Emmanuel LITTLEJOHN, Petitioner-Appellant, v. Anita TRAMMELL, Interim Warden, Oklahoma State Penitentiary, Respondent-Appellee, 704 F.3d 817

HOLMES, Circuit Judge. Emmanuel Littlejohn was convicted of two robbery-related charges and a charge of first-degree murder, arising from his role in a 1992 robbery of a Root-N-Scoot convenience store in Oklahoma City. He received extended prison sentences on the robbery charges and a death sentence on the murder charge. After a long procedural journey through the Oklahoma courts, Mr. Littlejohn filed a Petition for a Writ of Habeas Corpus, seeking relief under 28 U.S.C. § 2254, claiming (relevantly) that his murder conviction and death sentence were obtained in violation of his constitutional rights.

The district court denied all relief and Mr. Littlejohn now appeals on multiple grounds. We affirm the district court’s judgment on all grounds except for Mr. Littlejohn’s claims of ineffective assistance of counsel at the penalty phase and cumulative error. As to the ineffective-assistance claim, we reverse the judgment and remand the case to the district court, with directions to conduct an evidentiary hearing and any further appropriate proceedings consistent with this opinion. Additionally, because the resolution of Mr.

Littlejohn’s cumulative-error claim may be affected by the district court’s determination of his ineffective-assistance claim, we decline to address the merits of Mr. Little-john’s contentions concerning cumulative error. Instead, we direct the district court to vacate that portion of its judgment upon remand and to consider the cumulative-error claim afresh. I. Background and Procedural History The facts are largely undisputed. On June 19, 1992, Mr. Littlejohn and Glenn Bethany robbed a Root-N-Scoot convenience store in Oklahoma City.

At the time of the robbery, three individuals were working at the store, one of whom was Kenneth Meers. As the robbery was wrapping up, and Mr. Littlejohn was leaving the store, a shot was fired. The shot struck Mr. Meers in the face, ending his life. The evidence was conflicting concerning the source of the shot, and Mr. Little-john maintained that he did not fire it. In November 1994, Mr.

Littlejohn was charged and convicted by a jury of robbery with a firearm, after conviction of two or more felonies (Count One); murder in the first degree (Count Two); and conspiracy to commit robbery with firearms, after conviction of two or more felonies (Count Three). At sentencing, the jury found three aggravating circumstances under Oklahoma law: (1) that Mr. Littlejohn had been previously convicted of violent felonies; (2) that he knowingly created a great risk of death to more than one person; and (3) that he posed a “continuing threat” to society. See Okla. Stat. tit. 21 § 701.12.

His punishment was originally set at 300 and 99 years’ imprisonment on Counts One and Three, respectively, and death on Count Two. Mr. Littlejohn appealed his conviction, and while the appeal was pending, the Supreme Court decided Cooper v. Oklahoma, 517 U.S. 348, 355-56, 368-69, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), which found unconstitutional Oklahoma’s rule requiring a defendant bear the burden of proof by clear and convincing evidence that he is incompetent to stand trial. The Oklahoma Court of Criminal Appeals (“OCCA”), in light of Cooper and the fact that Mr.

Littlejohn had previously challenged his competency to stand trial, ordered the state trial court, if feasible, to “conduct a retrospective competency hearing utilizing the preponderance of the evidence standard.” R., Vol. 1, pt. II, at 207 (Dist. Ct. Mem. Op., filed May 27, 2010). A jury later found that Mr. Littlejohn had not proven by a preponderance of the evidence that he was incompetent to stand trial in 1994. Mr. Littlejohn then filed another appeal, raising averments of error as to the competency hearings, the guilt phase of trial, and sentencing. The OCCA denied Mr.

Littlejohn relief on his claims of error relating to the retrospective competency hearings and the guilt phase. See Littlejohn v. State (Littlejohn I), 989 P.2d 901, 903-10 (Okla.Crim.App.1998). However, the court found error in the imposition of the death sentence. See id. at 910-12. Specifically, it held that admission of testimony suggesting that Mr. Littlejohn confessed to not only killing Mr. Meers, but also to an unrelated murder, amounted to constitutional error because the confession was uncorroborated by competent evidence, harmfully contributing to the jury’s finding of the continuing-threat aggravator.

See id. at 910-11. Moreover, it concluded that there was insufficient evidence that Mr. Littlejohn created a “great risk of death” to more than one person, see Okla. Stat. tit. 21 § 701.12(2), further undermining the second of the three aggravating circumstances that led to his death sentence, see Littlejohn I, 989 P.2d at 911-12. The court remanded the matter for resentenc-ing in light of the fact that “[o]ver ninety percent of the aggravating evidence ... in th[e] case was ... [still] admissible.” Id. at 912. Mr. Littlejohn’s resentencing trial began on October 30, 2000.

He again received a death sentence, based this time on two aggravating circumstances — a previous conviction of a felony involving the use or threat of violence to the person and the continuing-threat aggravator. R., Vol. 1, pt. II, at 208; see also Littlejohn v. State (Littlejohn II), 85 P.3d 287, 290-91 (Okla.Crim.App.2004). He appealed, but the OCCA affirmed his sentence. See Little-john II, 85 P.3d at 290-91, 303. The Supreme Court denied Mr. Littlejohn’s petition for certiorari in October of 2004. See Littlejohn v. Oklahoma, 543 U.S. 947, 125 S.Ct. 358, 160 L.Ed.2d 261 (2004). Mr.

Littlejohn filed an application for post-conviction relief in Oklahoma state court, but was unsuccessful. Mr. Littlejohn then sought federal habe-as relief on February 25, 2005. He raised fourteen claims. See R., Vol. 1, pt. I, at 10-12, 38-150 (Pet. for Writ of Habeas Corpus, filed Sept. 30, 2005). The district court considered his petition, and denied relief on all grounds on May 27, 2010. However, it granted a certificate of appeal-ability (“COA”) to appeal its decision on six claims: 1. The prosecution violated Mr.

Little-john’s due process rights by presenting inconsistent theories as to who fired the fatal shot; 2. The prosecution failed to provide adequate notice of certain aggravation evidence; 3. The prosecution improperly presented a transcript of two witnesses who testified at the 1994 trial in absten-tia in violation of Mr. Littlejohn’s confrontation rights; 4. The prosecution engaged in misconduct in violation of Mr. Littlejohn’s constitutional rights; 5. Mr. Littlejohn was prejudiced by counsel’s failure to investigate and present evidence that he has brain damage; and 6. Cumulative error. See id., pt.

II, at 301 (COA, filed July 6, 2010). Mr. Littlejohn now appeals, raising eight issues, including the six for which the district court granted the COA. In addition to the six claims, he challenges the district court’s decision to deny habeas relief on his claim that the sentencing judge improperly instructed (and misled) the jury on the meaning of “life without the possibility of parole” as an alternative to the death penalty under Oklahoma law.

Further, he contends that the district court wrongly rejected his claim that his rights were violated by virtue of the trial court’s decision to “allow[ ] the jury to hear [his] previously recorded testimony” from the 1994 trial. Aplee. Br. at 3. We granted COAs on these two issues. Consequently, we have jurisdiction to consider the entirety of Mr. Littlejohn’s habeas appeal. See Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir.2009). II. Discussion The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) circumscribes our review of claims adjudicated on the merits in state court proceedings.

Under AEDPA, a petitioner is entitled to federal habeas relief on a claim only if he can establish that the state court’s adjudication of the claim on the merits (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). The AEDPA 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) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)) (internal quotation marks omitted). In applying the legal inquiry under § 2254(d)(1), we ask at the threshold “whether there exists clearly established federal law, an inquiry that focuses exclusively on holdings of the Supreme Court.” Hooks v. Workman (Victor Hooks), 689 F.3d 1148, 1163 (10th Cir.2012). “The absence of clearly established federal law is dispositive under § 2254(d)(1).” House v. Hatch, 527 F.3d 1010,1018 (10th Cir.2008).

And, in ascertaining the contours of clearly established federal law, we must look to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004) (emphasis added) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)) (internal quotation marks omitted).

If clearly established federal law exists, a state court decision is contrary to it only if the court “contradicts the governing law” or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from the result reached by the Supreme Court.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.2006) (alteration in original) (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495) (internal quotation marks omitted).

A state court decision unreasonably applies federal law if it “identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. (alteration in original) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495) (internal quotation marks omitted); accord Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “We review the district court’s legal analysis of the state court decision de novo.” Welch v.

