Treese in nearby dumpsters and fields.

Everhart and Oklahoma City Police Sgt. Tim Brown began discussing Glos-sip’s conflicting statements, so they decided to check room 102 on their own. At about 10:00 p.m. they discovered Van Treese’s body in his room. Sneed had already left the motel that afternoon, and he was not apprehended until a week later. Glossip was taken into custody that night, questioned and released. The next day, Glossip began selling his possessions. He told people he was leaving town. However, before he could leave town, he was taken into custody again for further questioning.

Subsequent searches revealed that Sneed possessed approximately $1,700.00 in cash, and that Glossip possessed approximately $1,200.00. Glossip claimed this money came from his paycheck and proceeds from the sale of vending machines and his furniture. Glossip, 157 P.3d at 147-51.

STANDARD OF REVIEW A petitioner is entitled to federal habeas relief only if the state court’s merits-based adjudication of his claims “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). This standard is “highly deferential” and “demands that state-court decisions be given the benefit of the doubt.” Woodford v.

Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (quotation omitted). Federal habeas courts must presume the state court’s factual findings are correct unless the petitioner rebuts that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This court first determines “whether the principle of federal law on which the petitioner’s claim is based was clearly established by the Supreme Court at the time of the state court judgment.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.2006); see also Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir.2012).

To be clearly established for purposes of federal habeas review, the Supreme Court must have established the principle of law via a holding in a case where the facts are similar to the facts in the petitioner’s case. House v. Hatch, 527 F.3d 1010, 1016 (10th Cir.2008). “The absence of clearly established federal law is dispositive under § 2254(d)(1).” Id. at 1018. That is, only if this court answers “affirmatively the threshold question as to the existence of clearly established federal law, may we ask whether the state court decision is either contrary to or an unreasonable application of such law.” Id.

If clearly established federal law exists, this court moves on to consider whether the state court decision was contrary to or an unreasonable application of that clearly established federal law.

Bland, 459 F.3d at 1009. “A decision is ‘contrary to’ clearly established federal law ... if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts ... materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from the result reached by the Supreme Court.” Id. (quotations omitted) (alterations in original). “A state court decision involves an ‘unreasonable application’ of federal law if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. (quotation omitted) (alteration in original).

Thus, “[a]s a condition for obtaining federal ha-beas relief, ... a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, - U.S. -, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). This court employs a less deferential standard if the state court has not adjudicated the merits of a petitioner’s claim.

In such situations, this court exercises its “independent judgment in deciding the claim.” McCracken v. Gibson, 268 F.3d 970, 975 (10th Cir.2001). “In doing so, we review the federal district court’s conclusions of law de novo and its findings of fact, if any, for clear error.” Id. Nevertheless, “[a]ny state-court findings of fact that bear upon the claim are entitled to a presumption of correctness rebuttable only by clear and convincing evidence.” Hooks, 689 F.3d at 1164 (quotation omitted).

DISCUSSION On appeal, Glossip asserts he is entitled to habeas relief based on each of the following six alleged constitutional errors: (1) he was denied due process by the prosecution’s creation and display during trial of posters emphasizing the government’s evidence; (2) prosecutorial misconduct deprived him of fair guilt and penalty proceedings; (3) he was denied effective assistance of trial counsel; (4) the sole ag-gravator underlying his death sentence is not supported by sufficient evidence; (5) the introduction of improper victim impact evidence denied him a reliable penalty proceeding; and (6) the cumulative effect of otherwise individually harmless errors rendered his trial fundamentally unfair.

As set out below, this court concludes Glossip is not entitled to habeas relief on any of his claims of error. I. Display of Posters at Trial A. Background 1. OCCA Decision Glossip claims that the State used demonstrative aids to overly emphasize certain portions of witnesses’ testimony. He claims that the posters (1) placed undue influence on selected testimony, (2) were the equivalent of continuous closing argument, and (3) violated the rule of sequestration.... ... Defense counsel requested that these poster sized note sheets be preserved ... for appellate review, but the trial court refused the request....

We are extremely troubled by the trial court’s attitude toward defense counsel’s attempt to preserve the demonstrative aides for appellate review. [Footnote 8: Glossip has asked for an evidentiary hearing so that the record may be supplemented with these demonstrative exhibits ...; however, we find that the inclusion of the demonstrative exhibits would not affect our decision in this case.] Here, the only way to determine what was on the posters, in toto, is to search the record and note where it appears that the prosecutor was writing on the note pad.

According to the record cited, the prosecutor made notes of significant testimony on a large flip chart sized easel pad. This pad was left up for the jury to view during trial over trial counsel’s objection which was made after the second day of testimony. The record is not clear whether these pads stayed up during the entire trial. Glossip asserts that they stayed on display from witness to witness from the first day of testimony to the last with no citation to the record. Glossip cannot say what was written on the poster sized pad sheets....

Glossip claims that the posters were “taped up to various places in the courtroom and remained in full view of the jury . and all subsequent witnesses throughout the trial.” Glossip’s citations to the record do not support this specific factual claim. Glossip admits that he has found no cases on point in Oklahoma, and only cites to a Kentucky case that he cites as saying, It is one thing to allow a party to make a chart or

summary or other demonstrative aid for use while a witness is testifying. It is quite another ‘to allow a particular segment of testimony to be advertised, bill-board fashion,’ after that witness has completed his or her testimony. Lanning v. Brown, 377 S.W.2d 590, 594 (Ky.1964). The chart displayed in Lan-ning was a poster sized chart noting the list of special damages claimed by the party in a personal injury case. The Court held that the display of the chart was harmless, because the damages were not in substantial dispute. The Kentucky court noted a dearth of precedent on this point. In Miller v.

Mullin, 354 F.3d 1288, 1295 (10th Cir.2004), the [Tenth Circuit] noted a risk of using transparencies during closing argument. The court noted that “[a]n inherent risk in the use of pedagogical devices is that they may ‘unfairly emphasize part of the proponent’s proof or create the impression that disputed facts have been conclusively established or that inferences have been directly proved.’ ” Id. (citing United States v. Drougas, 748 F.2d 8, 25 (1st Cir.1984)). In viewing the entire record, we cannot say that the posters affected the outcome of this trial.

Both sides utilized the poster tactic during trial, although, the State seemed to utilize more posters than the defense. There is no argument that the posters did not contain factual information, and they were utilized to assist the jury in understanding the testimony, considering the trial court’s instructions against note-taking. Any error in the utilization of these posters was harmless. Glossip, 157 P.3d at 155-56. 2.

District Court Order [ Petitioner claims his constitutional right to due process was violated when the trial court allowed the state “to display selective portions of certain witnesses” testimony throughout the entire trial .... This court ... allowed petitioner to supplement the record with copies of the posters ... and the record was expanded to permit both parties to submit affidavits pertaining to the location and use of the posters.

The initial question is whether petitioner’s evidentiary claim was “adjudicated on the merits” within the meaning of § 2254(d), when the OCCA did not review the posters themselves, but was generally, if not specifically, aware of their contents.... ... As the court concludes petitioner is not entitled to habeas relief even if the claim is reviewed de novo, it is unnecessary to determine whether the state court adjudicated the claim on the merits.... The posters consist of handwritten bits of witnesses’ testimony on sheets of butcher block paper, approximately 27 by 36 inches in size.

