from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:11-CV-00096-M)
M. Jernigan, Assistant Federal Public Defender (Patti Palmer
Ghezzi, Assistant Federal Public Defender, with her on the
briefs), Oklahoma City, Oklahoma, for Petitioner - Appellant.
Jennifer J. Dickson, Assistant Attorney General (Mike Hunter,
Attorney General of Oklahoma, with her on the brief),
Oklahoma City, Oklahoma, for Respondent - Appellee.
LUCERO, HOLMES, and McHUGH, Circuit Judges.
MCHUGH, CIRCUIT JUDGE.
Simpson is a state prisoner in Oklahoma. After a bifurcated
proceeding, the jury convicted Mr. Simpson of two counts of
first-degree murder and sentenced him to death. He now
appeals the district court's denial of his petition for
federal habeas relief under 28 U.S.C. § 2254. Exercising
jurisdiction under 28 U.S.C. §§ 1291 and 2253, we
to the Anti-Terrorism and Effective Death Penalty Act
(AEDPA), we presume the factual findings of the Oklahoma
Court of Criminal Appeals (OCCA) are correct, absent clear
and convincing evidence to the contrary. See 28
U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550
U.S. 465, 473-74 (2007). We therefore state the facts
surrounding the murders as found by the OCCA on direct
On the evening of January 15, 2006, Jonathan Dalton, Latango
Robertson and [Mr. Simpson] decided to go to Fritzi's hip
hop club in Oklahoma City. Prior to going to the club, the
three drove in [Mr.] Dalton's white Monte Carlo to [Mr.
Simpson's] house so that [Mr. Simpson] could change
clothes. While at his house, [Mr. Simpson] got an assault
rifle[, ] which he brought with him. Before going to
Fritzi's, the men first went to a house party where they
consumed alcohol and marijuana. When they left the party,
[Mr. Simpson] put the assault rifle into the trunk of the
Monte Carlo, which could be accessed through the back seat.
The three arrived at Fritzi's between midnight and 1:00
a.m. on January 16. Once inside, they went to the bar to get
a drink. [Mr. Simpson] and [Mr.] Dalton also took a drug
called "Ecstasy." After getting their drinks, [Mr.]
Dalton and [Mr.] Robertson sat down at a table while [Mr.
Simpson] walked around. When [Mr. Simpson] walked by London
Johnson, Anthony Jones and Glen Palmer, one of the three
apparently said something to him about the Chicago Cubs
baseball cap that he was wearing. [Mr. Simpson] went back to
the table and told [Mr.] Dalton and [Mr.] Robertson that some
guy had given him a hard time about his cap. At some point,
[Mr. Simpson] approached [Mr.] Johnson, [Mr.] Jones and [Mr.]
Palmer again. During this encounter, [Mr. Simpson] told them
that he was going to "chop" them up. After making this
threat, [Mr. Simpson] walked away. He returned a short time
later and walked up to Palmer. [Mr. Simpson] extended his
hand and said, "We cool." [Mr.] Palmer hit [Mr.
Simpson] in the mouth knocking him to the floor. [Mr.
Simpson] told [Mr.] Dalton and [Mr.] Robertson that he wanted
to leave and the three of them left the club.
Out in the parking lot, [Mr. Simpson], [Mr.] Dalton and [Mr.]
Robertson went to [Mr.] Dalton's Monte Carlo. Before
leaving, they talked with some girls who had come out of the
club and were parked next to them. The girls told the men to
follow them to a 7-[Eleven] located at N.W. 23rd Street and
Portland. When they arrived at the store, [Mr. Simpson],
[Mr.] Dalton and [Mr.] Robertson backed into a parking space
toward the back door and the girls pulled in next to the
pumps. While the men were sitting in the Monte Carlo, they
saw [Mr.] Johnson, [Mr.] Jones and [Mr.] Palmer drive into
the parking lot in [Mr.] Palmer's Chevy Caprice. They
recognized [Mr.] Palmer as the person who had hit [Mr.
