Danny Keith HOOKS, Petitioner-Appellant, v. Randall G. WORKMAN, Warden, Oklahoma State Penitentiary, Respondent-Appellee, 606 F.3d 715

I. INTRODUCTION MURPHY, Circuit Judge. An Oklahoma jury convicted Danny Hooks on five counts of first degree murdel’ and imposed five death sentences. The Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the convictions and death sentences, Hooks v. State, 19 P.3d 294, 319 (Okla.Crim.App.2001), and denied post-conviction relief, Hooks v. State, 22 P.3d 231, 233 (Okla.Crim.App.2001). Hooks then filed a 28 U.S.C. § 2254 habeas corpus petition, challenging his convictions and death sentences. The district court denied relief.

Hooks appeals to this court, raising four claims: (1) trial counsel was ineffective during the guilt and penalty phases of trial; (2) prosecutorial misconduct denied him a fair sentencing proceeding; (3) an Allen charge given during penalty-phase deliberations coerced the jury into returning death sentences; and (4) the cumulative impact of these errors denied him a fundamentally fair sentencing proceeding. Hooks has failed to demonstrate that the OCCA’s resolution of his claim of ineffective assistance of trial counsel during the guilt phase is contrary to or an unreasonable application of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 28 U.S.C. § 2254(d)(1). Furthermore, the record makes clear that all aspects of this claim raised for the first time in Hooks’s habeas petition fail on the merits. Id. § 2254(b)(2). Accordingly, this court affirms the denial of habeas relief on the murder convictions. Nevertheless, the Allen charge given by the trial court in the midst of penalty-phase deliberations, when considered in the context of all surrounding circumstances, coerced the jury into returning death sentences.

Furthermore, the OCCA’s decision to the contrary is an unreasonable application of Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). 28 U.S.C. § 2254(d)(1). Accordingly, this court reverses and remands to the district court to grant habeas relief to Hooks on each of his five death sentences. II. BACKGROUND The relevant underlying historical facts were outlined by the OCCA in its opinion on direct appeal: On May 16,1992, the bodies of Phyllis Adams, LaShawn Evans, Sandra Thompson, Carolyn Watson, and Francill Roberts were found in a small bedroom in a crack house.

Each woman was gagged and had been stabbed several times. The bodies were nude and Thompson, Watson, and Roberts were bound. [Adams was partially clothed but her brassiere and shirt were pulled up, exposing her chest area. Evans and Adams were not bound, but evidence suggested at one time Adams’s hands had been tied.] The room was in disarray and the victims’ purses appeared to have been searched. There were no drugs or money in the house. Although there were five victims in a confined space, the evidence suggested one person committed the crimes. The women were killed in the bedroom.

A trail of blood drops led to the front door, and Luminol testing showed a single set of bloody footprints also leading from the bedroom to the front door. There was a great deal of the victims’ blood in the bedroom. However, the blood trail to the door, and some other blood drops found at various places in the bedroom, did not come from any of the victims. A bloody palm print was on the west wall of the bedroom closet, and police found a bloody boot print with “Honchos” embossed on the sole. Despite a thorough investigation police found nobody who matched either the palm print or the blood drops.

In 1995 samples of the blood drops were submitted for DNA testing, and those results were distributed nationally in 1996. In 1997, California penal authorities informed the Oklahoma State Bureau of Investigation (OSBI) that they had a person with that DNA profile. Subsequent tests confirmed that the blood trail, drops in the bedroom, and bloody palm print all belonged to Hooks. DNA from semen found in Roberts’s mouth was also consistent with Hooks’ DNA. Hooks admitted he was at the house.

He testified he went there during the evening of May 15th, and sometime close to or shortly after midnight on May 16th he was there smoking crack cocaine with all the victims. Hooks said he only knew the woman who rented the house, and could not remember any of the victims’ names. He said he had “regular” sex with one woman and oral sex with another. During the night they ran out of crack and Hooks gave two of the women $30 to go buy more. After they returned and finished smoking, he ran out of drugs and money and left. Hooks said he got home — about a mile from the house — around 2:00 a.m.

He decided to go back sometime after 4:00 a.m. On the way, he cut his left index finger falling off his bicycle while trying to fix the kick stand. When he got there the house was dark and the door was ajar. He pushed it open and entered cautiously, closing the door behind him, went to the bedroom and saw the bodies, and went back to the front door. He lifted the curtain and looked outside, then decided to go back in and check on the victims in case anyone was alive. He returned to the bedroom and determined each victim was dead.

After he checked Evans’s body he picked up a shirt and wrapped it around his cut finger. Hooks looked at the contents of the victims’ purses on the west bed, then knelt and looked under the clothes in the closet. He then left the house, dropping the shirt by the front door, and closed the door. Hooks did not tell anyone what he had seen because he was afraid the authorities would revoke his California parole for being in a crack house. Two weeks later he left the area. In November he was arrested in Holden-ville, Oklahoma, on a domestic complaint and returned to California. Hooks, 19 P.3d at 303-04 & n. 2.

Additional historical or procedural facts necessary to the resolution of this appeal are set out more fully below. III. AEDPA STANDARD This court’s review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007). With certain exceptions noted below, each claim Hooks raises on appeal was resolved on the merits by the OCCA.

Accordingly, this court may not grant habeas relief on any such claim unless the decision of the OCCA “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Under the “contrary to” clause, we grant relief only if the state court arrives at a conclusion opposite to that reached by the Supreme 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, relief is provided only if the state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case. Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004) (quotations, alterations, and footnote omitted). As these standards make clear, “[w]hen reviewing a state court’s application of federal law, we are precluded from issuing the writ simply because we conclude in our independent judgment that the state court applied the law erroneously or incorrectly.” McLuckie v.

Abbott, 337 F.3d 1193, 1197 (10th Cir.2003). “Rather, we must be convinced that the application was also objectively unreasonable.” Id. Th[e] question is not wh[at] the trial judge should have [done.] It is not even whether it was an abuse of discretion for her to have done so — the applicable standard on direct review. The question under AEDPA is instead whether the determination of the [State] Supreme Court ... was “an unreasonable application of ... clearly established Federal law.” [28 U.S.C. § ] 2254(d)(1).

We have explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” 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.” Rather, that application must be “objectively unreasonable.” This distinction creates “a substantially higher threshold” for obtaining relief than de novo review.

AEDPA thus imposes a “highly deferential standard for evaluating state-court rulings,” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, — U.S. -, 130 S.Ct. 1855, 1862, — L.Ed.2d-(2010) (citations omitted). It is important to note, however, that “[t]his standard does not require ... abject deference, but nonetheless prohibits us from substituting our own judgment for that of the state court.” Snow, 474 F.3d at 696 (quotations and footnote omitted).

As the Supreme Court has made clear, Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief. A federal court can disagree with a state court’s ... determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also Miller-El v.

Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (holding the AEDPA “standard is demanding but not insatiable”). IV. GUILT-PHASE INEFFECTIVE ASSISTANCE OF COUNSEL A. Background On direct appeal, Hooks alleged his trial counsel was ineffective. As a general matter, his claim revolved around the contention counsel was unprepared for trial and, therefore, failed to present an adequate defense to the murder charges.

Hooks briefed the following specific claims of ineffective assistance before the OCCA: (1) trial counsel’s closing was insufficient in that it failed to marshal the evidence supporting Hooks’s version of events on the night of the murders; (2) trial counsel failed to timely request from Hooks’s family the work boots he customarily wore at the time of the crime, thereby precluding their use at trial to oppose the theory Hooks left the bloody “Honcho” boot prints at the crime scene; (3) trial counsel failed to object to egregious instances of prosecutorial misconduct; and (4) trial counsel failed to move in limine to exclude Hooks’s prior convictions for rape and assault and was, therefore, forced to elicit that evidence himself at the beginning of Hooks’s testimony in an effort to remove its sting if introduced by the prosecution during cross-examination.