Workman, 639 F.3d 980, 991 (10th Cir.2011) (quoting Bland, 459 F.3d at 1009) (internal quotation marks omitted). As a condition for obtaining habeas corpus from a federal court, 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 fairmind-ed disagreement. Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011).

Furthermore, in reviewing a state court decision under § 2254(d)(1), we must “limit[]” our inquiry “to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

Factual findings of the state court are presumed correct unless the applicant rebuts that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); accord Welch, 639 F.3d at 991. “For federal habeas claims not adjudicated on the merits in state-court proceedings, we exercise our ‘independent judgment’ and ‘review the federal district court’s conclusions of law de novo.’ ” Victor Hooks, 689 F.3d at 1163-64 (quoting McCracken v. Gibson, 268 F.3d 970, 975 (10th Cir.2001)); see Sallahdin v.

Gibson, 275 F.3d 1211, 1222 (10th Cir.2002). “The district court’s factual determinations are reviewed for clear error.” Victor Hooks, 689 F.3d at 1164. But “[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.’ ” Id. (emphases added) (quoting 28 U.S.C. § 2254(e)(1)); see Hooks v. Ward, 184 F.3d 1206, 1223 (10th Cir.1999). Apart from the ineffective-assistance-of-counsel and cumulative-error issues, see infra Parts II.G, II.H, we address Mr.

Littlejohn’s challenges on appeal substantially in the order the issues are addressed by the parties in the briefs. At the end, we deny relief on all grounds except for the ineffective-assistance and cumulative-error claims. As to the former (the ineffective-assistance claim), we reverse the judgment and remand the case for further proceedings, most notably an evidentiary hearing. As to the latter (the cumulative-error claim), we decline to address the merits and direct the district court to revisit it upon remand, following its readjudi-cation of Mr. Littlejohn’s ineffective-assistance claim. A.

Instructions to the Jury Mr. Littlejohn first challenges the constitutionality of the trial court’s instructions to the jury during the second stage. At resentencing, when the jury was considering its sentence, it submitted a note to the trial court asking, “[I]s it possible to change the verdict of life without parole to with parole after our verdict and without another jury verdict [by anyone]?” State R., Vol. VII, Resentencing Tr. at 358.

The court seemingly attempted to refer the jury back to the original instructions, which defined the three available sentencing options under Oklahoma law: “death, imprisonment for life without parole, or imprisonment for life.” R., Vol. 1, pt. II, at 227 (quoting Original R., Vol. X, at 1875 (Jury Instructions, given Nov. 7, 2000)) (internal quotation marks omitted). Specifically, the court conveyed to the jury that they “have all the law and evidence necessary to reach a verdict.” Id. (quoting State R., Vol. VII, Resentencing Tr. at 364) (internal quotation marks omitted).

It further rejected a request by defense counsel to elaborate on the actual meaning of the three sentencing alternatives. Mr. Littlejohn raised an averment of error on direct appeal to the OCCA, arguing primarily that the trial court’s response was insufficient and unconstitutional in the context of this case “when considered in conjunction with [its] oral instructions concerning jury questions.” Littlejohn II, 85 P.3d at 291.

Specifically, before the jury retired to deliberate, the trial court told the jury that it would answer questions “if it’s appropriate to answer,” and that if, in response, the jury received a “code back that says, you have all the law and evidence necessary to reach a verdict, what that means is the answer to [the] question is in the instructions, it was in the evidence, or you’re asking me something that’s inappropriate for me to answer.” Id. at 291 (emphases added) (quoting relevant portions of the State record) (internal quotation marks omitted). The OCCA rejected Mr.

Little-john’s claim, see id. at 291-92, but nonetheless set guidance for “future cases where the jury during deliberations asks ... whether an offender ... is parole eligible”: specifically, “[trial courts] should either refer the jury back to the instructions, ... tell the jury that the punishment options are self explanatory, ... or advise the jury that the punishment options are to be understood in their plain and literal sense.” Id. at 293-94 (citations omitted). Mr.

Littlejohn again raised this argument in his habeas petition, contending in pertinent part that the OCCA’s decision was “contrary to or an unreasonable application of’ the Supreme Court’s decisions in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality), Shafer v. South Carolina, 532 U.S. 36, 121 S.Ct. 1263, 149 L.Ed.2d 178 (2001), and Kelly v.

South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), because, under the principles embodied in those cases, the “jury [here] did not have conveyed to them and did not understand [in context] the ‘throw away the key' implications of the most attractive alternative to the death penalty.” Aplt. Opening Br. at 32. The district court, relying in part on our decision applying Simmons in Mollett v. Mullin, 348 F.3d 902 (10th Cir.2003), found that the trial court’s response to the jury’s inquiry did not create an inappropriate false choice, and therefore denied Mr. Littlejohn relief. Mr.

Littlejohn raises the same argument on appeal. He identifies numerous Supreme Court cases that stand for the general proposition that adequate juror comprehension of the trial court’s instructions in capital sentencing is vital to a defendant’s constitutional rights. See, e.g., Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990).

Most importantly, however, he points out that the OCCA’s decision runs against the holdings in Simmons, Kelly, and Shafer insofar as it ignores the requirement that “jurors ... know if they have a sentencing option that will keep a convicted murderer from ever being paroled to the streets,” and that courts are prevented from “creating a false or unbalanced impression” that the defendant, if not executed, will be eligible for release. Aplt. Opening Br. at 20 (emphasis added).

In Simmons, the Supreme Court held that “due process require[s] a state trial court ‘to instruct the jury in the penalty phase of a capital trial that under state law the defendant [i]s ineligible for parole.’ ” Hamilton v. Mullin, 436 F.3d 1181, 1190-91 (10th Cir.2006) (quoting Simmons, 512 U.S. at 156, 114 S.Ct. 2187). In particular, “whenever future dangerousness is at issue in a capital sentencing proceeding ... due process requires that the jury be informed that a life sentence carries no possibility of parole” if in fact that is the case under state law. Shafer, 532 U.S. at 51, 121 S.Ct. 1263.

Put another way, “Simmons rests upon eliminating a jury’s misunderstanding so the jury will not perceive a ‘false choice’ between sentencing to death or a limited period of incarceration when future dangerousness is at issue.” Johnson v. Gibson, 254 F.3d 1155, 1166 (10th Cir.2001). Oklahoma uses a “three-option sentencing scheme,” which permits the imposition of three different, potential punishments— (1) death, (2) life imprisonment without the possibility of parole, or (3) life imprisonment. See Hamilton, 436 F.3d at 1191.

We have held that this scheme is “consistent with the Supreme Court’s rulings since the options do not create a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration.” Id. (quoting Mayes v. Gibson, 210 F.3d 1284, 1294 (10th Cir.2000)) (internal quotation marks omitted); see Welch, 639 F.3d at 1005 (noting that a basic instruction on Oklahoma’s “three-option” scheme is “constitutionally adequate”).

Thus, in circumstances where “the trial court simply directs the jury to review the instructions again” — instructions that clearly set forth the three-option scheme — “the defendant’s due process rights are not violated.” Welch, 639 F.3d at 1005 (citing, inter alia, McCracken, 268 F.3d at 980-81). However, in further expounding upon Simmons and its offspring, we have held that a due process violation can be created by the trial court, which in some instances may engender juror confusion, thereby creating a “false choice,” even in light of instructions that may correctly state the law.

See Mollett, 348 F.3d at 913.

In order to be entitled to relief in such a case under the reasoning in Mollet — viz., where the jury demonstrates confusion as to the meaning of possible sentences, including death'—-a petitioner must make four showings: (1) the prosecution [sought] the death penalty; (2) the prosecution place[d] the defendant’s future dangerousness at issue; (3) the jury ask[ed] for clarification of the meaning of life imprisonment, or a synonymous statutory term; and (4) the judge’s response threaten[ed] to cause a jury’s misunderstanding so the jury [could] perceive a false choice of incarceration when future dangerousness [wa]s at issue.

Hamilton, 436 F.3d at 1191 (quoting Mol-lett, 348 F.3d at 914) (internal quotation marks omitted); see Mollett, 348 F.3d at 913-15. In this case, the district court found, and the parties agree, that factors one through three are satisfied. We are content to proceed assuming as much, without independently examining the merits of each factor. See United States v. McGehee, 672 F.3d 860, 867 (10th Cir.2012). The fourth Mollett factor is at issue. Mr.

Littlejohn contends that what was actually conveyed to the jury—both in the trial judge’s answer and in light of his earlier statements regarding what a “code” response would mean—created jury confusion that amounted to the creation of a false choice and a violation of due process. This, according to Mr. Littlejohn, is compounded by the fact, as explained by the OCCA in Littlejohn II, that modern jury pools are perpetually confused about Oklahoma’s three-option sentencing scheme. We reject these arguments. As Mr.