Simpson] at Fritzi's. [Mr.] Dalton told [Mr. Simpson] to
"chill out" but [Mr. Simpson] was mad and wanted to
retaliate against [Mr.] Palmer. When [Mr.] Palmer drove out
of the parking lot onto 23rd Street and merged onto I-44,
[Mr. Simpson] told [Mr.] Dalton to follow them.
While they were following the Chevy, [Mr. Simpson], who was
sitting in the front passenger seat, told [Mr.] Robertson,
who was sitting in the back seat, to give him the gun. He
told [Mr.] Robertson that if he had to get the gun himself,
there was going to be trouble. [Mr.] Robertson reached
through the back seat into the trunk and retrieved the gun
for [Mr. Simpson]. [Mr.] Dalton followed the Chevy as it
exited the interstate onto Pennsylvania Avenue. He pulled the
Monte Carlo into the left lane beside the Chevy as they drove
on Pennsylvania Avenue and [Mr. Simpson] pointed the gun out
his open window and started firing at the Chevy.
When the Chevy was hit with bullets, [Mr.] Palmer was
driving, [Mr.] Jones was sitting in the front passenger seat
and [Mr.] Johnson was in the back seat. [Mr.] Johnson heard
about twenty rapid gun shots and got down on the floor of the
car. He did not see the shooter but noticed a white vehicle
drive up beside them. The Chevy jumped the curb and hit an
electric pole and fence before coming to a stop. [Mr.] Palmer
and [Mr.] Jones had been shot. [Mr.] Jones had been shot in
the side of his head and torso and was unconscious. [Mr.]
Palmer had been shot in the chest. He was initially conscious
and able to talk but soon lost consciousness when he could no
longer breathe. [Mr.] Johnson tried to give both [Mr.] Jones
and [Mr.] Palmer CPR but was unsuccessful. He flagged down a
car that was driving by and asked the driver to get help.
Both [Mr.] Palmer and [Mr.] Jones died at the scene from
their gunshot wounds.
After he fired at the Chevy, [Mr. Simpson] said,
"I'm a monster. I just shot the car up." He
added, "They shouldn't play with me like that."
[Mr.] Dalton kept driving until they reached a residence in
Midwest City where he was staying. They dropped the gun off
and switched cars, and then [Mr.] Dalton, [Mr.] Robertson and
[Mr. Simpson] went to meet some girls they had talked to at
Simpson v. State (Simpson I), 230 P.3d 888,
893-94 (Okla. Crim. App. 2010) (footnotes in original).
State Court Proceedings
Criminal trial and sentencing
State of Oklahoma charged Mr. Simpson with the first-degree
murders of Glen Palmer and Anthony Jones and with discharging
a firearm with intent to kill London Johnson. Id. at
The prosecution sought a penalty of death for each murder.
to trial, Dr. Phillip Massad, a clinical psychologist,
evaluated Mr. Simpson's mental condition. Mr. Simpson
disclosed to Dr. Massad that, when Mr. Simpson was sixteen
years old, a friend ambushed and shot him for refusing to
kill a government witness scheduled to testify in the
friend's criminal trial. Mr. Simpson suffered five
gunshot wounds and spent two months hospitalized and
comatose. Even after his release from the hospital, Mr.
Simpson was readmitted frequently for treatment of
complications arising from infections. He endured sixteen
surgeries over a seven-month period, and feared his attackers
would return to kill him. Dr. Massad concluded Mr. Simpson
suffered from Post-Traumatic Stress Disorder (PTSD) as a
result of the shooting.
Simpson's counsel notified the court he intended to
present evidence of Mr. Simpson's PTSD and to call Dr.
Massad as an expert witness on that topic. The defense
planned to elicit testimony from Dr. Massad that Mr. Simpson
suffered from PTSD and that this condition affected his
ability to form the intent of malice aforethought required
for a first-degree murder conviction. The State moved to
exclude Dr. Massad from testifying at the guilt stage of
trial. At a hearing on the matter, defense counsel
represented that Dr. Massad would testify it was
"possible that the PTSD affected [Mr. Simpson] to the
extent that he was not able to form the specific intent"
to kill, and that, because of his PTSD, Mr. Simpson would
have "magnified in his own mind the threat" the
victims presented. Trial Mot. Hr'g Tr. at 18 (Sept. 19,
2007). As the State notes, however, Dr. Massad's
psychological report "never indicate[d] that [Mr.