They apparently were taped to the edge of the State’s counsel table and elsewhere in the courtroom. The writing on the posters is large enough that they would have been legible if within a juror or witness’ line of vision. The court has assumed that, once created, a poster could be seen throughout the remainder of the trial by both the jury and the witnesses. The posters were not admitted into evidence and were not sent with the jury to the jury room.

Most of the writing on the posters consists of statements Glossip made on January 7, 1997, ... in an attempt to cover up the crime, including when he had last seen the victim, the cause of the broken window, the room in which the victim had spent the night, and who was to clean the downstairs motel rooms. Two posters include references to statements Glossip made to Officer Tim Brown at different times during the day on January 7, 2010, and then after Van Treese’s body was found.

They demonstrate inconsistencies in Glossip’s statements to the police, reflecting that Glos-sip told Brown at 4:30 p.m. on January 7, 1997, that he had seen Van Treese walking through the parking lot that morning at 7:00 a.m., sometime after 7 p.m. told him that he was not sure when he had last seen Van Treese, and, around 9 p.m., said that everything was getting turned around and he did not say he had seen the victim at 7:00 a.m.

The writings on these posters also show that petitioner did not mention anything to Officer Brown about Justin Sneed’s involvement in Van Treese’s disappearance until after the body was discovered. The statements on these posters did not directly link Glossip to the murder. The only poster that included statements directly connecting Glossip to the murder was that on which the prosecutor summarized Sneed’s testimony (“Sneed poster”)....

Neither party has cited, nor has the court found, cases concluding due process violations resulted from a use of demonstrative exhibits similar to that which occurred during Glossip’s trial. [Footnote 54: Because the jury found the murder for remuneration aggravator, the Sneed poster was pertinent to both stages of the trial. Therefore, the court must consider its impact during the sentencing stage as well as the guilt stage.] Petitioner relies on cases in which trial courts have refused to allow testimony to be reread to the jury during deliberations.

The courts’ concern in those decisions was that “testimony taken out of context could give too much stress to a particular point.” Glaze v. State, 565 P.2d 710, 714 (Okla.Crim.App.1977). While that concern is present here, those cases are distinguishable in that the issue arose during jury deliberations. While the posters could be viewed by the jury during the trial, the jurors’ attention was not specifically focused on them, as it would be if their contents were read to them after they had retired to deliberate or if the posters had been sent to the jury room.

The court has considered the State’s use of the posters against the backdrop of [Tenth Circuit cases].... The issue for the court to decide is not whether the posters use violated some state evi-dentiary rule, but whether their impact on the trial was harmless error under Brecht. Petitioner’s argument that the posters allowed a witness to tailor his or her testimony to that of a prior witness is not persuasive.

Because most of the witnesses had previously testified (during the first trial and/or preliminary hearing) or given statements, petitioner’s trial counsel had the opportunity to challenge any changes in their testimony that might have been due to their reading the statements of preceding witnesses. Moreover, ... the bulk of the testimony recorded on the posters was npt disputed. Also ..., it would have been difficult for a witness to read what was on the posters at the same time he or she was being asked questions.

The more difficult question is the impact of the posters on the jurors’ deliberations — did they allow or cause certain testimony to be overemphasized to such an extent that the error “ ‘resulted in actual prejudice?’ ” [Welch v. Workman, 607 F.3d 674, 685 (10th Cir.2010) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)) ].... [T]he jurors not only heard the witness make the statements and then see them recorded, the prosecutor occasionally reread a statement to verify its accuracy.

However, petitioner does not contend that the prosecutors inaccurately recorded the witness’ testimony. More importantly, he does not dispute the accuracy of most of the statements attributed to him on the posters. As stated by petitioner’s counsel during his closing argument, “Mr. Glossip sits here charged with murder for inconsistent statements.” The thrust of petitioner’s defense was that, while he made false statements and may have committed a crime, it was committed after Sneed murdered Van Treese, not before. Glos-sip admitted that he had lied to the detectives and that he had covered up the murder.

With the exception of the Sneed poster, by allowing the posters to remain visible throughout the proceedings the trial court essentially permitted the State to present cumulative, though undisputed, testimony about Glossip’s statements on January 7 and 8, 1997.... The jury could have considered Glossip’s various statements as evidence not merely of his attempt to conceal the discovery of the crime, but as proof that he was involved in the murder itself. However, the court concludes that the continual display of these posters was not harmful under the deferential standard of Brecht.

Petitioner’s defense was that, while he might have been involved in an attempt to hide the murder, he was not involved in its commission. Glossip’s counsel stated during his closing argument that none of the witnesses (with the exception of Sneed), “placed Mr. Glossip killing Mr. Van Treese or have personal knowledge of that or have knowledge of a contract or an agreement between him and Justin Sneed. None of them.” Their recorded statements on the posters did not make that link. They also neither undercut Glossip’s defense nor directly bolstered the State’s murder charge.

Under these circumstances, the court concludes that the presence of the posters reflecting the testimony of witnesses other than Sneed did not have a substantial and injurious effect on the jury’s verdict. The Sneed poster reflected the crux of the State’s case against Glossip. Its contents, a synopsis of Sneed’s testimony implicating Glossip in the murder, addressed facts which were highly disputed. The poster was created on May 26, 2004, late in the trial.

Although a close question, the court concludes that the trial court’s decision to allow the continued display of the Sneed poster, whether considered alone or in combination with the other posters was ... harmless under Brecht. Key considerations include the fact that the information on the poster accurately reflected Sneed’s testimony, that the poster was not sent to the jury deliberation room, and that the information on the poster was limited and simple.

As Sneed was the state’s principal witness, it is doubtful the jury would have needed any reminder as to the central points of his testimony which were recorded on the posters — that Glossip offered him money to kill [Van Treese] so he could run both motels. Although not determinative, the court notes that the defense also created and displayed posters during Glossip’s trial. The trial judge did not give any specific limiting instructions with respect to the posters.

However, she instructed the jurors both at the beginning of the trial and before they began deliberating that “[t]he State has the burden of providing the evidence that establishes guilt beyond a reasonable doubt” and then defined evidence as testimony received from witnesses under oath, stipulations and exhibits admitted into evidence during the trial. The jury was also advised that evidence “is not what the attorneys say, it is not what I say” and that “[t]he exhibits go back with you into deliberation.” “‘[A] jury is presumed to follow its instructions.’ ” Crawley v.

Dinwiddie, 584 F.3d 916, 918 n. 2 (10th Cir.2009). The trial court clearly erred in allowing the posters to remain on display in the courtroom throughout the trial. However, “ ‘an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.’ ” Welch, 607 F.3d at 685 (quoting Brecht, 507 U.S. at 634 [113 S.Ct. 1710]).