Littlejohn recognizes, we have held that instructions clearly (and correctly) stating Oklahoma’s “three-way choice fulfillf ] the Simmons requirement that a jury be notified [regarding] the defendant's] parole ineligib [ility], ” even where a jury asks the court about the future prospect that the defendant may be released. Mayes, 210 F.3d at 1294. Like in Mayes, the instructions here clearly stated Oklahoma’s three-option scheme. That much is not in dispute.

Of course, the trial judge did not simply refer the jury back to the instructions upon receiving the note requesting clarification on the meaning of the second sentencing option—“life without the possibility of parole.” Rather, upon receiving the note from the jury, the judge referred back to his instructed “code” which told the jury that he would answer questions only “if it’s appropriate to answer,” and that if, in response, the jury received a “code back that says, you have all the law and evidence necessary to reach a verdict, what that means is [1] the answer to [the] question is in the instructions, [2] it was in the evidence, or [3] you’re asking me something that’s inappropriate for me to answer.” Littlejohn II, 85 P.3d at 291 (emphases added) (quoting relevant portions of the State record) (internal quotation marks omitted); see R., Vol. 1, pt.

II, at 228. Primarily at issue is the “third” answer of the “code.” Mr. Littlejohn would have us believe that this answer signaled to the jury that parole was not an appropriate factor for its consideration and, thus, beyond its purview. We believe, however, that the trial judge’s response simply reinforced the plain meaning of the otherwise permissible instructions. The response said nothing—by its precise terms or by its substance-—about the removal from the jury’s sentencing consideration of parole eligibility as a permissible factor.

At worst, it suggested that it may be inappropriate for the judge to answer a question, which conceivably, in context, could be a question about parole. The response did not reasonably suggest to the jury that the question of parole eligibility rested elsewhere than in its hands, or that a decision to recommend life without the possibility of parole would cause the sentence to be placed in the hands of another, or otherwise permit Mr. Littlejohn to be released. Cf.

Mollett, 348 F.3d at 915-16 (holding that prong four was satisfied where, upon the jury’s note, the trial judge responded that “[m]atters of parole are beyond the purvue [sic] of the jury or the court to consider” because this answer suggested to the jury (incorrectly) that matters of parole were beyond the boundaries of its consideration, indicating that alternative sentences to death could lead to the defendant being released (alterations in original)). This does not bring Mr.

Littlejohn’s case within the stable of our decisions finding due process violations where “the trial court informs the jury that it is not to consider the issue of whether the defendant is parole ineligible.” Welch, 639 F.3d at 1005. Thus, even if we assume the jury applied the third “code” option after the judge’s response—viz., assumed that the question was “inappropriate for [the court] to answer”—there was no “false choice” created.

See id. at 1005-06 (finding that the judge’s response to the jury’s question on the meaning of life without the possibility of parole—which noted “that [the court] was not allowed to answer the jury’s questions”—“could not have created a prohibited false choice”). “Failing to clarify the life without parole instruction cannot be ‘taken to mean that parole was available but that the jury, for some unstated reason, should be blind to this fact.’ ” Id. at 1005 (quoting Shafer, 532 U.S. at 53, 121 S.Ct. 1263); see also Littlejohn II, 85 P.3d at 292 (“Neither the trial court’s response to the jury’s question nor its supplemental oral instructions concerning how to decode its answers advised the jury it could not consider parole eligibility in determining the appropriate sentence.”).

Mr. Littlejohn responds that it is clear that juries in Oklahoma have consistently misunderstood the meaning of life imprisonment without the possibility of parole. Thus, he reasons, the trial judge’s answer only perpetuated an inherent confusion that already exists and is deeply entrenched. See Aplt. Opening Br. at 32 (“[T]he problem is not failure to hear, but rather, that the significance of the phrase has not been understood.”).

As noted, the OCCA acknowledged this fact and observed “the frequency with which this issue arises ... [required a] reexamin[ation of its] present stance and [a] consideration of] whether future juries who ask about the meaning of life imprisonment without the possibility of parole should be given further explanation.” Littlejohn II, 85 P.3d at 292-93 (emphasis added); see id. at 293 (“[C]ommon sense tells us that some jurors may be confused even when, as here, the jury is presented with one ‘traditional’ life sentencing option, alongside a separate option that specifically states that parole will not be available.”).

Therefore, to “provid[e] capital sentencing juries with accurate sentencing information” the OCCA held that in future cases where the jury asks whether a sentence of life imprisonment without the possibility of parole renders an offender parole eligible, the trial court should either refer the jury back to the instructions, tell the jury that the punishment options are self explanatory, or advise the jury that the punishment options are to be understood in their plain and literal sense and that the defendant will not be eligible for parole if sentenced to life imprisonment without the possibility of parole.

Id. at 293-94 (citations omitted). Mr. Littlejohn argues that the OCCA’s decision to provide guidance for future cases, while not applying its ruling to his appeal, was unreasonable. We disagree.

To the extent that the trial court’s response referred to the first two options of the “code,” the OCCA’s recommendations encompassed what actually occurred in this case—“where the jury ... asks [about parole eligibility] ... the trial court should[, inter alia,] .. refer the jury back to the instructions.” Id. at 293 (emphasis added); see Welch, 639 F.3d at 1005 (“In applying Simmons, we have concluded that if the trial court simply directs the jury to review the instructions again, the defendant’s due process rights are not violated.”).

Furthermore, “[e]ven assuming the trial court’s statement [otherwise] ... ran afoul of Oklahoma procedural law,” Welch, 639 F.3d at 1005; see id. at 1004 & n. 13 (noting that Littlejohn II set forth “three options” for a trial court’s response to a jury note “under Oklahoma law ” (emphasis added))—in that it consisted of an option that was not one of the “three” endorsed by the OCCA in Littlejohn II—that would not, absent more, constitute a violation of federal law sufficient to warrant habeas relief, see id. at 1005; Hooks v.

Workman (Danny Hooks), 606 F.3d 715, 748 (10th Cir.2010) (“[Fjederal habeas corpus relief does not lie for errors of state law.” (quoting Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)) (internal quotation marks omitted)); see also Johnson, 254 F.3d at 1164; cf. Williams v. Jones, 571 F.3d 1086, 1092 (10th Cir.2009) (per curiam) (“[A]ny correction for a federal constitutional violation must be consistent with federal law.”).

And, as to the applicable federal requirements, the OCCA found that the trial judge’s response in this case was consistent with Simmons in that it was not “insufficient, misleading or erroneous” and did not suggest to the jury that it was forbidden to consider parole. Littlejohn II, 85 P.3d at 292; cf. Mollett, 348 F.3d at 915-16; Welch, 639 F.3d at 1005 (“[I]n cases in which the trial court informs the jury that it is not to consider the issue of whether the defendant is parole ineligible, we have found a due process violation.”). This determination was not unreasonable for the reasons given. Cf. Wetzel v.

Lambert, — U.S.-, 132 S.Ct. 1195, 1198, 182 L.Ed.2d 35 (2012) (per curiam) (noting that where a state court’s resolution of a claim on the merits on a sufficient substantive ground is not unreasonable, alternative grounds for imputing capricious error are “beside the point”). While Mr.

Littlejohn’s argument may have some appeal insofar as it takes issue with the reality that “a fair number of jurors [still] do not [fully] comprehend the plain meaning of the life imprisonment without the possibility of parole sentencing option [in Oklahoma],” Littlejohn II, 85 P.3d at 293, we are constrained to apply precedent that-relying on Simmons, Shafer, and Kelly on substantially similar facts—compels the denial of relief, see, e.g., Welch, 639 F.3d at 1005 (“The trial court’s response to the jury’s questions did not negate or contradict any of these [three] choices; each were explicitly set forth in the jury instructions and clearly presented in the verdict form.”); see also McCracken, 268 F.3d at 980-81.

In sum, for the foregoing reasons, we reject Mr. Little-john’s first argument on appeal. B. Notice of Testimony Mr. Littlejohn argues that the district court erred in finding harmless the constitutional error that occurred when the trial court permitted the State to elicit certain damaging testimony from a witness in support of its aggravating-factor presentation at sentencing, although the State had not given notice of this evidence. Bill Meers, the victim’s brother, testified that when he was leaving the courtroom after the first trial, Mr.