Simpson's PTSD] prevent[ed] him from forming an intent to
kill" or from "know[ing] what he was doing was
wrong." Id. at 11-12. The trial court granted
the State's motion, holding that Oklahoma law precludes
testimony that a defendant could not have formed the specific
intent to commit a crime, except in the context of an
intoxication or insanity defense, neither of which had been
advanced by Mr. Simpson at that time.
jury rendered its decision finding Mr. Simpson guilty of the
first-degree murders of Mr. Palmer and Mr.
Jones. In the ensuing penalty stage, the State
alleged four aggravating factors it claimed warranted a
sentence of death:
1.[Mr. Simpson], prior to the time of sentencing, was
convicted of a felony involving the use or threat of violence
to [another] person [("Prior Violent Felony
2.[Mr. Simpson] knowingly created a great risk of death to
more than one person [("Risk of Multiple Deaths
3.The murder was especially heinous, atrocious, or cruel
4.At the present time there exists a probability that [Mr.
Simpson] would commit criminal acts of violence that would
constitute a continuing threat to society [("Continuing
Trial R. vol. 1 at 44. Mr. Simpson asserted three factors in
mitigation: (1) his age,  (2) his mental state (PTSD diagnosis),
and (3) his family support.
Aggravating evidence presented at sentencing
State moved to incorporate all the evidence presented during
the guilt stage and-after determining the evidence would be
relevant to the HAC Aggravator, the Continuing Threat
Aggravator, and the Risk of Multiple Deaths Aggravator-the
court granted the motion.
addition, Mr. Simpson stipulated that he had previously
received a seven-and-a-half-year prison sentence for armed
robbery, and the victim of that crime, Hung Pham, appeared in
support of the State's case in aggravation. Mr. Pham
testified that Mr. Simpson and two other men forced
themselves into Mr. Pham's home at gunpoint. Mr. Pham
provided compelling details, stating that Mr. Simpson shoved
the gun in Mr. Pham's face, forced him inside, and beat
him in the face and back with the gun. After taking Mr.
Pham's wallet, Mr. Simpson pulled Mr. Pham into a
bathroom closet, forced him to kneel on the floor, and
demanded all of his money. When Mr. Pham replied that he did
not have any more money, Mr. Simpson shot Mr. Pham in the
head and left with Mr. Pham's wallet. Mr. Pham remembers
the encounter vividly, "[b]ecause . . . [Mr. Simpson]
hit my face, everything, he hurt me a lot. I remember
forever." Trial Tr. vol. 7 at 96-97.
State also relied on the testimony of Roy Collins, a
jailhouse informant who had temporarily shared a cell with
Mr. Simpson. Hoping to leverage a deal with the district
attorney's office for his own early release, Mr. Collins
asked Mr. Simpson about the murders. Mr. Collins testified
that Mr. Simpson admitted to the altercation at Fritzi's,
seeing the victims at the 7-Eleven, following them, and then
firing the assault rifle into their car. Mr. Collins further
stated that Mr. Simpson expressed no remorse for the murders
and even tried to hire Mr. Collins to kill Mr. Johnson, the
surviving victim, and to assault two pregnant women listed as
State witnesses. Mr. Collins also testified that Mr. Simpson
would smile and laugh when talking about the murders and that
Mr. Simpson thought he was a "gangster" like
"Tupac or Biggie Small." Id. at 47. Mr.
Collins reported that Mr. Simpson "couldn't believe
the victims' families were crying" because,
according to Mr. Simpson, the victims "were gangbangers,
that's the life they lived, that's the life they
chose." Id. at 54-55. Mr. Collins also
indicated that he could tell Mr. Simpson was a member of the
Bloods gang because "[h]e's got red ink all over his
neck." Id. at 58-59.
the prosecution presented victim impact statements from
Rosalind Jones, the mother of Anthony Jones, and Tiarra
Palmer, the sister of Glen Palmer.