Habeas relief may not be granted “merely because there is a reasonable possibility that trial error contributed to the verdict.” Brecht, 507 U.S. at 637 [113 S.Ct. 1710], While not endorsing the practice permitted here, the court concludes, applying Brecht ... that the error did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. The petitioner is not entitled to habeas relief on this claim. District Ct. Order at 23^10 (footnotes, citations, and alteration omitted). B.

Analysis This court notes at the outset that the record reveals two potential non-merits impediments to Glossip obtaining habeas relief on this claim. Oklahoma argues convincingly that because Glossip did not properly exhaust his federal due process claim in state court, the claim is subject to an anticipatory procedural bar. See Anderson v.

Sirmons, 476 F.3d 1131, 1139 n. 7 (10th Cir.2007) (“Anticipatory procedural bar occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” (quotations omitted)). Alternatively, Oklahoma makes a strong argument that assuming Glossip properly exhausted a federal due process claim, the OCCA’s resolution of that claim is entitled to AEDPA deference.

We need not resolve these issues, however, because the record makes clear Glossip is not entitled to habeas relief even if this court proceeds to the merits of the claim. 28 U.S.C. § 2254(b)(2) (providing a habeas petition “may be denied on the merits, notwithstanding the failure of an applicant to exhaust” state court remedies); Webber v. Scott, 390 F.3d 1169, 1175 (10th Cir.2004) (“The question of whether the OCCA reached the merits need not be decided, however, because Webber’s claim fails with or without according the state court’s decision AEDPA deference.”).

Because Glossip does not contend the prosecution’s use of the posters impinged upon a specific constitutional right, he is entitled to habeas relief only if the use of the posters “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Matthews v. Workman, 577 F.3d 1175, 1186 (10th Cir.2009) (quotation omitted).

For all those reasons set out by the district court in denying Glossip habeas relief on this claim, we conclude the answer to that question is an unequivocal “no.” Although there is no need to recapitulate the district court’s thorough analysis, a few points are worth emphasizing. As noted by the district court, the overwhelming majority of the posters memorialized statements Glos-sip made to multiple individuals in the days immediately following the murder. Glossip never denied making these statements.

In fact, his defense was that while he might have been involved in an attempt to hide the murder, he was not involved in its commission. Importantly, as Glossip argued during his closing argument, none of those statement connected him to Van Treese’s murder. Further, the posters were not admitted into evidence and were not sent to the jury room during deliberations. As this court made clear in Miller v.

Mullin, use of demonstrative exhibits is within the sound discretion of the trial judge. 354 F.3d 1288, 1295 (10th Cir.2004). “[T]he ability of an appellate court to overturn discretionary rulings on direct review is severely constrained. It is even more attenuated on habeas review.” Id. at 1296. Given the large number of witnesses (twenty-six witnesses testified during the guilt phase), it was not fundamentally unfair for the trial court to allow the use of posters to assist the jury in understanding, and keeping track of, the testimony.

This is especially so considering that Glossip had the same opportunity to use such demonstrative exhibits and, in fact, utilized the same technique on several occasions during witness testimony. Glossip, 157 P.3d at 156. The poster memorializing Sneed’s testimony is a slightly closer question. That poster was the only one which included statements directly connecting Glossip to Van Treese’s murder. It reflected the crux of the prosecution’s case and represented a synopsis of Sneed’s highly disputed testimony implicating Glossip in the murder.

Nevertheless, as is true of the other posters, Glossip has never challenged the accuracy of the poster and the poster was not submitted to the jury during deliberations. Most importantly, Sneed was the prosecution’s principle witness. Like the district court, we think it is beyond doubtful that the jury would have needed any reminder as to the central points of Sneed’s testimony. Furthermore, Sneed testified very late in the trial, only a few days before the case was submitted to the jury. Thus, the poster memorializing Sneed’s testimony was not displayed in front of the jury for an extended time period.

Finally, although it did not provide a limiting instruction, the trial court specifically instructed the jury at the beginning of trial, and in the written charge, (1) that the prosecution had the burden of providing evidence that establishes guilt beyond a reasonable doubt; and (2) that evidence consists of testimony received from witnesses under oath, together with stipulations and exhibits admitted during the trial. Given this trial context, we safely conclude the Sneed poster did not render Glossip’s trial fundamentally unfair.

Because the use of the posters in this case, considered together and in the context of the entire proceeding, did not render Glossip’s trial unfair, their use did not deprive Glossip of his Fourteenth Amendment right to due process. II. Prosecutorial Misconduct Glossip alleges various instances of pros-ecutorial misconduct during both the guilt and penalty phases of his trial.

The OCCA adjudicated Glossip’s misconduct claims by analyzing whether “the cumulative effect was such to deprive the defendant of a fair trial.” Glossip, 157 P.3d at 157. “Because this standard is the same as that under federal law, we apply the deferential AEDPA standard of review, and examine whether the OCCA’s decision was an unreasonable application of the standard.” Bland, 459 F.3d at 1024 (citation omitted).

Generally, a prosecutor’s improper remarks require federal habeas relief only if the remarks “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 643, 645, 94 S.Ct. 1868. Alternatively, if prosecutorial misconduct denied Glossip a specific constitutional right, a valid habeas corpus claim may be established without proof the entire trial was rendered fundamentally unfair. Id. at 643, 94 S.Ct. 1868; see also Paxton v. Ward, 199 F.3d 1197, 1217 (10th Cir.1999). A. Guilt Phase 1. Fingerprint Evidence a.

OCCA Decision Glossip ... claims that the prosecutor committed misconduct when arguing that the absence of Glossip’s fingerprints in room 102 amounted to evidence of guilt. There was no objection to these comments, thus we review for plain error only. Here the prosecutor was merely arguing that, as manager of the motel and as a person who was responsible for repairs in every room, it was very suspicious that none of his fingerprints were found in the room. This was a fair inference from the evidence.

The prosecutor was not arguing that Glossip selectively removed fingerprints after the crime, but was arguing that the absence of his fingerprints in the room, even ones that might have been left there under innocent circumstances was unusual. There is no plain error here. Glossip, 157 P.3d at 157. b. District Court Decision The prosecutor knew, or should have known, Glossip argues, that the police “limited their initial collection of forensic evidence to areas obviously related to the murder.” He asserts that “[i]t is hard to imagine how Mr.

Glossip could have selectively wiped off all of his own fingerprints, but left [every one] of Justin Sneed’s prints in place.” Glossip claims the prosecutor improperly remarked during his first-stage closing argument: Does the absence of his fingerprints, even though we know that in all likelihood he’d been in that room repeatedly and had legitimate business there, and even though he, himself, admits confirming John Prittie’s description that he helped put the plexiglass on that broken window, not one single Richard Glossip fingerprint can be found.

Can you think of some reasonable explanations for that looking for a reasonable inference as justified by your common sense. And, understand, I’m not talking about fingerprints in the blood of Barry Van Treese. We’ve seen some of those. I’m talking about any fingerprint at all. He had legitimate business in room 102 at times and there would be many circumstances under which an innocent Richard Glossip could put his fingerprint in that room. Okay? I’m talking about no fingerprints of any kind at all. Why isn’t [sic] his fingerprints there? If he is innocent, why aren’t they there. He helped put up that plexiglass.

