Ronald Clinton LOTT, Petitioner-Appellant, v. Anita TRAMMELL, Interim Warden, Oklahoma State Penitentiary, Respondent-Appellee, 705 F.3d 1167

BRISCOE, Chief Judge. This is a death penalty appeal involving two murders that were committed over twenty-five years ago. Petitioner Ronald Lott was convicted by an Oklahoma jury of two counts of first-degree murder in December 2001. The state trial court, in accordance with the jury’s verdict, sentenced Lott to death on both counts in January 2002. After his direct appeal and application for state post-conviction relief were unsuccessful, Lott sought federal ha-beas relief by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied Lott’s petition.

Having been granted a certificate of appealability with respect to several issues, Lott now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the district court’s denial of federal habeas relief. I The Fowler and Cutler murders The basic facts of the murders committed by Lott were described by the Oklahoma Court of Criminal Appeals (OCCA) when ruling on Lott’s direct appeal: Sometime after 10:30 p.m., September 2, 1986, Anna Laura Fowler was attacked in her home, raped and murdered. Mrs. Fowler was 83 years old and lived alone. As a result of the attack, Mrs.

Fowler suffered severe contusions on her face, arms and legs, and multiple rib fractures. She died from asphyxiation. Zelma Cutler lived across the street from Mrs. Fowler. Mrs. Cutler was 93 years old and lived alone. During the early morning hours of January 11, 1987, Mrs. Cutler was attacked, raped and murdered in her home. Mrs. Cutler suffered severe contusions on her arms and legs as a result of the attack. She also suffered multiple rib fractures. Mrs. Cutler died from asphyxiation. Lott v. State (Lott I), 98 P.3d 318, 327 (Okla.Crim.App.2004) (internal paragraph numbers omitted).

The OCCA’s description, although accurate, fails to convey fully the brutal nature of the rapes and murders. In both instances, the victims were vaginally raped and orally sodomized. Further, the evidence presented at trial suggested that Fowler was anally raped and that the perpetrator attempted to anally rape Cutler as well. Lastly, the evidence presented at trial suggested that the rib fractures sustained by Fowler and Cutler occurred as a result of the perpetrator sitting directly on their chests and either orally sodomizing them and/or suffocating them with pillows after the attack.

Post-crime events leading to Lott’s identification Notably, another individual, Robert Miller, was initially arrested, charged, and convicted of the Fowler and Cutler murders. Id. But, notwithstanding Miller’s arrest, two additional elderly women living in the Oklahoma City area were attacked and raped in their homes, in a manner similar to the attacks on Fowler and Cutler. And Lott proved to be responsible for those crimes: Subsequent to Miller’s arrest, Grace Marshall was attacked and raped in her home on March 22,1987. Eleanor Host-er was attacked and raped in her home on May 7, 1987. Both Mrs.

Marshall and Mrs. Hoster were elderly ladies who lived alone. With the exception that Mrs. Marshall and Mrs. Hoster were not killed after being raped, there were striking similarities between the attacks on the four women. [Lott] was arrested, charged, and ultimately plead [sic] guilty to committing the rapes against Mrs. Marshall and Mrs. Hoster. Id. In the early 1990s, DNA testing established that Lott, rather than Miller, had raped Fowler and Cutler. Id. At that time, Lott was still incarcerated and serving time in connection with the Marshall and Hoster rape convictions.

The state trial proceedings On March 10, 1995, an amended information was filed in the District Court of Oklahoma County, Oklahoma, Case No. CF-87-963, jointly charging Lott and Miller with two counts of first-degree malice aforethought murder (Count 1 was for the murder of Fowler and Count 2 was for the murder of Cutler) and, in the alternative, with two counts of first-degree felony murder. On January 30, 1996, however, those charges were dismissed at the request of the State. On or about March 19, 1997, the State reinstated the case by filing a third amended information against Lott and Miller.

The trial court appointed the Oklahoma Indigent Defense System (OIDS) to represent Lott. On March 20, 1998, the State filed a bill of particulars asserting that Lott “should be punished by death ... due to and as a result of’ the existence of three “aggravating circumstance(s)”: (1) the murders were “especially heinous, atrocious, or cruel”; (2) the murders were “committed for the purpose of avoiding or preventing a lawful arrest or prosecution”; and (3) “[t]he existence of a probability that [Lott] would commit criminal acts of violence that would constitute a continuing threat to society.” State R., Vol.

II, at 249. On November 13, 2000, the State filed a fourth amended information. Although the fourth amended information continued to charge Lott with two counts of first-degree malice aforethought murder and, in the alternative, two counts of first-degree felony murder, the charging language differed significantly from that of the third amended information.

Whereas the third amended information alleged that the first-degree malice aforethought murder counts, as well as the felony murder counts, were “feloniously committed ... by Robert Lee Miller Jr. and Ronald Clinton Lott ... acting jointly [and] willfully,” id., Vol. I, at 47, the fourth amended information (

a) omitted from the first-degree malice aforethought murder charges the allegations that Lott acted jointly with Miller, thus leaving only Lott as the named defendant in those counts, and (

b) altered the felony murder counts to allege that Lott was “aided and abetted by ... Miller.” Id., Vol. IV, at 735. The case proceeded to trial on October 29, 2001. But a mistrial occurred: In the middle of trial, the State requested a continuance when the medical examiner revealed he had evidence in his possession that had never been tested. The State requested the continuance so LabCorp could test the newly discovered evidence. The defense requested a mistrial. The State agreed to the mistrial if the defense would agree to stipulate to a continuance and stipulate to the chain of custody.

The mistrial was granted and the trial rescheduled for December 3, 2001. Lott I, 98 P.3d at 328 n. 3. The December 2001 trial proceeded as scheduled. At the conclusion of the first-stage evidence, the jury found Lott guilty of both murders. At the conclusion of the second-stage proceedings, the jury found, with respect to each of the counts of conviction, the existence of two of the three alleged aggravating circumstances: that the murders were especially heinous, atrocious, or cruel, and that the murders were committed for the purpose of avoiding or preventing a lawful arrest or prosecution.

The jury in turn fixed Lott’s punishment at death for each of the two counts of conviction. On January 18, 2002, the state trial court formally sentenced Lott to death for each of the two murder convictions. Judgment in the case was entered that same day. Lott’s direct appeal Lott filed a direct appeal asserting seventeen propositions of error. On September 9, 2004, the OCCA issued a published opinion affirming Lott’s convictions and death sentences. Lott filed a petition for writ of certiorari with the United States Supreme Court, but his petition was denied on March 28, 2005. Lott v.

Oklahoma, 544 U.S. 950, 125 S.Ct. 1699, 161 L.Ed.2d 528 (2005). Lott’s application for state post-conviction relief On August 9, 2004, Lott filed with the OCCA an application for post-conviction relief, as well as a motion for an evidentia-ry hearing and discovery. On November 22, 2004, the OCCA issued an opinion denying Lott’s application for post-conviction relief and his motion for an evidentiary hearing and discovery.

Lott’s federal habeas proceedings Lott initiated these federal habeas proceedings on August 4, 2005, by filing a petition for writ of habeas corpus, as well as motions for appointment of counsel and to proceed in forma pauperis. The district court granted Lott’s motion for appointment of counsel. On February 17, 2006, Lott’s appointed counsel filed a petition on Lott’s behalf asserting twenty-two grounds for relief. On March 31, 2011, the district court issued a memorandum opinion denying Lott’s petition.

The district court entered judgment in the case that same day, and also issued an order granting Lott a certificate of appealability (COA) with respect to seven of the twenty-two grounds raised in his petition. On April 7, 2011, Lott filed a notice of appeal. We subsequently granted Lott a COA as to three additional issues. Lott has since filed an appellate brief asserting a total of eight propositions of error. II Standards of review Our review of Lott’s appeal is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Snow v. Sirmons, 474 F.3d 693, 696 (10th Cir.2007).

Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts. Id. As a result, our focus here is upon the rulings of the OCCA, not those of the federal district court.