After setting out the Strickland standard and noting trial counsel was less than a “zealous advocate,” the OCCA rejected on the merits each discrete claim of ineffective assistance of counsel set out in Hooks’s direct-appeal brief. Hooks, 19 P.3d at 317-18. Hooks reasserted in his federal habeas petition that trial counsel was constitutionally ineffective. Unfortunately, his petition is far from a model of specificity. Instead, it begins with a generalized assertion that trial counsel’s lack of investigation and preparation prevented the presentation of a viable defense theory during the guilt phase of the trial.

It then sets out a

summary listing of trial counsel’s failures in this regard: (1) failure to contact prosecution witnesses in advance of trial; (2) failure to engage in meaningful pre-trial motions practice; (3) failure to timely obtain Hooks’s work boots; (4) deferring opening statement until the beginning of the defense’s case and then making an inadequate opening statement; and (5) failure to present the jury with a viable theory of the case during closing argument. Hooks also sought an evidentiary hearing to develop his claim of ineffective assistance. The district court denied habeas relief on this claim.

It began by discrediting, as inconsistent with the record, the contention that trial counsel had undertaken so little investigation and preparation that he was forced to proceed to trial with no strategy for dealing with the prosecution’s case. The district court moved on to note that many of the examples of ineffective assistance identified by Hooks had been resolved on the merits by the OCCA consistent with the standards set out in-Strickland.

The district court rejected on the merits the ineffective assistance claim set out in the amended § 2254 petition, concluding the serology evidence relied on by Hooks did not negate his guilt and did not alter the fact that trial counsel was faced with the necessity of explaining why [Hooks] was in the house and how his blood was found at the scene. Even had counsel presented testimony consistent with Dr.

Allen’s opinions, he would still have been faced with the almost certain necessity of [Hooks] testifying in order to offer an explanation to the jury for the existence of this and other evidence. [Hooks’s] defense rested on the believability of his versions of the events and his credibility with the jury. Finally, the district court denied Hooks’s request for an evidentiary hearing, noting that in analyzing the claim of ineffective assistance, it had considered all additional evidence Hooks adduced during the federal habeas proceedings.

Even considering that additional evidence, the district court concluded the record conclusively established Hooks was not entitled to habeas relief. B. .Analysis On appeal to this court, Hooks raises the following claims of guilt-phase ineffective assistance of trial counsel: (1) failure to investigate; (2) failure to perform pre-trial motions practice; (3) failure to timely offer his work boots; (4) failure to offer forensic evidence; (5) and deferral of opening statement. Hooks further claims the district court erred when it denied his request for an evidentiary hearing.

To prevail on a claim of ineffective assistance, Hooks must show his counsel’s performance “fell below an objective standard of reasonableness” and “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Review of counsel’s performance under Strickland’s first prong is highly deferential: “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052.

To be deficient, the performance must be “outside the wide range of professionally competent assistance.” Id. In other words, “it must have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir.1999); see also Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (holding that to demonstrate deficient performance, a petitioner must show “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed [a] defendant by the Sixth Amendment”).

As for Strickland’s prejudice prong, Hooks must establish that but for counsel’s errors, there is a reasonable probability “the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. That is, Hooks must show “counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. Establishing a reasonable probability of a different outcome requires something less than a showing “counsel’s deficient conduct more likely than not altered the outcome in the case.” Id. at 693, 104 S.Ct. 2052.

Instead, a reasonable probability is one “sufficient to undermine confidence in the outcome.” Id. at 694,104 S.Ct. 2052. If Hooks is unable to show either “deficient performance” or “sufficient prejudice,” his claim of ineffective assistance necessarily fails. Id. at 700, 104 S.Ct. 2052. Thus, it is not always necessary to address both Strickland prongs. In particular, if Hooks is unable to satisfy his burden under Strickland’s prejudice prong, it is unnecessary to determine whether counsel’s performance was deficient. Id. at 697, 104 S.Ct. 2052.

In undertaking a Strickland analysis of Hooks’s claims, this court keeps the AEDPA standards of review firmly in mind. See supra

Section III. (setting out AEDPA standards); Wiggins v. Smith, 539 U.S. 510, 520-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (undertaking Strickland analysis against backdrop of AEDPA standards). 1. Failure to Investigate and Prepare Hooks begins his briefing with a generalized assertion counsel failed to adequately investigate and prepare for trial. Hooks asserts counsel’s conduct “verges” on the absence of representation identified as grounds for relief in United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

A review of his brief on direct appeal demonstrates Hooks did not raise a Cronic claim before the OCCA. It is likewise unclear whether Hooks raised a Cronic claim before the district court. Nevertheless, because it is abundantly clear Hooks is not, as a matter of law, entitled to relief under Cronic, we resolve this claim on the merits. 28 U.S.C. § 2254(b)(2) (providing federal habeas court can deny unexhausted claims on the merits).

In Cronic, the Supreme Court identified three situations when Strickland does not apply but the Court will, instead, presume prejudice without inquiring into counsel’s performance. 466 U.S. at 658-59, 104 S.Ct. 2039. Hooks invokes the second situation identified in Cronic: a presumption of prejudice is warranted if “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. at 659, 104 S.Ct. 2039.

The Court has made clear, however, that this exception to Strickland will apply only in the narrowest and rarest of circumstances: “When we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete.” Bell v. Cone, 535 U.S. 685, 696-97, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Consistent with this statement, the Court has indicated an alleged failure to adduce evidence and a decision to waive closing argument must be analyzed under Strickland, rather than under the rubric set out in Cronic.

Bell, 535 U.S. at 697, 122 S.Ct. 1843; see also Patrasso v. Nelson, 121 F.3d 297, 302 (7th Cir.1997) (rejecting argument Cronic should apply because of “the magnitude of [counsel’s] multiple failures,” and holding instead that “where ineffectiveness is due to the attorney’s lack of preparation or skill ... Strickland rather than Cronic applies”). Because the record in this case demonstrates trial counsel did not “fail[] to oppose the prosecution throughout the [trial] as a whole,” Cronic does not apply.

Bell, 535 U.S. at 697, 122 S.Ct. 1843; see also Hooks, 19 P.3d at 317-18 (noting trial counsel used the evidence presented at trial to argue the prosecution had not proven Hooks guilty of murder); infra

Section rV.A.2.e. (discussing lack of prejudice flowing from trial counsel’s deficient opening statement). Accordingly, this court moves on to consider whether the specific acts or omissions identified by Hooks entitle him to relief under the standard set out in Strickland.

See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (“A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.”); Cronic, 466 U.S. at 666, 104 S.Ct. 2039 (holding that absent evidence “counsel failed to function in any meaningful sense as the Government’s adversary,” a petitioner can “make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel”). 2.

Pre-Trial Motion Practice Hooks begins with a generalized assertion his trial counsel failed to engage in meaningful pre-trial motions practice. He then summarily identifies the following specific deficiencies: trial counsel failed to (1) file motions challenging the validity of the aggravating circumstances set out by the prosecution in support of the death penalty; and (2) file a motion in limine to exclude sexual proclivity evidence and evidence of Hooks’s prior criminal record.

As to the claim trial counsel was ineffective for failing to challenge the validity of the aggravating circumstances set out in the prosecution’s bill of particulars, we simply note this alleged failure does not relate in any way to the guilt phase of trial. Because, as set out more fully below, this court grants Hooks habeas relief as to his death penalties on the basis of the trial court’s Allen instruction, see infra

Section V., we need not further consider this particular allegation of ineffective assistance. As to the assertion trial counsel should have moved in limine to exclude evidence of his prior rape and assault convictions, we note the OCCA resolved this exact claim on the merits under the standards set out in Strickland. Hooks, 19 P.3d at 318. The OCCA concluded trial counsel was not ineffective for failing to seek to exclude the prior convictions because those convictions were admissible at trial for impeachment purposes pursuant to Okla. Stat. tit. 12, § 2609(A)(1). Hooks, 19 P.3d at 318.

Because Hooks does not even address the merits of the OCCA’s decision, he has failed to demonstrate the OCCA’s resolution of this claim is an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(1). In any event, because Hooks’s prior convictions were admissible as a matter of Oklahoma law, trial counsel did not perform deficiently when he raised the matter during direct examination in an effort to remove the sting of the evidence before the prosecution could develop it during cross-examination. Thus, Hooks is not entitled to habeas relief on this ground.