He touched it. His fingerprints should be there. Why aren’t they? Because somebody wiped them off. Innocent people don’t do that. The OCCA concluded the prosecutor “was merely arguing that, as manager of the motel and as a person who was responsible for repairs in every room, it was very suspicious that none of his fingerprints were found in the room,” and the argument “was a fair inference from the evidence.” Glossip, 157 P.3d at 157.

The prosecutor was not, the court found, “arguing that Glossip selectively removed fingerprints after the crime, but was arguing that the absence of his fingerprints in the room, even ones that might have been left there under innocent circumstances was unusual.” Id. The OCCA’s determination was not unreasonable. See [Thornburg v.

Mullin, 422 F.3d 1113, 1131 (10th Cir.2005) ] (“A prosecutor may comment on and draw reasonable inferences from evidence presented at trial.”); see generally Donnelly, 416 U.S. at 646-47 [94 S.Ct. 1868] (“Such arguments, like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear.... [A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging

interpretations.”). The prosecutor could reasonably infer, from the absence of Glossip’s fingerprints on the plexiglass, which petitioner admitted helping Sneed install, that Glossip wiped his fingerprints off the glass or wore gloves so no prints would appear. Petitioner has not shown that the prosecutor’s comments prevented the jury from being able to fairly judge the evidence. District Ct. Order at 42-44 (footnote and citation omitted). c.

Analysis This court does not quite know what to make of the OCCA’s determination that “[t]he prosecutor was not arguing that Glossip selectively removed fingerprints after the crime, but was arguing that the absence of his fingerprints in the room, even ones that might have been left there under innocent circumstances was unusual.” Glossip, 157 P.3d at 157. As noted by the district court, the prosecutor specifically argued to the jury as follows: “Why isn’t [sic] his fingerprints there? If he is innocent, why aren’t they there. He helped put up that plexiglass. He touched it. His fingerprints should be there.

Why aren’t they? Because somebody wiped them off. Innocent people don’t do that.” District Ct. Order at 43. Nevertheless, the OCCA’s ultimate conclusion, that the prosecutor’s statements amounted to proper commentary on the evidence, is not unreasonable. Although Glossip admitted he participated in the placing of the plexiglass in the room in which Van Treese was murdered, his fingerprints were not present in that area of the room. Nor were his fingerprints found elsewhere. It is legitimate for the prosecutor to ask the jury to draw a negative inference from this strange absence of fingerprints.

This is especially true given that during an interview with Detective Bemo on January 9, 1997, Glos-sip repeatedly emphasized the special care he took, in the aftermath of the murder, to make sure his prints did not appear in the room. The prosecutor’s statements regarding the absence of Glossip’s fingerprints in the motel room where the murder occurred did not amount to misconduct and, most certainly, did not prevent the jury from fairly judging the evidence at Glossip’s trial. 2. Lesser-Included Offense a.

OCCA Decision Glossip argues that the prosecutor mislead the jury when arguing that the defense of “accessory after the fact” was baseless, because the State did not charge him with accessory after the fact to murder. In fact, the State did[ ] initially charge Glossip with accessory to murder and Sneed with murder in separate Informations. The State then dismissed the accessory Information and added Glossip as a co-defendant with Sneed on the murder Information.

The State argued that it did not charge Glossip with accessory to murder, because he was guilty of the “big boy offense of Murder in the First Degree.” Actually, the State did not pursue prosecution of Glossip for accessory, because they alleged he was guilty of first degree murder. The method of prosecution and the filing of charges is discretionary with the prosecution. Here the prosecutor is merely arguing that Glossip is guilty of murder, regardless of his defense that he only acted after the fact in attempting to cover up the crime. The argument, again, is properly based on the evidence adduced at trial.

The prosecutor argued that the lesser related offense instruction relating to accessory to murder was only given because defense counsel requested it. Glossip objected to this argument and the trial court admonished the prosecutor. Juries are to consider lesser related offenses, only if they have a reasonable doubt that a defendant has committed the greater offense. The jury was properly instructed on the method of reviewing greater and lesser offenses. These instructions properly channeled the jury’s decision making process and cured any error. Glossip, 157 P.3d at 157-58 (citations omitted). b.

District Court Decision Petitioner contends the prosecutor misled the jury by giving it “the impression that the State had always believed Mr. Glossip was a principal to the murder,” when in fact Glossip had originally been charged as an accessory after the fact. In response to this argument, the OCCA noted that “[t]he method of prosecution and the filing of charges is discretionary with the prosecution,” and found that the prosecutor was “merely arguing that Glossip [was] guilty of murder, regardless of his defense that he only acted after the fact in attempting to cover up the crime.” Glossip, 157 P.3d at 158.

The court concludes the OCCA’s ruling on this issue was not unreasonable. More troubling are certain comments the prosecutor made, which petitioner contends denigrated defense counsel by implying that the lesser related offense instruction was a defense trick. The prosecutor remarked during her closing: I want to talk to you about this lesser related offense. I want to point out to you why you got it. You see, because it says lesser. That’s why you got it. Because they wanted you to have a lesser option. I want to tell you something. We don’t get to choose here, see, you all don’t.

The State of Oklahoma chose, right or wrong, we chose Murder in the First Degree. Let me tell you something about lesser related offenses. Let me tell you why we just charge with one offense. Because that’s what he did. Because that’s what the evidence is. You know, somebody, they drive drunk, they commit DUI and they slam into somebody, they run a stop sign, they slam into somebody and they kill them, you know what we charge them with? Manslaughter. Because that’s what driving drunk and killing somebody is.

And at trial if they get up and they go, “You’ve got me, okay, find me guilty of, well, running the stop sign.” We don’t accept that offer. And that’s what this is. It’s an offer to plead to running the stop sign. But he did more than that. And the State of Oklahoma respectfully de-dines his offer of a lesser related offense. Doesn’t even really fit— Defense counsel objected at the bench to. the prosecutor’s remarks.

He argued that the prosecutor improperly implied that the lesser included instruction was merely something petitioner had suggested, rather than something the court had determined was appropriate for the jury’s consideration. The court told the prosecutor that she was concerned by her “statement let me tell you why you got this instruction,” and would allow her to fix it. The prosecutor then told the jury: Ladies and gentlemen, when we talk about lesser related offenses they are running the red stop sign and that’s it. Now, they’re in your packet and they’re for your consideration.

I mean, they’re not here because they’re not for your consideration. They are for your consideration. But they are properly for your consideration at the proper time. If you have reasonable doubt of murder, then you will consider. And that is the proper time. The OCCA found that the prosecutor’s argument that petitioner was “guilty of murder, regardless of his defense that he only acted after the fact in attempting to cover up the crime ... [was] properly based on the evidence adduced at trial.” Glossip, 157 P.3d at 158.

With respect to the prosecutor’s comment that the lesser related instruction was given only because of defense counsel’s request, the OCCA noted that the trial court admonished the prosecutor, the jury was properly instructed regarding greater and lesser offenses and the instructions “properly channeled the jury’s decision making process and cured any error.” Id. The OCCA also noted that under Oklahoma law juries “are to.consider lesser related offenses, only if they have a reasonable doubt that a defendant has committed the greater offense.” Id.