If a claim was addressed on the merits by the state courts, we may not grant federal habeas relief on the basis of that claim unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). “When 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. “This standard does not require our abject deference, but nonetheless prohibits us from substituting our own judgment for that of the state court.” Snow, 474 F.3d at 696 (internal quotation marks and citation omitted). If a claim was not resolved by the state courts on the merits and is not otherwise procedurally barred, our standard of review is more searching.

That is, because § 2254(d)’s deferential standards of review do not apply in such circumstances, we review the district court’s legal conclusions de novo and its factual findings, if any, for clear error. McLuckie, 337 F.3d at 1197. Ill Analysis 1) Speedy trial claim In Proposition One of his appellate brief, Lott contends that the state trial court violated his Sixth Amendment rights by denying his motions to dismiss the criminal proceedings on speedy trial grounds.

a) Clearly established Supreme Court precedent Lott points to the Supreme Court’s decision in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), as providing the clearly established federal law applicable to his claim. In Klopfer, the Supreme Court held “that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment,” 386 U.S. at 223, 87 S.Ct. 988, and that, consequently, the Sixth Amendment right to a speedy trial “is to be enforced against the States under the Fourteenth Amendment.” Id. at 222, 87 S.Ct. 988 (internal quotation marks omitted).

The Court in Klopfer also addressed a unique aspect of North Carolina criminal procedure, under which “the prosecuting attorney of a county, denominated the solicitor, ... may take a nolle prosequi ” “if he does not desire to proceed further with a prosecution.” Id. at 214, 87 S.Ct. 988. Notably, “the taking of [a] nolle prosequi does not permanently terminate proceedings on the indictment.” Id.

Instead, the Court noted, “the case may be restored to the trial docket when ordered by the judge upon the solicitor’s application,” and “if the solicitor petitions the court to nolle prosequi the case ‘with leave,’ the consent required to reinstate the prosecution at a future date is implied in the order and the solicitor (without further order) may have the case restored for trial.” Id. (internal quotation marks omitted).

Because “the indictment is not discharged by either a nolle prosequi or a nolle prosequi with leave, the statute of limitations remains tolled.” Id. “The consequence of this extraordinary criminal procedure,” the Court noted, is that “[a] defendant indicted for a [crime] may be denied an opportunity to exonerate himself in the discretion of the solicitor and held subject to trial, over his objection, throughout the unlimited period in which the solicitor may restore the case to the calendar.” Id. at 216, 87 S.Ct. 988.

Ultimately, the Court held that this procedure denies a criminal defendant “the right to a speedy trial ... guaranteed to him by the Sixth Amendment.” Id. at 222, 87 S.Ct. 988. Lott also relies on the Supreme Court’s decisions in United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982), and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In MacDonald, the Court noted the general contours of the Sixth Amendment right to a speedy trial: “no Sixth Amendment right to a speedy trial arises until charges are pending,” and “the Speedy Trial Clause has no application after the Government, acting in good faith, formally drops charges.” 456 U.S. at 7, 102 S.Ct. 1497.

In turn, the Court noted that the purpose of “[t]he Sixth Amendment right to a speedy trial is ... not ... to prevent prejudice to the defense caused by passage of time,” but rather “to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges.” Id. at 8, 102 S.Ct. 1497.

In Barker, the Court adopted a “balancing test” for purposes of determining whether a criminal defendant’s Sixth Amendment right to a speedy trial has been violated. 407 U.S. at 530, 92 S.Ct. 2182.

Four factors are relevant under that balancing test: “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. “The length of the delay,” the Court noted, “is to some extent a triggering mechanism” because “[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Id. “Nevertheless,” the Court stated, “the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case,” including, for example, the seriousness and complexity of the pending charges.

Id. at 530-31, 92 S.Ct. 2182. “Closely related to length of delay,” the Court noted, “is the reason the government assigns to justify the delay,” and “different weights should be assigned to different reasons.” Id. at 531, 92 S.Ct. 2182. “[T]he third factor, the defendant’s responsibility to assert his right, ... is closely related to the other [three] factors.” Id. “The defendant’s assertion of his speedy trial right,” the Court stated, “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Id. at 531-32, 92 S.Ct. 2182.

The fourth factor, prejudice to the defendant, “should be assessed,” the Court held, “in the light of the interests of defendants which the speedy trial right was designed to protect,” i.e., “(

i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Id. at 532, 92 S.Ct. 2182. The Court emphasized that “[o]f these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id. “In sum,” the Court held, “none of the four factors [is] ... either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial.” Id. at 533, 92 S.Ct. 2182. “Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Id.

b) The OCCA’s rejection of Lott’s claim Lott asserted his speedy trial claim on direct appeal, “claiming that] all four [Barker] factors clearly weigh[ed] in his favor and that his speedy trial right ha[d] been unquestionably denied.” Lott I, 98 P.3d at 327. The OCCA agreed that “the length of delay” between the filing of the third amended information and the date of trial, which it calculated to be “approximately 4 years and 10 months,” “was ... substantial ... and ... sufficient ... to necessitate a review of the other three [Barker] factors.” Id. at 328.

Although the OCCA agreed that the first and third Barker factors (length of the delay and assertion of the right by the accused) “weighted] in [Lott]’s favor,” it concluded that the remaining two Barker factors (reasons for the delay and prejudice) “favor[ed] the State.” Id. at 333. And the OCCA ultimately concluded that Lott “was not deprived of his speedy trial rights ..., based upon the finding of reasonable reasons for the delay, the absence of significant prejudice, and the less-than egregious deprivation of liberty.” Id.

c) Lott’s challenges to the OCCA’s decision In this federal habeas appeal, Lott focuses much of his attention on what he perceives as flaws in the district court’s analysis of the Barker factors, rather than focusing exclusively on the OCCA’s analysis of those factors. Because, however, the OCCA resolved the speedy trial claim on the merits, § 2254(

d) requires us to focus exclusively on the OCCA’s analysis of the claim. Accordingly, we shall give Lott the benefit of treating his arguments as challenges to the OCCA’s decision, rather than the district court’s decision. 1) Length of the delay Lott argues that, with respect to the first Barker factor, i.e., length of the delay, “the day he was first charged [with the Fowler and Cutler murders], March 10, 1995, is the appropriate start date for assessing his speedy trial date.” Aplt. Br. at 30.

Consequently, he asserts, “[t]he length of delay between that date and the start of trial was six years and eight months.” Id. In support, Lott asserts that the prosecution “did not act in good faith” in dismissing the original charges and refiling them. Id. at 31. And, he argues, his “situation is virtually identical to the facts of [Klopfer ].” Id. at 33. The OCCA concluded that Lott’s “reliance on Klopfer ... [wa]s misplaced.” Lott I, 98 P.3d at 328.

Specifically, the OCCA noted that in Klopfer, “the prosecutor was able to suspend proceedings indefinitely” and “the charges were not dismissed,” whereas in Lott’s case, the original charges against Lott were dismissed entirely and Lott “was incarcerated for a separate crime at the time [of the dismissal].” Id. The OCCA’s holding in this regard is neither contrary to, nor an unreasonable application of, Klopfer. In all key respects, Lott’s case differs from Klopfer.

Most importantly, unlike Klopfer, the original charges against Lott were dismissed rather than simply suspended, and thus Lott did not remain “subject to trial” during the time period between the dismissal of the charges on January 30, 1996, and the filing of the third amended information on March 19, 1997.

Klopfer, 386 U.S. at 216, 87 S.Ct. 988. 2) Reasons for the delay Lott contends that the OCCA unreasonably applied Barker in concluding that the reasons for the delay “w[ere] not solely attributable to the State,” and that “the majority of the delays were necessary to further the ends of justice and ensure that [Lott] received a fair and impartial trial.” Lott I, 98 P.3d at 331. In support, Lott “asserts that the record reveals ample evidence of deliberate delay by the State.” Aplt. Br. at 34. Most notably, Lott asserts, was “[t]he conduct of Judge Owens, the original trial judge.” Id. at 36.

Lott argues that “[although Judge Owens presided over the case from March 20, 1998 until he retired in January of 1999, he did next to nothing to advance ... Lott’s speedy trial interests.” Id. at 36-37. Lott asserts that only once during the nine months that Judge Owens presided over the case did Lott or his counsel appear before the court, and on that occasion (May 1, 1998), “Judge Owens continued the [matter].” Id. at 37.