Littlejohn made certain comments to him, including an admission regarding the killing and—most importantly, for present purposes—a threat to kill Meers. Specifically, Mr. Meers testified that Mr. Littlejohn told him, that “the motherfucker’s [i.e., his brother’s] dead and he ain’t coming back.” State R., Vol. VI, Resentencing Tr. at 21 (Test, of Bill Meers). And he testified further that Mr. Littlejohn said, “I killed the motherfucker, I’ll kill you.” Id. The court reporter captured and memorialized at least a portion of Mr. Littlejohn’s communications to Mr.

Meers but, significantly, her transcript did not evince an admission or a threat by Mr. Littlejohn. See Aplt. Opening Br. at 33 (“The court reporter indeed captured an insensitive comment'by Mr. Littlejohn on exiting the courtroom after the 1994 sentencing, but it did not include either an admission or a threat.”). Mr. Littlejohn was provided no notice of the alleged admission or threat until the fifth day of the resentencing trial. See Littlejohn II, 85 P.3d at 294. At an in camera hearing, the court notified Mr. Littlejohn of the proposed testimony of Mr.

Meers and gave counsel “the weekend and [the following] Monday to prepare for [it].” Id. at 296 n. 10. The OCCA succinctly summarized the unfolding events: The record shows that after the in camera hearing, the trial court gave the defense some time [i.e., the three days] to try and find the guards who were escorting Littlejohn when he allegedly made the statement to Meers. Although the defense was unable to find those guards, they did locate and call Sgt. Grimsley, who was in charge of security and courtroom guard details during Littlejohn’s first trial.

Grimsley explained how defendants were escorted from the courtroom following verdicts at that time. According to Grimsley, it would be highly unlikely that a defendant would be able to stop and make any kind of statement to a victim’s family, and if an incident did occur, a write-up would have been made. The defense also called Littlejohn, who admitted that he made the first remark to Meers [i.e., about the brother being dead and not coming back], but denied telling Meers that he had shot his brother or that he threatened to kill Meers. Id. at 296 (footnotes omitted). In light of the fact that Mr.

Littlejohn had time to meet the allegations with his own investigation, and the fact that the evidence of the continuing-threat aggravating factor was substantial, the OCCA concluded that the lack of sufficient notice of Mr. Meers’s testimony—in particular, regarding Mr. Littlejohn’s alleged threat—did not have the requisite prejudicial effect “on the jury’s verdict” to make the error grounds for reversal. R., Vol. 1, pt. II, at 236. Mr. Littlejohn argues on appeal that the OCCA’s decision was unreasonable for a few reasons.

First, he contends that the error was demonstrably prejudicial in that it limited his trial counsel’s ability to mount a more robust defense. Second, he contends that the prosecutor improperly (and misleadingly) suggested to the jury that she had heard Mr. Littlejohn’s threat, further compounding the prejudice. Finally, he contends that the harm of the error was exacerbated by the prosecution’s rebuttal testimony of Judy Bush, a witness who testified in response to Mr. Little-john’s denial that he made the threat.

It is well-established, as a matter of federal law, that “a defendant must have a meaningful opportunity to deny or explain the State’s evidence used to procure a death sentence.” Walker v. Gibson, 228 F.3d 1217, 1240 (10th Cir.2000) (quoting Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir.1998)), abrogated on other grounds by Neill v.

Gibson, 278 F.3d 1044, 1057 n. 5 (10th Cir.2001); see Gardner, 430 U.S. at 362, 97 S.Ct. 1197 (“We conclude that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.”); see also Gray v. Netherland, 518 U.S. 152, 163-65, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Wilson v. Sirmons, 536 F.3d 1064, 1102 (10th Cir.2008) (“[W]e construe [the petitioner’s] claim to allege that the late notice deprived him of his ability to provide a proper defense.”).

Furthermore, “while ‘[a] defendant’s right to notice of the charges against which he must defend is well established,’ there is no clearly established constitutional right to non-exculpatory discovery.” Wilson, 536 F.3d at 1103 (alteration in original) (quoting Gray, 518 U.S. at 167-68, 116 S.Ct. 2074). Thus, “[s]o long as Mr. [Littlejohn] had a meaningful ‘opportunity to deny or explain’ ” the adverse evidence, see id. (quoting Gardner, 430 U.S. at 361, 97 S.Ct. 1197), he would not be able to show a “clearly established due process violation,” id.

And even if a lack of notice violates an offender’s rights, the resulting error must be prejudicial in order to warrant relief. See id.; Mayes, 210 F.3d at 1292. We assume without deciding that Mr. Littlejohn has properly established a constitutional violation arising from the State’s failure to provide adequate notice of Mr. Meers’s testimony. We therefore follow the OCCA and the district court and assess only whether that error was prejudicial. We conclude that it was not. In denying Mr. Littlejohn’s petition, the OCCA relied upon Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), for the proposition that the prejudice from any lack of notice in this case was “harmless beyond a reasonable doubt” because Mr. Littlejohn mounted a defense against the statement and the other evidence presented by the State was overwhelming in support of the continuing-threat aggravator. See Littlejohn II, 85 P.3d at 296. On habeas review, we apply (as did the district court) the standard in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), in assessing prejudicial effect. See DeRosa v.

Workman, 679 F.3d 1196, 1233 (10th Cir.2012) (“[E]ven assuming that the OCCA did err in [applying Chapman ], we are bound to apply ‘the more forgiving standard of review’ outlined in Brecht.” (citation omitted)); Welch, 639 F.3d at 992; Matthews v. Workman, 577 F.3d 1175, 1181 (10th Cir.2009); Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir.2002) (en banc); see also Fry v.

Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (“We hold that in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht ... whether or not the state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman.... ” (citations omitted)). “Interests of comity and federalism, as well as the State’s interest in the finality of convictions that have survived direct review within the state court system, mandate a more deferential standard of review in evaluating [the petitioner’s] claim.” Matthews, 577 F.3d at 1181 (quoting Crease v.

McKune, 189 F.3d 1188, 1193 (10th Cir.1999)) (internal quotation marks omitted). “Under Brecht, the standard for determining whether habeas relief must be granted is whether the ... error [at issue] had substantial and injurious effect or influence in determining the jury’s verdict.” Selsor v. Workman, 644 F.3d 984, 1014 (10th Cir.2011) (alteration and ellipsis in original) (quoting Brecht, 507 U.S. at 623, 113 S.Ct. 1710) (internal quotation marks omitted). “[W]hen reviewing errors from a criminal proceeding ... if the harmlessness of the error is in grave doubt, relief must be granted.” O’Neal v.

McAninch, 513 U.S. 432, 440, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (emphasis added); Bland, 459 F.3d at 1009 (“[A] ‘substantial and injurious effect’ exists when the court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.” (quoting O’Neal, 513 U.S. at 435, 115 S.Ct. 992)); accord United States v.

Lawson, 677 F.3d 629, 644 n. 19 (4th Cir.2012). “‘Grave doubt’ exists where the issue of harmlessness is ‘so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.’ ” Bland, 459 F.3d at 1009-10 (alterations in original) (quoting O’Neal, 513 U.S. at 435, 115 S.Ct. 992); see DeRosa, 679 F.3d at 1233. We agree with the district court that the “lack of sufficient notice of Mr. Meers’ testimony [did not have] a substantial and injurious effect on the jury’s verdict.” R., Vol. 1, pt. II, at 236. In the time that the state trial court gave him, Mr.

Little-john was able to secure the testimony of Sgt. Grimsley, which aided his cause. This was significant testimony, in that Sgt. Grimsley was head of courtroom security. Even if he had more time, it is questionable whether Mr. Littlejohn could have obtained more probative evidence on the subject at hand. Indeed, as the district court noted, “Sgt. ...

Grimsley testified that he had received an inquiry from defense counsel on Friday afternoon regarding the identities of the guards assigned to Petitioner at his first trial; however, despite an extensive search, issues with record keeping prevented him from discovering this information.” Id. at 234. Furthermore, Mr. Littlejohn was able to offer his own testimony in rebuttal, which directly related to the matter at issue, in that he was the alleged speaker of the threat. While three days to prepare a defense against a statement made many years pri- or is not necessarily a substantial amount of time, Mr.

Littlejohn fails to establish that having more time to conduct further investigation would have led to the discovery of any other helpful information about the circumstances surrounding the event. In addition, before rendering its verdict, the jury was exposed to considerable evidence detailing Mr. Littlejohn’s prior criminal history, which included instances of violence, see Littlejohn II, 85 P.3d at 296— that served as “substantial ... continuing threat evidence,” id. The OCCA summarized the evidence of his criminal history as follows: [T]he State offered a substantial amount of continuing threat evidence.