While the prosecutor’s comments had the potential to mislead, the court concludes the prosecutor’s closing remarks, when considered in their entirety and in conjunction with the jury instructions, did not alter the fundamental fairness of Glossip’s trial. The prosecution essentially “reminded the jury that it should refer to the written instructions during deliberations. The jury is presumed to follow its instructions, even when there has been misleading argument.” Bland, 459 F.3d at 1015.

The state court’s adjudication of this alleged instance of prosecutorial misconduct was not contrary to or an unreasonable application of clearly established federal law. District Ct. Order at 45-48 (citations and footnotes omitted). c. Analysis Glossip’s arguments with regard to his claim of prosecutorial misconduct are two-fold. He first argues the prosecution misrepresented the facts, and thereby misled the jury, when it gave the impression the State always believed he was a principal to the murder when, in fact, he was originally charged as an accessory after the fact.

Like the district court, we think this assertion hardly merits discussion. Glossip has not cited a single case indicating the original indictment in this case remained either legally or factually relevant. That being the case, the original indictment did not bind the prosecution. Furthermore, contrary to Glossip’s assertion, the original indictment does not necessarily mean the prosecution ever thought Glossip was a simple accessory. Instead, it likely indicates that early in the investigation Oklahoma was not sure of Glossip’s role, but was sure he was involved at least as an accessory.

Eventually, Oklahoma became convinced Glossip was a murderer and it could prove that fact. That being the case, the comments identified by Glos-sip were consistent with the factual history of the case. Furthermore, the OCCA reasonably concluded the prosecutor’s remarks were simply an argument to the jury that the evidence showed Glossip was guilty of the greater offense. Glossip, 157 P.3d at 158 (holding prosecutor’s argument Glossip was “guilty of murder, regardless of his defense that he only acted after the fact in attempting to cover up the crime ... [was] properly based on the evidence adduced at trial”).

As to the prosecutor’s alleged denigration of the lesser-included offense, the OCCA’s determination of harmlessness is reasonable. After Glossip objected, the trial judge admonished the prosecutor to clarify to the jury that it was obligated to comply with the court’s instructions and consider the accessory charge if it could not reach a unanimous verdict on the murder charge. The jury instructions correctly set out the jury role. See Bland, 459 F.3d at 1015 (“The jury is presumed to follow its instructions, even when there has been misleading argument.” (citation omitted)).

Thus, the OCCA’s determination of harmlessness is reasonable. 3. Victim Impact Evidence a. Background i. OCCA Decision The OCCA concluded on the merits that the overwhelming bulk of the evidence introduced during the guilt phase which Glossip described as improper “victim impact evidence” was relevant and properly admitted: Glossip claims that the State presented irrelevant and highly prejudicial evidence during the first stage of trial. He claims that the State attempted to elicit sympathy for the victim.... However, trial counsel failed to object to any of the testimony Glossip now claims was improper.

Therefore, he has waived all but a review for plain error.... Glossip first argues that the testimony of Donna Van Treese, the victim’s spouse was irrelevant to the first stage of trial.... Donna Van Treese ... described the victim as a fifty-four year old man, who had quit smoking six years prior, had gained weight, was balding, and had gray hair. He grew a full white beard and when he shaved it off; his daughter cried and begged him to grow it back.... Mrs. Van Treese was allowed to testify that the months prior to his death, a series of tragedies had occurred which included the death of her mother.

After this death the family took a long trip in a motor home to several States. During this trip Mr. Van Treese felt an urgent need to get home. When they arrived home, they learned that Mr. Van Treese’s mother was scheduled for heart by-pass surgery that very morning. She did not survive the surgery. The purpose of this testimony was to show why Mr. Van Treese was not involved in the day to day operations of the motel in the months preceding his death. It was meant to show how the motel could slip into physical and financial disrepair without his knowledge. Evidence that Mr.

Van Treese was a ham radio operator was relevant to the identification of his vehicle, as the vehicle was found at the credit union parking lot with an amateur radio operators [sic] personalized license plate. The evidence about his diabetes was relevant to show why Mrs. Van Treese called people to initiate a search as soon as she heard about him being missing, and to explain why the discovery of his car was troublesome. Glossip, 157 P.3d at 154.

The OCCA concluded any small amount of such evidence that was not properly admitted did not amount to plain error: During the first stage, several witnesses described Mr. Van Treese as a loving, kind, and generous person who on many occasions allowed people to stay at the motel when they were down on their luck. This testimony was coupled with evidence that Mr. Van Treese had a temper and would explode with anger towards employees. Although this testimony may have been irrelevant to the first stage, it did not rise to the level of plain error. This evidence did not deprive Glossip of a fair trial. Id. ii.

District Court Decision The heart of the district court’s brief analysis is as follows: Most of the challenged evidence was relevant and neither it nor the evidence which may have lacked probative value was so unduly prejudicial as to render the proceedings against petitioner fundamentally unfair. Petitioner has not shown that the OCCA’s decision on this claim was an unreasonable determination of the facts nor an unreasonable application of Supreme Court law. The asserted evidentiary errors did not violate petitioner’s due process rights.... District Ct. Order at 22 (footnote omitted). b.

Analysis The OCCA reasonably concluded the overwhelming bulk of Donna Van Treese’s testimony was relevant and properly admitted. Thus, as noted by the district court, this aspect of Glossip’s misconduct claim necessarily fails. Furthermore, those portions of Donna Van Treese’s trial testimony about Van Treese that were not relevant did not so dominate the guilt phase of the trial so as to render it fundamentally unfair. In any event, the OCCA’s conclusions in this regard are certainly not so wrong as to be unreasonable. The district court properly denied habeas relief on this claim of misconduct. 4.

Implying Existence of Additional Facts a. Background i. OCCA Decision Glossip claims that the prosecutor implied that additional evidence existed. During the re-direct examination of witness Kayla Pursley, Glossip claims that the prosecutor inferred that this jury would not hear everything she said to the police because she could not remember what she told police. The prosecutor did not allow Pursley to refresh her memory with the police report and tell the jury what she told police. No objection was made to this questioning at trial.

As indicated by the State, this questioning was to rebut the defense’s cross-examination where counsel brought up the fact that she testified to things not in the police report because she remembered these things after talking to the police. The prosecutor was merely attempting to show that Pursley was testifying from her memory and not from the police report. The fact that the jury was deprived of this evidence due to a lack of memory was not indicative of more evidence damaging to Glossip. This claim does not rise to the level of plain error. Glossip, 157 P.3d at 158. ii.

District Court Decision The district court concluded the OCCA had reasonably found the prosecutor was properly “attempting to rebut defense counsel’s suggestion that Ms. Pursley’s testimony was not credible.” District Ct. Order at 48-49. b. Analysis On redirect examination of Kayla Pursley, the prosecutor asked the following series of questions: Q. And, in fact, in the police report are some things that you don’t remember right now. Right? A. Right. Q. Okay. Some things of other statements that Richard Glossip made. Right? A. Right. Q.