Lott argues that “[t]he record and circumstances strongly suggest that Judge Owens was well aware, long before January of 1999, that he intended to retire,” and “he obviously decided early on that he would not take any steps to move the case along.” Id. In short, Lott argues, Judge Owens engaged in “purposeful conduct,” i.e., delay, “designed to thwart ... Lott’s fundamental constitutional rights.” Id.

But the OCCA, citing the state trial court’s factual findings (made in connection with its denial of Lott’s motion to dismiss on speedy trial grounds), rejected these same arguments: In this regard, the trial court found[, after conducting an evidentiary hearing,] the case was delayed due to scheduling conflicts of both court and counsel. The trial court found that the docket of Judge Owens was such that he could not have tried a case of this magnitude during the four month time period encompassing the final completion of the preliminary hearing transcript and the date of his retirement.

The trial court noted that Judge Owens chose not to hear any pre-trial motions in this case as he would not be the presiding judge at trial. The trial court found no defense request for trial during the time the case was pending before Judge Owens.

Section 812.2(A)(2)(

g) and (i) [of the Oklahoma statutes] require the court to look at whether the delay occurred because “the court has other cases pending for trial that are for persons incarcerated prior to the case in question, and the court does not have sufficient time to commence the trial of the case within the time limitation fixed for trial,” and “the court, state, accused, or the attorney for the accused is incapable of proceeding to trial due to illness or other reason and it is unreasonable to reassign the case.” While we do not know from the record whether Judge Owens had other cases pending for trial that were for persons incarcerated longer than Appellant, we do have the trial court’s finding that Judge Owens’ docket was such that he could not try a case of this complexity prior to his retirement.

While these delays appear to be a deliberate postponement of the case, taking judicial notice of the large caseload of criminal cases in the District Court of Oklahoma County, and the complex nature of the present case, we do not dispute the trial court’s finding that the delay pending Judge Owens’ retirement was reasonable. Therefore, this delay does not weigh in Appellant’s favor. Lott I, 98 P.3d at 329 (footnote and internal paragraph numbers omitted). Lott does not seriously dispute any of the above-referenced factual findings that were made by the state trial court and relied on by the OCCA.

For example, Lott does not dispute, and the record confirms, that at no time while Judge Owens was presiding over the case did defense counsel request a trial or assert that Lott’s speedy trial rights were being violated. As for the state trial court’s findings regarding Judge Owens’ docket, there is simply no evidence in the record to either confirm or dispute those findings. Because the burden rests on Lott to establish that the OCCA’s analysis was “based on an unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2), he has failed in this regard.

Lott next takes issue with the OCCA’s determination that the state trial court’s decision to grant two continuances requested by the State in order to conduct mitochondrial DNA testing “were reasonable and prudent.” Lott I, 98 P.3d at 330. According to Lott, “scientific advances are commonplace and as a matter of public policy should not be permitted as justification for delaying justice or denying constitutional rights.” Aplt. Br. at 38.

And, Lott argues, “the State’s wrongful and nearly fatal prosecution and conviction of one innocent man[, Miller,] should not be accepted as justification for discarding the constitutional rights of another man presumed innocent.” Id. Lott’s arguments, however, do nothing to establish that the OCCA’s determination was an unreasonable application of clearly established federal law. In Barker, the Supreme Court expressly recognized that, in assessing “the reason the government assigns to justify [a particular] delay,” “different weights should be assigned to different reasons.” 407 U.S. at 531, 92 S.Ct. 2182.

Given the unusual background of this ease, specifically the erroneous conviction of Miller, and the serious nature of the potential punishment, the OCCA concluded, and we cannot dispute, that it was entirely reasonable for the state trial court to have allowed the State sufficient time to analyze the forensic evidence. In turn, the OCCA’s classification of the State’s conduct as “reasonable and prudent” was neither contrary to, nor an unreasonable application of, Barker.

Lastly, Lott contends that it was unreasonable for the OCCA to conclude that the delay from June 2, 2000, when Lott’s motion to dismiss on speedy trial grounds was denied by the state trial court, to November 13, 2000, the rescheduled trial date set by the state trial court (which included time to allow Lott to seek mandamus relief from the OCCA) “d[id] not weigh in [Lott]’s favor as [the mandamus action] was ultimately unsuccessful.” Lott I, 98 P.3d at 330.

In support, Lott argues that “[s]eeking a remedy for a colorable constitutional violation is a valid reason, particularly since had [his] speedy trial rights been vindicated by the OCCA, his mandamus action would have spared the State the considerable time and expense it took to try and convict him.” Aplt. Br. at 39. In short, he argues, “[i]t is patently unfair to tax [him] for promptly and zealously seeking to vindicate his constitutional rights.” Id. We reject Lott’s arguments. In reaching its conclusion, the OCCA relied in part on the Supreme Court’s decision in United States v.

Loud Hawk, 474 U.S. 302, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986). In Loud Hawk, the Supreme Court considered how, under the Barker test, “to weigh the delay occasioned by an interlocutory appeal when the defendant is subject to indictment or restraint.” Id. at 312, 106 S.Ct. 648. The Court concluded, in pertinent part, that “[i]n that limited class of cases where a pretrial appeal by the defendant is appropriate, delays from such an appeal ordinarily will not weigh in favor of a defendant’s speedy trial claims.” Id. at 316, 106 S.Ct. 648 (citation omitted).

The Court noted that “[a] defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy trial.” Id. Although Lott now attempts to distinguish his case from Loud Hawk, arguing that he filed a mandamus action rather than an interlocutory appeal, and that the speedy trial claim he asserted was not meritless, the OCCA reasonably relied on Loud Hawk in concluding that the delay associated with the mandamus action did not weigh in Lott’s favor.

Indeed, the critical holding in Loud Hawk, quoted above, was not contingent upon the procedural vehicle used by a criminal defendant to appeal, or upon the meritoriousness of the arguments asserted by the defendant.

S) Assertion of the speedy trial right Lott argues that the OCCA, although weighing the third Barker factor in his favor, “miscalculated the number of times [he] asserted [his speedy trial] right,” and thus “failed to give this factor sufficient weight in performing the balancing required by Barker.” Aplt. Br. at 40. In particular, Lott contends that the OCCA “failed to recognize at least three occasions on which [he] vigorously asserted his speedy trial rights.” Id. We reject Lott’s arguments.

To begin with, the OCCA did not make a definitive finding regarding the precise number of times that Lott asserted his speedy trial rights in the state trial court. Instead, it simply noted that he “made an affirmative request for a speedy trial on at least nine different occasions.” Lott I, 98 P.3d at 331. Moreover, the OCCA noted that the third Barker factor was satisfied because Lott was incarcerated while awaiting trial. Id. (“As for the third factor, ... incarceration makes the demand for one in custody.”).

And, most importantly, the OCCA expressly indicated that Lott’s assertion of his speedy trial right was “entitled to strong evidentiary weight in determining whether [he] [wa]s ... deprived of the right.” Id. (internal quotation marks omitted). Thus, there is no basis for concluding that the OCCA’s analysis was unreasonable, or that the outcome of its Barker analysis would have been different had it taken into account additional instances of Lott asserting his speedy trial rights. Again, Lott prevailed on this point.

The OCCA concluded Lott had affirmatively asserted his speedy trial rights and weighed that Barker factor in Lott’s favor.

h) Prejudice Lott contends that the OCCA unreasonably analyzed and applied the fourth Barker factor, prejudice. Lott suggests, as an initial matter, that the length of the delay in his case (which he continues to argue should be considered to be six years and eight months), standing alone, should have been considered prejudicial. Aplt. Br. at 41^42. Lott further argues that he suffered actual prejudice due to the fact that, as a result of the DNA testing, the State was able to “address weaknesses in its case and shore up its prosecution.” Id. at 42.

