Cuesta-Rodriguez v. Carpenter

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 22, 2019
• Docket: 16-6315
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 22, 2019

Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________

CARLOS CUESTA-RODRIGUEZ,

Petitioner - Appellant,

v. No. 16-6315

MIKE CARPENTER, Warden, Oklahoma State Penitentiary,

Respondent - Appellee. _________________________________

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:11-CV-01142-M) _________________________________

Michael W. Lieberman, Assistant Federal Public Defender (Randy A. Bauman, Thomas D. Hird, Assistant Federal Public Defenders, with him on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Caroline E. J. Hunt, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the briefs), Office of the Attorney General, Oklahoma City, Oklahoma, for Respondent-Appellee.

Before TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges. _________________________________

PHILLIPS, Circuit Judge. _________________________________

In this habeas corpus case, Carlos Cuesta-Rodriguez challenges his Oklahoma

conviction for first-degree murder and his accompanying sentence of death. The

district court denied relief and denied a certificate of appealability (COA). We granted a COA, agreeing to hear a number of Cuesta-Rodriguez’s claims. Exercising

jurisdiction under 28 U.S.C. § 2253(a), we agree with the district court and conclude

that Cuesta-Rodriguez isn’t entitled to relief.

BACKGROUND

I. The Crime of Conviction

The following facts come from the direct-appeal decision of the Oklahoma Court

of Criminal Appeals (OCCA), Cuesta-Rodriguez v. State, 241 P.3d 214 (Okla. Crim.

App. 2010). We presume that the OCCA’s factual findings are correct. See 28 U.S.C.

§ 2254(e)(1) (establishing that state-court determinations of fact “shall be presumed to be

correct” unless rebutted by “clear and convincing evidence”).

Olimpia Fisher—the victim—and her adult daughter, Katya Chacon, lived with

Cuesta-Rodriguez in a home Fisher and Cuesta-Rodriguez had purchased together. In the

year following the home purchase, Cuesta-Rodriguez and Fisher’s relationship was

strained. Fisher was working long hours as a moving-company packer, and Cuesta-

Rodriguez feared she was cheating on him. Whenever Fisher and Chacon would leave the

house, Cuesta-Rodriguez would question them “about where they were going and what

they would be doing.” Cuesta-Rodriguez, 241 P.3d at 222. The relationship deteriorated

to the point that both Cuesta-Rodriguez and Fisher wanted the other to move out.

On May 20, 2003, Fisher went to the local police station “to make a complaint of

domestic abuse.” Id. The interviewing officer “observed bruising on her right upper arm

and stomach.” Id. But when Fisher realized that the officer “was going to take

2 photographs of the bruising and that Cuesta-Rodriguez would be arrested, she ran out of

the station.” Id.

On May 31, 2003, Cuesta-Rodriguez called Fisher on her cell phone. She

answered and replied that she was at work. But Cuesta-Rodriguez had gone by her place

of work earlier and knew she wasn’t there. “Believing she was cheating on him, he went

home, drank some tequila, and went to bed.” Id.

Around 10 p.m., Chacon came home to a dark house. She saw an empty bottle of

tequila1 with a note beside it. The note, written on the back of an envelope, read, “fuck

1 In his statement of facts, Cuesta-Rodriguez claims that he was “highly intoxicated.” Appellant’s Opening Br. at 4. The OCCA concluded that “[t]he evidence in this case showed that Cuesta-Rodriguez did consume some tequila several hours before the murder.” Cuesta-Rodriguez, 241 P.3d at 223. The OCCA stated that though the “evidence may certainly support an inference that Cuesta- Rodriguez was intoxicated,” it didn’t constitute a prima facie showing that Cuesta- Rodriguez was incapable of forming criminal intent. Id. at 224 (citing Charm v. State, 924 P.2d 754, 761 (Okla. Crim. App. 1996)).

Various pieces of evidence supported the OCCA’s conclusion, including (1) that Cuesta-Rodriguez “said that he consumed two or three drinks of tequila, but denied that he consumed enough to make him drunk”; (2) that Chacon described him as “‘stupid drunk’ . . . but also testified that he was steady on his feet and talking clearly”; (3) that an interviewing detective concluded that four hours after the murder, Cuesta-Rodriguez “smelled of alcohol” but “appeared only slightly intoxicated”; and (4) that “Cuesta-Rodriguez remembered events well enough to give police a detailed account of the shooting and the circumstances surrounding it.” Id. at 223–24.

All that being said, the OCCA didn’t reach a definitive factual finding on Cuesta-Rodriguez’s level of intoxication. But Cuesta-Rodriguez’s level of intoxication isn’t dispositive of any issue before us, so we don’t address it any further in this opinion.

3 you bitches and puntas, goodbye.” Trial Tr. vol. II at 381:2. After realizing Cuesta-

Rodriguez was home, Chacon attempted to contact her mother. Unable to reach her

by phone, Chacon left the house and joined Fisher as she was getting off work. The

two ate a late dinner at McDonald’s and went home. Though they initially planned to

pack and leave that night, they decided to stay overnight, Chacon sleeping in her own

bedroom and Fisher sleeping in a third bedroom.

Around 4:30 a.m., Chacon awoke to the sounds of Fisher and Cuesta-Rodriguez

arguing. She went to the bedroom where the two were fighting and persuaded Fisher to

come back to her (Chacon’s) bedroom “in the hope that Cuesta-Rodriguez would leave

them alone.” Cuesta-Rodriguez, 241 P.3d at 222. But “Cuesta-Rodriguez followed the

women into [Chacon’s] bedroom while continuing to argue loudly with Fisher.” Id.

Fisher picked up a phone, but Cuesta-Rodriguez grabbed it and tossed it from her

reach. At the same time, he pulled out a pistol “and blasted Fisher in the right eye.”2 Id.

Chacon “retrieved a baseball bat from under the bed and tried to hit Cuesta-Rodriguez in

the hand.” Id. He “grabbed the bat as [she] swung it and threw it to the floor.” Id. Chacon

ran from the building and called 911 from a neighbor’s house.

After being shot, Fisher was still conscious. Cuesta-Rodriguez “took her to his

bedroom where, despite having an eye blown out, Fisher continued to fight and struggle.”

Id. at 223. Around 4:41 a.m., the first police officers arrived on the scene (within two

2 “Chacon testified that the gunshot hit the right side of Fisher’s face.” Cuesta- Rodriguez, 241 P.3d at 222 n.1.

4 minutes of being dispatched by 911). Officers approached the house and heard Fisher

“screaming and banging on a bedroom window as if she was trying to escape.” Id.

The house’s windows and doors “were covered with burglar bars that not only prevented

her escape, but also prevented entry by police.” Id. The officers attempted to enter by

“kicking in the front door,” but that failed. Id. While attempting to enter the building, the

officers heard a gunshot—and then Fisher’s screams stopped. An autopsy later revealed a

second, fatal gunshot wound to Fisher’s left eye.

Certain that Fisher was dead and “that Cuesta-Rodriguez was armed, police

summoned their tactical team.” Id. Meanwhile, a police hostage negotiator attempted to

convince Cuesta-Rodriguez to come outside.

Using a specialized tool called a “jam-ram,” the tactical team forced their way

through the front-door burglar bars. Id. Officers arrested Cuesta-Rodriguez and took him

to the police station. He gave statements to detectives that day and the following day—

and in both interviews admitted to shooting Fisher (though he claimed the first shot was

accidental). Photographs of Fisher’s face showed gunshot wounds to both eyes.3

3 At trial, the jury heard evidence that the location of the gunshot wounds had been deliberate:

According to the testimony of Fisher’s former boyfriend, when Fisher terminated their relationship in favor of Cuesta-Rodriguez, Fisher said that she had “put her eyes on somebody else.” The ex-boyfriend stated he was familiar with Fisher’s use of this unusual phrase because she previously told him that if she put her eyes on somebody else, that meant she was “interested in him.” (Continued.)

5 II. The Trial4

The state of Oklahoma put Cuesta-Rodriguez on trial for first-degree murder,

and prosecutors sought the death penalty.

A. The Guilt Phase

During the trial, the court admitted testimony from Dr. Jeffrey Gofton based

on the report of an autopsy performed by another doctor (Dr. Fred Jordan) who

wasn’t present and wouldn’t be subject to cross-examination.5 “Dr. Gofton testified

regarding the examination of the body conducted by Dr. Jordan and gave his own

opinions on Fisher’s injuries and cause of death based on Dr. Jordan’s observations

as recorded in his autopsy report.” Cuesta-Rodriguez, 241 P.3d at 226–27. “Dr.

Gofton explained to the jury the nature of [Fisher’s] injuries . . . and recited other

observations mentioned in Dr. Jordan’s report.” Id. at 229. “He concluded that a

firearm injury to the head was the cause of death and opined that among several

possibilities, the method of death was most likely choking on blood that had entered

the airway from bone fracturing in the nasal area.” Id. He explained that “Fisher

would have lost consciousness in a matter of seconds to minutes and could have

taken as long as eight minutes to aspirate on the blood.” Id. He also pronounced that

the second gunshot “was the likely cause of death.” Id.

Cuesta-Rodriguez, 241 P.3d at 223 n.3 (citations omitted). 4 We lay out here only the occurrences now relevant on appeal. 5 Dr. Jordan had retired by the time of the trial.

6 At the end of the trial, the jury found Cuesta-Rodriguez guilty of murder in the

first degree.

B. The Penalty Phase

The defense presented evidence of several mitigating circumstances, detailing,

among other things, Cuesta-Rodriguez’s troubled childhood, his history of alcohol

and substance abuse, as well as his experiences emigrating from Cuba.6 His counsel

introduced testimony about Cuesta-Rodriguez’s good behavior in jail. And his

employer and co-workers testified regarding his work ethic and abilities. Family

members (both in taped interviews and in person) discussed Cuesta-Rodriguez’s

background and good qualities. And they expressed their love for him and asked the

jury to impose a non-capital sentence.

The jury heard from a psychologist (Dr. James Choca) who testified

“ostensibly” in mitigation.7 Appellant’s Opening Br. at 7. Dr. Choca told the jury

about a childhood injury from when Cuesta-Rodriguez “hit his head against [a]

windshield and fractured his skull.” Trial Tr. vol. V at 982:19–20. After

6 Cuesta-Rodriguez’s defense counsel discovered and presented this mitigation evidence after substantial efforts to obtain medical records and statements or testimony from family. Those efforts included a trip to Cuba, Cuesta-Rodriguez’s home country, which required the application for and receipt of court funds. The trip also required navigating the complex landscape of U.S.–Cuba relations. Counsel also obtained mitigation witnesses from Oklahoma and Florida. 7 Cuesta-Rodriguez now challenges the efficacy of that testimony.

7 hospitalization “a metal plate had to be put in” his skull.8 Id. at 982:21. The doctor

also told the jury about an injury that took place years later in the United States:

while working at a lumber yard and driving a tractor, Cuesta-Rodriguez “fell off the

tractor and was dragged by the tractor for a few yards until someone was able to stop

it.”9 Id. at 983:18–20. As a result of that incident, Dr. Choca testified, Cuesta-

Rodriguez suffered from back pain and took pain medication. The doctor discussed

8 Cuesta-Rodriguez’s brief describes the incident somewhat differently. But nothing in this appeal turns on the distinctions. Cuesta-Rodriguez described the incident as follows:

When Mr. Cuesta was eight years old, he was riding on a city bus with two of his cousins. Hurricane Flora, one of the deadliest hurricanes in Cuba’s history, was moving over the island at that time. The storm . . . caus[ed] the driver to lose control of the bus, sending it careening into a pole. The bus driver was killed. Mr. Cuesta was sitting in the front of the bus near the driver and was thrown through the windshield. The impact fractured his skull and caused him to lose consciousness. He . . . had surgery to remove pieces of glass from his brain. A metal plate was inserted to repair his skull. He was in a coma for some time after the surgery. . . . Mr. Cuesta received psychiatric treatment as a result of the accident.

Appellant’s Opening Br. at 15–16 (citations omitted). 9 Cuesta-Rodriguez’s brief describes the incident as follows:

In August of 1995, while Mr. Cuesta was employed at Forest Lumber Company, he experienced another serious head injury. As Mr. Cuesta was driving a tractor around the lumber yard, a pin holding the seat broke and he fell backwards and hit his neck on a bar, forcing his head forward. He briefly lost consciousness and was dragged around by the tractor until another employee was able to stop it.