And when you told the police that on January 7th, you were telling them the truth? A. Yes. Q. It’s just that it’s not before this jury right now because you don’t remember it today? A. Right. Q. So those additional statements that we might be able to write up here we’ve just lost those because it took us seven years to get this to trial. Right? A. Right. Glossip argues the clear import of this line of questioning was the prosecution had additional evidence of guilt that would not be presented to the jury. Cf. Berger v.

United States, 295 U.S. 78, 84, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (condemning, among a long litany of acts of prosecutorial misconduct, a prosecutor’s “suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered”).

Glossip’s arguments notwithstanding, it was reasonable for the OCCA to conclude the prosecutor was not attempting to imply to the jury there was additional, unmentioned evidence of Glossip’s guilt, but was instead attempting to convey to the jury that the police report was irrelevant because Pursley was testifying solely from memory. After all, during his cross-examination of Pursley, defense counsel had implied Pursley’s testimony was not to be believed because it deviated from the police report.

It was also reasonable for the OCCA to conclude the jury most likely understood the prosecutor’s line of questioning consistent with the prosecutor’s wholly proper intent. That being the case, Glossip’s claim of misconduct fails. B. Penalty Phase Misconduct 1. Background a. OCCA Decision As to Glossip’s claim of prosecutorial misconduct during the penalty phase, the OCCA concluded as follows: Glossip also claims misconduct occurred during the penalty phase of trial.

He first claims that the prosecutor misstated the law regarding the appropriate punishment by arguing that death is appropriate because society, the Van Treese family, the Glossip family, and the justice system is “worse off’ because of Richard Glossip. The State also argued that Glossip was a “cold-blooded murderer” and “cold-blooded murders in the State of Oklahoma we punish with death.” The prosecutor went on to argue that “He chose the option of murder in the face of other options and that makes death the appropriate option.” There were no objections to these arguments.

Glossip also cites to the prosecutor’s argument inferring that no one would be here, except for the actions of Richard Glossip, including the statement, “you [the jury] wouldn’t be here making this tough decision.” Again there was no objection. Glossip claims that the prosecutor unfairly denigrated Glossip’s mitigating evidence by pointing out that while he is awaiting trial he gets his niece to come visit him so he can bring her to trial so she can testify. The prosecutor also pointed out the fact that other mitigation evidence was from a 23-year-old detention officer.

The prosecutor pointed out the fact that Sneed was about that age and he buddies up to this young kid so he can have a witness to say he is not violent. There was no objection to this argument. Defense counsel did object during the next citation of alleged misconduct. The prosecutor used the victim’s photographs as props, placed them on defense table, and said “I don’t have a problem with taking this blood and putting it right over here. Because this is where it goes.” Counsel’s objection was aimed at the prosecutor “throwing things on our table.” Defense counsel said the prosecutor should give them to the jury.

The objection was overruled. The objection was not based on the argument but on where the prosecutor was placing the photographs. Because he raises a different argument here, we can review for plain error only. All of the alleged misconduct came during the State’s second closing, after defense counsel stated that the State wants “Richard Glossip’s blood to flow” (to which a State’s objection was sustained). Defense counsel also told the jury that this was a decision that they would have to live with; the State would put this case away and forget about it.

Defense counsel also argued that the State sees Richard Glossip as a person with no social redeeming value — ignoring the fact that he had a normal life, was a hard worker and supported his family. It must be noted, that the State alleged two aggravating circumstances: continuing threat; and murder for remuneration. Most of the argument, from both sides, was in an attempt to show whether Glossip was a continuing threat to society.

The continuing threat aggravating circumstance requires a jury to determine whether it is probable that a defendant will commit future criminal acts of violence that would constitute a continuing threat to society. All of the prosecutor’s arguments were proper comments on the evidence in order to show that, based on the circumstances of this crime, Glossip was a continuing threat to society. Obviously, the jury did not accept the prosecutor’s argument, because they did not find that Glossip was a continuing threat. Glossip, 157 P.3d at 158-59. b.

District Court Decision Petitioner asserts the prosecutors, during their second stage closing argument, misstated the law, injected their personal beliefs into the proceeding, and denigrated his mitigating circumstances. He first claims the prosecutor misstated the law when she argued in her closing that “death was the only appropriate penalty because we’re not better off because of Mr.

Glossip,” and that “coldblooded murderers in the state of Oklahoma we punish with death.” He contends the prosecutor also asserted other improper criteria to support the death penalty, including “her belief [that] ‘[Glossip] chose the option of murder in the face of other options.’ ” He claims the prosecutor improperly argued that: Richard Glossip killed for this, a piece of property, and he killed for this, money. It’s a lot. It’s a lot of hundreds and fifties and twenties. Right here, according to Richard Glossip, is the price of a life and because of that mentality that’s why we punish with death.

That’s why it is correct to take a life for the life that was taken.

Other remarks during the prosecution’s closing are challenged as being overly theatrical or as an expression of the prosecutor’s personal opinion that petitioner should “pay with his life.” Petitioner also asserts prejudice from the prosecutor’s “demonstration in which she threw ‘things,’ presumably photographs of the victim’s injuries, onto the defense table,” while commenting that: Because but for the actions of Richard Glossip, Justin Sneed would not have killed Barry Van Treese and but for the actions of Richard Glossip, I wouldn’t be here and but for the actions of Richard Glossip, their family wouldn’t [be] here, and but for the actions of Richard Glossip, the [Van Treeses] would not be here and but for the actions of Richard Glossip, you wouldn’t be here making this tough decision.

So I don’t have a problem with taking this blood and putting it right over here. Because this is where it goes. Petitioner’s remaining objection to the prosecutions’ closing argument is based on the following remarks: What’s his motive while he’s awaiting trial? It’s to get his niece to come visit him six times after this trial is set so he can bring her in here and make her testify. His motive is to be a good boy and to buddy up to a 23-year-old detention officer — interesting the age he chooses, I think, the age of Justin Sneed.

He chooses this young kid to buddy up with so he can be free and roam the pod while everybody else is in a cell 28 hours and 45 minutes a day. And then he doesn’t cause any problems because he knows we’ve listed as an aggravator the probability that he will be violent. He’s not stupid. That does not tell you, though, that he’s not going to be violent in the future. Glossip claims the prosecutor intended by these remarks to inform the jurors that they could ignore petitioner’s “mitigating circumstances because, in the prosecutor’s opinion, no one could really care for Mr.

Glossip unless he had manipulated them into doing so.” ... With one exception, relating to the prosecutor’s comments about the appropriateness of the death penalty, the court finds the OCCA did not unreasonably apply federal law. The prosecutor did not, in her quoted remarks, mislead the jury about sentencing alternatives. See Thornburg, 422 F.3d at 1136 (prosecutor’s statement that the defendant “could be released from jail at some point if not sentenced to death” could “mislead the jury about possible punishment alternatives”); Hooks v.