Lastly, Lott contends that he also suffered prejudice because a potential defense witness, Janis Davis Lhyane, a forensic chemist who worked for the Oklahoma City Police Department, died prior to his trial. He explains: Lott was prejudiced by ... Lhyane’s death because she had testified at Robert Miller’s trial that while conducting DNA testing on evidence from the Fowler crime scene she found a Caucasian hair. The hair which caused the contamination of the evidence turned out to be ... Lhyane’s hair. In addition, three other Caucasian hairs were found, and belonged neither to ... Lhyane or ... Fowler.

Id. at 43 (citations omitted). The first and third of these arguments must be rejected because they were not presented to the OCCA in Lott’s direct appeal. Specifically, nowhere in his direct appeal brief did Lott argue that the length of the delay, standing alone, was presumptively prejudicial, nor did he argue that he was prejudiced by Lhyane’s death. See Direct Appeal Br. at 22-24. Consequently, the OCCA was not asked to, and thus did not, address these arguments. And we, in turn, cannot address the arguments because they are subject to an anticipatory procedural bar. See Anderson v.

Sirmons, 476 F.3d 1131, 1139-40 n. 7 (10th Cir.2007) (“ ‘Anticipatory procedural bar’ occurs when the federal courts apply procedural bar to an unexhausted claim that would be procedurally barred under state law if the petitioner returned to state court to exhaust it.” (internal quotation marks omitted)). Moreover, even if we were to assume, for purposes of argument, that Lott could circumvent this anticipatory procedural bar, there is no merit to his first and third arguments. Lott’s “presumptive prejudice” argument is based upon the Supreme Court’s decision in Doggett v.

United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992). In Doggett, the Court held that a delay of eight-and-one-half years between the defendant’s indictment and his arrest, which was caused by government negligence, violated his Sixth Amendment right to a speedy trial. 505 U.S. at 657-58, 112 S.Ct. 2686. In this case, in contrast, the delay was substantially shorter, roughly half of the delay that was at issue in Doggett. Thus, it was reasonable for the OCCA to have engaged in the Barker balancing test, rather than simply concluding that the length of the delay, standing alone, warranted relief.

As for Lott’s assertion that he was prejudiced by Lhyane’s death, his explanation of that prejudice simply makes no sense. Moreover, Lott’s trial counsel made the jury aware that unidentified Caucasian hairs were found at the Fowler crime scene. Precisely how Lhyane’s testimony would have further aided Lott in this regard is unclear. That leaves only Lott’s argument that he was prejudiced because the State was able to strengthen its case against him by way of the additional DNA testing.

The OCCA, however, expressly rejected this argument, noting [t]he delays in the trial did not prevent [Lott] from challenging the expertise and credibility of any of the experts conducting DNA analysis. Further, the science of DNA testing is rapidly progressing and it was to the benefit of both the State and the defense to have the evidence subjected to the latest and most accurate type of analysis. Such testing could have very easily been exculpatory and therefore benefited [Lott]. The fact that the results proved favorable to the State and not [Lott] is not grounds upon which to base a finding of prejudice....

We find [Lott] was not prejudiced by the delays as his defense was not hindered or impaired. Lott I, 98 P.3d at 332. Although Lott clearly disagrees with this analysis, he has failed to identify any clearly established law that mandates a different result. Likewise, he has failed to demonstrate that the OCCA’s analysis of this argument is in any way contrary to, or an unreasonable application of, Barker. 5) Balancing of the Barker factors Finally, Lott contends that the OCCA’s balancing of the four Barker factors was unreasonable.

But his only argument in support is that, instead of the OCCA’s conclusion that two of the factors favored the State and two factors favored Lott, the OCCA should have treated “all four factors [as] favor[ing] [him].” Aplt. Br. at 43-44. For the reasons we have outlined, however, Lott has failed to establish that the OCCA erred in concluding that two of the Barker factors favored the State.

Consequently, Lott has in turn failed to establish that the OCCA’s balancing of the Barker factors was erroneous. 2) Erroneous aiding and abetting instruction In Proposition Two of his appellate brief, Lott contends that the state trial court violated his constitutional rights by instructing the jury that he could be found guilty of felony murder on an accomplice liability theory, even though the prosecution at a pretrial motions hearing had disavowed rebanee on an aiding and abetting theory of felony murder.

Relatedly, Lott contends that the prosecution and the state trial court effectively induced his trial counsel to act ineffectively and concede Lott’s guilt on the felony murder charges without Lott’s consent.

a) Background facts As we have noted, the fourth amended information filed by the State on November 13, 2000, charged Lott with two counts of first-degree malice aforethought murder and, in the alternative, two counts of first-degree felony murder. The felony murder charges in the fourth amended information alleged, in pertinent part, that Lott was “aided and abetted by ... Miller.” State R., Vol. IV, at 735.

At a pretrial motions hearing on March 23, 2001, the state trial court and the parties discussed the question of whether the defense would be allowed to introduce evidence regarding Miller’s potential involvement in the crimes. In the course of that discussion, the parties referred to the aiding and abetting language contained in the fourth amended information. To begin with, the prosecutor argued that the aiding and abetting language was “surplusage” that did not impose any “extra burden [on the State] to prove a connection between [Lott and Miller].” Mot. Hr’g Tr., at 16, Mar. 23, 2011.

Defense counsel argued, in response, that “[t]hrough aiding and abetting they’re going to have to show some sort of mental coming together between Lott and Miller,” “[a]nd they can’t.” Id. at 19. The prosecutor responded: We have charged in count two the defendant as committing a felony murder, that he kibed these two ladies in the course of raping them. There is no aider and abettor language in there at all. There is the surplusage which charges Miller as—as conjointly acting. That’s not aider and abettor stuff. I don’t need to have any language for aider and abettor.

All I got to show is—is his commission of a felony rape, during the course of which these two ladies died. With or without Miller. It doesn’t matter. Id. at 35-36. Defense counsel in turn stated: What I want to say on the aiding and abetting, I don’t know if we’re—I just think that [the prosecutor] and I are somehow confused and I think it might be my fault, but if he wants to charge Ronnie Lott with felony murder—he has charged Ronnie Lott with felony murder, with aiding and abetting language in with Robert Miller. If Ronnie Lott is guilty of felony murder, a rape homicide, then so be it, put on the evidence.

But if you can’t draw a connection—and I’ve got some case law ... that does say you have to show some sort of meeting of the minds, so to speak, for aiding and abetting. If you got to show that, then any evidence we can put on pointing towards Robert Miller debunks not just the malice murder, but the felony murder. If we can put Robert Miller there and get the jury thinking, somebody committed this crime, but we’re not sure who and we can’t convict ... Ronnie Lott simply because we’ve got some evidence out there as to both of them, then that’s reasonable doubt.

The only way that we hurt ourselves' with the Robert Miller stuff is if, in fact, they’re right on an aiding and abetting theory. And I know [the prosecutor] keeps saying they’re not alleging it, but it’s in the language, and what I suspect is that we’re going to put on all our evidence of Robert Miller, they’re going to put on all their evidence of Ronnie Lott, and then, in closing argument, the State’s going to tell the jury it doesn’t matter who they believe because, even if they believe us, Ronnie Lott was aiding and abetting.

And what I’m saying is, under the law, we don’t think they can do that and I’ve got the law here to show you, Your Honor, and if that’s true, then it does make a big difference who the jury thinks. They may have some real suspicions about Ronnie Lott, you know, but if they got real suspicions about Robert Miller, too, and Ronnie Lott’s charged alone, it may be reasonable doubt. Id. at 37-38. After further discussion, the prosecutor stated: [The aider and abettor language in the information is] surplusage and it should be deleted to the extent that this seems to be confusing the issues.

We’re going to be entitled to an aider and abettor instruction as soon as [the defense] offer[s] the Miller evidence. Any time a defendant offers that kind of evidence, that, folks, if you believe Ronnie Lott raped these two women based on the DNA evidence, and but you also think that the guy who hatched the scheme and was rooting him on on the sideline is Robert Lee Miller, he’s just as guilty and he’s just as eligible for the death penalty.