Appellant’s Opening Br. at 16–17.

8 Cuesta-Rodriguez’s history of depression and substance abuse. And he discussed

Cuesta-Rodriguez’s “social history” “to get some sense for what he had been

through.” Id. at 985:3, 6–7, 985:9–991:24 (discussing Cuesta-Rodriguez’s “difficult

life”). Dr. Choca determined that Cuesta-Rodriguez had borderline-personality

disorder and discussed the effect of that condition.

Allegedly due to the failure of trial counsel, the jurors didn’t hear any

additional mitigation evidence regarding Cuesta-Rodriguez’s organic brain damage

from the childhood incident. Nor did they hear about his post-traumatic stress

disorder.10

At the penalty phase of trial, the state argued that Cuesta-Rodriguez deserved

the death penalty based on two aggravating circumstances: (1) the heinousness,

atrociousness, or cruelty of the murder and (2) the continuing risk Cuesta-Rodriguez

posed to society. We now outline the prosecution’s comments that are at issue on

appeal. These fall into two categories: (1) comments regarding the jury instruction on

mitigating circumstances and (2) comments regarding the mitigation evidence that

the defense presented.

10 Cuesta-Rodriguez now challenges a number of Dr. Choca’s findings, including that Cuesta-Rodriguez has an IQ “in the bright normal range” and that Cuesta-Rodriguez has recovered well from his head injuries. Trial Tr. vol. V at 994:14.

9 1. Comments Regarding Jury Instruction

During the penalty phase, the court gave the jury an instruction (instruction

nine) that defined mitigating circumstances and explained the jury’s role in

considering them. Instruction nine states:

Mitigating circumstances are those which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of moral culpability or blame. The determination of what circumstances are mitigating is for you to resolve under the facts and circumstances of this case.

While all twelve jurors must unanimously agree that the State has established beyond a reasonable doubt the existence of at least one aggravating circumstance prior to consideration of the death penalty, unanimous agreement of jurors concerning mitigating circumstances is not required. In addition, mitigating circumstances do not have to be proved beyond a reasonable doubt in order for you to consider them.

Original R. vol. VII at 1284.

Next, the court gave instruction ten, which states, “Evidence has been introduced

as to the following mitigating circumstances,” and then lists sixteen facts about Cuesta-

Rodriguez. Id. at 1285. The court told the jury that “[e]vidence ha[d] been introduced

as to the following mitigating circumstances”: (1) Cuesta-Rodriguez’s emigration

“from the poverty-stricken Communist country of Cuba”; (2) his journey to the

United States during the Mariel Boat Lift of 1980; (3) his time in federal detention

after his heroin-possession conviction; (4) the revolt of “some Cubans in the prison

who feared repatriation” during Cuesta-Rodriguez’s time in federal custody,

compared to Cuesta-Rodriguez’s “volunteer[ing] for and welcome[ing]” of

repatriation “so that he would see his family again”; (5) Cuesta-Rodriguez’s

“productive[]” use of his time in federal detention “to learn to speak and read

10 English”; (6) his “long, stable work history” and status as a “valued employee” who

remained a “cherished and trusted friend” to his boss; (7) his volunteer work for

seven years helping make “the homes of elderly and needy persons . . . safe and

habitable”; (8) his status as a likely “asset to a prison community where productive

inmate workers are needed” because of his “past employment experiences and

willingness to work”; (9) his family in Cuba, with whom “he has maintained regular

contact with throughout the years,” and who “asked [the jury] to spare” his life;

(10) Cuesta-Rodriguez’s love for his son, Carlos (Kery) Cuesta Gonzalez, who was

inspired by his father to become a writer; (11) Cuesta-Rodriguez’s “serious,

debilitating depression,” which was “made worse by self medication with alcohol and

other substances”; (12) his rapidly deteriorating mental condition that, “combined

with alcohol and other substances[,] culminated in [his] actions on May 31, 2003

which caused the death of Olimpia Fisher”; (13) Cuesta-Rodriguez’s since-improved

mental condition, which was “effectively stabilized by medications” that “ease the

symptoms of depression and delusions”; (14) Cuesta-Rodriguez’s participation in and

successful completion of the Oklahoma Department of Mental Health’s Wellness

Recovery Action Program; (15) his good behavior in the county jail for four years

awaiting trial; and (16) his remorse for causing Fisher’s death. Id. at 1285–88.

And, in a separate instruction—instruction sixteen—the jury was told: “All the

previous instructions given you in the first part of this trial apply where appropriate,

except that in this part of the trial, you may consider sympathy or sentiment for the

11 defendant in deciding whether to impose the death penalty.” Id. at 1295 (emphasis

added).

The prosecution, in its closing argument, referenced instruction nine

discussing mitigating circumstances, arguing that the mitigation evidence presented

to the jury didn’t reduce Cuesta-Rodriguez’s moral culpability for the crime. The

prosecutor asked, “[H]ow does [the defense’s evidence (referring to “the evidence

[the jury] heard the last two or three days”)] mitigate what this defendant did on the

date in question?” Trial Tr. vol. VII at 1281:21–22, 1282:1–2.

And then the prosecutor referred the jury to “the instructions from His Honor

up there,” id. at 1282:3–4, stating that mitigating circumstances are circumstances

“which, in fairness, sympathy, and mercy, may extenuate or reduce the degree of

moral culpability or blame,” id. at 1282:6–8. The prosecutor went on to ask what

evidence had been presented “that might reduce the moral culpability or blame of”

Cuesta-Rodriguez for shooting Fisher. Id. at 1282:17–18. The prosecutor concluded

that Cuesta-Rodriguez’s emigration from Cuba didn’t “reduce the moral culpability

of this murder.” Id. at 1283:14–15.

And the prosecutor continued on with this theme. See id. at 1283:16–17 (“How

does it mitigate it? I pose the question to you . . . .”); id. at 1284:12–14 (“[T]he State

of Oklahoma submits that [the family testimony in mitigation] doesn’t do anything to

reduce the moral culpability of what he did to Olimpia Fisher.”). Discussing the

family testimony, the prosecutor had this to say: “Do they love him? Sure, they do,

12 even though they haven’t seen him in a long time. It’s not surprising. It’s not helpful

to you either.” Id. at 1284:14–17.

But the prosecutor interwove with those statements suggestions that the jury

could consider the mitigation evidence. The prosecutor told the jury: “And again, I’m

not telling you don’t listen to them; by all means, you consider what they have to

say.” Id. at 1284:9–11; see also id. at 1281:17–19 (“[Y]ou still say, all right, does that

outweigh the mitigating evidence that we’ve heard.”); id. at 1283:20 (“I’m not going

to disparage [the mitigation witnesses].”).

After rejecting the import of the mitigation evidence, the prosecutor reminded

the jury of the victim-impact testimony. See id. at 1285:18–21 (“You are to go up

there and inquire into the moral culpability of what he did and, in doing so,

remember the impact testimony that came from these young ladies [Fisher’s

daughters].”). The prosecutor concluded his argument by stating, “There is one

punishment that doesn’t undermine the seriousness of [the murder], and that is the

punishment of death.” Id. at 1286:20–22.

The defense’s closing argument also touched on instruction nine. The defense

emphasized to the jury that it had flexibility to consider mitigating circumstances,

stating that mitigating circumstances “don’t have to be proven beyond a reasonable

doubt” and needn’t be agreed on unanimously. Id. at 1301:24–25. Defense counsel

told the jury, “Any level of proof that is enough for you is good enough.” Id. at

1301:25–1302:1. And defense counsel stressed to the jurors that they “may consider

sympathy or sentiment for the defendant . . . because the law says it’s right for you to

13 consider them; otherwise, the Court would not have allowed them to come before

you.” Id. at 1301:13–20. The defense further emphasized that the jury could rely on

different mitigating circumstances, including mitigating circumstances not on the list

and not talked about during the trial, because “if it’s mitigating to you, it’s enough.”

Id. at 1302:5.

The prosecution in rebuttal returned to the theme that the mitigation evidence

didn’t reduce Cuesta-Rodriguez’s culpability. After referencing instruction nine, the

prosecutor said: “Counsel told you many times mitigating circumstances are those

which, in fairness, sympathy, and mercy—and that’s true but there’s more—may

extenuate or reduce the degree of moral culpability or blame. May extend or reduce

the degree of culpability or blame.” Id. at 1313:9–14. “So,” the prosecutor said, “now

let’s look at the mitigating evidence they offer.” Id. at 1313:15–16. Referencing

Cuesta-Rodriguez’s Cuban heritage, the prosecutor stated: “And you ask yourselves,

looking at the law, does that reduce his degree of culpability or blame? State submits

no.” Id. at 1313:17–20. And, going through various pieces of the defense’s mitigating

evidence, the prosecutor again and again reached the same conclusion. See id. at

1314:12–14 (“Ask yourselves how does [the fact that he came to the United States in

the Mariel boat lift] reduce his degree of culpability or blame?”); id. at 1315:1–3

(“[W]hat you have to ask yourselves under the law is do you find [the fact that he

welcomed repatriation] reduces his degree of moral culpability or blame for this

case?”); id. at 1315:6–11 (“[A]nd I won’t go through all these [mitigating

circumstances] . . . . And you ask yourselves how in the world does that reduce his

14 degree of moral culpability or blame for this case?”). But the prosecution did

encourage the jury to consider all the evidence, stating: “[W]e’re not asking you to

ignore the evidence, but embrace it.” Id. at 1315:11–12.

2. Comments Regarding Mitigation Evidence

During its closing argument, the prosecution stated that “the State of

Oklahoma does not want to denegrate [sic] any of the evidence you’ve heard the last

two or three days. I will not denegrate [sic] it.” Id. at 1281:20–22; see also id. at

1281:24–25 (referring to mitigation witnesses as “fine, upstanding people”). Later,

discussing Cuesta-Rodriguez’s proffered mitigation evidence, the prosecutor stated:

And as far as them tearfully pleading for his life there, I say to you on behalf of the State, ladies and gentlemen, shame on him for putting them in that position. Shame on him for making them act as a human shield between justice and himself.

Id. at 1284:18–22.

After the prosecution closing, the defense gave its closing argument. In it,

defense counsel stated: “In fairness, sympathy, and mercy, refuse the death penalty

because there’s a family 90 miles from our shores who are a world away who will be

hurt. His mother Evi, his sister Arelie, and his brother Juaquin.” Id. at 1303:17–20. A

few lines later, closing out the argument, counsel stated asked the jury to “refuse the

death penalty because there is a son,” id. at 1303:21–22, who told Cuesta-Rodriguez

that “I want to sit one day across from you. Refuse the death penalty because there is

a son who tells his father, I am your son, I have the right to know you. Don’t deny

15 Kery Rodriguez [his son] that opportunity. In fairness, sympathy, and mercy, refuse

the death penalty,” id. 1304:1–6.

The prosecution started its rebuttal closing argument (presented by a different

prosecutor) by noting that it planned to “rebut a couple of things [defense] Counsel

said.” Id. at 1304:13–14. Soon after, the prosecutor, referring to defense counsel’s

closing argument, told the jury that “what you’ve heard for 20 minutes is the guilt

trip.” Id. at 1304:19–20. Defense counsel objected, and the judge asked the

prosecutor to rephrase. The prosecutor then told the jury: “You know, when I say

guilt trip, you don’t need to feel guilty about doing your job. He’s the one that

brought us together. It is his actions. And I want to talk about that because you can

consider sympathy absolutely.” Trial Tr. vol. VII at 1306: 5–9. Soon after, the

prosecutor continued: “So, yeah, when they want to talk to you about mercy, which

you can consider, and I submit to you[,] you decide if you should feel guilty about

doing your job. You’ve got [intervening objection] So when they ask you about

mercy, and I say, you don’t have to feel guilty if you’re sitting on this jury; you’re

doing your civic duty.” Id. at 1309:22–25, 1310:18–20. Later, the prosecutor stated:

“As [my colleague] said, you know, shame on him. He puts those people in a terrible

position.” Id. at 1316:7–8. The prosecution rested after asking the jury to sentence

16 Cuesta-Rodriguez to death: “His actions brought us here. Sentence him accordingly.”

Id. at 1317:18–19.11

That spelled the end of closing arguments, so the jury left to deliberate. During

deliberations, the jury asked for the legal definition of culpability. The court

answered, with both parties’ consent, that the definition is “blame or blameable.” Id.

at 1318:23–24.