Hooks also asserts counsel was ineffective for failing to move in limine to exclude “sexual proclivity evidence” independent of the evidence relating to his past convictions. He does not, however, describe the evidence at issue, indicate on what basis it could have been excluded, or brief how it impacted his trial. Because the matter is only mentioned in passing and not briefed “with citations to the authorities and parts of the record on which [Hooks] relies,” Fed. R.App. P. 28(a)(9)(A), the issue is forfeited. Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir.2007) (citing Rule 28(a)(9)(

A) for the proposition this court has “routinely ... declined to consider arguments that are ... inadequately presented[ ] in an appellant’s opening brief’). 3. Failure to Produce Work Boots At trial, the prosecution presented evidence indicating someone wearing “Honchos” work boots walked through blood at the crime scene, possibly while the victims were being killed. It further adduced evidence that during the period in question, Hooks normally wore work boots similar to the “Honchos” that left the print at the scene of the crime.

In response to the prosecution’s focus on the “Honchos” boot print, trial counsel asked Hooks’s family to find his work boots. Although a family member found the boots and brought them to the courthouse, the trial court excluded the evidence as a discovery sanction for not giving the boots to the prosecution during pre-trial discovery.

On direct appeal, Hooks alleged (1) the trial court’s exclusion of the boots as a discovery sanction violated the Due Process Clause; and (2) trial counsel’s failure to obtain the boots and make them available during pre-trial discovery, thereby leading to their exclusion, amounted to ineffective assistance of counsel. Hooks, 19 P.3d at 306-07, 318. The OCCA resolved these claims on the merits. As to the due process claim, the OCCA concluded the trial court erred in excluding Hooks’s boots as a discovery sanction. Id. at 306-07.

It concluded, however, the error was harmless beyond a reasonable doubt because the prosecution connected Hooks to the crime through DNA and palm print evidence. Id. at 307. For that very same reason, the OCCA determined Hooks was not entitled to relief on his claim of ineffective assistance because he could not satisfy Strickland’s prejudice prong. Id. at 318; cf. Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (holding that to satisfy the prejudice prong, a petitioner must establish that but for counsel’s errors, there is a reasonable probability the result of the proceeding would have been different).

On appeal to this court, Hooks asserts the admission of his work boots would have cast doubt on the prosecution’s contention one person committed the crime and would have lent credence to his assertion he arrived at the scene after the murders had already taken place. He further asserts the decision of the OCCA is unreasonable because it fails to adequately recognize the power of this rebuttal evidence. In response, Oklahoma merely quotes the opinion of the OCCA on direct appeal and asserts that decision is not an unreasonable application of Strickland.

The decision of the OCCA — that there is no reasonable probability the outcome of the guilt phase of Hooks’s trial would have been different if the boots had been admitted — is not unreasonable. See McLuckie, 337 F.3d at 1197 (holding this court can issue habeas writ only if state court’s application of Supreme Court precedent is objectively unreasonable). As recognized by the OCCA, the boot print was the least compelling evidence tying Hooks to the crime scene. Hooks, 19 P.3d at 307. In particular, the prosecution adduced evidence of a bloody palm print and a DNA match to blood at the crime scene. Id.

Furthermore, Hooks did not contest his presence at the crime scene, but instead testified he was only present before and after the murders. Id. at 305-06. This court’s review of the record demonstrates the prosecution’s boot print evidence was not nearly as significant as Hooks suggests. The “Honchos” boots admitted at trial were purchased by police at the time of the crime and were simply a demonstrative exhibit. Id. at 306.

Although the prosecution asked the jury to infer the “Honchos” boot print came from Hooks because Hooks regularly wore work boots at the time of the crime, it does not appear the prosecution presented any evidence Hooks actually owned a pair of “Honchos” work boots. See id. Furthermore, trial counsel was successful during cross-examination in casting serious doubt on the value of the prosecution’s boot print evidence. The prosecution did not even mention the boot prints until the rebuttal portion of its closing argument.

Instead, it was defense counsel who first raised the matter in closing, pointing out all of the problems earlier identified with the prosecution’s assertion the “Honchos” boot prints belonged to the killer(s), let alone to Hooks. In light of the record, the OCCA reasonably determined Hooks was not prejudiced by trial counsel’s failure to timely offer Hooks’s work boots. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Accordingly, Hooks is not entitled to habeas relief on this ground. 28 U.S.C. § 2254(d).

A Failure to Adduce Forensic Evidence Hooks asserts the district court erred in denying habeas relief on his claim trial counsel was ineffective in failing to present forensic evidence discrediting serology evidence presented by the prosecution. The district court bypassed potential procedural impediments to Hooks raising this claim (i.e., anticipatory procedural bar and § 2244(d)’s limitations period) and resolved this claim on the merits pursuant to § 2254(b)(2).

It concluded Hooks had not suffered any prejudice from trial counsel’s failure to offer evidence like that set out in the Amended Petition because such evidence (1) did not negate guilt and (2) would not have altered the need for Hooks to explain to the jury how his blood came to be in the house where the murders occurred. Because it decided this matter in the first instance, unconstrained by the standard of review set out in the AEDPA, this court reviews the district court’s determination de novo. Young v. Sirmons, 551 F.3d 942, 970 (10th Cir.2008).

In asserting trial counsel was ineffective in failing to develop evidence challenging the prosecution’s serology evidence, Hooks relies on the affidavit of Dr. Robert Allen. Hooks argues Dr. Allen’s testimony substantiates his version of events and the absence of such evidence left his version of events entirely uncorroborated. This argument is based on a complete misreading of Dr. Allen’s affidavit. Hooks asserts Dr. Allen’s opinion supports the conclusion “that the blood evidence at the crime scene indicated more than one perpetrator.” Brief of Petitioner at 61. A close review of Dr.

Allen’s affidavit, however, demonstrates it supports no such conclusion. Instead, the limited focus of Dr. Allen’s affidavit is as follows: the serology testing undertaken by forensic chemist Melissa Keith could not and did not exclude the possibility of other perpetrators. In reaching this conclusion, Dr.

Allen relied on the following: (1) two potential suspects had blood profiles so similar to Hooks’s blood profile that they could not be excluded from the list of potential perpetrators without DNA analysis; and (2) up to thirty potential suspects had blood profiles similar to the five victims and Keith never undertook tests to analyze any blood evidence consistent with the blood profiles of the victims. Thus, testimony similar to Dr. Allen’s, if introduced at trial, would have demonstrated nothing more than the abstract possibility an unknown person left blood at the scene of the crimes.

Placed in its proper context, even assuming its truth, Hooks has failed to demonstrate a “reasonable probability of a different outcome” if trial counsel had adduced testimony at trial similar to that set out in Dr. Allen’s affidavit. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. In reaching this conclusion, we have nothing to add to the district court’s cogent analysis: Absent from Dr.

Allen’s affidavit are any opinions contradicting [Hooks’s] DNA match with the “foreign blood” left at the scene. [Hooks’s] argument speculates that there were more than one perpetrators and that another perpetrator might have been a source for semen found in one of the victims and, had that perpetrator or another perpetrator bled at the scene, might possibly have been a source of blood serologically similar to one of the victims.

Trial counsel was faced not with speculation, but with evidence of [Hooks’s] blood in the room with the victims’ bodies and also a blood trail through the house. [Hooks’s] palm print in blood was left at the closet. [The] Amended Petition and the accompanying affidavits do nothing to exonerate [Hooks] or negate the fact that trial counsel was faced with the necessity of explaining why [Hooks] was in the house and how his blood was found at the scene. Even had counsel presented testimony consistent with Dr.

Allen’s opinions, he would still have been faced with the almost certain necessity of [Hooks] testifying in order to offer an explanation to the jury for the existence of this and other evidence. [The] defense rested on the believability of his versions of the events and his credibility with the jury. As determined by the OCCA, trial counsel utilized the State’s evidence and [Hooks’s] testimony to argue the State had not proven [Hooks] was guilty. 5.