I mean, yeah, that’s definitely what we’re going to do, but as far as that language charging him conjointly, it’s surplusage, whether the jury hears about, [sic] it whether it’s stricken. That makes sense to me. Id. at 40-41. Defense counsel asked the trial court, “can we still deal with the issue upon aiding [and] abetting today?” Id. at 41. The trial court responded, “Let’s wait and see how the evidence shakes out [at trial].” Id. At trial, the defense was permitted to introduce evidence regarding Miller’s potential involvement in the crimes.

This included evidence of Miller’s statements to the police, some of which suggested an intimate knowledge of the crimes that only someone present at the scene could have known, as well as evidence that Miller was originally charged with and convicted of the Fowler and Cutler murders. At the conclusion of the first-stage evidence, the trial court instructed the jury regarding the charges against Lott.

With respect to the felony murder charges, the instructions stated, in pertinent part: No person may be convicted of Murder In The First Degree (Felony Murder) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are: First, the death of a human; Second, the death occurred as a result of

an act or event, which happened in the commission of a forcible rape and a First Degree Burglary!;] Third, caused by the defendant or any person engaged with the defendant while in the commission of a forcible rape and a First Degree Burglary!;] Fourth, the elements of forcible rape and First Degree Burglary the defendant is alleged to have been in the commission of.... State R., Vol. VII, at 1211 (Instruction Number 7) (emphases omitted).

The jury instructions also addressed the concepts of principals and aiding and abetting: All persons concerned in the commission of a crime are regarded by the law as principals and are equally guilty thereof. A person concerned in the commission of a crime as a principal is one who directly and actively commits the acts constituting the offense or knowingly and with criminal intent aids and abets in the commission of the offense or whether present or not, advises and encourages the commission of the offense. Id. at 1215 (Instruction Number 10).

Merely standing by, even if standing by with knowledge concerning the commission of a crime, does not make a person a principal to a crime. Mere presence at the scene of a crime, or acquiescence in its commission, without participation, does not make a person a principal to a crime. One who does not actively commit the offense, but who aids, promotes, or encourages its commission, either by act or counsel or both, is not deemed to be a principal to the crime unless he did what he did knowingly and with criminal intent.

To aid or abet another in the commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting, or aiding in the commission of that criminal offense. Id. at 1216 (Instruction Number 11). Notably, Lott did not object to any of these instructions. Immediately following the trial court’s reading of the first-stage instructions, the parties gave their respective closing arguments. The prosecution, during its initial closing argument, discussed the elements of first-degree felony murder: Want to walk you through here because we’re not fussing about any of this.

This is the one that is real easy because it’s not in dispute in the evidence at all. First of all, that first element, death of a human, nobody’s fighting about that. Second, that it occurred as a result of the act or event which happened in the commission of forcible rape and first degree burglary. There is no dispute in the evidence, parties aren’t fussing at all that Zelma Cutler and Anna Fowler died during the commission of the acts of burglary and rape, okay. So that’s not in dispute.

Third, caused by the defendant or any person engaged with the defendant while in the commission of forcible rape and first degree burglary. Gang, that’s not in dispute. We may be fussing about who did what. They may want you to believe it’s Robert Miller who leans in and smothers Zelma Cutler or leans in and smothers the life out of Goldie Fowler instead of him because, as you can see, it doesn’t make any difference in felony murder. Okay. Fourth, the elements of forcible rape and first degree burglary, you got to find that that’s what was going on. Mr. Albert took care of that.

He was laughing at me for suggesting that this wasn’t a burglary. I think it was Mr. Albert. It may have been one of the other lawyers over yonder. They were—Mr. Albert was angry at me in suggesting that the evidence was that this wasn’t a rape. So we’re not fighting about whether there was a burglary and a rape going on. And even if you believe everything that the defense seems to be suggesting, that Robert Miller leaned in and did the killing, it doesn’t matter. Now here’s why. The reason behind the rule, so you just don’t think we do this.

The reason behind the rule is, is that when two people agree to commit a crime and it involves one of these inherently violent crimes—burglarizing a home when somebody’s there, armed robbery, rape—crimes that are so dangerous that if the State proves that you deliberately participated in the commission of that crime, that that intent to commit the crime substitutes for the intent of malice aforethought.

Now, it has a huge affect [sic] when we start talking about the death penalty, but in terms of guilt on first degree murder, if you knowingly, intentionally participate in one of these listed crimes, really dangerous crimes like burglary and robbery and rape, and somebody dies, you’re on the hook for the murder. Now again, big difference in penalty, but as far as whether or not you’re guilty of murder, it’s easy.

So gang, if you can see this, you can see why when the defendant enters his plea of not guilty and you’re kind of scratching your head, gee, there must be a catch, the only catch is he entered a plea of not guilty because, under this instruction, even if you believe the stuff that the defense is talking about, that it’s Miller who did the killing, it doesn’t matter. Trial Tr., Vol. IX, at 1608-11. Continuing, the prosecution discussed the principal and aiding and abetting instructions: But what about Robert Miller? What about Robert Miller?

Judge told you that you were going to get an instruction at the end of the ease that was going to make all this clear and I want you to see how clear it really is. All persons concerned, you’re told in instruction number ten, in the commission of a crime are regarded by the law as principals and are equally guilty thereof. A person concerned in the commission of a crime as a principal is one who directly and actively commits the acts constituting the offense. That’s Ronald Lott. He actively commits the acts constituting the offense.

But a principal can also be one who knowingly and with criminal intent aids and abets in the commission of the events or, whether present or not, advises and encourages the commission of the offense? What does that criminal intent thing mean? It’s the design to commit a crime or acts, the probable consequences of which are criminal. Here’s the biggy. Hear’s [sic] the biggy. It’s instruction number eleven. Merely standing by with knowledge concerning the commission of a crime does not make a person a principal to the crime. Now, this may fly in the face of common sense, obviously that’s what Mr.

Albert[, defense counsel,] had in mind when he was saying, doesn’t it make Robert Miller as sick as—he didn’t say my client, but we are talking about Ronald Lott—doesn’t it make Robert Miller as sick as the rapist? Well, yeah; it just doesn’t make you guilty. Id. at 1612-13. Defense counsel’s closing argument focused in part on the possibility that Miller, rather than Lott, killed Fowler and Cutler. In discussing this issue, defense counsel stated, in pertinent part: Last face [the victims] may have seen may have been Miller’s, and that’s the way you got to look at this case.

We do cases about proof and about evidence. When [the prosecution] tell[s] you [it has] no evidence that Robert Miller was the killer, that cuts both ways because [it] also [has] no evidence what Ronald Lott was. None. I don’t know what you’re going to do with that DNA [evidence], but at worst [the prosecution] [has] proven that Ronald Lott was the rapist which we told you a long time ago. At worst. Id. at 1641. You know, since they want to use DNA, let’s use those terms. In proving this ease in this courtroom, they cannot exclude Robert Miller as the killer. That’s a DNA term for you.

They cannot exclude, because we all know he was there, we all know he knew things he shouldn’t have known, we all knew thing—he knew things that go right to the death of these ladies, right to their bodies. They cannot exclude in DNA terms Robert Miller as the killer and neither can you. That’s what it comes down to, comes down to proof. Since they can’t exclude him, then you have to have a reasonable doubt as to who the killer is. You may not like that. That’s the way it is. Id. at 1642-43.

The prosecution, in its final closing argument, seized on defense counsel’s statement that Lott was “at worst” the rapist: All right. At most he’s the rapist. At most Ronald Clinton Lott is the rapist of these two elderly ladies. [Defense counsel] just said it and that is guilty of felony murder, period. You can mark it down, check guilty on the box. He just said it. At most he’s guilty of felony murder and that’s what you have to decide right now. Id. at 1645. Nothing controverts that Ronald Clinton Lott is the rapist. As a matter of fact, his lawyer tells you that at worst that’s what he is. Id. at 1649.

Because the jury was provided with a general verdict form, it is unclear whether they found Lott guilty of first-degree malice aforethought murder or first-degree felony murder. See State R., Vol. VII, at 1248-49.

b) The OCCA’s rejection of Lott’s claim on direct appeal On direct appeal, Lott complained that the state trial court “instructed the jury that they could find [him] guilty if they believed that the deaths were caused by someone aiding and abetting [him] in the commission of the charged felonies,” and “[d]uring closing argument, [his] defense [counsel] conceded that [he] had raped the ladies, but maintained that Miller caused the deaths.” Direct Appeal Br. at 45.