The State presented evidence that Littlejohn had been incarcerated for all but a few months from the time he was 15-years-old until he committed this crime at the age of 20. The State introduced evidence that showed Littlejohn’s tendency toward violence had begun in elementary school, where he was placed in a class for the emotionally disturbed and he continued to get in trouble for his behavior. The State presented evidence that Littlejohn had been involved in robberies, assaults and a rape.

In addition, the State introduced evidence of numerous infractions, some violent, while Little-' john was in the Oklahoma County Jail awaiting his first trial, as well as incidents that occurred while Littlejohn was imprisoned in the Department of Corrections. Littlejohn II, 85 P.3d at 296. Mr. Littlejohn does not contest the validity of any of this evidence, and it otherwise supports the continuing-threat aggravator found by the jury. See Revilla v. Gibson, 283 F.3d 1203, 1219 (10th Cir.2002) (suggesting that threats of violence suffice to establish that an offender is a continuing threat). Thus, Mr.

Meers’s testimony was not the linchpin of the State’s evidentiary presentation concerning the continuing-threat aggravator. And, logically, any prejudicial effect of his testimony would have been lessened by the fact that it was but one item among many that attested to Mr. Littlejohn’s violent disposition. Mr. Littlejohn’s claims of improper bolstering of Mr. Meers’s testimony by the prosecutor do not alter our conclusion here. As further detailed infra, the record does suggest that the prosecutor, in the context of questioning Mr.

Meers, said that she had been present in the courtroom at the first trial and she insinuated— but did not expressly say—that she had heard Mr. Littlejohn make the threat. See State R., Vol. VI, Resentencing Tr. at 26 (Question of Ms. High) (stating, in questioning Mr. Meers, “So in terms of you never having told anyone about those statements, were you aware that I was present and heard?”). As the OCCA observed, however, the trial court sustained defense counsel’s objection to the prosecutor’s statement, and “admonished the jury to disregard it.” Littlejohn II, 85 P.3d at 296.

This frequently has the effect of diminishing any discernible prejudice, cf. Wilson, 536 F.3d at 1117 (suggesting that cautionary instructions are a factor to consider under a totality of the circumstances). To be sure, a cautionary instruction is not always sufficient to cure the prejudicial effect of improper statements. Cf. United States v. Sands, 899 F.2d 912, 915 (10th Cir.1990). However, the prosecutor’s brief and oblique statement here is not the kind that would “make a sufficiently strong impression on the jury that it w[ould] be unable to disregard.” Id. (emphasis added).

Thus, we cannot say that the OCCA’s determination that the cautionary instruction here diminished the prejudice suffered by Mr. Littlejohn was unreasonable. Moreover, the prosecution’s unnoticed rebuttal witness, Ms. Judy Bush, essentially confirmed—in very limited testimony— Mr. Meers’s testimony and suggested that Mr. Littlejohn’s version of the story was incorrect. Importantly, Ms. Bush’s testimony was confined to the alleged statements made by Mr. Littlejohn at the 1994 proceeding—nothing more. Thus, it was not outside of the scope of Mr. Meers’s direct examination.

It logically follows that any additional prejudicial effect of Ms. Bush’s testimony, arising from the lack of notice of the Meers testimony, was virtually nil. In other words, the substance of her testimony regarding Mr. Littlejohn’s alleged comments was roughly conterminous with that of Mr. Meers; therefore, in terms of preparing a response, Ms. Bush’s testimony did not place an appreciable additional burden on Mr. Littlejohn. Finally, Mr. Littlejohn contends that the district court and the OCCA failed to consider the reliability concerns associated with this evidence. That is, Mr. Meers’s and Ms.

Bush’s testimony “was of very recent vintage and directly in conflict with the official record of what was said in the courtroom.” Aplt. Opening Br. at 47. But these factors would not necessarily militate toward a finding of prejudice on lack-of-notice grounds. Specifically, Mr. Little-john demonstrated that he had the ability to (and did) point out these purported weaknesses in their testimony. In particular, he had access to the fact that the court reporter’s statement was more consistent with Mr. Littlejohn’s view of what occurred.

Thus, this factor does not dissuade us from our conclusion that the OCCA acted reasonably in concluding that the notice error was harmless. At bottom, it must be emphasized that the alleged error here relates to a lack of notice—not the prejudicial content of Mr. Meers’s testimony, which Mr. Littlejohn does not contend would otherwise be inadmissible under Oklahoma law “but for the notice problem.” Littlejohn II, 85 P.3d at 295.

The reasonably conceivable prejudicial effect from the lack of notice here does not leave us in “grave doubt” regarding whether it had a “substantial and injurious effect” on the jury’s verdict. Taking into account the totality of the evidence, we are not left to struggle with this conclusion. See Wilson, 536 F.3d at 1103; see also Thomas v. Gibson, 218 F.3d 1213, 1223-24 (10th Cir.2000); Humphries v. Ozmint, 397 F.3d 206, 227 (4th Cir.2005) (en banc). In particular, we look to the fact that Mr. Littlejohn was allowed three days to prepare a response to Mr.

Meers’s statement; that, in fact, he did prepare a reasonably cogent affirmative rebuttal case, which featured the testimony of Sgt. Grimsley, who was “in charge of security and courtroom guard details during [his] first trial,” Littlejohn II, 85 P.3d at 296 (emphasis added); that Mr. Littlejohn has not pointed to any additional favorable evidence that he would have acquired if he had been given more notice; and that Mr. Littlejohn tested the credibility of Mr. Meers and Ms. Bush on cross examination.

In sum, the OCCA’s decision thoroughly considered all of the factors at the resen-tencing bearing on any prejudice that Mr. Littlejohn allegedly suffered due to a lack of notice and determined that any error was harmless. We conclude that this decision was unquestionably reasonable. More to the point, we do not have any grave doubts concerning the harmlessness of the (assumed) error involving a lack of notice. Consequently, we reject Mr. Littlejohn’s claim. C. Prosecutorial Misconduct Mr.

Littlejohn claims that the prosecution made numerous improper comments during his resentencing proceeding, violating his constitutional rights. 1. Improper Vouching The first allegation of prosecutorial misconduct concerns the allegedly improper statements that the prosecutor made in questioning Mr. Meers (which we have just discussed)—i.e., the prosecutor’s suggestion that she heard Mr. Littlejohn make the disputed statements to Mr. Meers when he left the courtroom after the first trial, including the threat to kill him. The prosecutor’s full statement, embodied in her question to Mr.

Meers, was made on re-direct and was as follows: “So in terms of you never having told anyone about those statements, were you aware that I was present and heard?” State R., Vol. VI, Resentencing Tr. at 26. Mr. Meers responded affirmatively that he was “aware [she was] present.” Id. (Test. of Mr. Meers). Mr.

Littlejohn argues that this statement amounted to impermissible prosecutorial vouching. “Vouching,” or “an assurance by the prosecuting attorney of the credibility of a government witness through personal knowledge or by other information outside of the testimony before the jury,” amounts to improper prosecutorial conduct. Lam v. Kelchner, 304 F.3d 256, 271 (3d Cir.2002); see Matthews, 577 F.3d at 1187; Douglas v. Workman, 560 F.3d 1156, 1177-79 (10th Cir.2009). Generally, there are two ways in which prosecutorial misconduct, like vouching, can result in constitutional error.

See DeRosa, 679 F.3d at 1222. “First, [it] can prejudice a specific right ... as to amount to a denial of that right.” Id. (quoting Matthews, 577 F.3d at 1186) (internal quotation marks omitted). Additionally, absent infringement of a specific constitutional right, a prosecutor’s misconduct may in some instances render a habeas petitioner’s trial “so fundamentally unfair as to deny him due process.” Donnelly v.

DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); see Wilson, 536 F.3d at 1117 (“Unless prosecutorial misconduct implicates a specific constitutional right, a prosecutor’s improper remarks require reversal of a state conviction only if the remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (quoting Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir.2002) (per curiam)) (internal quotation marks omitted)); see also Matthews, 132 S.Ct. at 2153-54; Romano v. Oklahoma, 512 U.S. 1, 12-13, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994).

In determining whether a trial is rendered “fundamentally unfair” in light of the conduct of a prosecutor, we examine the entire proceeding, “including the strength of the evidence against the petitioner, both as to guilt at that stage of the trial and as to moral culpability at the sentencing phase as well as any cautionary steps—such as instructions to the jury—offered by the court to counteract improper remarks.” Wilson, 536 F.3d at 1117 (quoting Bland, 459 F.3d at 1024). “[A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury ... will [necessarily] draw that meaning.” Don- nelly, 416 U.S. at 647, 94 S.Ct. 1868; see Banks v.