Opening Statement Hooks contends trial counsel provided ineffective assistance when he reserved his opening statement until the beginning of the defense’s case and then gave a “woefully brief and substance-lacking opening statement.” The record conclusively demonstrates Hooks suffered no prejudice as a result of this asserted instance of ineffective assistance. Thus, without regard to the question whether trial counsel’s opening statement was so deficient as to satisfy Strickland’s performance prong, Hooks is not entitled to habeas relief on this claim. 466 U.S. at 697, 104 S.Ct. 2052.

In Oklahoma, the opening statement has a narrow purpose: “to inform the jury of the evidence the attorneys expect to present during the trial.” Young v. State, 12 P.3d 20, 36 (Okla.Crim.App. 2000); Hammon v. State, 898 P.2d 1287, 1306 (Okla.Crim.App.1995). An attorney is not allowed to argue the merits of the case during opening statements. Newsted v. State, 720 P.2d 734, 738 (Okla.Crim.App. 1986); see also Malicoat v. State, 992 P.2d 383, 394-95 & n. 10 (Okla.Crim.App.2000) (discussing difference in purposes of opening statement and closing argument).

Thus, in analyzing whether Hooks was prejudiced by counsel’s delayed and allegedly inadequate opening statement, this court focuses on whether the jury was able to follow Hooks’s theory of the case absent the opening statement: Of. Malicoat, 992 P.2d at 394-95 (concluding nothing in the record indicated the “jurors were unable to understand or grasp the import of counsel’s cross-examination of State witnesses” in the absence of an opening statement by defense counsel at the beginning of trial).

Upon review of the trial transcript, this court is firmly convinced the jury’s understanding of, and ability to follow, the defense’s case was not hampered by trial counsel’s purportedly inadequate opening statement. The prosecution’s case, as outlined in its opening statement, was centered mostly around (1) forensic evidence tying Hooks to the murders, and (2) testimony of Sheila McClain, Hooks’s “main girlfriend,” that Hooks was not at his house during the early morning hours when the murders occurred.

As is clear from trial counsel’s cross-examination of prosecution witnesses, the defense theory was that McClain’s testimony was not credible; there were serious problems with the prosecution’s forensic evidence; and the prosecution’s theory that Hooks had, by himself, killed all five victims in a short time frame was unworthy of belief. During his brief opening statement at the beginning of the defense’s case, trial counsel indicated Hooks would take the stand and relate to the jury what actually happened on the morning of the murders.

Having reviewed the entire record, it is apparent the case was not factually or conceptually difficult, turning narrowly on the credibility of McClain’s testimony and upon the persuasiveness of the state’s forensic evidence. That Hooks’s defense would contest those issues was clear from trial counsel’s cross-examination of prosecution witnesses. There is simply nothing in the record supporting Hooks’s assertion that the lack of an adequate opening statement hindered the jury’s ability to follow or understand the defense case. Cf. Mali-coat, 992 P.2d at 394-95.

Accordingly, Hooks has failed to demonstrate any prejudice flowing from trial counsel’s allegedly deficient opening statement and is not entitled to relief under Strickland. 6. Evidentiary Hearing Hooks asserts the district court erred in denying his request for an evidentiary hearing.

In so asserting, he broadly contends such a hearing would establish trial counsel “failed to provide any reasonable advice or assistance” during the entire course of the proceedings following the pre-trial hearing and would include testimony from trial counsel and family members “who have personal knowledge of [trial counsel’s] unconscionable conduct.” In denying Hooks’s request for an evidentiary hearing, the district court concluded that even assuming the truth of Hooks’s factual assertions, he was not entitled to habeas relief. See Miller v.

Champion, 161 F.3d 1249, 1253 (10th Cir.1998) (holding that under pre-AEDPA law a habeas petitioner is entitled to an evidentiary hearing “so long as his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief’). “A district court’s decision to grant or deny an evidentiary hearing in a habeas proceeding is reviewed for an abuse of discretion.” Anderson v. Attorney General, 425 F.3d 853, 858 (10th Cir. 2005).

Because, as set out fully above, each of Hooks’s claims of ineffective assistance of trial counsel is resolvable solely on the basis of the existing record, the district court did not abuse its discretion in denying Hooks’s general request for an evidentiary hearing. Miller, 161 F.3d at 1253. Likewise, the general and conclusory nature of the allegations in Hooks’s request for an evidentiary hearing, fully support the district court’s decision to deny that request. Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir.1995), overruled in part on other grounds by Daniels v.

United States, 254 F.3d 1180, 1188 n. 1 (10th Cir.2001) (en banc). V. PENALTY-PHASE Allen INSTRUCTION A Clearly Established Supreme Court Precedent “The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.” Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

This object is achievable only if individual jurors will “listen with deference to the arguments” of other jurors “with a distrust of [their] own judgment,” particularly when “a large majority of the jury tak[es] a different view of the case.” Id. at 501-02, 17 S.Ct. 154. For that very reason, the use of an Allen charge to encourage jury unanimity “has long been sanctioned” by the Supreme Court. Lowenfield, 484 U.S. at 237, 108 S.Ct. 546. The need for unanimity, however, is reduced in the context of penalty-phase proceedings because a deadlocked jury will not result in a mistrial. Okla. Stat.

Ann. tit. 21, § 701.11 (providing that “[i]f the jury cannot, within a reasonable time, agree as to punishment, the judge shall dismiss the jury and impose a sentence of imprisonment for life” with or without parole); see also Lowenfield, 484 U.S. at 238, 108 S.Ct. 546 (recognizing identical feature of Louisiana law reduced need for unanimity, noting that fact “obviously weighs in the constitutional calculus,” but ultimately concluding it is not “dispositive”).

Nevertheless, the state retains “a strong interest in having the jury express the conscience of the community on the ultimate question of life or death.” Lowenfield, 484 U.S. at 238, 108 S.Ct. 546 (quotation omitted). Thus, even in death-penalty proceedings, trial courts are entitled to direct juries to deliberate for a reasonable time before declaring a mistrial. Id. Nevertheless, “[a]ny criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body.” Id. at 241, 108 S.Ct. 546.

Accordingly, a trial court must be vigilant to instruct the jury in a way that, given all the surrounding circumstances, does not coerce the jury into returning a death verdict. Id. at 238-39, 108 S.Ct. 546 (noting that despite general propriety of encouraging additional deliberations through an Allen charge, Court was “naturally mindful ... that the qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed”).

In resolving whether any particular Allen charge crossed over the boundaries of propriety to coercion, reviewing courts must “consider the supplemental charge given by the trial court in its context and under all the circumstances.” Id. at 237, 108 S.Ct. 546 (quotation omitted). The dissent spills much ink arguing that the rule set out in Lowenfield is sufficiently general that this court’s review of the decision of the OCCA should be “ ‘doubly deferential.’ ” Dissenting Op. at 759 (citing Knowles v. Mirzayance, — U.S. -, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)); see also id. at 756-59 (collecting cases).

We have no reason to quibble with the dissent’s assertion. On the other hand, to the extent the dissent is asserting “double deference” is a synonym for “abject deference,” we simply note such an approach is precluded by this court’s decision in Snow, 474 F.3d at 696, and the Supreme Court’s decision in Miller-El, 537 U.S. at 340,123 S.Ct. 1029. B. Background 1. Trial Proceedings At the conclusion of the penalty-phase, the trial court instructed the jury it had the duty to impose sentence upon Hooks.

The trial court listed for the jury the statutory aggravating circumstances at issue in the case, defined those aggravating circumstances, and instructed the jury it was authorized to consider imposing a sentence of death only if it first unanimously found beyond a reasonable doubt that one or more of those aggravating circumstances existed.

The trial court defined the term “mitigating circumstances” and instructed the jury that “unanimous agreement of jurors concerning mitigating circumstances is not required.” The trial court instructed the jury as to its task during the selection phase of penalty deliberations as follows: If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, the death penalty shall not be imposed unless you also unanimously find that any such aggravating circumstance or circumstances outweigh the finding of one or more mitigating circumstances.