Workman, 606 F.3d 715, 742 (10th Cir.2010) (“The prosecutors, Miller and Macy, then immediately proceeded to mislead the jury as to its role in sentencing by informing jurors (1) the jury’s work would be wasted if it failed to reach a unanimous verdict, (2) defense counsel’s argument that it took the vote of only one juror to prevent imposition of the death penalty constituted a request for ‘jury nullification,’ and (3) failure to deliberate in a manner leading to a unanimous verdict would amount to operating outside the law.”).

Her comments and alleged theatrics could, though, be construed as expressing her personal views, specifically her statement: “So I don’t have a problem with taking this blood and putting it right over here. Because this is where it goes.” While “a prosecutor is entitled to argue that under the facts and law, capital punishment is appropriate,” it is “improper for a prosecutor to inject his personal opinion on the propriety of the death sentence.” Thornburg, 422 F.3d at 1135.

The court assumes the statements pertaining to the appropriateness of the death penalty “crossed the line,” id. at 1136, but does not find they rendered the trial fundamentally unfair. See Malicoat v. Mullin, 426 F.3d 1241, 1256 (10th Cir.2005) (prosecutor’s theatrics — conducting a substantial portion of his rebuttal argument in the guilt phase as if he were the 13 month old victim — were not sufficiently prejudicial to deprive petitioner of a fair trial, as statements of abusive conduct and extent of victim’s injuries were supported by evidence in the record and the prosecution’s case was compelling).

As for the prosecutor’s remarks regarding petitioner’s mitigating evidence, they were an attempt to persuade the jury not to be swayed by it. “As long as the jury is properly instructed on the use of mitigating evidence, the prosecution is free to comment on the weight the jury should accord to it.” Bland, 459 F.3d at 1026. “The comments did not contradict the court’s instructions and did not preclude the jury from considering” petitioner’s mitigating evidence. [Fox v.

Ward, 200 F.3d 1286, 1299 (10th Cir.2000).] Here, as in Fox and Bland, the trial court instructed the jury that “[t]he determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case.” “The prosecutor[ ], while critical of [Glossip’s] mitigating evidence, never told the jury it could not consider [Glossip’s] mitigating evidence. The challenged prosecutorial argument was consistent with the jury instructions and bore only on the weight of the evidence.” Bland, 459 F.3d at 1026.

Assessing the OCCA’s decisions on petitioner’s various claims of prosecuto-rial misconduct “through AEDPA’s forgiving lens,” the court cannot say the state court’s analysis was “contrary to or an unreasonable application of Supreme Court precedent, or based on an unreasonable determination of the facts.” Matthews, 577 F.3d at 1186. District Ct. Order at 49-55 (citations and footnote omitted). 2. Analysis According to Glossip, none of the instances of misconduct identified in his petition constitute fair commentary on the evidence on the part of the prosecution.

The OCCA’s contrary conclusion, he asserts, is so wrong to be unreasonable. Furthermore, Glossip contends the prosecutor’s misconduct rendered the penalty phase of his trial fundamentally unfair, given that he presented a strong case in mitigation and the jury found the existence of only a single aggravating factor. Glossip is not entitled to habeas relief on this claim of error. The OCCA reasonably concluded the vast majority of the prosecutor’s remarks were proper commentary on the evidence or argument the jury should not be swayed by Glossip’s evidence in mitigation.

Glossip’s arguments to the contrary do nothing more than ask this court to substitute its judgment for the judgment of the OCCA. This court is required, however, to assess the OCCA’s resolution of Glossip’s prosecutorial misconduct claims “through AEDPA’s forgiving lens.” Matthews, 577 F.3d at 1186. An examination of the trial transcript reveals a heavily contested penalty phase with the parties’ evidentiary submissions centering almost exclusively around the question whether Glossip was a continuing threat to society.

As noted by the OCCA, when viewed through this lens, the prosecutor’s comments reasonably relate to Glossip’s arguments regarding the existence of that aggravating factor. Glossip, 157 P.3d at 159. Furthermore, the jury’s rejection of the continuing threat aggravator makes it difficult to argue the prosecutor’s arguments led the jury to decide the case on the basis of anything other than the evidence presented. That leaves only one potential error: the prosecutor’s statements indicting her view that death was the appropriate punishment.

Those comments, however, were not the major focus of the prosecutor’s second closing and were not overly dramatic. Furthermore, one of the comments was specifically followed by a statement that no matter the prosecutor’s views, it was the jury’s view that really mattered. This error did not render that phase fundamentally unfair. III.

Ineffective Assistance of Counsel Glossip was granted a COA on three claims of ineffective assistance of counsel: (1) failure to use effectively at trial a videotaped statement Sneed made to police in 1997; (2) failure to object to acts of prose-cutorial misconduct; and (3) failure to use at trial Sneed’s competency report. A. Sneed’s Videotaped Statement 1. Background a. OCCA Decision . [Glossip] ... claims that counsel was ineffective for failing to utilize Justin Sneed’s videotaped interview to impeach Sneed and Detective Bemo.

Glossip points out that this Court, in our Opinion reversing Glossip’s original conviction, stated that “[t]rial counsel’s failure to utilize important impeachment evidence against Justin Sneed stands out as the most glaring deficiency in counsel’s performance.” Glossip, 29 P.3d at 601. One would believe that if this Court stated an attorney was ineffective (to the point of requiring reversal) for failing to utilize one piece of evidence to impeach witnesses, the new attorneys on retrial would utilize the evidence.

That is, unless counsel at the second trial is either banking on his ineffectiveness garnering his client another trial or he made a strategic decision not to introduce the tape and only question witnesses about the statements on the tape. The third possibility is that the failure to utilize this one piece of evidence is not the sole reason counsel was found to be ineffective during the first trial. This Court trusts that the first reason is invalid. Counsel’s use of the contents of the tape to cross-examine witnesses, without introducing the tape, was a valid strategy.

Furthermore, the failure to utilize the tape during the first trial was one of many reasons why this Court found there was ineffective assistance of trial counsel during the first trial. Even though these two trials encompass the same subject, similar strategic decisions occurring during both trials, might not result in the same conclusion by this Court. [Footnote 13: During the first trial, trial counsel indicated he would use the tape to impeach Justin Sneed, but when the time came, “counsel failed to utilize the video tape at all.” Glossip, 29 P.3d at 601.

In this case, trial counsel questioned both Bemo and Sneed about inconsistencies between prior statements and current testimony.] The videotaped interview was not introduced into evidence during this trial, thus it is not a part of the record. Glos-sip has filed a motion for an evidentiary hearing pursuant to Rule 3.11, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), in order to supplement the record.

Glossip admits that trial counsel cross-examined both Sneed and Bemo regarding the circumstances of the interview, statements made during the interview and discrepancies between current testimony and statements on the tape. Counsel was not ineffective for utilizing this strategy. Glossip, 157 P.3d at 159-60 (footnote omitted). b. District Court Decision The district court began its analysis of this aspect of Glossip’s claim of ineffective assistance by engaging in an extended discussion of the appropriate standard of review.

Noting the OCCA possibly resolved this claim by reference to Oklahoma Appellate Rule 3.11, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the district court concluded it must review the claim de novo. See Wilson v. Workman, 577 F.3d 1284, 1290-93, 1299-1300 (10th Cir.2009) (en banc) (holding that an OCCA resolution of a claim of ineffective assistance based on Rule 3.11 did not amount to an “adjudication on the merits” entitled to AEDPA deference).