Workman, 692 F.3d 1133, 1148 (10th Cir.2012) (noting that the fundamental-fairness standard for allegedly improper prosecution statements constitutes “a high hurdle”). “[N]ot every improper or unfair remark made by a prosecutor will amount to a federal constitutional deprivation.” Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir.2000). Mr. Littlejohn complains that the prosecutor’s statement “implicate[d his] specific constitutional right,” Wilson, 536 F.3d at 1117, to confront a person who in effect was a witness in the case—the prosecutor herself—thus entitling him to heightened scrutiny under Donnelly.

He faults the OCCA and the district court for not recognizing this. Moreover, he specifically suggests that the statement was “akin to [ringing a] testimonial-like bell” that could not be “unrung.” See Aplt. Opening Br. at 49, 52 (emphasis added). We disagree. Despite his oblique references to the Confrontation Clause, Mr. Littlejohn does not actually claim that such a violation took place—only that the prosecutor’s “comments were akin to a violation of the Confrontation Clause.” Id. at 51 (emphasis added).

Even if the Supreme Court’s Confrontation Clause jurisprudence were apposite in a capital sentencing context—a matter that we touch on in

Part II.D, infra, but need not pursue here—Mr. Litt-lejohn’s argument would not even get out of the gate, because he does not expressly rely upon that jurisprudence. Accordingly, we would be hard-pressed to conclude that the OCCA violated clearly established federal law under the Confrontation Clause.

As for the fundamental-fairness inquiry, the OCCA found that the prosecutor’s “improper” comment was removed from the purview of the jury’s consideration when the trial court “sustained the defense’s objection to the question and admonished the jury to disregard it.” Littlejohn II, 85 P.3d at 296, 300; see also Greene v. Upton, 644 F.3d 1145, 1159 (11th Cir.2011) (holding that state court’s finding that an admonition eliminated the prejudice of an inappropriate comment was not unreasonable).

The OCCA discussed and assessed all of the pertinent legal factors in arriving at its decision, see Littlejohn II, 85 P.3d at 296, 300, and we cannot say, after a review of the record and the governing law, that its rejection of Mr.

Littlejohn’s argument was unreasonable under AEDPA’s deferential standards, see Matthews, 132 S.Ct. at 2153-55 (rejecting due process claim predicated upon the assertion that the prosecutor insinuated that the defendant “had colluded with his lawyer ... to manufacture an extreme emotional disturbance defense” because “even if the comment is understood as directing the jury’s attention to inappropriate considerations, that would not establish that the [state] Supreme Court’s rejection of the ... prose-cutorial misconduct claim” was contrary to clearly established federal law); Wogenstahl v.

Mitchell, 668 F.3d 307, 328-29 (6th Cir.2012) (holding that prosecutor’s comments improperly vouching for the State’s witness did not amount to prejudicial error); see also Matthews, 577 F.3d at 1186 (noting that “[w]e assess [the state court’s] decision [on the lack of prejudice of challenged remarks] through AEDPA’s forgiving lens”); cf.

Danny Hooks, 606 F.3d at 744-46 (holding that the prosecutor’s conduct prejudiced petitioner where the prosecutor repeatedly “misled [the jury] 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” and other factors were present that contributed to this “coercion”). 2. Reference to the Appellate Process Mr. Littlejohn also contends that the prosecution improperly injected the issue of appellate review into the case. In the prosecutor’s final closing argument at re-sentencing she asserted: [Mr.

Littlejohn’s counsel] has told you that basically Ms. Stensaas [the prosecutor in the Bethany trial] did something that was wrong [i.e., by arguing inconsistent theories], [that] it was improper, there was something wrong with what she did and he full well knows that that has been reviewed by appellate courts. State R., Vol. VII, Resentencing Tr. at 312 (State’s Closing Argument) (emphasis added). The trial court sustained an objection to the extent the prosecution was arguing facts not in evidence. However, because the court found that Mr.

Little-john’s counsel “opened the door” to the reference to the prosecution’s conduct, it permitted the prosecution to “address the issue within the record.” Aplt. Opening Br. at 54. The prosecutor subsequently told the jury that, “[i]f there was something wrong with Ms. Stensaas’ closing argument, you would be told that.” State R., Vol. VII, Resentencing Tr. at 314. No objection was made to this latter comment. Both the OCCA, see Littlejohn II, 85 P.3d at 301, and the district court, see R., Vol. 1, pt. II, at 248-49, rejected Mr. Littlejohn’s claim that the prosecutor’s argument was improper. Mr.

Littlejohn claims that the foregoing argument is a clear violation of Caldwell v.

Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), where the Supreme Court held that “it is constitutionally impermissible [under the Eighth Amendment] to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” This holding has been interpreted by the Supreme Court as simply requiring that “the jury ... not be misled regarding the role it plays in the sentencing decision.” Danny Hooks, 606 F.3d at 743 (quoting Romano, 512 U.S. at 8, 114 S.Ct. 2004) (internal quotation marks omitted) (citing cases); see Darden v.

Wainwright, 477 U.S. 168, 183 n. 15, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (“Caldwell is relevant only to certain types of comment—those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision.”); see also Dugger v. Adams, 489 U.S. 401, 405, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989); DeRosa, 679 F.3d at 1234. Here, Mr.

Littlejohn has not shown that the district court was incorrect in concluding that the instant comments did not contravene Caldwell—much less that the OCCA’s rejection of the claim was contrary to, or involved an unreasonable application of, Caldwell. The prosecutor’s comments simply do not amount to a Caldwell violation because they referenced “the prosecutor’s actions [in Mr. Bethany’s case] and whether the prosecution had acted inappropriately,” R., Vol. 1, pt. II, at 248 (emphases added); they did not suggest that the jury’s role was “minimize[d in] importance,” Caldwell, 472 U.S. at 333, 105 S.Ct. 2633.

Indeed, considering the closing arguments in context, see Pickens v. Gibson, 206 F.3d 988, 1000 (10th Cir.2000), the comments at issue were merely a response to defense counsel’s suggestion that the prosecution had acted improperly by arguing inconsistent theories at the trials of Mr. Littlejohn and Mr. Bethany. No reasonable jury would have construed the statements as implying that “anyone other than the jury was responsible for fixing the appropriate sentence.” Thornburg v.

Mullin, 422 F.3d 1113, 1136 (10th Cir.2005); see id. at 1135-36 (holding that prosecutor’s comments suggesting that the jury was the “State” did not run afoul of Caldwell)-, Moore v. Gibson, 195 F.3d 1152, 1174 (10th Cir.1999) (holding that the prosecutor’s statements, suggesting, inter alia, that the jury was a “little cog in the community” responsible for carrying out the criminal proceedings, did not violate Caldwell (quoting relevant portions of the record) (internal quotation marks omitted)); Sellers v.

Ward, 135 F.3d 1333, 1343 (10th Cir.1998) (“Viewing the record with charity, we note the prosecutor’s hyperbole may be regarded as colorful. It is not, however, the stuff from which anyone could perceive an offer to share the burden of the ultimate decisions in this case.”); see also Black v. Workman, 682 F.3d 880, 910-12 (10th Cir.2012) (“Caldwell should not be read too broadly.”) The prosecutor’s comment here is markedly distinct from statements held to be constitutionally problematic under the principles of Caldwell.

See Caldwell, 472 U.S. at 325, 340, 105 S.Ct. 2633 (holding that prosecutor’s comments that the jury’s job was “not the final decision” and “[wa]s reviewable”—which were “focused, unambiguous, and strong”—violated the Eighth Amendment (quoting relevant portions of the record) (internal quotation marks omitted)); Cargle v. Mullin, 317 F.3d 1196, 1223 (10th Cir.2003) (concluding that prosecutor’s argument was inappropriate in that it “suggested] that jurors are part of the team of the prosecution and police, rather than impartial arbiters between the State and the defendant” (internal quotation marks omitted)).

Moreover, the prosecution emphasized multiple times that the decision to impose the death penalty was a tough one, but one that nonetheless rested solely with the jury. See, e.g., State R., Vol. VII, Resentencing Tr. at 316, 329-31, 349-50. Considering everything before the jury, including the entirety of closing arguments which repeatedly emphasized the jury’s correct role, we simply cannot find unreasonable the OCCA’s determination that the jury was not affirmatively misled regarding its

part in the sentencing process. See Bland, 459 F.3d at 1019 (considering the prosecution’s comments “in context,” and finding that the OCCA’s rejection of petitioner’s Caldwell argument was not unreasonable, where the prosecutor emphasized that the jury had the final say); cf.