In other words, Lott argued that the state trial court instructed the jury on an “uncharged theory of the case based on the defendant’s defense,” and that those instructions effectively “resulted in [a] concession of guilt” by defense counsel. Id. at 46. The OCCA rejected Lott’s arguments: In his fourth assignment of error, Appellant contends the trial court erred by instructing the jury on aiding and abetting. We review only for plain error as no objection was raised to the instruction. Bland v. State, 2000 OK CR 11, ¶ 49, 4 P.3d 702, 718, cert. denied, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001).

In support of his contention, Appellant relies on Lambert v. State, 1994 OK CR 79, 888 P.2d 494. In Lambert, the defendant was charged with malice aforethought murder. The trial court gave instructions on felony murder. The appellant argued he was not given sufficient notice of this theory in the information, and this Court reversed on this basis. 1994 OK CR 79, ¶¶ 45-48, 888 P.2d at 504. The situation in the present case is very different.

In a Fourth Amended Felony Information, filed approximately one year before trial, Appellant was charged with two counts of first degree malice aforethought murder for the deaths of Mrs. Fowler and Mrs. Cutler. In the alternative, he was charged with two counts of felony murder by aiding and abetting Robert Lee Miller, Jr., who in the commission of first degree burglary and first degree rape killed the victims. (O.R. 734-735).

The State’s theory throughout the proceedings was that Appellant committed the rapes, and that Appellant either killed the victims himself or he aided and abetted Miller in killing the victims. Unlike Lambert, Appellant was given plenty of notice concerning the State’s alternative theories of guilt. Further, the aiding and abetting instructions were warranted by the evidence. The State’s evidence included the results of DNA testing showing Appellant was the donor of the semen found at the crime scenes, and that Miller had been excluded as the semen donor.

The State also presented evidence showing Appellant had pled guilty to committing two other rapes under very similar circumstances as the charges on trial. During the cross-examination of several of the State’s witnesses, the defense established that Miller had made certain statements about the Fowler/Cutler crimes which were not known to the general public, and that based in part upon those statements, Miller had been previously convicted of committing the Fowler/Cutler homicides. During re-direct examinations, the State elicited testimony that it was possible there were two intruders into the homes of Mrs.

Fowler and Mrs. Cutler and that it was possible that one intruder killed the victims while the other watched. Additionally, during its case-in-chief, the defense introduced evidence concerning Miller’s prior prosecution in the Fowler/Cutler cases. Accordingly, the trial court did not abuse its discretion in giving the instructions on aiding and abetting instructions. See Cannon v. State, 1995 OK CR 45, ¶ 25, 904 P.2d 89, 99. See also Slaughter v. State, 1997 OK CR 78, ¶63, 950 P.2d 839, 857 n. 9., cert. denied, 525 U.S. 886, 119 S.Ct. 199, 142 L.Ed.2d 163 (1998).

Appellant further argues defense counsel was ineffective as counsel admitted guilt as to the felony murder charge without Appellant’s consent. This Court follows the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Bland, 2000 OK CR 11, ¶ 112, 4 P.3d at 730.

Under Strickland’s two-part test, the appellant must overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance by showing: [1] that trial counsel’s performance was deficient; and [2] that he was prejudiced by the deficient performance. Unless the appellant makes both showings, “it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Appellant must demonstrate that counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. at 688-89, 104 S.Ct. at 2065. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., 466 U.S. at 698, 104 S.Ct. at 2070.

When a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Id. at 697, 104 S.Ct. at 2069. This Court has stated the issue is whether counsel exercised the skill, judgment and diligence of a reasonably competent defense attorney in light of his overall performance. Bland, 2000 OK CR 11, ¶ 112, 4 P.3d at 731. Appellant relies on Jackson v. State, 2001 OK CR 37, ¶ 15, 41 P.3d 395, 398-399, where this Court reiterated its position that a concession of guilt does not amount to ineffective assistance of counsel, per se.

The Court stated, “a complete concession of guilt is a serious strategic decision that must only be made after consulting with the client and after receiving the client’s consent or acquiescence.” Id. at ¶ 25, 41 P.3d at 400. This Court placed the burden on the appellant to show that he was not consulted and that he did not agree to or acquiesce in the concession strategy. Id. Under the facts of the present case, and when all of the arguments are read in context, it is clear that guilt was not conceded.

The defense was well aware from early on that the State had DNA evidence which conclusively placed Appellant at the scene. The defense filed numerous pre-trial motions challenging that evidence. To counter the State’s evidence at trial, the defense showed that the scientific evidence relied upon 14 years ago to convict Robert Miller of the Fowler/Cutler crimes—hair and blood analysis—had since been proven unreliable. Defense counsel questioned whether DNA analysis might not also go the way of hair and blood analysis in light of future advances in forensic testing.

Counsel also argued that all the State had to prove Appellant’s guilt was DNA and that relying on DNA was like gambling and relying on mere probabilities. Defense counsel urged the jury not to let the State’s experts decide the case for them. The defense also presented evidence showing Miller’s involvement in the Fowler/Cutler crimes and his knowledge of details that only someone present at the crime scenes would have known. Defense counsel argued in closing argument that the evidence showed Miller wasn’t a mere observer to the crimes, but the actual perpetrator of the crimes.

Defense counsel also challenged the State’s alternative theories of guilt and argued the State could not assert that Miller was and was not the killer. Defense counsel argued that while Miller was in jail for the Fowler/Cutler crimes, other rape victims did not die. Defense counsel stated that when the State told the jury they had no evidence Miller was the killer, “that cuts both ways because they also have no evidence what Ronald Lott was.

None.” Counsel then stated, “I don’t know what you’re going to do with that DNA, but at worst they have proven that Ronald Lott was the rapist ...” Defense counsel further argued that merely because Miller was not included as a donor of the semen found at the scene, that did not mean that he was not a rapist and a killer. Counsel argued it merely showed Miller did not ejaculate at the scene. Counsel concluded his closing argument by asserting the State had not proven that Miller was not the killer, and because of that reasonable doubt as to Appellant’s guilt existed.

In light of this record, counsel’s statement that at worst “they have proven [Appellant] was the rapist” was not a concession of guilt to the charged crimes. This was an isolated comment within defense counsel’s approximately 11 page closing argument. Any perceived conciliatory aspect of the remark was not prejudicial to Appellant. Claiming that Appellant had not been involved at all would have completely destroyed counsel’s credibility before the jury in light of the strong evidence of guilt. See Wood v. State, 1998 OK CR 19, ¶ 60, 959 P.2d 1, 15-16.

From the record, it appears that minimizing Appellant’s role in the crimes in light of the DNA evidence was the best possible method to gain an acquittal on the charges. Accordingly, we do not find counsel’s performance deficient under the circumstances. This assignment of error is denied. Lott I, 98 P.3d at 336-38 (alteration in original) (internal paragraph numbers omitted).

c) Lott’s arguments in this federal ha-beas action In this appeal, Lott argues that “the OCCA ... miss[ed] the point” because “[t]he issue is not whether the evidence adduced at trial was sufficient to warrant an aiding and abetting instruction,” but rather “whether the prosecution should be permitted to specifically disavow an aiding and abetting charge pretrial, proceed to try [him] on charges that do not include an aiding and abetting theory, and then invite the jury to convict [him] of murder as an aider and abettor.” Aplt. Br. at 50.

In support, Lott argues that his “entire defense was ... based upon the State’s reassurances that not only had it disavowed the aiding and abetting theory of felony murder liability, but also had stricken the aiding and abetting language from the fourth amended information.” Id. at 51. “Only after the defense had presented its case,” Lott argues, “and after defense counsel had conceded to ... Lott’s involvement in the rapes, did the State spring its trap and renege on its promise.” Id.