In the end, the jury found the existence of two aggravating circumstances:

(1) that the murder was especially heinous, atrocious, or cruel and (2) that Cuesta-

Rodriguez posed a continuing threat to society. And the jury recommended a death

sentence. Later, the court formally sentenced Cuesta-Rodriguez to death.

III. The Appeals

The OCCA affirmed Cuesta-Rodriguez’s conviction and sentence on direct

appeal. Cuesta-Rodriguez, 241 P.3d at 247. In doing so, the OCCA found two

errors—a Confrontation Clause error and a prosecutorial-misconduct error—but

found both individually harmless. Id. at 230–31, 243–44. The OCCA concluded that

the two errors were also cumulatively harmless. Id. at 246.

11 In his brief, Cuesta-Rodriguez discusses another prosecution comment unmentioned in this facts section. At the start of its closing argument, the prosecutor told the jury: “I’m going to try and give us a little reality check here. They spent the last three days hoping you’ll forget what happened to Olimpia Fisher.” Trial Tr. vol. VII at 1270:17–20. But Cuesta-Rodriguez concedes that this comment isn’t “part of the certificate of appealability” and that he isn’t “seeking relief thereon.” Appellant’s Opening Br. at 56 n.30.

17 Admitting Dr. Gofton’s testimony, the OCCA determined, was in fact error

under the Confrontation Clause because “Cuesta–Rodriguez was denied the

opportunity to confront Dr. Jordan in order to test his competence and the accuracy

of his findings.” Id. at 229. But the OCCA determined this error was harmless.12 Id. at

231. The court concluded that yes, Dr. Gofton’s testimony was “potentially relevant

to proving the heinous, atrocious, or cruel aggravator in the sentencing phase by

showing that Fisher consciously suffered before she died.” Id. at 230. Yet the OCCA

decided that “even if Dr. Gofton’s testimony is discounted in its entirety, there was

still more than sufficient evidence for the jury to conclude that Fisher consciously

suffered before her death.” Id. at 231. Specifically, the OCCA pointed to the

testimony of police officers and Chacon, as well as Cuesta-Rodriguez’s statements to

police that “showed that when Cuesta-Rodriguez fired the first blast from his pistol into

Fisher’s right eye, she was not rendered unconscious.” Id. Therefore the OCCA

concluded that even excluding Dr. Gofton’s testimony, “the jury could have reasonably

concluded that Fisher consciously experienced great physical and mental suffering.” Id.;

see also id. (“Consequently, even if Dr. Gofton’s testimony about how long Fisher may

have remained conscious after the second gunshot is eliminated from consideration, there

12 The OCCA concluded that the Confrontation Clause error caused by admitting Dr. Gofton’s testimony mattered at both the guilt phase and the penalty phase but found the error harmless at both phases. Cuesta-Rodriguez, 241 P.3d at 230–31. We discuss only the OCCA’s penalty-phase conclusions because the guilt- phase discussion isn’t relevant to this appeal.

18 was enough remaining evidence to show conscious suffering in the interval between the

first and second shots.”).

Regarding his claims of prosecutorial misconduct, Cuesta-Rodriguez argued

that “the prosecutors made many statements designed to diminish, denigrate, or

completely invalidate the mitigating evidence that was presented.” Id. at 243. The

OCCA identified just one—“the prosecutor’s first ‘guilt trip comment’”—which, it

concluded, “pushe[d] beyond the limits of permissible argument because it was not a

comment on the evidence, but instead was an obvious attempt to denigrate Cuesta-

Rodriguez’s mitigation defense.” Id. at 244. The OCCA noted that the “prosecutor’s

other two comments referring to ‘guilt trip’ or feeling guilty both c[a]me very close

to crossing this line.” Id. But it recognized only the first comment as error. See id.

Nonetheless, the OCCA determined that the comments weren’t “verdict

determinative” and that “given the strength of the evidence supporting imposition of

the death penalty, they were harmless.” Id. The OCCA concluded that “Cuesta–

Rodriguez was not denied a fair or reliable sentencing proceeding.” Id.

The OCCA later denied relief on Cuesta-Rodriguez’s two post-conviction

applications. Cuesta-Rodriguez v. Oklahoma, No. PCD-2012-994 (Okla. Crim. App.

Feb. 8, 2013); Cuesta-Rodriguez v. Oklahoma, No. PCD-2007-1191 (Okla. Crim.

App. Jan. 31, 2011).

The federal district court then denied Cuesta-Rodriguez’s petition for habeas

relief. Cuesta-Rodriguez v. Royal, No. CIV-11-1142-M, 2016 WL 5485117, at *1

(W.D. Okla. Sept. 29, 2016). The district court also denied him a COA. But we

19 granted a COA to consider (1) Cuesta-Rodriguez’s prosecutorial-misconduct claims;

(2) his ineffective-assistance-of-counsel claims, including his procedural-default

arguments and the district court’s denial of his request for an evidentiary hearing; and

(3) his cumulative-error claim. Those claims are now before us on appeal.

DISCUSSION

Cuesta-Rodriguez makes three main arguments on appeal: (1) that he isn’t

procedurally barred from asserting his ineffective-assistance-of-counsel claims

regarding failure to introduce evidence of his organic brain damage and post-

traumatic-stress disorder, and that those ineffective-assistance claims warrant relief;

(2) that prosecutorial misconduct infringed his right to a fundamentally fair and

reliable sentencing proceeding in violation of the Sixth, Eighth, and Fourteenth

Amendments; and (3) that even if each individual error was harmless, the cumulative

effect of the errors warrants relief. After laying out the standard of review, we

address each in turn.

I. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.

§ 2254, governs our review of habeas petitions and focuses on how the state court

resolved the claim. Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011). “In general,

if a convicted state criminal defendant can show a federal habeas court that his conviction

rests upon a violation of the Federal Constitution, he may well obtain a writ of habeas

corpus that requires a new trial, a new sentence, or release.” Trevino v. Thaler, 569 U.S.

413, 421 (2013).

20 A habeas petitioner must first exhaust his claims in state court before a federal

court may review them. 28 U.S.C. § 2254(b)(1)(A). For claims that the state court

adjudicated on the merits, we will grant habeas relief only if the petitioner establishes that

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,” id. § 2254(d)(1), or that the state-court decision “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2). (This is the standard we apply to every issue herein unless

otherwise specified.) Claims that the state court didn’t adjudicate on the merits, we

review de novo. Hooks v. Workman (Hooks II), 689 F.3d 1148, 1163–64 (10th Cir. 2012).

The focus of § 2254(d) is the reasonableness of the state court’s decision. “The

question under AEDPA is not whether a federal court believes the state court’s

determination was incorrect but whether that determination was unreasonable—a

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Relief is

warranted only “where there is no possibility fairminded jurists could disagree that the

state court’s decision conflicts with [the Supreme Court’s] precedents.” Harrington v.

Richter, 562 U.S. 86, 102 (2011).

II. Procedural Bar Regarding Mitigation Evidence

Cuesta-Rodriguez argues that, “[d]ue to failures of his trial counsel,” the jury

that sentenced him to death didn’t hear “gold-standard mitigation” evidence about his

organic brain damage and post-traumatic-stress disorder that “could readily have

21 resulted in” the selection of a lesser punishment (“life or life without parole”).13

Appellant’s Opening Br. at 13. But before reaching the merits, we need to decide

whether his ineffective-assistance-of-trial-counsel claim is procedurally barred.

Cuesta-Rodriguez didn’t bring his ineffective-assistance-of-trial-counsel claim

on direct appeal, triggering a state procedural bar. See Okla. Stat. Ann. tit. 22, § 1089

(“The only issues that may be raised in an application for post-conviction relief are

those that [w]ere not and could not have been raised in a direct appeal . . . .”). And

Cuesta-Rodriguez didn’t claim his appellate counsel was ineffective in his first post-

conviction appeal. See Hatch v. State, 924 P.2d 284, 294 (Okla. Crim. App. 1996)

13 This boils down to two main allegations, both of which surround the “[c]ore [m]itigation [e]vidence” that trial counsel allegedly failed to adduce. Appellant’s Opening Br. at 15. First, Cuesta-Rodriguez alleges defense counsel failed to sufficiently investigate and explain Cuesta-Rodriguez’s childhood brain injury and his later lumberyard injury. Cuesta-Rodriguez insists that the psychological evaluation was insufficient and that he needed a “neuropsychological evaluation.” Id. at 17. From this, Cuesta-Rodriguez contests Dr. Choca’s findings (namely, his conclusions that Cuesta-Rodriguez had a high IQ and had recovered well from his head injuries) and complains that “[t]he lack of investigation led not only to an uninformed jury but to a jury, as it turns out, falsely assured on the head injury question.” Id. at 18. Second, Cuesta-Rodriguez complains that his post-traumatic- stress disorder (and other mental illnesses) weren’t appropriately presented to the jury. Those illnesses, he claims, “require treatment with appropriate medications” and benefit from such treatment. Id. at 19. Cuesta-Rodriguez claims that “[d]espite the severity of Mr. Cuesta’s PTSD and other mental disorders . . . [,] the structured environment of prison combined with mental health counseling and psychotropic medications will maintain Mr. Cuesta in a symptom-free state.” Id. at 25. Just as with his organic-brain-damage claim, Cuesta-Rodriguez asserts that “it is obvious that he was the victim of repeated traumatic events throughout his childhood and as an adult” and, therefore, that trial counsel failed in not presenting such evidence to the jury. Id. at 21. Cuesta-Rodriguez relies heavily on neuropsychological testing done by a doctor retained by habeas counsel to make these claims.

22 (“The issue of ineffective assistance of appellate counsel, like any other claim, must

be raised at the first available opportunity.”). He first raised his ineffective-assistance

claims in his second state post-conviction application in the OCCA—claiming the

ineffectiveness of trial, direct appellate, and first post-conviction counsel. Cuesta-

Rodriguez, No. PCD-2012-994, slip op. at 3, 5, 6. The OCCA deemed his ineffective-

assistance claims waived. See id. at 3–4, 5, 7.

Reviewing Cuesta-Rodriguez’s habeas petition, the district court concluded

that Cuesta-Rodriguez’s ineffective-assistance-of-counsel claims were also

procedurally barred. Cuesta-Rodriguez, 2016 WL 5485117, at *19.

On appeal, Cuesta-Rodriguez urges us to review his ineffective-assistance-of-

trial-counsel claim (and so to review whether the assertedly deficient mitigation

presentation violated the Sixth, Eighth, and Fourteenth Amendments), claiming that

ineffective appellate and first post-conviction counsel justify our excusing the

procedural bar. See Appellant’s Opening Br. at 9 (“The district court erred in dealing

with this huge and harmful deficit by holding the [ineffective-assistance-of-trial-

counsel] claim was procedurally barred from the reach of the federal courts.”).

“[T]o bar federal review, a state procedural rule must be adequate to support

the judgment and independent from federal law.” Banks v. Workman, 692 F.3d 1133,

1145 (10th Cir. 2012). When the adequacy and independence requirements are met,

we don’t review defaulted issues “unless the petitioner can demonstrate cause and

prejudice or a fundamental miscarriage of justice.” Anderson v. Sirmons, 476 F.3d

23 1131, 1140 (10th Cir. 2007) (quoting English v. Cody, 146 F.3d 1257, 1259 (10th

Cir. 1998)).

On appeal, Cuesta-Rodriguez claims (1) that the Oklahoma procedural bar

isn’t adequate, (2) that he demonstrated cause and prejudice for failing to bring his

ineffective-assistance-of-trial-counsel claim on direct appeal, and (3) that a

miscarriage of justice occurred that allows us to review his claim. We address each

claim in turn.

A. Adequacy of the Procedural Bar14

Cuesta-Rodriguez claims that Oklahoma’s procedural bar requiring him to

raise ineffective-assistance claims on direct appeal is inadequate.15 He asserts that

because his trial and direct-appeal counsel both hailed from the Oklahoma County

Public Defender’s Office (OCPD), a structural conflict of interest prevented appellate

counsel from properly bringing an ineffective-assistance-of-trial-counsel claim.

To be adequate, “a state procedural rule must be ‘strictly or regularly

followed’ and applied ‘evenhandedly to all similar claims.’” Banks, 692 F.3d at 1145

(quoting Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998)). And, as Oklahoma

14 As a preliminary matter, Oklahoma claims that Cuesta-Rodriguez waived this argument, so we shouldn’t address it. We assume the argument is properly before us, and we reach the merits of his claim. 15 Cuesta-Rodriguez doesn’t contest the bar’s independence—the other part of the test. See Appellant’s Opening Br. at 41 (only mentioning adequacy in its argument section); Banks, 692 F.3d at 1145.