It then moved on to deny habeas relief on the merits: Petitioner claims his attorneys were derelict in failing to impeach both Sneed and Detective Bemo with the videotape of Sneed’s interview with Detectives Bemo and Cook. He points out that the OCCA reversed his first conviction in large part because his trial counsel did not use the video. The state appellate court found after petitioner’s first trial that his attorney’s failure to use “important impeachment evidence against Justin Sneed [stood] out as the most glaring deficiency in counsel’s performance.” Glossip v.

State, 29 P.3d 597, 601 (Okla.Crim.App.2001). However, contrary to petitioner’s assertion, his attorneys in his 2004 trial did not “again fail[ ] to use this critical piece of evidence to cross-examine Justin Sneed and Det. Bemo.” While they did not seek to introduce the tape itself into evidence, unlike petitioner’s counsel in his 1998 trial they did confront Sneed with various discrepancies and inconsistencies between his 1997 videotaped interview and subsequent testimony. Bemo also was asked on cross about his interview techniques and whether his questions to Sneed were suggestive.

Petitioner concedes his trial counsel cross-examined both Sneed and Bemo in the 2004 retrial about the circumstances of the interrogation and discrepancies between the videotaped statements and Sneed’s later trial testimony. He argues, though, that “whenever the witness denied the differences in the testimony or was unsure about what was said in the initial interview on January 14, 1997, counsel simply let it go. If the jury had been allowed to view the videotape of Mr. Sneed’s interview, there would have been no question what Mr.

Sneed and the detectives said and why.” Petitioner asserts Sneed’s testimony on “the videotape was entirely different” from what he stated on the stand and that “counsel’s failure to play [the tape] for the jury left the impression it was not.” Petitioner asks the court to engage in what the Supreme Court has specifically warned against — using hindsight to second guess his attorney’s tactical decisions.

Simply because defense counsel’s impeachment may have fallen short of perfection does not mean it “ ‘fell below an objective standard of reasonableness.’ ” Welch, 607 F.3d at 702 (quoting Strickland, 466 U.S. at 688 [104 S.Ct. 2052]). Defense counsel questioned Sneed about the many inconsistencies between his 2004 trial testimony and prior statements.

Sneed admitted (1) he did not tell (or think he had told) Detectives Bemo and Cook about the hammer/boiler room incident; (2) that he had previously stated that the amount he was to be paid for the murder was $7,000; (3) that he did not tell the detectives during the interview that Glossip had removed a $100 bill from the victim/Van Treese’s wallet; (4) that he could not remember if he had told, them about the acid, the trash bags or the hacksaw; and (5) that he had denied stabbing Van Treese.

Many of the discrepancies between Sneed’s statements to the police and his in-court testimony were confirmed by Bemo during his cross-examination, including that Sneed did not tell the police that Glossip had removed a $100 bill from the victim’s wallet or mention the boiler room incident. Bemo could not recall if Sneed had informed them about the hacksaw or muriatic acid. As'petitioner asserts, playing the tape might have clarified what Sneed did and did not tell the officers during the initial interview.

However, defense counsel clearly made the point that Sneed’s story had changed and in ways that made Glossip more culpable. Having reviewed the videotape of Sneed’s initial interview with the police, the interview transcript and the trial transcript, the court concludes defense counsel was not constitutionally ineffective for failing to impeach Sneed by playing the videotape at trial. Petitioner also contends, though, that the videotape would have “conveyfed] to the jury how clearly and unambiguously the detectives telegraphed to Mr. Sneed that they wanted him to inculpate Mr.

Glossip.” As mentioned before, the court does not “determine counsel’s effectiveness through a rear view mirror.” Welch, 607 F.3d at 703. “The Supreme Court requires [the court] to make ‘every effort ... to eliminate the distorting effects of hindsight’ by indulging in a strong presumption counsel acted reasonably.” Id. (quoting Strickland, 466 U.S. at 689 [104 S.Ct. 2052]). Defense counsel’s decision not to introduce the video was reasonable trial strategy.

Playing the tape would have shown that Bemo told Sneed several times that he knew he did' not commit the murder by himself and that others, particularly Glossip, were saying he acted alone. However, it also would have allowed the jury to hear Sneed explain, once again, how Glossip masterminded the murder. Contrary to petitioner’s characterization of the interview, the officers’ questioning was not sufficiently manipulative to make it evident from viewing the videotape that, but for their suggestions, Sneed would not have implicated Glossip in the murder of Barry Van Treese.

Through his cross examinations of Bemo and Sneed, defense counsel was, though, able to elicit testimony that supported Glossip’s theory that Bemo influenced Sneed to identify Glossip as his accomplice.

Bemo admitted that at the beginning of his interview with Sneed he specifically told him that he “knew that this crime was committed by more than just himself,” that he “personally did not think that he was the only one involved in this homicide,” and that “Glossip was the one who was laying it on him the heaviest as far as pointing the finger at [him].” Having viewed the videotape and examined the trial transcript, the court concludes petitioner has not shown that defense counsel’s handling of the tape and his cross-examinations of Sneed and Bemo “ ‘fell below an objective standard of reasonableness.’ ” Welch, 607 F.3d at 702 (quoting Strickland, 466 U.S. at 688 [104 S.Ct. 2052]).

District Ct. Order at 59-63 (footnotes and citations omitted). 2. Analysis a. Standard of Review Although the parties expend a considerable number of pages briefing the appropriate standard of review for this issue, this court’s recent decision in Lott v. Trammell resolves the question. 705 F.3d 1167, 1211-13 (10th Cir.2013). Lott began by noting that this court, sitting en banc, held in 2009 that “a federal court does not owe deference to the OCCA’s rejection of an ineffectiveness claim under the OCCA Rule 3.11 standards.” Id. at 1211 (quotation and alterations omitted) (discussing Wilson, 577 F.3d at 1300).

Lott concluded, however, that Wilson was no longer good law given the OCCA’s subsequent decision in Simpson v. State, 230 P.3d 888 (Okla.Crim.App.2010). 705 F.3d at 1212. According to Lott, In Simpson, the OCCA made clear that Rule 3.11 obligates it to “thoroughly review and consider [a defendant’s Rule 3.11] application and affidavits along with other attached non-record evidence.” 230 P.3d at 905.

Thus, even in cases, such as Wilson, where the OCCA summarily disposes of a defendant’s Rule 3.11 application without discussing the non-record evidence, we can be sure that the OCCA in fact considered the non-record evidence in reaching its decision. Such a conclusion, we note, is entirely consistent with the Supreme Court’s repeated admonitions that AED-PA’s deferential standards of review “do[ ] not require that there be an opinion from the state court explaining the state court’s reasoning.” Harrington v. Richter [- U.S. -], 131 S.Ct. 770, 784 [178 L.Ed.2d 624] (2011).

The OCCA’s decision in Simpson also clarifies that the interplay of Rule 3.1 l’s “clear and conv

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