Romano, 512 U.S. at 9, 114 S.Ct. 2004 (finding that the introduction of evidence concerning a previously imposed death sentence did not mislead the jury on its sentencing role because, among other reasons, “[t]he jury was instructed that it had the responsibility for determining whether the death penalty should be imposed” (quoting Romano v. State, 847 P.2d 368, 390 (Okla.Crim.App.1993)) (internal quotation marks omitted)). Consequently, this claim of prosecutorial misconduct must fail. 3. Civic Duty and Emotion Finally, Mr.

Littlejohn argues that “[b]oth prosecutors [improperly] expressed personal opinions and urged the jury to return a verdict for the community at large.” Aplt. Opening Br. at 55. For instance, one prosecutor, at the conclusion of the “first closing,” id., noted that “[y]ou are the representatives of the community that have been chosen to be the jurors in this case and it’s your job to decide what is justice in this case,” State R., Vol. VII, Resentencing Tr. at 279. Additionally, the second prosecutor noted that, “you are the twelve representatives of this community in which we all live to decide what is justice.

And what is justice in this case is the death penalty.” Id. at 350. Mr. Litt-lejohn did not object to either comment. The OCCA summarily rejected the argument that these comments were improper. See Littlejohn II, 85 P.3d at 301. The district court, moreover, found Mr. Littlejohn’s argument to lack merit because the comments at issue, taken in context, did not “encourag[e] a death sentence based on vengeance and/or outrage.” R., Vol. 1, pt. II, at 249.

We agree with the district court. “It is improper for a prosecutor to suggest that a jury has a civic duty to convict,” Thornburg, 422 F.3d at 1134; see also Viereck v. United States, 318 U.S. 236, 247-48, 63 S.Ct. 561, 87 L.Ed. 734 (1943), by “appealing to] wholly irrelevant” issues, Viereck, 318 U.S. at 247-48, 63 S.Ct. 561.

Furthermore, “[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner, 430 U.S. at 358, 97 S.Ct. 1197; see Wilson, 536 F.3d at 1121. “Appeals to the jury’s emotion or sense of vengeance call into question the integrity of the criminal justice system by encouraging the jury to convict based on outrage, and not on the evidence,” Wilson, 536 F.3d at 1121 (alteration omitted) (quoting Bland, 459 F.3d at 1028) (internal quotation marks omitted), thereby undermining the “acute need for reliability in capital sentencing proceedings,” Monge v.

California, 524 U.S. 721, 732, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998); see Lankford v. Idaho, 500 U.S. 110, 126, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991); California v. Brown, 479 U.S. 538, 543, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987); Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 294, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (Stevens, J., concurring in part and dissenting in part).

The district court correctly determined that the comments in this case did not play on the jury’s emotions, or otherwise improperly embed into the jury’s sentencing consideration a sense of societal alarm or the need for community justice. In advocating for a result commensurate with “justice,” the prosecution nonetheless emphasized that the jury retained full responsibility for weighing the evidence— which it extensively outlined in closing argument—and that “justice” would be the product of this weighing process. See State R., Vol. VII, Resentencing Tr. at 279.

References to “justice” are not necessarily improper, at least where the “prosecutor’s comments [are] firmly rooted in the facts of the case ” and are not otherwise made in a substantially inflammatory manner. Thornburg, 422 F.3d at 1134 (emphasis added); see id. at 1133-34 (concluding that multiple comments from the prosecutor regarding the jury’s role in allowing “justice [to] prevail” were not necessarily inappropriate because there was a nexus between the references and the evidence); see also United States v.

Young, 470 U.S. 1, 6-7, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985); Selsor, 644 F.3d at 1024; Wilson, 536 F.3d at 1120-21. Under clearly established federal law, the OCCA could reasonably conclude that the prosecutor’s comments did not constitute reversible error, because they were sufficiently rooted in the facts of the case, not geared to incite the jury, and not, under the circumstances, sufficient to undermine the fairness of Mr. Littlejohn’s resentencing proceeding. See Spears v.

Mullin, 343 F.3d 1215, 1247-48 (10th Cir.2003) (holding that “the OCCA’s decision denying [the petitioner] relief on [his] claim” based, inter alia, on the prosecutor’s argument that “justice cries out for [a conviction]” was not an unreasonable application of Supreme Court precedent and did not result in a “fundamentally unfair trial” in light of the entirety of the record); see also Bland, 459 F.3d at 1026-27 (holding that prosecutor’s comment suggesting that the jury had the ability to prevent the defendant from ever harming anyone else “c[a]me close to the line,” but did not “cross[] it,” because it could be interpreted as implying a “duty to decide whether to sentence [the defendant] to death,” not a duty to so sentence him); accord United States v.

Kinsella, 622 F.3d 75, 84-85 (1st Cir.2010). Consequently, Mr. Littlejohn’s argument must be rejected. The comments at issue were not so plainly “[and] fundamentally unfair as to deny [Mr. Littlejohn] due process.” Donnelly, 416 U.S. at 645, 94 S.Ct. 1868; see Smallwood v. Gibson, 191 F.3d 1257, 1275-76 (10th Cir.1999). D. Absent Witnesses Mr. Littlejohn next argues that the OCCA and district court erred in denying his claim based on a Confrontation Clause violation. Specifically, at his 1994 trial, two witnesses—Michelle Ware (Mr. Bethany’s girlfriend at the time of the murder) and Cecilia Harris (Ms.

Ware’s sister)—• “offered testimony that Mr. Littlejohn made a statement implicitly admitting he was the shooter.” Aplt. Opening Br. at 56. The prosecution called them as witnesses, but ended up impeaching them in certain instances with prior inconsistent statements. Mr. Littlejohn’s trial counsel further impeached their testimony on the grounds of bias, and on multiple points of inconsistency. See, e.g., State R., Vol. V, 1994 Trial Tr. at 113 (Test, of Cecilia Harris) (showing inconsistencies in Ms. Harris’s story regarding Mr.

Littlejohn’s location); id. at 98-95 (Test, of Michelle Ware) (pointing out the obvious bias in Ms. Ware’s testimony—viz., that she had a reason to testify that Mr. Bethany was not the shooter). In Mr. Littlejohn’s resen-tencing proceeding, the prosecution introduced•—over the objection of Mr. Little-john’s counsel—the 1994 testimony of Ms. Ware and Ms. Harris “by reading their testimony from the transcript of Littlejohn’s first trial.” Littlejohn II, 85 P.3d at 296. On appeal, the OCCA determined that the Confrontation Clause required the proponent (here, the State) to make a showing of unavailability.

See id. at 297. It concluded that the prosecution made, if anything, a paltry showing; consequently, the OCCA determined that the Confrontation Clause was violated. See id. (referencing Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)). However, it found that this error was harmless beyond a reasonable doubt, considering the factors identified by the Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), stating: The record shows the entire examination of both witnesses was read to the jury.

The testimony had an adequate indicia of reliability as both Ware and Harris were thoroughly cross-examined by defense counsel. In addition, the testimony was taken under oath at Littlejohn’s first trial and was transcribed by a licensed court reporter, thereby providing an adequate record. The cross-examination of both Harris and Ware at Litt-lejohn’s first trial was conducted by the same highly competent defense attorney who represented Littlejohn at his resen-tencing trial. Defense counsel exposed the bias of both Harris and Ware and challenged the accuracy of their perceptions and memories.

In addition, their testimony was not the only evidence offered to show that Littlejohn was the triggerman.... On the record before us, we find that the error was harmless beyond a reasonable doubt. Littlejohn II, 85 P.3d at 298 (citing Chapman, 386 U.S. at 22, 87 S.Ct. 824). The district court, applying Brecht, agreed that the error “did not have a substantial and injurious effect on the jury’s verdict.” R., Vol. 1, pt. II, at 240. Allowing Mr. Littlejohn maximum latitude in addressing his claim, we assume without deciding that the Confrontation Clause applies in capital sentencing proceedings. Cf.

Wilson, 536 F.3d at 1111 (“[W]e have recently stated that it is ‘far from clear’ whether the Confrontation Clause even applies at capital sentencing proceedings.” (quoting United States v. Barrett, 496 F.3d 1079, 1099 (10th Cir.2007))). We further assume without deciding that the OCCA correctly concluded that the State’s introduction of the testimony of the two witnesses violated the Confrontation Clause. However, “Confrontation Clause errors[ are] subject to ... harmless-error analysis.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; see Coy v.

Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); United States v. Robinson, 583 F.3d 1265, 1275-76 (10th Cir.2009); cf. Bullcoming v. New Mexico, — U.S.-, 131 S.Ct. 2705, 2719 n. 11, 180 L.Ed.2d 610 (2011) (“[W]e express no view on whether the Confrontation Clause error in this case was harmless.”).

In the habeas context, as the district court recognized, Brecht must be taken into consideration; it gives the complexion of the Confrontation Clause harmless-error analysis a somewhat different shade: When a federal court considers a Confrontation Clause violation in a habeas proceeding, the relevant harmless error analysis is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error had substantial and injurious effect or influence in determining the jury’s verdict. This court’s harmless error review is de novo. Jones v.

Gibson, 206 F.3d 946, 957 (10th Cir.2000) (citations omitted) (quoting Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431, and Brecht, 507 U.S. at 623, 637-38, 113 S.Ct. 1710) (internal quotation marks omitted).

In determining whether error was harmless in this context, we consider factors such as the “importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and ... the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; accord Jones, 206 F.3d at 957; see Wiggins v. Boyette, 635 F.3d 116, 121-22 (4th Cir.2011).

Applying these principles, we agree with the district court that the admission of the testimony at issue was harmless. See Welch, 639 F.3d at 993 (“[W]e review [in the Confrontation Clause context] only whether the admission of the testimony is harmless under the Brecht standard.”). First, as the proceeding at issue was a resentencing, much of the prosecution’s proof concerned aggravating evidence supporting the jury’s imposition of the death penalty—quite apart from evidence related to whether Mr. Littlejohn fired the fatal shot.

Consequently, the contested testimony was hardly the central evidence in the prosecution’s case. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; cf. Merolillo v. Yates, 663 F.3d 444, 455-56 (9th Cir.2011) (applying the first Van Arsdall factor in concluding that the testimony of a state expert witness went “straight to the heart” of the case against the petitioner because it concerned “the issue most argued by both counsel”). Second, the State offered other competent evidence that Mr. Littlejohn was the triggerman. For instance, “[although he did not see [Mr.

Littlejohn] fire the fatal shot, Tony Hulsey, the store clerk ... saw [him] with a gun as Meers approached and believed [Mr. Littlejohn] was the trigger-man.” Littlejohn II, 85 P.3d at 298. Consequently, even if the two witnesses’ “testimony was [not entirely] cumulative ... [other] evidence corroborated it].” Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; see Wiggins, 635 F.3d at 125 (“Close examination of the record leaves us with the firm conclusion that the same evidence that makes the improperly admitted statements cumulative corroborates them.... ”); see also Perkins v.

Herbert, 596 F.3d 161, 178 (2d Cir.2010); Jones, 206 F.3d at 957; Crespin v. New Mexico, 144 F.3d 641, 650 (10th Cir.1998); cf. Olden v. Kentucky, 488 U.S. 227, 233, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (per curiam) (holding that the petitioner’s confrontation rights were violated, and that, under Van Arsdall, the violation was not harmless beyond a reasonable doubt, where it concerned the limitation of cross-examination of the prosecution’s key witness, and the only other corroborating evidence was substantially questionable); Slovik v.

Yates, 556 F.3d 747, 755-56 (9th Cir.2009) (holding that a Confrontation Clause violation—• resulting from a limitation imposed on the cross-examination of a key witness— amounted to a “substantial and injurious impact on the jury’s decision” where the only potentially cumulative evidence offered was “shaky” and nonspecific). Mr. Littlejohn has pointed to no compelling reason why the jury could not credit Mr. Hulsey’s testimony, or the other evidence further corroborating it. See, e.g., R., Vol. 1, pt.

II, at 239 (noting that “[additional evidence showed that all of the bullet fragments found at the scene were part of a single .380 bullet”—viz., from the type of gun Mr. Hulsey testified to seeing in Mr. Littlejohn’s possession). Third, Mr. Littlejohn’s attorney thoroughly cross-examined the witnesses at the 1994 trial. See Littlejohn II, 85 P.3d at 298. The entire transcripts of the testimony of Ms. Ware and Ms. Harris were read into evidence, providing context for the jury to consider the deficiencies in the testimony. Furthermore, the prosecution at the 1994 trial repeatedly impeached Ms. Ware and Ms.

Harris, in order to elicit answers they had previously given at a preliminary hearing that were inconsistent with the answers they offered in direct examination. Just to provide one example, Ms. Ware testified that she did not know that money she received from Mr. Bethany came from the robbery, when in fact she had previously testified that she believed the funds were tainted. See State R., Vol. V, 1994 Trial Tr. at 84-85. Similarly, there were discrepancies between their stories. See, e.g., R., Vol. 1, pt. II, at 236 (“Ms. Ware testified that she heard Petitioner say that he did not mean to shoot Mr.

Meers who came after him with a broom. Ms. Harris testified similarly, but recalled that Petitioner said that Mr. Meers had a gun in his hand.”). The prosecution’s repeated need to impeach these witnesses, along with the inherent discrepancies between their own stories, undermined the persuasive value of their testimony. These factors collectively diminished any harm that may have attended the introduction of the testimony of the two women without the opportunity for contemporaneous cross-examination of them on the witness stand. Cf. United States v.

Burke, 571 F.3d 1048, 1057-58 (10th Cir.2009) (“The extent of the cross-examination [and impeachment] actually conducted ... diminishes the risk of prejudice .... ”); see also Wiggins, 635 F.3d at 121-25. Mr. Littlejohn stresses that the Confrontation Clause provides him the right to physically face his accusers and to have the jurors assess the demeanor of the witnesses against him. See, e.g., Pennsylvania v.

Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (“The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.”). He contends that the district court (and the OCCA) improperly overlooked the importance of the foregoing consideration, and “rested [their decisions] largely on the proposition [that] the witnesses’ testimony ... was reliable.” Aplt. Opening Br. at 59. Mr. Littlejohn is correct that he has the right to physically face his accusers.

And we acknowledge that the jury’s consideration of a witness’s demeanor is no doubt an important aspect of the Confrontation Clause’s protections. See, e.g., California v. Green, 399 U.S. 149, 157-58, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (referencing Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895)). However, we disagree that this facet of the assumed violation of Mr. Littlejohn’s Confrontation Clause rights definitively tilts the scales in favor of a finding of reversible prejudice.

The admission of out-of-court testimony in violation of a defendant’s confrontation rights entails an inquiry somewhat different than that used to assess unconstitutional restrictions on the ability of the defendant to test the witness at trial. See Coy, 487 U.S. at 1020, 108 S.Ct. 2798 (noting that the Confrontation Clause encompasses numerous “implicit” rights, including “the right to cross-examine [and ] the right to exclude out-of-court statements” (citation omitted)).

Specifically, the admission of out-of-court testimony in violation of the Confrontation Clause will invariably result in the inability of a jury to assess the demeanor of the declar-ant. However, that does not mean that, in such circumstances, the application of harmless-error review is a futile exercise. Indeed, in this context, the Supreme Court has recognized that counsel’s prior ability to cross-examine an unavailable declarant in a prior proceeding that was not “significantly limited in any way” counsels in favor of a finding of no underlying violation. Green, 399 U.S. at 166, 90 S.Ct. 1930.

Here, we find the same considerations found in Green weigh in favor of a finding of harmless error because Mr. Littlejohn’s counsel was not at all precluded from thoroughly cross-examining Ms. Ware and Ms. Harris at the 1994 trial. Consequently, Mr. Littlejohn’s arguments under the Confrontation Clause must be rejected. On the facts presented, we cannot say that “[g]rave doubt” exists as to the effect of the (assumed) Confrontation Clause error or that “the matter is so evenly balanced that ... [we feel] in virtual equipoise regarding the error’s harmlessness.” Patton v.

Mullin, 425 F.3d 788, 800-01 (10th Cir.2005) (quoting O’Neal, 513 U.S. at 435, 115 S.Ct. 992) (internal quotation marks omitted). E. Impelling of Testimony Mr. Littlejohn next claims that the re-sentencing court erred in admitting redacted portions of the testimony that he gave during the 1994 trial because he was “impelled” to testify in order to deny erroneous allegations made by a jailhouse informant. He claims that the prosecution’s use of his 1994 testimony violated Harrison v.

United States, which prohibits the introduction into evidence of a defendant’s testimony that is “impelled” by the evidentiary use of the same defendant’s illegally procured confessions. 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); see id. at 223 n. 9, 88 S.Ct. 2008 (“[

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