24 points out, we have previously found the Oklahoma procedural bar applied here to be

both adequate and independent. See id. at 1444–47.

Oklahoma’s system for raising ineffective-assistance-of-counsel claims on

direct appeal is inadequate when trial and appellate counsel are too closely

intertwined. Cannon v. Mullin, 383 F.3d 1152, 1173 (10th Cir. 2004); English, 146 F.3d

at 1263–64. Such conflict exists when trial and appellate counsel are one and the

same. English, 146 F.3d at 1263–64. And we have held that, sometimes, counsel from

the same office are conflicted in choosing to raise ineffective-assistance claims

implicating their colleagues. Cannon, 383 F.3d at 1173 (“If a criminal defendant is

represented by trial and appellate counsel from the same office, appellate counsel’s

assessment of trial counsel’s performance may be less than completely objective. An

understandable, although inappropriate, regard for collegiality may restrain appellate

counsel from identifying and arguing trial-attorney error.”).

“[W]hether trial and appellate attorneys from the same ‘office’ should be deemed

‘separate’ counsel will turn on the specific circumstances.” Id. “Presenting an ineffective-

assistance-of-counsel claim may well damage the reputation of the trial attorney and the

office for which both trial and appellate counsel work.” Id.; see also id. (“Arguing

ineffective assistance with respect to a colleague’s performance is saying that the

performance was not only inferior, but unreasonable.”). Thus, we must be wary about

assuming that counsel is “separate” merely because the individual lawyers are distinct.

See id. (“[T]wo lawyers from the same private law firm are often treated as one for

conflict-of-interest purposes.”).

25 “[T]he state bears the burden of proving the adequacy of a state procedural bar in

order to preclude federal habeas review.” Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir.

1999); see also id. at 1216–17 (“[T]he state is undoubtedly in a better position to

establish the regularity, consistency and efficiency with which it has applied Rule 3.1116

in the past to allow direct appellants to develop a factual record challenging the adequacy

of trial counsel than are habeas petitioners, who often appear pro se, to prove the

converse.”). But a defendant complaining of such a conflict needs, “at a minimum,” to

provide “specific allegations . . . as to the inadequacy of the state procedure.” Id. at 1217;

see also Cannon, 383 F.3d at 1173–74 (concluding counsel wasn’t separate based “[o]n

the record before” the court).

Oklahoma highlights a number of cases in which appellate counsel at OCPD,

including Cuesta-Rodriguez’s appellate counsel, have pursued ineffective-assistance-of-

counsel claims. See, e.g., Coddington v. State, 254 P.3d 684, 692, 713–14 (Okla. Crim.

App. 2011) (claim of ineffective assistance of trial counsel based on failure to introduce

mitigation evidence during capital penalty phase raised by Cuesta-Rodriguez’s appellate

counsel); Jiminez v. State, 144 P.3d 903, 904–07 (Okla. Crim. App. 2006) (claim of

ineffective assistance of trial counsel raised by Cuesta-Rodriguez’s appellate counsel)17;

16 The Oklahoma Court of Criminal Appeals’ Rule 3.11 governs supplementation of the record. See Rule 3.11, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003) 17 Cuesta-Rodriguez argues that Coddington and Jiminez aren’t relevant, noting that neither case “require[d] investigation via a new expert never hired before in the case by the office.” Appellant’s Reply Br. at 8. We disagree. That Cuesta-

26 see also, e.g., Frederick v. State, 400 P.3d 786, 825–32 (Okla. Crim. App. 2017) (claim

of ineffective assistance of appellate counsel for not raising claim of ineffective

assistance of trial counsel), overruled by Williamson v. State, 422 P.3d 752 (Okla. Crim.

App. 2018); Davis v. State, 268 P.3d 86, 97, 129–38 (Okla. Crim. App. 2011) (same)18;

Warner v. State, 144 P.3d 838, 861, 868, 872–77, 891–96 (Okla. Crim. App. 2006)

(same), overruled by Taylor v. State, 419 P.3d 265 (Okla. Crim. App. 2018).

In light of those cases, Cuesta-Rodriguez hasn’t explained how and why his trial

and direct-appeal counsel were problematically interconnected. He asserts only that trial

and appellate counsel both worked for the OCPD—and that they work “just down the

hall” from each other. Appellant’s Opening Br. at 44 n.21; cf. Cannon, 383 F.3d at 1173

(“A statewide public defender’s office with independent local offices, and perhaps even a

distinct appellate office, would not raise the same concerns as when trial and appellate

counsel work in adjacent rooms.”). From that proximity, he infers potential bases for

conflicts, like budgetary concerns and loyalty—potential conflicts that exist whenever

counsel share an employer. See Appellant’s Opening Br. at 43 (“Thus, the office budget

must be tapped for an expert to investigate a colleague or such investigative funding must

Rodriguez’s appellate counsel has brought ineffective-assistance claims tilts the scales in favor of separateness. 18 Cuesta-Rodriguez asserts that the ineffective-assistance claims in this case were “so awkward and difficult” that his appellate counsel was “actually discouraged” from bringing such claims. Appellant’s Opening Br. at 45 n.23. Without more, this unsubstantiated allegation doesn’t help Cuesta-Rodriguez’s argument.

27 be humiliatingly and improbably requested from the court fund if that is even possible.”).

Cuesta-Rodriguez also invites us to “[i]magine” the dilemma appellate counsel might

be placed in. Id. at 45 n.23. Hence Cuesta-Rodriguez claims that an evidentiary hearing

is needed “to explore the specific circumstances and ascertain whether counsel could be

deemed separate.”19 Id. at 44.

But Cuesta-Rodriguez hasn’t shown that a relationship to trial counsel hindered

his appellate counsel. So his case bears little resemblance to our prior cases. See 383 F.3d

19 At oral argument, Cuesta-Rodriguez made a point that doesn’t appear in his briefing: that direct-appeal counsel couldn’t pursue her ineffective-assistance-of- counsel claim because of the financial hurdles and inhibition of the head of the office. He argued:

The nature of the conflict in this case is that the trial lawyer couldn’t get money from Bob Ravitz, who is the head of the Oklahoma County Public Defender’s Office, and therefore didn’t call certain types of experts to testify at trial. Now what direct-appeal counsel would have had to do would have been to go back to Bob Ravitz and say, “[T]hat money that you refused to give at the trial level was so constitutionally unreasonable that I now want you to give me that money so that I can hire those experts to prove how constitutionally unreasonable your past behavior was.” That’s where the conflict in this case comes in.

Oral Argument at 7:48–8:38, Cuesta-Rodriguez v. Carpenter, No. 16-6315 (10th Cir. May 17, 2018). He then distinguished that kind of request from a run-of-the-mill ineffective-assistance claim, describing it as “exceedingly more difficult.” Id. at 8:42–45. But, in response to a panelist’s question, he admitted: “We didn’t make that argument [on appeal] in those terms.” Id. at 9:48–53. So that precise argument is waived. See, e.g., Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998) (“Issues raised for the first time at oral argument are considered waived.”) Cuesta-Rodriguez’s opening brief does briefly mention the difficulty of “pursuing asserted office failings with office money.” See Appellant’s Opening Br. at 45 n.23 (quoting R. vol. 1 at 249 n.7). But we deal with that distinct argument in the main text.

28 at 1173–74 (concluding trial counsel wasn’t separate when the record was “strongly

suggestive” of the fact that “appellate counsel had a policy of not claiming ineffective

assistance by public defenders at trial”); Carter v. Gibson, 27 F. App’x 934, 943 (10th

Cir. 2001) (finding procedural bar inadequate when appellate counsel failed to raise

ineffective assistance of trial counsel on direct appeal after trial counsel assisted in

writing the appellate brief).

Oklahoma’s cases showing regularly-made ineffective-assistance claims suffice to

defeat Cuesta-Rodriguez’s argument when weighed against the nonexistent conflict

evidence proffered. See Cannon, 383 F.3d at 1173–74 (“The culture of an office can also

make a substantial difference. A history of raising ineffective-assistance claims could

allay concerns.”); Smallwood v. Gibson, 191 F.3d 1257, 1270 (10th Cir. 1999) (rejecting

the “contention that office policy prevented . . . appellate counsel from bringing

ineffective assistance . . . claims” when “[t]he record contain[ed] no evidence that such a

policy existed” and instead, “the record indicate[d] that petitioner’s appellate counsel

aggressively raised” multiple issues, including ineffective assistance, on direct appeal).

Thus, we reject Cuesta-Rodriguez’s argument and conclude that Oklahoma’s procedural

bar here was adequate (and that Cuesta-Rodriguez isn’t entitled to an evidentiary hearing

on the adequacy of that bar).20

20 Cuesta-Rodriguez also makes passing reference to Kimmelman v. Morrison, 477 U.S. 365 (1986). He notes that “Oklahoma’s rule [3.11] [i]s inadequate unless the ‘Kimmelman imperatives’ [a]re met.” Appellant’s Opening Br. at 42 (quoting English, 146 F.3d at 1263). But he doesn’t argue that they aren’t met here (apart from

29 B. Cause to Overcome Default

To avoid the application of the procedural bar, Cuesta-Rodriguez argues that

he can demonstrate cause for his failure to raise his ineffective-assistance-of-trial-

counsel claim on direct appeal.

First, he claims that appellate counsel was ineffective because his appellate

counsel wasn’t “truly separate” from his trial counsel. Appellant’s Opening Br. at 46.

But he immediately runs into a problem—his ineffective-assistance-of-appellate-

counsel claim is procedurally defaulted because he failed to bring it in his first post-

conviction application. See Hatch, 924 P.2d at 294. Thus, Cuesta-Rodriguez argues

that his first post-conviction counsel was also ineffective, thereby establishing cause

for the failure.

Generally, “ineffective assistance of counsel in postconviction proceedings

does not establish cause for the procedural default of a claim.” Fairchild v. Trammell,

784 F.3d 702, 720 (10th Cir. 2015) (citing Coleman v. Thompson, 501 U.S. 722, 756–

57 (1991)); see also Coleman, 501 U.S. at 752 (“There is no constitutional right to an

attorney in state post-conviction proceedings. Consequently, a petitioner cannot

claim constitutionally ineffective assistance of counsel in such proceedings.” (citing

Pennsylvania v. Finley, 481 U.S. 551 (1987); and Murray v. Giarratano, 492 U.S. 1

(1989)); 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during

his separate-counsel argument, which we have already addressed). So we needn’t get into it.

30 Federal or State collateral post-conviction proceedings shall not be a ground for relief

in a proceeding arising under section 2254.”).

We make an exception when “the initial-review collateral proceeding is the

first designated proceeding for a prisoner to raise a claim of ineffective assistance at

trial,” because then “the collateral proceeding is in many ways the equivalent of a

prisoner’s direct appeal as to the ineffective-assistance claim.” Martinez v. Ryan, 566

U.S. 1, 11 (2012). This exception also applies when the “state procedural framework,

by reason of its design and operation, makes it highly unlikely in a typical case that a

defendant will have a meaningful opportunity to raise a claim of ineffective

assistance of trial counsel on direct appeal.” Trevino, 569 U.S. at 429.

So when a state’s scheme makes a post-conviction proceeding the defendant’s first

opportunity to raise his trial counsel’s ineffective assistance, the ineffective

assistance of post-conviction counsel can serve as cause to excuse a failure to raise it

then.

Cuesta-Rodriguez claims that the “[l]ack of truly separate counsel on direct

appeal means . . . that post-conviction was the first opportunity . . . to raise trial

counsel’s ineffectiveness.” Appellant’s Opening Br. at 46. Thus, Cuesta-Rodriguez

asserts that post-conviction counsel’s failure to raise an ineffective-assistance claim

constitutes cause under the exception established in Martinez, 566 U.S. at 11, and

Trevino, 569 U.S. at 429.

31 But Cuesta-Rodriguez’s argument ignores the reality of Oklahoma’s

ineffective-assistance-claim system.21 “Oklahoma provides a reasonable time to

investigate a claim of ineffective assistance before raising it on direct appeal.”

Fairchild, 784 F.3d at 721. An ineffective-assistance claim can be raised in the

opening brief on appeal, and that brief can be accompanied by a request to

supplement the record. Id. In Fairchild, we noted that Oklahoma’s system “allowed

appellate counsel to file the [appellate] brief, along with a Rule 3.11 motion to

supplement the trial record, 16 months after Defendant was sentenced, with access to

the transcript and record for nearly six months.” Id. at 722.