Mitigating evidence presented at sentencing
defense called six witnesses in mitigation: Dr. Massad, to
testify about Mr. Simpson's PTSD diagnosis; Evan
Gatewood, to impeach Mr. Collins; and Mr. Simpson's
mother, grandmother, aunt, and ex-girlfriend, to testify
about Mr. Simpson's upbringing and family support. The
vast majority of the mitigating evidence focused on the
ambush and shooting of Mr. Simpson and his long road to
recovery. The witnesses indicated that family members visited
Mr. Simpson every day in the hospital and that his mother
believed "[h]e was on his dying bed." Id.
Massad testified that Mr. Simpson reported being
"paranoid hostile" and hypervigilant as a result of
having been shot. Id. at 190-92. Dr. Massad also
testified at length about the basis of his diagnosis that Mr.
Simpson suffered from PTSD and about the typical symptoms of
the disorder. He explained that people suffering from PTSD
"might be hypersensitive and overreact" to common
situations. Id. at 166. Additionally, such a person
could be "hypervigilant," constantly on "alert
and watchful for danger," and could experience
"exaggerated startle response[s] and other
symptoms." Id. at 167. Dr. Massad further
opined that drugs or alcohol could exacerbate this
hypersensitivity and paranoia because they can "increase
the likelihood that [a person] would react or
Simpson's aunt highlighted examples of this paranoia and
hypersensitivity in her testimony, noting Mr. Simpson was
constantly terrified the men who had shot him would return
and finish the job. He was "paranoid and scared" to
the point he refused to open the door when people came to
visit, and he moved out of his mother's house because it
was too close to the site of the shooting. Id. at
the testimony from Mr. Simpson's family focused on the
family's love and support of Mr. Simpson. They gave
limited detail about his childhood, characterizing him as a
good child with a relatively normal upbringing. There was
also testimony that Mr. Simpson's grandmother was
primarily responsible for raising him, while his teenaged,
single mother was finishing high school. The witnesses
reported that Mr. Simpson's father was not involved in
his upbringing and that Mr. Simpson dropped out of school in
the eighth grade. The overall theme of the testimony was that
Mr. Simpson had a good family who loved and supported him,
but could not provide all the guidance required in raising
him and his two siblings. Mr. Simpson's grandmother,
mother, aunt, and ex-girlfriend all testified they would
continue to support Mr. Simpson and would visit him in
prison, if his life was spared.
the sentencing trial, the jury found all four aggravating
factors by special verdict and recommended a sentence of
death for each murder. The court adopted the jury's
recommendation and sentenced Mr. Simpson to death.
Appellate and post-conviction proceedings
Simpson appealed his convictions and sentences, alleging a
variety of errors in both the guilt and sentencing stages of
his trial. On direct appeal, the OCCA affirmed Mr.
Simpson's convictions and death sentences as to both Mr.
Palmer and Mr. Jones. Simpson I, 230 P.3d at 907.
Although the OCCA struck the HAC Aggravator for the death of
Mr. Jones, it concluded no constitutional error had occurred
and no relief was warranted because the jury had not
considered any evidence admitted solely due to the erroneous
inclusion of that aggravating factor. Id. at 902-03.
with his direct appeal, Mr. Simpson filed an application for
post-conviction relief and an application for an evidentiary
hearing on whether he had received ineffective assistance of
trial counsel. Simpson v. State (Simpson
II), No. PCD-2007-1262 (Okla. Crim. App. Oct. 13, 2010)
(unpublished). The OCCA denied both applications.