Even if you find that the aggravating circumstances outweigh the mitigating circumstances, you may impose a sentence of imprisonment for life with the possibility of parole or imprisonment for life without the possibility of parole. The trial court concluded with a catch-all instruction stating as follows: All the previous instructions given you in the first part of this trial apply where appropriate.... You have already elected a foreperson. In the event you assess the death penalty, your verdict must be unanimous.

You may also return a unanimous verdict of imprisonment for life without the possibility of parole or imprisonment for life with the possibility of parole---- When you have reached your verdict, all of you in a body must return it into open court. The law provides that you shall now listen to and consider the further arguments of attorneys. Consistent with the concluding line of the trial court’s instructions, the case proceeded immediately to closing arguments. During those arguments, the prosecutors actively presented misleading statements to the jury as to the need for a unanimous verdict.

The prosecution’s closing arguments were presented in two parts. The first part was presented by Brad Miller. Miller set about to mislead the jury as to its sentencing role by informing jurors (1) the jury’s work would be wasted if it failed to reach a unanimous verdict, (2) any argument by defense counsel that it took the vote of only one juror to prevent imposition of the death penalty amounted to 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.

Miller argued to the jury as follows: It [sic] is certainly nothing easy about asking 12 strangers that don’t know each other to come into the room here and listen to all of this and end up with unanimity going in the same direction. It’s a tremendously difficult process and we know that. But again, it’s the best system in the world. And it requires, though, these 12 people, these 12 strangers to come together and collaborate, discuss, make a decision. The system would actually grind to a halt. Think about it. It would grind to a screeching halt if juries didn’t come together and do that.

If we couldn’t depend on 12 citizens to come together and go in the same direction, then we would never have a verdict. There would never be a disposition. Defendants] would go back to jail and wait for the next trial and they’d go back to jail and wait for the next trial and no one would ever be acquitted and no one would ever be sent on to the penitentiary. Now I suggest that [defense counsel] will probably say something to the affect [sic] that someone on this jury could hold up a decision. He will likely tell you that it just takes one person to stop all this.

That is such a common argument down here that it’s got a name. It’s called jury nullification. Nullification means an action impeding or attempting to prevent the operation or enforcement of the law. Websters. Nullification means an action impeding or attempting to prevent the operation of the law. In other words, to nullify a jury, a jury’s job, a jury’s efforts really requires only convincing one or two people to cripple it, to stop it. And while I don’t want to beat this down I have got to tell you one more time that that’s not what we’re about. This system, and I remind you, is about deliberation.

To do otherwise eviscerates the system. It cuts it up literally. It cuts it up. The very law that we live by. The 12 of you must resolve this case, all 12,1 suggest. During his closing argument, defense counsel responded to Miller’s misstatements of the law by simply noting for the jury that the defense “will ask and tell [the jury] that it only takes one” because “that happens to be the law in Oklahoma.” Robert Macy then delivered the final segment of the prosecution’s closing argument.

Macy concluded his closing argument by reaffirming Miller’s misstatements of Oklahoma law and by reasserting that any result other than a unanimous verdict would be anathema to the principles underlying our legal system: [Defense counsel] mentioned that any one of you can control the result in this trial and you can do that legally. But ladies and gentlemen, there is not one chair up there. There’s [sic] 12. Twelve chairs. And there’s [sic] 12 chairs for that purpose. The Constitution of the United States guarantees a person a trial by a jury of his peers, not by one person, by a jury of his peers.

There’s been far too much work go into this case. It’s far too important in this case for someone to play martyr and try to hang it up. After deliberating for approximately five hours, the jury sent a note to the trial court stating: “We’re 11 to one in favor of the death penalty but one person who refuses to change refers on grounds not related to the law. The 11 request this juror be interviewed and replaced with an alternate.” The trial court and the parties engaged in a colloquy as to how to best respond to the jury’s note.

Defense counsel requested an instruction to the jury consistent with OUJI-CR 4-83, the Oklahoma Uniform Jury Instruction specifically applicable to deadlocked death-penalty deliberations: “If, on further deliberation you are unable to agree unanimously as to punishment, I shall discharge you and impose a sentence of imprisonment for life without the possibility of parole or imprisonment for life with the possibility of parole.” The prosecution objected to instructing the jury pursuant to OUJI-CR 4-83, not on its content but on its timing.

The prosecution asserted the instruction was an Allen charge and it was too early in deliberations to give the jury such a charge. The trial court rejected defense counsel’s request and instructed the jury as follows: “Ladies and gentlemen of the jury, the law does not authorize me to grant your request.

Please continue with your deliberation.” Within ten minutes the jury returned a note saying “We are unable to reach any unanimous sentence.” Defense counsel immediately moved for a mistrial, noting (1) the jury’s first note demonstrated it was operating under a misunderstanding of the law and (2) the short time-frame between the trial court’s answer to the first note and the jury’s assertion of deadlock demonstrated further deliberations would not be fruitful.

The trial court overruled Hooks’s motion for a mistrial on the grounds the jury had not deliberated long enough to justify such a request and stated it would give the Allen charge set out OUJI-CR 10-11. OUJI-CR 10-11 is the Oklahoma uniform Allen charge applicable to juries deadlocked during guilt-phase deliberations.

Defense counsel objected to instructing the jury consistent with OUJICR 10-11, asserting that instruction failed to “fully explain the sentencing phase of a death penalty case.” The trial court overruled defense counsel’s objection, refused defense counsel’s request to ask jurors whether further deliberation would be helpful before giving the Allen charge, and instructed the jury consistent with OUJICR 10-11. At approximately 7:30 p.m., the jury sent out a note asking for its evening break.

The trial court and the parties quickly realized the jurors expected to go home for the evening, as they had during first-stage deliberations. Both defense counsel and the prosecution objected to breaking sequestration during second stage deliberations. The trial court had the jury returned to the courtroom and instructed the jurors they were being sent for a dinner break and should “plan to commence with your deliberations when you do return.” While the jury was away for dinner, the trial court reserved a motel in case jurors wanted to break for the evening.

After the jury returned from dinner, the court met with counsel and proposed telling the jurors about logistical considerations relating to the jury’s choice to take a break from deliberations for the evening. In particular, the trial court proposed telling the jury that if it wanted to take an evening break, it must tell the court by 10:30 p.m. so that rooms could be secured for the evening. Defense counsel requested that the trial court first ask the jury whether further deliberations would be helpful before discussing with the jury the logistics of an overnight hotel stay.

The trial court denied defense counsel’s request and proceeded to instruct the jury that if it wanted to take an evening break it must inform the court by 10:30 p.m. At no point did the trial court tell the jury its deliberations would not continue indefinitely. Forty minutes later the jury returned a unanimous death sentence. 2. Oklahoma Appellate Proceedings On direct appeal, Hooks alleged that the combination of circumstances cataloged above coerced the jury into returning a death sentence. Hooks, 19 P.3d at 309.

Despite recognizing multiple errors on the part of the trial court and misconduct on the part of both Miller and Macy, the OCCA denied relief. Id. at 310-12, 314-16. The author of the majority opinion, Judge Chapel, would have granted Hooks relief on the basis that the “dangerous combination” of “egregious errors” “may have encouraged and perpetuated any jurors’ misunderstanding of the law.” Id. at 312 nn. 33, 36. Because Judge Chapel’s colleagues “unanimously disagree[d] with [him] as to [the] matter,” he “yield[ed] to their collective wisdom” and wrote the opinion to affirm. Id. at 312 n. 36.

Thus, some portions of the opinion of the OCCA on direct appeal reflect only the views of Judge Chapel, while some portions reflect the views of the court. The OCCA first took up Hooks’s challenge to the way the trial court informed the jury it would be sequestered until the end of deliberations. Id. at 310. In particular, Hooks asserted that under all the circumstances, the trial court’s logistics discussion with the jury “suggested jurors could not leave until they had a unanimous verdict” and thereby “put unbearable pressure on the holdout juror.” Id.