Oklahoma points us to our decisions in Fairchild, 784 F.3d at 723, and Banks,

692 F.3d at 1148, in which we determined that Oklahoma’s ineffective-assistance-

claim structure voids the need for the Martinez and Trevino safety-valve exception.

In Fairchild and Banks, we determined that Oklahoma’s procedural safeguards allow

for ineffective-assistance claims to be brought on direct appeal. That determination

controls this case. Indeed, the district court concluded that Oklahoma’s Rule 3.11

“allows defendants a meaningful opportunity to raise ineffective-assistance-of-trial-

counsel claims” on direct appeal. Cuesta-Rodriguez, 2016 WL 5485117, at *19.

21 Rule 3.11(B) governs requests for supplementation of the record for direct criminal appeals and allows criminal defendants the opportunity to discover and include more information regarding trial failures (including ineffective-assistance claims). Rule 3.11(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003).

32 But Cuesta-Rodriguez makes two attempts to distinguish his case, arguing:

(1) that because he didn’t have separate counsel at trial and on direct appeal, his first

opportunity to challenge his trial counsel’s performance was his first post-conviction

application and (2) that “the structure and operation of the Oklahoma system,” which

regularly results in defendants in Oklahoma and Tulsa Counties receiving

representation by the OCPD and the Tulsa County Public Defender’s Office,

respectively, both at trial and on direct appeal, restricts such defendants from

“hav[ing] full access to Rule 3.11.”22 Appellant’s Opening Br. at 48. Both arguments

center on Cuesta-Rodriguez’s not having had full access to Rule 3.11 due to

conflicted advocates. But we have already concluded that Cuesta-Rodriguez had

separate counsel for his trial and direct appeal, so these arguments are foreclosed.

And our conclusions in Fairchild pose an uphill battle for Cuesta-Rodriguez.

There, we concluded that Oklahoma’s regime was unlike the legal and structural

barriers that had worried the Supreme Court in Martinez and Trevino. Fairchild, 784

F.3d at 723 (“Oklahoma law did not preclude raising on direct appeal a claim of

ineffective assistance of trial counsel—either as prohibited by state law, as in

Martinez, or as a practical consequence of that law, as in Trevino . . . .”). After

Oklahoma presented evidence of public defenders having asserted ineffective-

22 Oklahoma asserts that Cuesta-Rodriguez waived these arguments, so we shouldn’t address them. We assume the arguments are properly before us and reach their merits.

33 assistance-of-counsel claims, we concluded that Mr. Fairchild hadn’t “shown that the

‘design and operation’ of Oklahoma’s procedural framework ‘ma[d]e[ ] it highly

unlikely in a typical case that a defendant w[ould] have a meaningful opportunity to

raise a claim of ineffective assistance of trial counsel on direct appeal.’” Id. (alteration

in original) (quoting Trevino, 569 U.S. at 429). Likewise, here, Cuesta-Rodriguez

agrees that Oklahoma allows for ineffective-assistance claims on direct appeal but

claims that the public-defender system’s structure prevents defendants from

accessing that right. But he has failed to show that “the practical consequence” of

Oklahoma’s set-up denies the average defendant a meaningful opportunity to raise an

ineffective-assistance claim. Id. So this isn’t a Martinez or Trevino case. Cf. Pavatt v.

Royal, 894 F.3d 1115, 1137 (10th Cir. 2017) (Briscoe, J., concurring and dissenting)

(“[T]o bypass the OCCA’s procedural bar ruling and review [the petitioner’s] ineffective

assistance claims on the merits” based on his separate-counsel argument “would be to

adopt an entirely new, and potentially much broader, rule than was announced in

Martinez and Trevino”).

Martinez and Trevino don’t apply to Cuesta’s case, so we can’t review his first

post-conviction counsel’s alleged ineffectiveness.23 Hence Cuesta-Rodriguez didn’t

23 Cuesta-Rodriguez also forfeited his right to dispute his first post-conviction counsel’s ineffectiveness. Oklahoma requires that a subsequent post-conviction application be filed within 60 days “from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.” Rule 9.7(G)(3), Rules of the Oklahoma Court of Criminal Appeals, Tit. 22, Ch. 18, App. (2012). As the OCCA determined, the date the OCCA denied Cuesta-Rodriguez’s initial application for post-conviction relief (January 31, 2011) was the latest possible

34 show cause for his failure to timely raise his ineffective-assistance claims, and the

procedural bar holds. And we reject his request for an evidentiary hearing on the

same basis—namely, that he hasn’t provided specific allegations suggesting that

Oklahoma’s system was working unfairly.24

C. Fundamental Miscarriage of Justice

On appeal, Cuesta-Rodriguez argues for the first time that he has shown actual

innocence of the death penalty—i.e., that but for constitutional error, no reasonable

jury could have found that the aggravating circumstances of his crime outweighed the

mitigating circumstances—and that this Court should therefore review his

procedurally defaulted claims under the miscarriage-of-justice exception. But we

agree with Oklahoma that Cuesta-Rodriguez failed to preserve this argument for

appellate review, and so we decline to consider it. See, e.g., Stouffer v. Trammell, 738

F.3d 1205, 1221 n.13 (10th Cir. 2013) (“We do not generally consider issues that

were not raised before the district court as part of the habeas petition.”); Heard v.

time “that the alleged failings of first post-conviction counsel became apparent.” See Cuesta-Rodriguez, No. PCD-2012-994, slip op. at 6–7. But Cuesta-Rodriguez filed his second post-conviction application “on November 12, 2012, over one-and-a-half years after the latest date upon which the factual basis of his claim against post- conviction counsel should have been discovered with the exercise of reasonable diligence.” Id. at 7. 24 Cuesta-Rodriguez relies on Watson v. New Mexico, 45 F.3d 385, 387–88 (10th Cir. 1995), to support his claim that he should get an evidentiary hearing on his adequacy and cause concerns. But Watson was a case in which a pro se petitioner did provide specific allegations to show his entitlement to an evidentiary hearing. Id. at 388. Absent such allegations here, the two cases bear little similarity.

35 Addison, 728 F.3d 1170, 1175 (10th Cir. 2013) (“We do not reach [the petitioner’s

argument] in this case, however, because . . . we conclude that [the petitioner] never

raised such a claim, in his petition or otherwise, before the federal district court.”).

Cuesta-Rodriguez maintains that we should choose to address his actual-innocence

argument because the Supreme Court’s opinion in Jenkins v. Hutton, 137 S. Ct. 1769

(2017) (per curiam), changed the legal landscape. See United States v. Mora, 293 F.3d

1213, 1218 (10th Cir. 2002) (noting that though “[w]e generally do not consider issues

raised for the first time on appeal,” we will “occasionally” do so). But we aren’t

persuaded.

As the Supreme Court explained in Sawyer v. Whitley, 505 U.S. 333 (1992),

actual-innocence claims are limited to arguments that “no reasonable juror would have

found the petitioner eligible for the death penalty under the applicable state law,” i.e., the

elements of the crime itself and the existence of aggravating circumstances. Id. at 336,

344–45; see also id. at 347 (“The ‘actual innocence’ requirement must focus on those

elements that render a defendant eligible for the death penalty . . . .”). But, the Court

explained, the existence of “additional mitigating evidence that was prevented from being

introduced as a result of a claimed constitutional error” is not a proper basis for an actual-

innocence claim. Id. at 347. Later, discussing Sawyer, we explained that “even if state

law considers the outweighing of mitigating circumstances by aggravating circumstances

an ‘element’ of a capital sentence, it is not an element for purposes of the actual-

innocence inquiry.” Black v. Workman, 682 F.3d 880, 916 (10th Cir. 2012). These

precedents foreclose Cuesta-Rodriguez’s actual-innocence claim.

36 Hutton hasn’t changed that. Indeed, in reversing a Sixth Circuit decision reviewing

the merits of a case under the miscarriage-of-justice exception to procedural default,

Hutton reaffirmed the core holding of Sawyer. See Hutton, 137 S. Ct. at 1773. The Hutton

Court explained that a reviewing court must analyze “whether a properly instructed jury

could have recommended death,” not “whether the alleged error might have affected the

jury’s verdict.” Id. at 1772.

Cuesta-Rodriguez, though, seizes on the Hutton Court’s “[a]ssuming” that a court

could excuse default based on a “trial court’s failure to specify that, when weighing

aggravating and mitigating factors, the jury could consider only the aggravating

circumstances it found at the guilt phase.” Id.; see also Appellant’s Opening Br. at 40

(“This explication overruled [the Tenth Circuit’s] prior jurisprudence that held the

concept of innocence of the death penalty did not extend to the weighing process.” (citing

Black, 682 F.3d at 916)). But the Hutton Court assumed potential error only to reverse the

Sixth Circuit’s faulty application of Sawyer—nothing in the Court’s discussion

contradicted its earlier decisions. See Hutton, 137 S. Ct. at 1772–73. In short, nothing in

Hutton supports our reviewing Cuesta-Rodriguez’s actual-innocence claim. And

addressing this fact-laden inquiry when no lower reviewing court did—even

tangentially—isn’t justified here.

* * *

Having rejected all of Cuesta-Rodriguez’s arguments, we don’t reach the merits of

his ineffective-assistance claims. We turn next to his second proposition on appeal.

37 III. Prosecutorial Misconduct

Cuesta-Rodriguez claims that “[i]n the penalty phase closing arguments, the

prosecutors engaged in a flagrant campaign to denigrate or completely invalidate the

mitigating evidence.” Appellant’s Opening Br. at 55. He claims that “[t]hese

prosecutorial efforts” “precluded [the jury] from considering as a mitigating factor,

an[] aspect of [Cuesta-Rodriguez’s character] . . . and [some] circumstances of the

offense that [Cuesta-Rodriguez] proffer[ed] as a basis for a sentence less than death.”

Id. at 56 (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion)). That

prosecutorial misconduct, he claims, denied him a fundamentally fair trial in

violation of the Sixth, Eighth, and Fourteenth Amendments.

“[O]ur interest is in whether [Cuesta-Rodriguez] got a fair trial; ‘inappropriate

prosecutorial comments, standing alone, [do] not justify a reviewing court to reverse a

criminal conviction obtained in an otherwise fair proceeding.’” Matthews v. Workman,

577 F.3d 1175, 1186 (10th Cir. 2009) (second alteration in original) (quoting United

States v. Young, 470 U.S. 1, 11 (1985)). Instead, we reverse for prosecutorial misconduct

when errant remarks “so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974); see also Hanson v. Sherrod, 797 F.3d 810, 843 (10th Cir. 2015) (“Prosecutors are

prohibited from violating fundamental principles of fairness, which are basic

requirements of Due Process.”). That “objectionable content was invited by . . . the

defense” doesn’t “excuse improper comments,” but it may be considered in

“determin[ing] [the misconduct’s] effect on the trial as a whole.” Darden, 477 U.S. at

38 182; see also Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000) (“When a prosecutor

responds to an attack made by defense counsel, [this Court] evaluate[s] that response in

light of the defense argument.” (quoting Moore v. Reynolds, 153 F.3d 1086, 1113 (10th

Cir. 1998)). “[T]he appropriate standard of review for such a claim on [habeas] is the

narrow one of due process, and not the broad exercise of supervisory power.” Hanson,

797 F.3d at 843 (second alteration in original) (quoting Darden v. Wainwright, 477 U.S.

168, 181 (1986)).

Cuesta-Rodriguez contests the OCCA’s conclusions that only one

prosecutorial-misconduct error occurred and that the one error—the first guilt-trip

comment—was harmless. He asserts other comments were also errors, and not

harmless ones.

A. Which Statements, if Any, Were Errors?

Cuesta-Rodriguez highlights multiple prosecution statements—(1) those

suggesting that “the [defense’s] mitigation case was an effort to send jurors on a guilt

trip” and that Cuesta-Rodriguez “shamefully” tried to use his family as a human

shield and (2) those discussing instruction nine, regarding mitigation—claiming all

were error. Appellant’s Opening Br. at 55. The OCCA determined that only the

prosecution’s first guilt-trip statement was an error. We first address the

prosecution’s comments that allegedly denigrated the defense’s mitigation evidence

before turning to the comments regarding jury instruction nine. After doing so, we

address whether the errors, if any, were harmless.