The threshold, and clearly fatal, problem with Lott’s arguments is that they are based on a series of incorrect statements regarding what transpired in the state trial court. As we have explained, the prosecution admittedly agreed at the March 23, 2001, motions hearing to strike the aiding and abetting language from the fourth amended information. Importantly, however, the prosecution expressly reserved the right to reassert that language in the event that Lott presented evidence of Miller’s potential involvement in the charged crimes.

And it is undisputed that Lott did precisely that at trial, i.e., he presented evidence of Miller’s potential involvement in the murders. Thus, in no way did the prosecution “renege on its promise,” nor could Lott’s trial counsel have been surprised by the state trial court’s decision to instruct the jury on aiding and abetting. Indeed, as the OCCA found in rejecting these same arguments on direct appeal, Lott’s trial counsel did not object to the trial court’s aiding and abetting instructions.

And because the state trial court read its instructions to the jury prior to the first-stage closing arguments, Lott’s trial counsel was well aware that the jury would be permitted to consider an aiding and abetting theory of felony murder liability. Relatedly, the OCCA expressly found that Lott’s trial counsel did not, during the course of his first-stage closing arguments, concede Lott’s guilt of felony murder. Although Lott disagrees with this finding, he has failed to rebut by clear and convincing evidence the presumption of correctness we must afford this finding under 28 U.S.C. § 2254(e)(1).

As the OCCA correctly noted, a review of defense counsel’s complete first-stage closing arguments reveals that defense counsel was attempting to persuade the jury that a reasonable doubt existed as to Lott’s responsibility for the murders under either theory of liability. In this regard, defense counsel called into question the validity of the DNA evidence presented by the prosecution, noting particularly the evidence indicating that the prosecution had previously wrongfully convicted Miller based on what had proven to be faulty scientific evidence, such as blood type grouping and hair analysis.

And defense counsel not only cited evidence suggesting that Miller was present at the scene of both crimes, but also argued that Miller may have in fact been responsible for the crimes. Even if we were to assume that the OCCA’s finding on the purported concession issue constituted “an unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2), and in turn accept Lott’s characterization of what occurred, i.e., a concession of guilt by defense counsel that occurred without notice to, or the consent of, Lott, we are not persuaded that Lott would be entitled to federal habeas relief.

Considering both the first and second stages of trial as a whole, it is clear that “a true adversarial criminal trial [was] conducted ... [and] the kind of testing envisioned by the Sixth Amendment ... occurred.” United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Thus, we could not simply presume that Lott was prejudiced by counsel’s purported concession. See Florida v. Nixon, 543 U.S. 175, 190-91, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Instead, we would have to consider whether, under the second prong of Strickland, Lott was actually prejudiced by his counsel’s actions.

And, given the overwhelming evidence of Lott’s involvement in the charged crimes, we could not say that Lott was prejudiced. During the first-stage proceedings, the prosecution presented evidence indicating that vaginal, anal, and oral swabs were taken from the bodies of both Fowler and Cutler. Two sources of DNA were found in the vaginal swab taken from Fowler: DNA from Fowler’s own vaginal cells and DNA from a sperm donor.

The DNA profile of the sperm donor was found to match Lott’s DNA profile, and the probability of randomly selecting a matching profile approximately 1 in 15.7 quadrillion in the African-American population. Similarly, the sperm samples taken from Cutler were found to match Lott’s DNA profile (and Miller was excluded as the source of the sperm). In short, the DNA evidence alone overwhelmingly established that Lott was responsible for the rapes of Fowler and Cutler. Because it was undisputed that Fowler and Cutler died during the commission of those crimes, Lott was clearly guilty of felony murder.

And lastly, there is no basis to conclude that counsel’s purported concession during the first-stage proceedings had any prejudicial impact during the second-stage proceedings. See generally id. at 191-92, 125 S.Ct. 551 (suggesting that, in a capital case involving overwhelming evidence and a heinous crime, defense counsel must attempt to utilize first- and second-stage strategies that are logically consistent). Thus, in sum, any purported concession of guilt by Lott’s counsel was simply not prejudicial to Lott.

As a final matter, we conclude there is no merit to Lott’s assertion that the state trial court’s instruction regarding aiding and abetting “ ‘by itself so [infected] the entire trial that the resulting conviction violates due process.’ ” Aplt. Br. at 51-52 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). As the OCCA aptly concluded, Lott “was given plenty of notice concerning the State’s alternative theories of guilt.” Lott I, 98 P.3d at 336.

Moreover, the trial court’s aiding and abetting instruction was amply supported by the evidence presented by the defense at trial attempting to suggest that Miller, rather than Lott, was responsible for murdering Fowler and Cutler. 3) Admission of other-crimes evidence In Proposition Three of his appellate brief, Lott contends that he was deprived of his right to a fundamentally fair trial due to the admission at trial of evidence that he was convicted of the Marshall and Hoster rapes.

a) Background Prior to Lott’s trial, the prosecution filed a pleading entitled, “NOTICE OF INTENT TO USE EVIDENCE OF OTHER CRIMES.” State R., VoL IV, at 637. The pleading essentially notified the state trial court and the defense of the prosecution’s intention to introduce evidence at trial of the Marshall and Hoster rapes. Lott filed a written motion objecting to the introduction of this evidence. On November 6, 2000, the state trial court overruled Lott’s motion, concluding that the proposed evidence tended to prove identity due to an unusual modus operandi.

At Lott’s trial, the prosecution, consistent with the trial court’s pretrial ruling, was permitted to introduce evidence of Lott’s involvement in the Marshall and Hoster rapes. This included fact witnesses who described the circumstances of the Marshall and Hoster rapes. It also included testimony from Robert Thompson, a former Oklahoma City police officer who was employed at the time of trial as the chief investigator for the public defender’s office.

Thompson testified that he had worked on Miller’s post-conviction defense team and, in the course of doing so, concluded through his investigative efforts that there were significant similarities between the Fowler and Cutler homicides and the Marshall and Hoster rapes. Lastly, the evidence included testimony from Gerald McKenna, an inspector with the Oklahoma City Police Department’s sex crimes unit. McKenna testified generally about serial rapists and their methods.

McKenna opined that there was no reason to doubt Lott’s involvement in murdering and raping Fowler and Cutler simply because he did not kill Marshall and Hoster. McKenna also discussed the similarities between the four crimes. At the conclusion of the first-stage evidence, the state trial court instructed the jury regarding the proper use of this evidence: Evidence has been received that the defendant has committed offenses other than those charged in the information. You may not consider this evidence as proof of the guilt or innocence of the defendant of the specific offenses charged in the information.

This evidence has been received solely on the issue of the defendant’s alleged common scheme or plan and/or identity. This evidence is to be considered by you only for the limited purpose for which it was received. State R., Vol. VII, at 1220 (Instruction Number 15).

b) Clearly established Supreme Court precedent Lott points to the decision in Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941), as providing the clearly established federal law applicable to his claim. In Lisenba, the Supreme Court outlined a general due process standard that applies to criminal trials: As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice.

In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial. 314 U.S. at 236, 62 S.Ct. 280. Although not cited by Lott, two other Supreme Court decisions appear to be applicable. In Payne v.

Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), the Supreme Court held that when a state court admits evidence that is “so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” And in Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the Court made clear that this principle holds true regardless of whether the evidence at issue was properly admitted pursuant to state law.

c) Lott’s direct appeal In his direct appeal, Lott argued that the state trial court erred in admitting evidence of other crimes in violation of his constitutional right to a fair trial. In particular, Lott argued that “evidence of the Hoster/Marshall rapes did not tend to establish any fact of consequence other than the impermissible intermediate inference that since ... Lott had later raped two other people, he must also have raped and killed ... Cutler and ... Fowler.” Direct Appeal Br. at 35.

Lott also argued that “the crimes ... were not unusual enough to indicate the identity of the perpetrator as having committed all four.” Id. at 39. The OCCA rejected Lott’s arguments: Appellant contends the trial court erred in admitting evidence of the sexual assaults on Mrs. Marshall and Mrs. Hosier. Appellant relies on prior case law from this Court where we have stated that “similarity between crimes, without more, is insufficient to permit admission” of evidence of other crimes. See Hall v. State, 1980 OK CR 64, ¶5, 615 P.2d 1020, 1022.