Although it recognized the inference “that the quick return of a verdict after this instruction suggests coercion,” the OCCA rejected such an inference because every statement of the trial court during the logistics discussion amounted to an “accurate statement of law.” Id. The OCCA recognized that the trial court erred when, prior to releasing the jury for further deliberations after dinner, it failed to admonish jurors not to abandon their honestly held beliefs.

Id. at 310 & n. 25 (citing Lowenfteld for proposition that such an instruction lessens coercion on holdout jurors); see also id. at 310 (“Under those circumstances the trial court had a duty to ensure each juror understood his or her obligation to hold fast to firm convictions, and not to concur in a finding or verdict simply to reach a unanimous decision.”).

The OCCA concluded, however, that this error did not require reversal because (1) none of the trial court’s other after-dinner instructions were improper; (2) “Hooks’s jury had received a proper Allen instruction,[] including the admonition at issue, within the preceding two or three hours”; and (3) “[t]here were no intervening substantive communications or instructions between the Allen instruction and the after-dinner exchange.” Id. at 310.

The OCCA likewise agreed with Hooks that the trial court erred when it gave the Allen instruction set out in OUJI-CR 10-11, instead of the capital deadlock instruction set out in OUJI-CR 4-83. Id. at 310-11. It cursorily denied relief on the basis of this error, however, simply noting as follows: We continue to hold that an Allen instruction, while no longer the appropriate instruction under these circumstances, is not per se error in the second stage of a capital case. The trial court gave the correct Allen instruction.

We have already determined that the trial court’s actions were not inherently or explicitly coercive. Id. at 312. The OCCA rejected Hooks’s contention that the jury’s initial note to the court, the note requesting removal of a juror who refused to vote with the majority, indicated a misunderstanding of the law which should have been remedied by an instruction similar to OUJI-CR 4-83. Id. The OCCA noted it was “troubled by the suggestion that the jury believed Oklahoma law required imposition of the death penalty.” Id.

It nevertheless concluded Hooks’s assertion of error failed because the jury was properly instructed as to both the eligibility and selection phases of death-penalty deliberations. Id. Finally, the OCCA agreed with Hooks’s contention that the prosecutors misstated the law in an attempt to “diminish[ ] the jury’s individual sense of morality and mercy.” Id. at 316. In particular, the OCCA noted Miller and Macy had misstated the law in three key ways: First, all twelve jurors do not have to unanimously agree in capital sentencing proceedings. Second, the failure to agree does not amount to jury nullification.

Oklahoma law specifically provides that the jury may not reach a unanimous verdict. As the law provides for this result, failure to agree cannot be said to impede or obstruct it. Third, deadlocked juries are instructed not to abandon their honestly held convictions or concur in a verdict which they cannot in good conscience accept ... while attempting to resolve their differences. The closing arguments complained of here suggest jurors should in fact abandon their honestly held beliefs if those beliefs will result in a less than unanimous verdict. Id. (footnote omitted).

Ultimately, however, the OCCA denied relief, simply concluding that “despite these erroneous arguments the jury was deadlocked for several hours. We must conclude that the jurors in this case were not misled.” Id. 3. Federal District Court Habeas Proceedings The district court concluded Hooks was not entitled habeas relief because the OCCA’s resolution of his jury-coercion claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent. In analyzing the Allen charge, the district court utilized the four factors identified by this court in United States v.

Arney, 248 F.3d 984, 988 (10th Cir.2001): “(1) the language of the instruction, (2) whether the instruction is presented with other instructions, (3) the timing of the instruction, and (4) the length of the jury’s subsequent deliberations.” The district court noted the trial court’s instruction was a “modified” Allen charge, a supplemental instruction in which the court asks all jurors, rather than only those in the minority, to carefully consider their views. See Gilbert v. Mullin, 302 F.3d 1166, 1173-74 (10th Cir.2002) (discussing how “modified” Allen charge differs from “traditional” Allen charge).

Such instructions generally do not “unduly emphasize the importance of reaching a verdict.” Id. at 1174. Thus, the district court concluded the language of the Allen charge itself was not coercive. The district court recognized the jury was presented with many instructions discussing unanimity, but was presented with no instruction indicating unanimity was not required as to the ultimate sentence imposed or the consequences if the jury was unable to reach unanimity.

Nevertheless, the district court relied on precedent indicating the Eighth Amendment does not require a trial court to instruct the jury on the consequences of their failure to agree. See Neill v. Gibson, 278 F.3d 1044, 1053-54 (10th Cir.2001) (discussing Eighth Amendment implications of failing to instruct jury on consequences of not reaching a unanimous verdict during penalty phase of capital trial).

Furthermore, according to the district court, Hooks’s trial counsel argued to the jury during closing arguments that the jury did not have to be unanimous and that if one or more jurors held out death would not be imposed. Thus, according to the district court, the OCCA’s determination that the instructions as a whole did not coerce the jury was not an unreasonable application of Lowenfield. As to the timing of the Allen instruction, the district court simply noted that prior to the giving of the charge, the jury had not absolutely declared further deliberations would be fruitless.

Furthermore, the instruction was given in the afternoon, rather than late at night. According to the district court, there was nothing in the timing of the Allen charge that rendered it coercive. The district court did not, however, recognize that the Allen instruction was given soon after the second jury note indicating an inability to reach a unanimous verdict and after the request of Hooks’s counsel to inquire of the jury whether further deliberations would be meaningful.

Finally, the district court acknowledged that the jury deliberated for approximately two and one-half hours after receiving the Allen charge before returning a verdict. Citing several cases from this court, the district court concluded that substantial time gap weighed against Hooks’s jury-coercion argument. In conclusion, the district court stated: Considering the totality of the circumstances in which the Allen charge was given in [Hooks’s] case, the Court concludes that it was not coercive in such a way as to deny him a fair trial and due process of law.

The OCCA’s determination that [Hooks] was not entitled to relief is neither contrary to, nor an unreasonable application of, clearly established federal law. C. Analysis 1. AEDPA Deference Hooks asserts the trial court’s Allen instruction, “in its context and under all the circumstances,” was so coercive as to deny him a reliable sentencing proceeding. Lowenfield, 484 U.S. at 237, 108 S.Ct. 546 (quotation omitted). He further argues this court should review his jury coercion claim de novo because the OCCA’s compartmentalized adjudication of the claim is contrary to Lowenfield. See Brown v.

Uphoff 381 F.3d 1219, 1225 (10th Cir.2004) (holding that when a state court adjudication is contrary to clearly established Supreme Court precedent, this court must review de novo whether petitioner is entitled to habeas relief). In the alternative, Hooks argues the record-based indicia of coercion are so overwhelming that the OCCA’s refusal to grant relief on this issue amounts to an unreasonable application of Lowenfield. 28 U.S.C. § 2254(d)(1).

Hooks asserts that in contrast to Lowenfield’s clear direction to review the coerciveness of an Allen charge under the totality of the circumstances, 484 U.S. at 237, 108 S.Ct. 546, the OCCA reviewed the factors bearing on this question individually and in isolation. Oklahoma, on the other hand, asserts the OCCA used a totality-of-the-circumstances test consistent with Lowenfield, relying on footnote 33 of the OCCA’s opinion. See Hooks, 19 P.3d at 312 n. 33. The problem with Oklahoma’s assertion, of course, is that footnote 33 of the OCCA’s opinion represents only the views of Judge Chapel.

Id. (“I note the errors in instruction were exacerbated by the egregious errors in argument discussed in Proposition II [involving prosecutorial misconduct], I believe this dangerous combination warrants relief.”); see also supra

Section V.B.2 (discussing unusual nature of OCCA opinion, in which the author of the opinion dissented from the outcome on this issue in a series of footnotes). It is certainly true that Judge Chapel considered the coerciveness of the Allen charge given during the penalty phase in light of all the surrounding circumstances. Hooks, 19 P.3d at 312 nn. 33 & 36, 314 n. 51, 317 n. 57, 318 n. 68. Whether the OCCA majority undertook to analyze Hooks’s claim in a manner consistent with Lowenfield cannot be definitively determined from the opinion.