39 1. Guilt and Shame Comments

The OCCA found that the first guilt-trip comment was error. The OCCA didn’t

find the other statements regarding guilt to be error, although the court did find that

the comments came “very close to crossing this line.” Cuesta-Rodriguez, 241 P.3d at

244. But Cuesta-Rodriguez argues that other guilt-based comments were also errors,

as well as the shame-on-him (said twice) and human-shield comments. Cuesta-

Rodriguez thus claims that “[t]he OCCA’s holding is contrary to or an unreasonable

application of Supreme Court precedent.” Appellant’s Opening Br. at 59.

Two facts counter Cuesta-Rodriguez’s argument. First, defense counsel didn’t

object to the shame-on-him and human-shield comments contemporaneously. See

Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir. 1999) (noting that the lack of an objection,

“while not dispositive, is relevant”). Second, in evaluating prosecution comments’

impact, we consider whether the defense invited the comments. See Darden, 477 U.S. at

182 (“[T]he idea of ‘invited response’ is used not to excuse improper comments, but to

determine their effect on the trial as a whole.” (quoting Young, 470 U.S. at 13)); see also

Tillman, 215 F.3d at 1129. Statements of family members that they “love” a defendant

aren’t “‘relevant mitigating evidence’ on which a jury legitimately might . . . ground[]

feelings of sympathy.” Coleman v. Saffle, 869 F.2d 1377, 1393 (10th Cir. 1989). And

defense counsel attempted to elicit sympathy for Cuesta-Rodriguez’s family—his son in

particular—based on the pain they would feel if he received the death penalty. Thus, the

40 second shame-on-him comment, as well as the guilt-trip comments, when viewed in light

of the defense’s approach, were less harmful than they otherwise might have been.25

Beyond the context in which the prosecutor’s comments arose, Cuesta-

Rodriguez points to little federal law to support his proposition that the OCCA’s

conclusion (that the comments weren’t error) was contrary to established federal law.

He cites Dodd v. Trammell, 753 F.3d 971 (10th Cir. 2013), as a case in which “an

experienced prosecutor knowingly crossed the line in the penalty phase for an

expected effect on the sentencing determination.” Appellant’s Opening Br. at 60. But

Dodd concerned inappropriate victim-impact testimony, and its holding has little

bearing on this case. In Dodd, prosecutors had introduced victim-impact evidence in

clear violation of Supreme Court precedent, but the OCCA had concluded that the

violation was harmless. 753 F.3d at 996–97.26 Though we reversed the OCCA’s

decision, we took care to note that the case was an outlier, as evidenced by “the sheer

25 This point has no bearing on the human-shield and the first shame-on-him comments. Cuesta-Rodriguez claims that the prosecution’s comments unfairly targeted one source of his mitigation evidence: the statements that his Cuban family members gave. See Appellant’s Opening Br. at 57 (“In Mr. Cuesta’s case, it was profoundly unfair for the prosecution to argue that Mr. Cuesta acted in a shameful manner in presenting statements from his family in Cuba to the jury, particularly given his and their unusual circumstances.”). But we note only that the defense’s emotional plea is a factor to consider when analyzing the prosecution’s statements in response. 26 The OCCA had also concluded that the victim-impact statements didn’t violate the defendant’s Eighth Amendment rights, but we deemed that conclusion contrary to clearly established federal law. Dodd, 753 F.3d at 996.

41 volume” of problematic testimony and a “weak[] case for the death penalty.” Id. at

998.

Ignoring the differences between the two cases, Cuesta-Rodriguez contends

that Dodd announces a rule (“the Dodd inference”) that reversal is particularly

appropriate when prosecutorial misconduct was purposeful. Appellant’s Reply Br. at

35. We see no such rule in Dodd—but even if we did, we aren’t persuaded that

Cuesta-Rodriguez has shown that the prosecutors’ statements amounted to purposeful

(and erroneous) manipulation. As Oklahoma highlights, the prosecutors told the jury

that the mitigation evidence could factor into its decision. For example, one

prosecutor told the jury to “consider” what Cuesta-Rodriguez’s family members

“ha[d] to say.” Trial Tr. vol. VII at 1284:10–11.

Our decision in Hanson is more on point. See 797 F.3d at 840 (reiterating the

standard that “we cannot say that ‘[a] state court’s determination that a claim lacks

merit’ is wrong on habeas ‘so long as “fairminded jurists could disagree” on the

correctness of the state court’s decision’” (alteration in original) (quoting

Harrington, 562 U.S at 101)). In that case, we upheld the OCCA’s conclusion that it

wasn’t error for a prosecutor to state that it “is also clear that life without parole is

not enough accountability for this defendant.” Id. at 846. We rejected the argument

that the OCCA’s conclusion “effectively precluded the jury from considering mitigating

evidence.” Id. at 847. So too here: We can’t say that the prosecution’s comments

prevented the jury from examining the defense’s mitigation evidence. Cuesta-Rodriguez

42 fails to point to a Supreme Court case suggesting otherwise, thus failing to meet his

burden under AEDPA.

And as Oklahoma points out, we have denied habeas relief in cases involving

similar prosecutorial comments. See, e.g., Simpson v. Carpenter, 912 F.3d 542, 587 (10th

Cir. 2018) (noting that the prosecutor had “improperly denigrated [the petitioner’s]

mitigating evidence” by “suggesting the defense should be ashamed for relying on [the

petitioner’s] family support and mental health,” but concluding that none of the

prosecutor’s comments, “separately or cumulatively . . . deprived [the petitioner] of a

fundamentally fair sentencing proceeding”); Bland v. Sirmons, 459 F.3d 999, 1026 (10th

Cir. 2006) (rejecting the claim that the prosecutor had “improperly demeaned [the

petitioner’s] mitigating evidence” by calling pieces of that evidence “excuses” and asking

whether those pieces should “act [as a] shield from accepting the full responsibility for

his actions” (internal quotation marks and citation omitted)); Pickens v. Gibson, 206 F.3d

988, 999–1000 (10th Cir. 2000) (denying habeas relief in a case where the prosecutor

referred to a defense argument as a “guilt trip”). So we don’t think the OCCA’s

conclusion—that just one prosecution comment was error—was contrary to established

federal law.

But Cuesta-Rodriguez makes another argument.27 He claims that the OCCA

(and the district court) incorrectly analyzed the errors separately (rather than

27 Oklahoma claims this argument wasn’t raised at the district court and that Cuesta-Rodriguez didn’t argue for plain-error review, so we shouldn’t address it. But we assume we can address it, and we do so.

43 together), correctly pointing out that “all the conduct must be considered ‘in toto

because individual harmless prosecutorial errors can add up to make a trial

fundamentally unfair in the aggregate.’” Appellant’s Opening Br. at 60 (quoting Le v.

Mullin, 311 F.3d 1002, 1022 (10th Cir. 2002)). Building this argument, Cuesta-

Rodriguez argues that the OCCA failed to give the shame-on-him comments any

weight in assessing the impact of the erroneous guilt-trip comment.

We aren’t persuaded. Under the heading “Prosecutorial Misconduct,” the

OCCA addressed Cuesta-Rodriguez’s “claims that numerous instances of improper

argument and questioning of witnesses during the sentencing phase of his trial

produced a sentence that failed to meet the heightened standard of reliability in death

penalty cases.” Cuesta-Rodriguez, 241 P.3d at 243. After “review[ing] the prosecutors’

questions and comments cited by Cuesta-Rodriguez as improper,” the OCCA concluded

that “[w]ith one exception, . . . nothing in any of those questions or comments,

individually or cumulatively, [went] beyond an attempt to minimize the effect of the

evidence presented by the defense, or [went] beyond discussing the evidence in arguing

for an appropriate sentence.” Id. at 243 (emphasis added). The OCCA wasn’t required to

address the harmlessness of non-errors. Only actual errors need be included. Le, 311 F.3d

at 1023. The OCCA did address the harmlessness of the one error it found—the merits of

which we discuss a little later.

2. Jury Instruction Comments

“During the sentencing phase of a capital case, the defendant has a well-

established right to introduce ‘relevant’ mitigating evidence that he proffers as a

44 basis for a sentence less than death.” Coleman, 869 F.2d at 1392 (citing Lockett, 438

U.S. at 604).

Cuesta-Rodriguez—pointing to various prosecution statements concerning the

jury instruction—alleges that the prosecution improperly exploited instruction nine’s

language to preclude consideration of mitigating evidence.28

Reviewing the prosecution’s approach to instruction nine, the OCCA

concluded that “the prosecutor in this case did not urge the jury to categorically

disregard the proffered mitigation evidence, but instead argued that the evidence

offered in mitigation did not support an inference of reduced culpability.” Cuesta-

Rodriguez, 241 P.3d at 243. To prevail here, Cuesta-Rodriguez needs to show us that

the OCCA’s determination was unreasonable.

The OCCA’s conclusion that the prosecution didn’t try to make the jury ignore

mitigation evidence wasn’t unreasonable. The prosecution didn’t tell the jury not to

consider Cuesta-Rodriguez’s mitigation evidence. Instead, the prosecution argued

that the mitigating testimony shouldn’t weigh against a sentence of death—and that’s

permissible. The prosecution can advocate what evidence the jury should value. It

28 Oklahoma has since amended the instruction. See Grant v. Royal, 886 F.3d 874, 933–34 (10th Cir. 2018) (discussing the reformed instruction); Harris v. State, 164 P.3d 1103, 1114 (Okla. Crim. App. 2007) (expressing concern at “the consistent misuse” of the old instruction). Cuesta-Rodriguez highlights flaws in the instruction while conceding that we have held that the instruction doesn’t violate the Constitution. See Hanson, 797 F.3d at 849–52. And Cuesta-Rodriguez also concedes that he didn’t obtain a COA on the issue.

45 just can’t tell the jury that it can’t consider the mitigation evidence unless it speaks to

culpability.

Cuesta-Rodriguez relies on our decision in Le, where we noted that the

prosecution’s arguments “may have implied that the jury had the ability to ignore the

legal requirement that it must consider mitigating evidence.”29 311 F.3d at 1018. But

he fails to mention that in Le, we concluded that “the jury was appropriately

informed by the jury instructions and by closing arguments that it had to consider

mitigating evidence before deciding to impose a death sentence.” Id. The same is true

here.

We reached a similar conclusion in Hanson, 797 F.3d at 851–52. In that case,

“the prosecutor told the jury to consider whether any of the mitigating circumstances

‘really extenuate or reduce [the defendant’s] degree of culpability or blame in this

case.’” Id. at 851. But we upheld the OCCA’s decision affirming the defendant’s death

sentence because the prosecutor also encouraged the jury to consider the mitigation

evidence and the judge instructed the jury to consider mitigation evidence. Id. at 851–

52; see also Grant v. Royal, 886 F.3d 874, 939 (10th Cir. 2018) (describing our

decision in Hanson, and noting that “because the moral-culpability text itself was not

unconstitutional—at least in the context of other, broadening instructions—the

29 Of course, as Oklahoma notes, “Le is not an opinion of the Supreme Court and cannot provide clearly established federal law.” Appellee’s Response Br. at 92. But we address Cuesta-Rodriguez’s argument head-on anyway.

46 prosecutor’s isolated references to that text, without more, did not effect a

constitutional violation”).

We again upheld a death sentence in Grant—a case in which the prosecution

made statements like, “[W]hat the law says is that before something can be

mitigating it must reduce the moral culpability or blame of the defendant.” 886 F.3d

at 937. But the trial court in Grant gave the same instruction given here and in

Hanson, listing non-culpability-related circumstances as mitigation. Grant, 886 F.3d

at 940; Hanson, 797 F.3d at 851. And in affirming the sentence, we relied on the

ameliorating jury instructions as a whole and prosecution comments interpreting

mitigation circumstances more broadly. Grant, 886 F.3d at 939–40.

We have comparable circumstances here. The prosecution similarly gave a

broader view of the mitigating evidence than some isolated comments might suggest,

saying things like:

 “[Y]ou still say, all right, does that outweigh the mitigating evidence that we’ve heard?” Trial Tr. vol. VII at 1281:17–19.

 “And, again, I’m not telling you don’t listen to [Cuesta- Rodriguez’s family members]; by all means, you consider what they have to say.” Id. at 1284:9–11.

 “[W]e’re not asking you to ignore the evidence, but embrace it.” Id. at 1315:11–12.