years later, Mr. Simpson filed a second state application for
post-conviction relief, coupled with another application for
an evidentiary hearing, in order to exhaust claims presented
in his federal habeas petition. Again, the OCCA denied both
applications. See Simpson v. State (Simpson
III), No. PCD-2012-242 (Okla. Crim. App. Mar. 8, 2013)
Federal Court Proceedings
Simpson sought federal post-conviction relief by filing a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, a motion for discovery, and a motion for an
evidentiary hearing. See Simpson v. Duckworth
(Simpson IV), No. CIV-11-96-M, 2016 WL 3029966, at
*1 (W.D. Okla. May 25, 2016) (unpublished). The district
court denied his petition and motions, but granted a
Certificate of Appealability ("COA") on two of the
eighteen grounds for relief: (1) the trial court's
alleged improper exclusion of Mr. Simpson's PTSD evidence
from the guilt stage of the trial and (2) an alleged
Bradyviolation, whereby prosecutors withheld
impeachment evidence as to Mr. Collins. This court
subsequently granted a COA on five additional issues: (1)
whether alleged prosecutorial misconduct denied Mr. Simpson a
fundamentally fair sentencing proceeding; (2) whether a jury
instruction and prosecutorial statements unduly limited jury
consideration of mitigating evidence; (3) whether the HAC
aggravating factor determination as to Mr. Palmer was
unconstitutional and unreasonable; (4) whether trial counsel
was ineffective for failing to investigate, prepare, and
present lay witnesses, failing to request a second-degree
murder instruction, failing to object to improper
prosecutorial arguments, failing to object to the HAC
instruction, and failing to object to the jury instruction
limiting consideration of mitigating evidence; and (5)
whether there was "cumulative error, limited to errors
in the grounds on which a certificate of appealability has
been granted." Case Management Order dated December 1,
STANDARD OF REVIEW
requires that we apply a "difficult to meet and highly
deferential standard" in federal habeas proceedings
under 28 U.S.C. § 2254; it is one that "demands
that state-court decisions be given the benefit of the
doubt." Cullen v. Pinholster, 563 U.S. 170, 181
(2011) (internal quotation marks omitted). When a petitioner
includes in his habeas application a "claim that was
adjudicated on the merits in State court proceedings," a
federal court shall not grant relief on that claim unless the
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2).
2254(d)(1)'s reference to "clearly established
Federal law, as determined by the Supreme Court of the United
States," "refers to the holdings, as opposed to the
dicta, of th[e] Court's decisions as of the time of the
relevant state-court decision." Williams v.
Taylor, 529 U.S. 362, 412 (2000). "Federal courts
may not extract clearly established law from the general
legal principles developed in factually distinct contexts,
and Supreme Court holdings must be construed narrowly and
consist only of something akin to on-point holdings."
Fairchild v. Trammell (Fairchild I), 784
F.3d 702, 710 (10th Cir. 2015) (internal quotation marks
§ 2254(d)(1), a state-court decision is "contrary
to" the Supreme Court's clearly established
precedent if it "applies a rule that contradicts the
governing law set forth in [Supreme Court] cases" or if
it "confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and
nevertheless arrives at a result different from [that]
precedent." Williams, 529 U.S. at 405-06. A
state court need not cite, or even be aware of, applicable
Supreme Court decisions, "so long as neither the
reasoning nor the result of the state-court decision
contradicts them." Early v. Packer, 537 U.S. 3,
8 (2002) (per curiam).
state-court decision is an "unreasonable
application" of Supreme Court law if the decision
"correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular
prisoner's case." Williams, 529 U.S. at
407-08. We undertake this "objective
unreasonable[ness]" inquiry, id. at 409, in
view of the specificity of the governing rule: "The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations," Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004). Conversely,
"[i]f a legal rule is specific, the range may be
narrow" and "[a]pplications of the rule may be
plainly correct or incorrect." Id. And "an
unreasonable application of federal law is different
from an incorrect application of federal law."
Williams, 529 U.S. at 410. As a result, "a
federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly"; "that
application must also be unreasonable." Id. at
not "adjudicated on the merits" in state court are
entitled to no deference. Fairchild I, 784 F.3d at
711. But, "even in the setting where we lack a state
court merits determination, '[a]ny state-court findings
of fact that bear upon the claim are entitled to a
presumption of correctness rebuttable only by "clear and
convincing evidence."'" Grant v.
Royal, 886 F.3d 874, 889 (10th Cir. 2018) (quoting 28
U.S.C. § 2254(e)(1)) (alteration in original),
petition for cert. filed sub nom. Grant v.