Although the opinion of the OCCA cites to Lowenfield in two footnotes, it does so only to briefly note (1) a quick return of a verdict following an Allen charge can indicate coercion, (2) an instruction to a deadlocked jury not to surrender honestly held beliefs reduces coercion, and (3) a jury instruction as to the consequences of failing to reach unanimity reduces coercion. Hooks, 19 P.3d at 310 & n. 24; Id. at 310 n. 25. But cf. Early v.

Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (holding AEDPA’s “contrary to” clause “does not require citation of our cases— indeed, it does not even require awareness of our eases, so long as neither the reasoning nor the result of the state-court decision contradicts them”). Nowhere does the OCCA indicate it is evaluating the coerciveness of the Allen charge given at Hooks’s trial by reference to all surrounding circumstances.

But cf. id. at 9, 123 S.Ct. 362 (“Compliance with Lowen field ... does not demand a formulary statement that the trial court’s actions and inactions were noncoercive ‘individually and cumulatively.’ It suffices that that was the fair import of the [state court] opinion.”). Nor does the “fair import” of the OCCA opinion indicate the court undertook such a highly contextualized analysis. Id.; cf. infra

Section V.C.2.b. (discussing OCCA’s compartmentalized analysis of Miller’s and Macy’s prosecutorial misconduct). There are, however, indications the OCCA aggregated all “errors” in deciding this (possibly distinct) question: Was Hooks afforded a fundamentally fair sentencing proceeding?

Hooks, 19 P.3d at 318 (“[W]e find the combination of errors [surrounding the Allen charge] did not infect the ... sentencing proceeding with unfairness, and does not require relief.”); see also id. at 312 n. 36 (stating that although Judge Chapel thought the constellation of errors surrounding the trial court’s Allen charge required relief, his “colleagues ... unanimously disagree[d]”); id. at 314 n. 51 (same).

The OCCA’s “combination of errors,” however, excludes other relevant contextual circumstances, such as the timing of the Allen instruction, the significance of the jury notes, and the impact of the trial court’s decision to give the instruction to an apparently deadlocked jury. Whether the limited analysis set out in the text of the OCCA opinion is consistent with Lowenfield’s “coercion” analysis is problematic. Cf. Fry v.

Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2325 n. 1, 168 L.Ed.2d 16 (2007) (assuming state court determination of “ ‘no possible prejudice’ ” did not amount to an application of the harmless-beyond-a-reasonable-doubt standard set out in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Unfortunately, neither party has directed this court to any relevant precedent on that question. Likewise, it is impossible to tell from Judge Chapel’s footnotes the exact basis upon which his colleagues disagreed with him, i.e., the mode of his analysis or his conclusion.

Ultimately, because Hooks is entitled to habeas relief even under AEDPA’s deferential review for objective reasonableness, we decline to resolve the very difficult question of whether the analysis of the OCCA is “contrary to” Lowenfield. Accordingly, this court proceeds to the question whether the OCCA’s denial of relief on Hooks’s claim his death sentences were coerced is an unreasonable application of the general standard set out in Lowenfield. 2. Discussion This court approaches the OCCA decision fully cognizant of the limited nature of federal habeas review under the provisions of AEDPA. See supra

Section III. (explicating § 2254(d)(l)’s review standards). The deference accorded that decision, however, is not abject, and the record in this case so overwhelmingly demonstrates the jury’s death sentences were coerced that the OCCA’s contrary decision is not just wrong, it is unreasonable. See Snow, 474 F.3d at 696 (noting that despite § 2254(d)’s high standard, it does not require “abject deference” on the part of this court); McLuckie, 337 F.3d at 1197 (noting this court cannot grant habeas relief unless the relevant state court decision is both wrong and objectively unreasonable).

As set out inore fully below, the record in this case reveals an ever-rising tide of coercion ultimately resulting in five unanimous death sentences.

From the initial jury instructions, focused narrowly on the concept of unanimity; to misconduct on the part of the prosecutors, designed to mislead the jury about its role in the sentencing process and the need for unanimity; to the note from the jury singling out a lone juror as operating outside the law by refusing to concur in a death verdict, a note demonstrating the jury’s misunderstanding of law consistent with the prosecutors’ misleading closing arguments; to the trial court’s unadorned response that it lacked the power to remove the lone dissenting juror, a response failing in any way to correct the jury’s express misunderstanding of its role in the sentencing process; to the trial court’s guilt-phase-focused Allen charge, reinforcing the need for unanimity so the “case may be completed”; to the trial court’s discussion with the jury, undertaken in response to the jury’s wish to return home for the evening, informing the jury its only options were to deliberate into the night or return to deliberate in the morning after spending the night at a hotel, the record in this case so indicates jury coercion that it was an unreasonable application of Lowenfield for the OCCA to deny Hooks relief. a.

Initial Second Stage Jury Instructions Placing the Allen charge in context, as required by Lowenfield, begins by recognizing that the relevant instructions given by the trial court prior to closing arguments exclusively discussed the concept of unanimity, even with regard to the possible non-death sentences. For example, Instruction Number 14 stated as follows: In the event you assess the death penalty, your verdict must be unanimous. You may also return a unanimous verdict of imprisonment for life without the possibility of parole or imprisonment for life with the possibility of parole.

When you have reached your verdict, all of you in a body must return it into open court. There is, however, no discussion in the instructions of the effect of the jury failing to reach a unanimous verdict. This court certainly recognizes that such an instruction is required only in unusual circumstances. See Jones v.

United States, 527 U.S. 373, 381-82, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (holding Eighth Amendment does not require trial courts to instruct jury on consequences of failure to agree on sentence, unless to fail to do so would affirmatively mislead the jury regarding its role in the sentencing process). Nevertheless, the failure to so inform the jury is certainly one of the contextual circumstances bearing on the question of jury coercion in this particular case.

Lowenfield, 484 U.S. at 234, 108 S.Ct. 546 (recognizing that before the case was submitted to the jury, the trial court “charged the jury that if it were unable to reach a unanimous recommendation, the court would impose a sentence of life imprisonment without the possibility of parole”); Darks v. Mullin, 327 F.3d 1001, 1014 (10th Cir.2003) (noting inclusion of language consistent with Okla. Stat. Ann. tit. 21, § 701.11 reduces possibility of coercion flowing from Allen charge).

The absence of such an instruction is particularly meaningful in this case given the prosecutorial misconduct — misrepresenting the jury’s duty under Oklahoma law to reach a unanimous verdict — that occurred immediately after the initial penalty-phase instructions. Jones, 527 U.S. at 381-82, 119 S.Ct. 2090. b.

Prosecutorial Misconduct The concluding line of the trial court’s penalty-phase instructions admonished the jury as follows: “The law provides that you shall now listen to and consider the further arguments of attorneys.” 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.

Hooks, 19 P.3d at 316. Thus, immediately following the jury instructions, which spoke only of unanimity, the prosecutors engaged in intentional misconduct designed to misinform the jurors that it is improper for individual jurors to holdout against a majority vote and thereby prevent a unanimous verdict. There is no doubt the intentional misconduct on the part of Miller and Macy violated Hooks’s constitutional rights. The Supreme Court has held that “the jury must not be misled regarding the role it plays in the sentencing decision.” Romano v.

Oklahoma, 512 U.S. 1, 8, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); see also id. at 9, 114 S.Ct. 2004 (noting that to establish an Eighth Amendment violation, “a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law” (quotation omitted)); Caldwell v. Mississippi 472 U.S. 320, 340, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (applying heightened review to prosecutorial misconduct because prosecutor sought to mislead jury about “its role in the capital sentencing procedure”).

More specifically, the Court has likewise indicated that misstatements to the jury regarding the consequences of deadlock “could give rise to an Eight Amendment problem.” Jones, 527 U.S. at 381-82, 119 S.Ct. 2090. This court recently applied Jones in a context analogous to the case at hand. See Neill, 278 F.3d at 1053-54. In Neill, the petitioner asserted the trial court’s failure to instruct the jury on the consequences of deadlock deprived him of his Eighth Amendment rights. Id. at 1053.