See also id. at 1273:3 (“Pay close attention to the Judge’s instruction.”). So here, like

in Hanson, “the prosecutor made a number of other comments to the jury that

encouraged them [sic] to consider any and all mitigating evidence they thought

relevant.” 797 F.3d at 851.

47 And the jury here heard the same instructions we found curative in Hanson.

See Original R. vol. VII at 1285–88; Hanson, 797 F.3d at 851.

First, the judge instructed the jury on sixteen specific mitigating

circumstances, “some of which had nothing to do with [the petitioner’s] moral

culpability.” Hanson, 797 F.3d at 851 (listing mitigating circumstances including the

petitioner’s emotional history, family history, history while incarcerated, and his having a

son). “In other words, in this instruction . . . the trial judge specifically characterized as

‘mitigating’ factors that ordinarily would not be deemed to have extenuated or reduced

[the petitioner’s] moral culpability or blame.” Grant, 886 F.3d at 940 (describing

mitigating circumstances involving the petitioner’s family and emotional history as not

extenuating moral culpability or blame). The court instructed the jury on “mitigating”

evidence, such as Cuesta-Rodriguez’s volunteer work, his learning to read and write

English while in federal detention, his family ties, and his relationship with his son.

Original R. vol. VII at 1285. And just like in Hanson and Grant, that evidence was

described as mitigating even though it doesn’t speak to culpability. Hanson, 797 F.3d at

851 (“Viewing the challenged instruction in the context of all the instructions, we do not

think the jury would have felt precluded from considering any mitigating

evidence . . . .”).

Next, “in the same instruction that included the moral-culpability text, there was

language that vested the jury with the responsibility for determining what evidence was

mitigating.” Grant, 886 F.3d at 940 (discussing Hanson). Here, in instruction nine, the

district court told the jury that “[t]he determination of what circumstances are mitigating

48 is for you to resolve under the facts and circumstances of this case.” Original R. vol. VII

at 1284; see also Grant, 886 F.3d at 940 (relying on this exact instruction and declaring

that “a jury is presumed to follow the trial court’s instructions”); Hanson, 797 F.3d at 851

(finding that this sentence “broadened any potential limitations imposed by the first

sentence of the instruction”). So, again, the court correctly informed the jury of the law.

Last, in the court’s final instruction in this case, it told the jury that “in this part of

the trial, you may consider sympathy or sentiment for the defendant in deciding whether

to impose the death penalty.” Original R. vol. VII at 1295. So the jury instructions

accurately described the law (including emphasizing the inclusion of mitigating

circumstances). See Grant, 886 F.3d at 941 (explaining that accurate, clear jury

instructions are relevant “in concluding that the OCCA would not have been

unreasonable in determining that the prosecution’s closing argument did not have the

unconstitutional effect of precluding the jury from considering the petitioner’s

proffered mitigating evidence that did not extenuate or reduce moral culpability or

blame”). We accord that substantial weight. See Boyde v. California, 494 U.S. 370,

384 (1990) (noting that instructions from the court, “we have often recognized, are

viewed as definitive and binding statements of the law” (citations omitted)). And it’s

worth noting that defense counsel spent substantial time informing the jury of its

ability to consider mitigating evidence as well.

Given all that, we can’t say that the OCCA’s decision was contrary to federal

law.

49 Attempting to escape that conclusion, Cuesta-Rodriguez argues that the jury’s

question regarding the legal definition of culpability shows that the prosecution’s

comments misled the jurors. See Appellant’s Opening Br. at 69–70 (“The note they

sent out during sentencing deliberations asking for guidance on the ‘legal definition

of culpability’ tells us the prosecution’s false boundary was working great for them,

though unconstitutionally.” (quoting Trial Tr. vol. VII at 1318:22)). From this,

Cuesta-Rodriguez argues, “We know to near certainty the prosecution’s improper

argument worked.” Id. at 70.

But, Oklahoma counters, “[t]hat is far too speculative a basis to find that the

prosecutor misled the jury into believing it could not consider Petitioner’s mitigating

circumstances.” Appellee’s Response Br. at 93. We agree. Determining culpability is

a big part of the jury’s job at sentencing. All the jury note shows is that the jury read

the instruction and had a question: What does legal culpability mean?

Nor do we find persuasive Cuesta-Rodriguez’s reliance on Hooks v. Workman

(Hooks I), 606 F.3d 715, 743 (10th Cir. 2010). In that case, we found a jury note to

be “a singularly clear indication” that prosecutorial misconduct “did, in fact, mislead

the jury.” Id. at 745. Cuesta-Rodriguez is right that Hooks I stands for the proposition

that questions can be relevant indicators of juror misperception. But that doesn’t suggest

that the OCCA impermissibly erred here. Desiring to know the definition of culpability—

a definition central to the jury’s penalty-phase job—doesn’t lead us to believe that the

prosecution led the jury astray. So the note doesn’t show that the OCCA’s conclusions

regarding prosecutorial misconduct were unreasonable.

50 But Cuesta-Rodriguez makes a couple more arguments that need addressing. He

claims that because “the type of misconduct at issue . . . invades specific constitutional

rights,” strict scrutiny applies (which the OCCA didn’t use). Appellant’s Opening Br. at

67. Cuesta-Rodriguez’s argument relies on the claim that “[p]rosecutorial misconduct

impinging a specific right demands strict scrutiny.” Id. at 68 (citing Caldwell v.

Mississippi, 472 U.S. 320, 340 (1985)). The specific right here is the right to present

mitigation evidence.

But Cuesta-Rodriguez hasn’t shown that he was denied his right to present

mitigation evidence. Indeed, Cuesta-Rodriguez presented substantial mitigation evidence

during his trial. See Original R. vol. VII at 1285–88 (listing sixteen mitigating

circumstances ranging from Cuesta-Rodriguez’s Cuban emigration to his successful work

history and strong familial relationships). So he has failed to make the threshold showing.

Moreover, Oklahoma counters Cuesta-Rodriguez’s argument by pointing out that

no clearly established law supports Cuesta-Rodriguez’s proposition that the prosecutorial

misconduct here required strict-scrutiny review. We agree.30

Cuesta-Rodriguez relies on Paxton v. Ward, 199 F.3d 1197, 1217–18 (10th Cir.

1999), to prove his point. In Paxton, we noted:

[T]his court has drawn an important distinction between an ordinary claim of prosecutorial misconduct, which warrants habeas relief only when the entire proceeding is rendered fundamentally unfair, and a claim that the

30 So we don’t address Oklahoma’s proposed alternative ground for affirmance—that, “assuming that the OCCA was required to apply strict scrutiny under clearly established federal law, this Court must presume that the OCCA did so.” Appellee’s Response Br. at 95 n.27.

51 misconduct effectively deprived the defendant of a specific constitutional right, which may be the basis for habeas relief without proof that the entire proceeding was unfair.

199 F.3d at 1217. But as we made clear when addressing exactly this issue in Littlejohn v.

Trammell, our past decisions can’t create clearly established law for AEDPA purposes.

See 704 F.3d 817, 838 n.9 (10th Cir. 2013) (“It goes without saying, however, that

Paxton cannot supply clearly established federal law to support [the petitioner’s]

claim.”).

Cuesta-Rodriguez also cites two Supreme Court cases in support of his claim that

because the prosecutorial statements infringed a constitutional right, the OCCA ought to

have applied strict scrutiny. See Appellant’s Opening Br. at 67–68 (citing Caldwell, 472

U.S. at 340; and Donnelly, 416 U.S. at 643). Neither proves his point. In Donnelly,

addressing prosecutorial-misconduct claims, the Supreme Court stuck with a

fundamental-fairness analysis. See 416 U.S. at 643 (“When specific guarantees of the Bill

of Rights are involved, [the Supreme Court] has taken special care to assure that

prosecutorial conduct in no way impermissibly infringes them.”). And Caldwell

distinguished Donnelly, concluding that in Caldwell, “the prosecutor’s argument sought

to give the jury a view of its role in the capital sentencing procedure that was

fundamentally incompatible with the Eighth Amendment[].” Caldwell, 472 U.S. at 340.

So there, the Supreme Court reversed (without clarity as to the proper standard of

review). But the prosecutors’ stray comments here are a far cry from those facts. Cuesta-

52 Rodriguez hasn’t provided any sufficiently similar Supreme Court case to prove his

point.31

Last, Cuesta urges us to look at the OCCA’s decision in Harris v. Oklahoma, 164

P.3d 1103 (Okla. Crim. App. 2007), suggesting that the OCCA acted unreasonably in

finding no prosecutorial error here after it concluded in Harris that the instruction was

exploitable and that “the kind of prosecutorial argument made here exploited the statutory

language improperly.” Appellant’s Opening Br. at 66 (citing Harris, 164 P.3d at 1113).

But the relevant inquiry is whether the OCCA acted contrary to Supreme Court

precedent, not its own, so we swiftly reject the argument. No potential inconsistency

between the two cases allows this court to grant Cuesta-Rodriguez relief. See Lockyer v.

Andrade, 538 U.S. 63, 71 (2003) (“[T]he only question that matters under § 2254(d)(1)

[is] whether a state court decision is contrary to, or involved an unreasonable application

of, clearly established federal law.” (citing Weeks v. Angelone, 528 U.S. 225 (2000))).

And Cuesta-Rodriguez ignores the distinguishing facts between Harris and this

case. In Harris, the OCCA found a prosecutor’s comments that “told jurors not to

consider [the defendant’s] mitigating evidence” improper. 164 P.3d at 1113. But

“[u]nlike Harris, . . . the prosecutor in this case did not urge the jury to categorically

31 And in Gipson v. Jordan, we noted that the circuits diverge in their interpretation of “the standard for evaluating . . . prosecutorial misconduct.” 376 F.3d 1193, 1197 (10th Cir. 2004); see also id. (“Generally, improper prosecutorial remarks will not warrant federal habeas relief unless the remark ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” (quoting Donnelly, 416 U.S. at 643)). After so noting, we declined to address the issue, further highlighting the lack of clarity on the issue, which prevents relief here.

53 disregard the proffered mitigation evidence, but instead argued that the evidence offered

in mitigation did not support an inference of reduced culpability.” Cuesta-Rodriguez, 241

P.3d at 243. And despite “the consistent misuse of the language in th[e] instruction” in

Harris, the OCCA ultimately concluded that “[t]he prosecutor’s improper argument on

this issue was cured by further argument and instruction.” Harris, 164 P.3d at 1114.

Thus, Cuesta-Rodriguez’s “reliance on Harris [wa]s misplaced.” Hanson, 797 F.3d at

850.

B. Was the Error Harmless?

We next review whether the OCCA acted contrary to established federal law in

finding the first guilt-trip comment harmless.

The OCCA concluded that none of the guilt-trip comments “were verdict

determinative” and concluded that “given the strength of the evidence supporting

imposition of the death penalty, they were harmless.” Cuesta-Rodriguez, 241 P.3d at

244. In doing so, the OCCA referenced the statements’ impact on the trial as a whole.

Id. And, earlier in the opinion, the OCCA laid out in detail the evidence supporting

the jury’s determination that two aggravating circumstances (heinousness and

continuing risk to society) existed. Id. at 237–39. The first guilt-trip comment didn’t

deny Cuesta-Rodriguez his right to a fundamentally fair trial. And Cuesta-Rodriguez

provides us no federal-law basis to reject the OCCA’s conclusion that the comment,

though disfavored, was harmless.

Cuesta-Rodriguez also argues that the OCCA’s harmlessness conclusion was

contrary to or an unreasonable application of Chapman v. California, 386 U.S. 18

54 (1967), because “the OCCA failed to find the error was harmless beyond a reasonable

doubt.”32 Appellant’s Opening Br. at 59. But the OCCA stated plainly that it analyzed

“the context of the entire trial.” Cuesta-Rodriguez, 241 P.3d at 243. Here, as in

Hanson, “we find it hard to imagine that the jurors thought they were prohibited from

considering any of the mitigating evidence they heard at the resentencing hearing.” 797

F.3d at 852 (citing Boyde, 494 U.S. at 378–86). Thus, we can’t conclude that the OCCA’s

determination that the guilt-trip comment was harmless was contrary to established

IV. Cumulative Error

This leaves us with Cuesta-Rodriguez’s claim of cumulative error. He argues that

even if each individual error was harmless, the cumulative effect of the errors impacted

the penalty-phase verdict. Cuesta-Rodriguez highlights three errors to include in the

cumulative analysis: (1) the ineffective-assistance-of-counsel claim, (2) the prosecutorial-

misconduct errors described above, and (3) the Confrontation Clause error the OCCA

determined was harmless.