Prior to trial, the State filed a Notice of Intent to Use Evidence of Other Crimes and Brief in Support. The State alleged the similarities between the Fowler/Cutler homicides and the Marshall/Hoster assaults were “relevant as an aid in determining the identity of the assailant. Also, the evidence is admissible as being part of a common scheme or plan since it demonstrates a highly distinct method of operation.” The State cited 37 similarities between the Fowler/Cutler crimes and the Marshall/Hoster crimes. After hearing argument, the trial [sic] found the other crimes evidence to be relevant and admissible.

The basic law is well established— when one is put on trial, one is to be convicted—if at all—by evidence which shows one guilty of the offense charged; and proof that one is guilty of other offenses not connected with that for which one is on trial must be excluded. Burks v. State, 1979 OK CR 10, ¶2, 594 P.2d 771, 772, overruled in part on other grounds, Jones v. State, 1989 OK CR 7, 772 P.2d 922. See also Hall v. State, 1985 OK CR 38, ¶21, 698 P.2d 33, 37.

However, evidence of other crimes is admissible where it tends to establish absence of mistake or accident, common scheme or plan, motive, opportunity, intent, preparation, knowledge and identity. Burks, 1979 OK CR 10, ¶ 2, 594 P.2d at 772. To be admissible, evidence of other crimes must be probative of a disputed issue of the crime charged, there must be a visible connection between the crimes, evidence of the other crime(

s) must be necessary to support the State’s burden of proof, proof of the other crime(

s) must be clear and convincing, the probative value of the evidence must outweigh the prejudice to the accused and the trial court must issue contemporaneous and final limiting instructions. Welch v. State, 2000 OK CR 8, ¶ 8, 2 P.3d 356, 365, cert. denied, 531 U.S. 1056, 121 S.Ct. 665, 148 L.Ed.2d 567 (2000). When other crimes evidence is so prejudicial it denies a defendant his right to be tried only for the offense charged, or where its minimal relevancy suggests the possibility the evidence is being offered to show a defendant is acting in conformity with his true character, the evidence should be suppressed.

Id. Where, as here, the claim was properly preserved, the State must show on appeal that admission of this evidence did not result in a miscarriage of justice or constitute a substantial violation of a constitutional or statutory right. Id. at ¶ 10, 2 P.3d at 366. This Court has allowed evidence of other crimes or bad acts to be admitted under the “plan” exception of § 2404(

B) where the methods of operation were so distinctive as to demonstrate a visible connection between the crimes. Id., at ¶ 12, 2 P.3d at 366-67. See also Aylor v. State, 1987 OK CR 190, ¶5, 742 P.2d 591, 593; Driskell v. State, 1983 OK CR 22, ¶23, 659 P.2d 343, 349; Driver v. State, 1981 OK CR 117, ¶ 5, 634 P.2d 760, 762-63. Distinctive methods of operation are also relevant to prove the identity of the perpetrator of the crime. Eberhart v. State, 1986 OK CR 160, ¶ 23, 727 P.2d 1374, 1379-80.

In this case, there is a substantial degree of similarity between the Marshall/Hoster assaults and the Fowler/Cutler homicides. The similarities show a visible connection sufficient to characterize a common scheme and to be probative on the issue of identity of the perpetrator.

Briefly summarized, these similarities include: all four victims were white females over the age of 71 who lived alone; all four victims lived on the south side of the street and on corner lots; the back porch screen door was cut on the homes of three of the victims; the breaker box for the electricity to the residence was shut off in the homes of three of the four victims; entry to the residence was gained through a rear door in all four homes; a back door window was broken in three of the homes; two of the victims were awake when their homes was [sic] broken into and they were forced to their bedrooms; all four victims were raped vaginally while in their bedrooms; two of the four victims were also anally raped; all four victims were raped either late at night or in the early morning; all four victims were beaten about the head, face and arms; all four victims suffered vaginal tears and bleeding; a knotted rag was found on the beds of three of the victims; a pillow was placed over the faces of three of the victims during the assault; none of the residences occupied by the four victims were ransacked and nothing of any significant value was taken from any of the homes; all four assaults occurred within an eight month time period with the Fowler/Cutler crimes occurring four months apart and the Marshall/Hoster crimes occurring two months apart; all four victims lived within three miles of each other; Appellant lived with his mother or sister near the Fowler/Cutler homes at the time of their murders and he lived with his brother near the Marshall/Hoster homes at the time of their assaults.

Appellant contends there were just as many differences as there were similarities between the crimes. Chief among those differences is the fact that two of the victims were left alive while two were killed. Appellant argues that at the time these four crimes occurred, numerous instances of rapes and home invasions of elderly women were being reported in the media. Appellant asserts the crimes in this case were not unusual enough to point to a signature of one individual perpetrator. We disagree. The similarities in this case are far greater than those in Hall v.

State, 1980 OK CR 64, ¶6, 615 P.2d at 1022 relied upon by Appellant (similarities limited to each rape took place in an automobile, all three victims were under the age of consent, and each rape was committed in Tulsa County). Further, the similarities between the Fowler/Cutler homicides and the Marshall/Hoster assaults show a method of operation so distinctive as to demonstrate a visible connection between the crimes. In crimes involving sexual assaults, this Court has adopted a greater latitude rule for the admission of other crimes. Myers, 2000 OK CR 25, ¶¶ 21-24, 17 P.3d at 1030.

See also Driskell, 659 P.2d at 349. We further uphold the trial court’s ruling that the probative value of the evidence of the Marshall/Hoster assaults outweighed its prejudicial impact. See Mayes v. State, 1994 OK CR 44, ¶ 77, 887 P.2d 1288, 1309-10, cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995). The evidence was necessary to support the State’s burden of proof despite its prejudicial nature. Finding the evidence properly admitted, this proposition is denied. Lott I, 98 P.3d at 334-36 (footnote and internal paragraph numbers omitted).

d) Lott’s challenge to the OCCA’s decision In this appeal, Lott concedes that, “had [his] DNA not been present to prove that he raped ... Cutler and ... Marshall, the ‘other crimes’ evidence, which the OCCA admitted was prejudicial, may have been necessary to support the State’s burden of proof.” Aplt. Br. at 66. He argues, however, that “[g]iven the presence of [his] DNA at the Fowler/Cutler crime scenes, ... the Marshall and Hoster rapes were hardly necessary to prove identification in regards to the Fowler/Cutler crimes.” Id.

He therefore argues that “[t]he OCCA’s determination that the ‘other crimes’ evidence was necessary to support the State’s burden of proof was objectively unreasonable in light of the facts presented at trial and should be afforded no deference under 28 U.S.C. § 2254(d)(2).” Id. at 65-66. As an initial matter, we note that the other-crimes evidence was properly admitted under Oklahoma state law. As the OCCA explained, the four crimes bore substantial similarities that, in the view of the prosecution’s expert witness, indicated they were committed by the same serial rapist.

Thus, the evidence was relevant for purposes of proving the identity of the person responsible for raping Fowler and Cutler. As for the OCCA’s conclusion that the probative value of the evidence outweighed its prejudicial impact, it is important to note that the state trial court’s ruling on this issue occurred prior to trial, and thus prior to the state trial court hearing the precise nature of the prosecution’s DNA evidence. Lott may well be correct that the DNA evidence, standing alone, would have been sufficient to allow the jury to convict him.

But the state trial court was not privy to that evidence at the time of its ruling and Lott did not renew his objection to the other-crimes evidence at trial. Moreover, despite the prosecution’s introduction of the DNA evidence, Lott’s defense team focused its efforts on attacking the legitimacy of that DNA evidence (suggesting to the jury that it was possible that the DNA evidence might be later discredited, as had the purported scientific evidence that was previously used to convict Miller of the crimes).

Thus, we cannot say that the OCCA erred in concluding that the other-crimes evidence was indeed necessary to support the prosecution’s burden of proof. That leaves, at most, only the question of whether the other-crimes evidence was “so unduly prejudicial that it rendered] [Lott’s] trial fundamentally unfair.” Payne, 501 U.S. at 825, 111 S.Ct. 2597. Notably, Lott did not argue this point in his direct appe

[…]