Key to the petitioner’s claim was the following isolated misstatement of Oklahoma law on the part of the prosecutor during his closing argument: if the jury was unable to reach a unanimous verdict, the result would be a retrial. Id. In rejecting the petitioner’s Eighth Amendment claim, this court noted that following this isolated misstatement, the prosecutor correctly stated “that if defense counsel could get one juror to vote against the death penalty, that punishment could not be imposed.” Id.

Furthermore, in the defense’s closing argument, petitioner’s counsel accurately informed the jury that if a single juror refused to vote for death, the trial court would declare a deadlock and impose a life sentence. Id. Finally, in the concluding segment of his closing argument, the prosecutor again correctly noted there could be no “mistrial” at sentencing and if a single juror opposed the death penalty, the petitioner would receive a life sentence. Id. Not surprisingly, in light of that record, this court concluded “the prosecutor’s single misstatement did not mislead the jury concerning its sentencing role.

An instruction on the consequences resulting from the jury’s failure to reach a unanimous sentencing decision, therefore, was unnecessary.” Id. at 1053-54 (citing Jones, 527 U.S. at 381-82, 119 S.Ct. 2090). Unlike the case in Neill, the prosecutors here engaged in wholesale and repeated attempts to mislead the jury as to its sentencing role under Oklahoma law. The OCCA specifically held that Miller’s and Macy’s remarks were wholly inconsistent with Oklahoma law.

Hooks, 19 P.3d at 316; supra n. 23 (setting forth OCCA’s conclusion that Miller and Macy misstated Oklahoma law regarding the jury’s sentencing role in three key particulars). Thus, it seems apparent Miller’s and Macy’s misconduct invaded Hooks’s Eighth Amendment rights by suggesting “jurors should in fact abandon their honestly held beliefs if those beliefs will result in a less than unanimous verdict.” Hooks, 19 P.3d at 316.

By “improperly describing the role assigned to the jury by local law,” the prosecutors thereby caused the jury to “feel less responsible than it should for the sentencing decision.” Romano, 512 U.S. at 9, 114 S.Ct. 2004 (quotations omitted). Nevertheless, the OCCA denied relief on this ground, holding as follows: “[DJespite [the prosecutors’] erroneous arguments the jury was deadlocked for several hours. We must conclude the jurors were not misled.” Hooks, 19 P.3d at 316.

That ruling amounts to “an unreasonable determination of the facts in light of the evidence presented” during the penalty phase of Hooks’s trial. 28 U.S.C. § 2254(d)(2). The mere fact the jury remained deadlocked for “several hours” after the misconduct says very little about the misconduct’s impact. The record simply reveals that one single juror was unconvinced, at least for a period of time, to abandon her honestly held beliefs in order for the jury to reach unanimity.

The passage of time does not rule out the possibility that other jurors also favored a life sentence, but acquiesced in a death sentence because they believed holding out would amount to, in the words of Miller, “impeding or attempting to prevent the operation or enforcement of the law.” More importantly, unlike in Neill, the record contains a singularly clear indication Miller’s and Macy’s misconduct did, in fact, mislead the jury.

After deliberating for several hours, the jury sent a note to the trial court indicating as follows: (1) it was eleven to one in favor of imposing the death penalty; (2) the sole holdout juror refused to change her vote “on grounds not related to the law,” and (3) the eleven jurors favoring death unanimously requested the trial court to remove the holdout juror and replace her with an alternate. Hooks, 19 P.3d at 308, 312. A review of the entire state court record indicates that the assertion in the jury note flowed directly from the prosecutors’ misconduct.

There is a complete absence from the trial transcript of any other basis for the jury to conclude unanimity was the overriding obligation of the jury. Thus, this court concludes the OCCA’s determination that the jury was not misled by the prosecutors’ intentional misstatements of law is so at odds with the state court record as to be unreasonable. 28 U.S.C. § 2254(d)(2). Although Hooks makes a strong argument that he is entitled to habeas relief solely on the basis of Miller’s and Macy’s misconduct, this court need not definitively resolve that question.

As set out above, it is clear the prosecutors’ misconduct achieved its intended purpose: the jury was misled to believe it was the obligation of a juror holding a minority opinion to abandon that opinion if it was necessary for the jury to reach a unanimous sentence. The coercion flowing from this misconduct, when combined with coercion flowing from the trial court’s Allen charge, undoubtedly coerced the jury’s death sentences.

Accordingly, it is unnecessary to determine whether Miller’s and Macy’s misconduct, standing alone, entitles Hooks to habeas relief. a The First Jury Note Beyond verifying the impact of the prosecutorial misconduct, the first jury note has further demonstrative significance to the jury-coercion question. That first jury note, which disclosed the jury’s numerical division and the eleven-to-one majority favoring death, commenced a quickly unfolding series of communications between the jury and the court, culminating in the Allen charge, the incorrect instruction to a dead-locked jury in an Oklahoma capital case.

In response to the jury’s note requesting removal of the sole holdout juror, the trial court consulted with defense counsel and the prosecutors. Defense counsel immediately argued the trial court should dispel the jury’s misunderstanding about the legality of a juror refusing to vote for the death penalty by giving the jury the appropriate capital deadlock instruction in OUJI-CR 4-83, informing the jury the court would impose a life sentence should it remain unable to reach a unanimous verdict. Cf.

Lowenfield, 484 U.S. at 240, 108 S.Ct. 546 (noting petitioner’s failure to object to state court’s jury poll “indicates that the potential for coercion argued [on appeal] was not apparent to one on the spot”). The trial court overruled defense counsel’s request and simply informed the jury it lacked the power to remedy the situation: “Ladies and gentlemen of the jury, the law does not authorize me to grant your request.

Please continue with your deliberations.” The trial court’s failure to rectify the jury’s misunderstanding, by giving Oklahoma’s capital deadlock instruction as requested by defense counsel, ramped up the pressure on the lone holdout juror to capitulate and reach a unanimous verdict. That is, rather than correct the jury’s misunderstanding that the holdout had a legal obligation to abandon her views for the sake of unanimity, the trial court’s message served to heighten the frustrations of the jurors by indicating nothing more than the court was powerless to address the majority jurors’ apparently valid concerns.

As indicated by defense counsel’s objection, and under all the circumstances, the coercive nature of the trial court’s handling of the jury’s note was readily apparent at that time. Id. The jury’s note also contributed to an atmosphere of coercion in other ways. Hooks asserts the jury’s note, which disclosed the panel’s numerical division and that an eleven-to-one majority favored death, further increased the pressure on the holdout juror to accede to the majority’s wishes and change her vote.

Id. at 239-41, 108 S.Ct. 546 (recognizing that in certain circumstances, polling of the jury could be relevant to the question of coercion on habeas review). In the exercise of its supervisory powers over federal courts, the Supreme Court has set out a per se rule: inquiry by a court into a jury’s numerical division is so inherently coercive it mandates reversal of a conviction. Brasfield v. United States, 272 U.S. 448, 449-50, 47 S.Ct. 135, 71 L.Ed. 345 (1926).

A number of courts have held that Bras-field’ s per se rule applies whether the trial court learns of the jury’s numerical division through polling or through spontaneous disclosure. See, e.g., United States v. Lloyd, 515 F.3d 1297, 1302-03 (D.C.Cir. 2008); Sanders v. Lamarque, 357 F.3d 943, 944 (9th Cir.2004). Brasfield’s per se rule does not, however, apply in the habeas context. Lowenfield, 484 U.S. at 240 n. 3, 108 S.Ct. 546. Nevertheless, Brasfield is “instructive as to the potential dangers of jury polling.” Id. at 240, 108 S.Ct. 546; Gilbert v. Mullin, 302 F.3d 1166, 1175-76 (10th Cir.2002).

In Gilbert, this court concluded a state court’s poll of the jury prior to, and in concert with, the giving of a Allen charge did not coerce the jury because: (1) the poll “garnered only information concerning the numerical division of the jury and carefully avoided eliciting information concerning the direction in which the jury was leaning; (2) the court never learned which specific jurors were in the minority; and (3) the poll did not disclose “the precise numerical division amongst the jur

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