The OCCA denied Cuesta-Rodriguez’s cumulative-error claim on direct appeal,

concluding that while “Cuesta-Rodriguez’s trial was not error free, the errors do not

require relief because when considered in the aggregate, they did not render his trial

fundamentally unfair, taint the jury’s verdict, or render the sentencing unreliable.”

32 Oklahoma urges us to find this argument waived because it wasn’t raised at the district court. But we assume we can address it.

55 Cuesta-Rodriguez, 241 P.3d at 246. Thus, the OCCA concluded that “[a]ny errors were

harmless beyond a reasonable doubt, individually and cumulatively.” Id.

“In the federal habeas context, a cumulative-error analysis aggregates all

constitutional errors found to be harmless and analyzes whether their cumulative effect

on the outcome of the trial is such that collectively they can no longer be determined to

be harmless.”33 Cole v. Trammell, 755 F.3d 1142, 1177 (10th Cir. 2014) (quoting

Alverson v. Workman, 595 F.3d 1142, 1162 (10th Cir. 2010)). “The cumulative-error

analysis applies where there are two or more actual errors. It does not apply, however, to

the cumulative effect of non-errors.” Smith, 824 F.3d at 1255 (quoting United States v.

Franklin-El, 555 F.3d 1115, 1128 (10th Cir. 2009)). To receive habeas relief, Cuesta-

Rodriguez must show that “the cumulative effect of the errors determined to be harmless

had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’”

Hanson, 797 F.3d at 852 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

We first analyze each of Cuesta-Rodriguez’s proposed errors to determine whether

the error should be included in our cumulative-error analysis.

33 “[F]or purposes of possible en banc or certiorari review,” Oklahoma argues that our “reliance on general principles of ‘the right to a fair trial and due process’” in establishing our cumulative-error jurisprudence “is improper.” Appellee’s Br. at 97 n.28 (quoting Hanson, 797 F.3d at 852 n.16). As Oklahoma rightly acknowledges, our precedent forecloses this argument. See Smith v. Duckworth, 824 F.3d 1233, 1255 (10th Cir. 2016) (rejecting the argument that because “no clearly established federal law recognizes cumulative error as a ground for habeas relief,” AEDPA bars the use of cumulative error analysis). We address this argument no further in this opinion.

56 A. Ineffective Assistance

Oklahoma argues that this court cannot rely on procedurally defaulted claims in

considering a cumulative-error claim. We agree.34 “[I]n a cumulative error analysis, a

court . . . may not consider claims that are procedurally defaulted.” Ray v. Simmons, 125

F. App’x 943, 946–47 (10th Cir. 2005); see also Hughes v. Dretke, 412 F.3d 582, 597

(5th Cir. 2005) (“Meritless claims or claims that are not prejudicial [or claims that are

procedurally barred] cannot be cumulated.” (alteration in original) (quoting Westley v.

Johnson, 83 F.3d 714, 726 (5th Cir. 1996))). So Cuesta-Rodriguez’s ineffective-

assistance claims, having been ruled procedurally barred, have no place in our

cumulative-error analysis.

B. Confrontation Clause

Oklahoma argues that because Cuesta-Rodriguez didn’t receive a COA on the

underlying Confrontation Clause claim, we can’t consider it in the cumulative error

analysis.

We disagree. The COA explicitly included the Confrontation Clause claim as one

to be included in the cumulative-error analysis: We stated that “harmless constitutional

errors found by the Oklahoma Court of Criminal Appeals in appellant’s direct appeal

concerning the admission of autopsy diagrams and the testimony of Dr. Gofton” were to

be included. Order at 2, Cuesta-Rodriguez v. Carpenter, No. 16-6315, (10th Cir. Apr. 10,

34 Oklahoma also argues that ineffective-assistance claims don’t factor into cumulative error at all. But it recognizes that this argument has been precluded by our prior decisions.

57 2017). True, we can’t simply adopt the OCCA’s constitutional conclusions. But a lack of

explicit mention of the merits in our COA doesn’t mean we can’t reach them. The COA

did what it intended—flagged the potential Confrontation Clause error as one this court

could look at in its cumulative error analysis. See Appellant’s Opening Br. at 77 n.40

(“Cuesta was granted a certificate of appealability on the cumulative penalty prejudice

flowing from [the Confrontation Clause] violation.”).

Oklahoma’s reliance on Young v. Sirmons, 551 F.3d 942, 972–73 (10th Cir.

2008), for the contrary position is unpersuasive. See Appellee’s Response Br. at 100

(describing Young as standing for the proposition that “a cumulative error claim

cannot encompass a substantive claim for which a petitioner does not have a COA”).

In Young, we rejected a petitioner’s argument that we should cumulatively assess all

of the trial errors found by the OCCA where: (1) those errors weren’t mentioned in

the COA35 and (2) some of the errors the petitioner sought to cumulate involved

state-law issues. 551 at 973. So this case is clearly distinguishable: (1) the COA

explicitly mentions the Confrontation Clause error and (2) the Confrontation Clause

35 Indeed, that COA (granted by the district court) granted four of the petitioner’s claims: “(1) ineffective assistance of trial counsel for failing to adequately investigate and present mitigation evidence for the sentencing stage; (2) improper victim impact evidence; (3) improper admission of Petitioner’s ‘fish blood’ statement; (4) cumulative impact of errors.” Order Granting Certificate of Appealability at 2, Young v. Sirmons, No. 00-CV-310-JHP-PJC (N.D. Okla. Sept. 21, 2007). Thus, the COA didn’t mention in any form the specific errors the petitioner wanted to cumulate. See Young, 551 F.3d at 973 (“[N]either the district court nor we have granted a COA with respect to those issues.”). And, the simplest read of the COA is that the “errors” in number four refer back to the earlier listed errors, not unnamed errors.

58 issue is squarely one of federal, not state, law. So we can look at the Confrontation

Clause issue in the cumulative-error analysis.

It’s worth noting, though, that no Supreme Court case has squarely resolved

the issue of whether the Confrontation Clause applies at penalty-stage proceedings.

See Carter v. Bigelow, 787 F.3d 1269, 1294 (10th Cir. 2015) (“The Supreme Court

has never held that the Confrontation Clause applies at capital sentencing.”); Wilson

v. Sirmons, 536 F.3d 1064, 1111–12 (10th Cir. 2008) (“[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))).

But that doesn’t preclude our inclusion of the error in our determination whether, in the

aggregate, the various errors denied Cuesta-Rodriguez a fair trial.36 See Littlejohn, 704

F.3d at 843 (“Allowing Mr. Littlejohn maximum latitude in addressing his claim, we

assume without deciding that the Confrontation Clause applies in capital sentencing

proceedings.”).

36 That the OCCA relied solely on state-law cases doesn’t control our analysis. See Early v. Packer, 537 U.S. 3, 8 (2002) (rejecting the contention that a state court’s failing to cite to federal law suggests an AEDPA problem: “Avoiding these pitfalls [requiring AEDPA reversal] does not require citation of our cases—indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”).

59 Having concluded we can look at it, we assume without deciding that the

Confrontation Clause error found by the OCCA was indeed error, and plug it into our

cumulative-error analysis.37

C. Prosecutorial Misconduct

Having concluded earlier that only one applicable error survives—the initial guilt-

trip comment, that’s the only prosecutorial misconduct we include in our analysis.

D. Cumulative-Error Analysis

To start, Oklahoma argues that because the guilt-trip comment is the only error we

can consider, there aren’t multiple errors to cumulate. True, a cumulative-error analysis

requires more than one error to aggregate. But because we assume, without deciding, that

the Confrontation Clause error was error, we have more than one error to address, and so

we proceed to the cumulative-error analysis.

AEDPA deference controls our analysis. Cuesta-Rodriguez asks that we include

other errors in our cumulative-error analysis—and he then claims that adding more

errors means we are evaluating a claim that the OCCA didn’t address on the merits,

so we should apply de novo review. See Appellant’s Opening Br. at 77 (“This Court’s

review for cumulative error is not under so-called AEDPA deference but rather is de

novo.”); Hooks II, 689 F.3d at 1163–64. But we are evaluating the same two errors that

37 OCCA’s conclusion regarding the Confrontation Clause error coded it as both a guilt-phase and a penalty-phase error. Cuesta-Rodriguez, 241 P.3d at 231. On appeal, Cuesta-Rodriguez refers only to the penalty-phase component of the error.

60 the OCCA analyzed and so will uproot the OCCA’s decision only if it was contrary

to or an unreasonable application of established federal law.38

We have already determined that the OCCA’s conclusion that the prosecutorial-

misconduct error was harmless wasn’t unreasonable. All that’s left to determine is

whether the Confrontation Clause error combined with the prosecutorial misconduct error

denied Cuesta-Rodriguez a right to a fundamentally fair trial. In doing so, we are mindful

that cumulative error does not require any synergistic effect. Grant v. Trammel, 727 F.3d

1006, 1026 (10th Cir. 2013).

Even so, recognizing that Cuesta-Rodriguez claims such a synergy, Oklahoma

points out that he fails to explain how the Confrontation Clause error would have any

synergistic effect with the prosecutorial error such that it denied him a fundamentally fair

trial. Indeed, Cuesta-Rodriguez acknowledges that the Confrontation Clause violation

was relatively minor. See Appellant’s Reply Br. at 37 (“[T]he Confrontation Clause

violation is not the strongest cumulative error element nor the one on which Mr. Cuesta

most relies.”).

All Cuesta-Rodriguez tells us on this point is that the Confrontation Clause error

could have affected the jury’s determination of the heinous, atrocious, or cruel

38 Cuesta-Rodriguez also argues that the OCCA “relied in part on an unreasonably erroneous conclusion the Confrontation Clause error was harmless because sufficient other evidence existed.” Appellant’s Opening Br. at 77 n.41 (citing Cuesta-Rodriguez, 241 P.3d at 231). Finding error harmless based on the weight of other evidence is exactly the kind of determination we leave undisturbed under AEDPA. Cuesta-Rodriguez doesn’t explain how this conclusion was unreasonable.

61 aggravator. On that, the OCCA concluded that ample other evidence in the record

showed that Fisher consciously experienced physical and mental suffering before her

death. Cuesta-Rodriguez, 241 P.3d at 231. The OCCA pointed to other testimony (that of

police officers and Chacon) that showed evidence of a struggle “for at least seven

minutes until Cuesta-Rodriguez delivered the fatal shot to her left eye.” Id. From there,

the OCCA concluded that even without the medical examiner’s testimony, “the jury

could have reasonably concluded that Fisher consciously experienced great physical and

mental suffering.” Id.

The OCCA’s conclusions weren’t unreasonable. As the prosecutor said to the jury

in discussing Fisher’s suffering, “In this case we don’t even have to take just [the medical

examiner’s] word for it. We know [the first shot] wasn’t fatal.”39 Trial Tr. vol. VII at

1279:6–8. The prosecutor went on to reference Cuesta-Rodriguez’s statement to police

and testimony from officers on the scene who heard Fisher’s “blood-curdling scream.” Id.

at 1279:12; see also id. (discussing Fisher’s behavior during her last minutes of life). So

the OCCA’s conclusion that the jury needn’t have relied on the medical examiner’s

testimony stands.

The first guilt-trip comment concerned the defense’s mitigation evidence. See

Appellant’s Opening Br. at 75 (“The prosecution minimized and sought to side step

mitigation by falsely describing it as a guilt trip.”). This error, though adjudged harmless,

39 The prosecution did, however, refer to the medical examiner’s testimony again later.

62 was weightier than the Confrontation Clause error. Indeed, the OCCA cautioned

“prosecutors in future cases to keep their argument focused on the evidence and to avoid

making comments that do nothing but denigrate the defense.” Cuesta-Rodriguez, 241

P.3d at 244.

Combining the two errors though, we can’t see how the admittedly minor error

perhaps influencing the jury’s conclusion that the crime was particularly heinous,

atrocious, or cruel could have combined with the guilt-trip comment on mitigation to

violate Cuesta-Rodriguez’s constitutional rights. The two errors relate to different jury

findings.

Cuesta-Rodriguez hasn’t persuaded us that the combined errors led to a trial that

wasn’t “fundamentally fair.” Cole, 755 F.3d at 1177. So Cuesta-Rodriguez’s cumulative-

error claim fails.

CONCLUSION

For the above reasons, we affirm the district court’s judgment.