Carpenter, No. 18-6713 (Nov. 13, 2018); see also
Hooks v. Ward (Hooks I), 184 F.3d 1206, 1223
(10th Cir. 1999) (presuming correctness of state court
findings on claim not adjudicated on the merits). Although
the burdens on the petitioner under AEDPA are significant, we
"undertake this review cognizant that our duty to search
for constitutional error with painstaking care is never more
exacting than it is in a capital case." Fairchild v.
Workman (Fairchild II), 579 F.3d 1134, 1140
(10th Cir. 2009) (internal quotation marks omitted).
these standards in mind, we turn to Mr. Simpson's claims.
discussed, Mr. Simpson raises seven grounds for relief. We
consider each of his arguments in turn.
Right to Present a Complete Defense
Simpson first asserts he is entitled to federal habeas relief
with respect to his convictions because the trial court
erroneously excluded expert testimony regarding his PTSD
diagnosis and dissociative episodes from the guilt stage of
trial. Mr. Simpson claims Dr. Massad's testimony was
necessary to support the defense that his PTSD, standing
alone or in conjunction with his intoxication defense,
rendered him incapable of forming the specific intent to
kill. According to Mr. Simpson, excluding this evidence
violated his constitutional right to present a complete
begin our review of this claim by providing additional
factual and procedural background. We then address the
State's arguments that the claim is unexhausted and
unpreserved. Deciding that the PTSD portion of Mr.
Simpson's claim is properly preserved and has been
exhausted, we then examine the OCCA's merits decision. We
conclude that decision is not unreasonable under §
2254(d)(1), and we therefore deny Mr. Simpson relief on this
Additional Factual and Procedural Background
reviewing this claim, the OCCA examined the transcript of the
trial court hearing on the exclusion of the evidence and Dr.
Massad's testimony during the sentencing stage of Mr.
Simpson's trial. The OCCA concluded the trial court did
not abuse its discretion by excluding this testimony from the
guilt stage of trial because Dr. Massad could not say how Mr.
Simpson's PTSD affected his ability to form the intent to
kill. Simpson I, 230 P.3d at 895. As a result, the
OCCA held that Mr. Simpson's PTSD diagnosis was
"neither relevant to the intent element of the crime
charged nor was it relevant to his defense of voluntary
federal habeas review, Mr. Simpson challenges the OCCA's
determination as both contrary to and an unreasonable
application of clearly established federal law. The State
counters that Mr. Simpson is barred from presenting this
claim because he has failed to exhaust available state court
remedies, he has forfeited the argument he makes on appeal by
not presenting it to the district court, and, alternatively,
because the OCCA's decision was neither contrary to
federal law nor unreasonable.
Exhaustion and Preservation
begin our analysis with the state's argument that Mr.
Simpson failed to exhaust his claim that the trial court
violated his right to present a complete defense . See
United States v. Miller, 868 F.3d 1182, 1185 (10th Cir.
permits federal courts to entertain only those applications
for a writ of habeas corpus alleging that a person is in
state custody "in violation of the Constitution or laws
or treaties of the United States." 28 U.S.C. §
2254(a). A federal court may not grant such an application
unless, with certain exceptions not relevant here, the
applicant has exhausted state remedies before filing his
petition. Id. § 2254(b)-(c); see
Pinholster, 563 U.S. at 181. In general, to exhaust
state remedies, a petitioner "must give the state courts
an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition."
Thacker v. Workman, 678 F.3d 820, 839 (10th Cir.
2012) (quoting O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999)). This is accomplished by providing "the
state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process."
Id. (quoting O'Sullivan, 526 U.S. at
845). A claim is exhausted only after "it has been
'fairly presented' to the state court."
Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir.
2006) (quoting Picard v. Connor, 404 U.S. 270, 275
(1971)). "Fair presentation" requires that the
substance of the federal claim was raised in state court.
Id. "The petitioner need not cite 'book and
verse on the federal constitution,' but the petitioner
cannot assert entirely different arguments from those raised
before the state court." Id. (quoting
Picard, 404 U.S. at 278). Under this standard, Mr.
Simpson's claim is unexhausted if the substance of the
claim he is arguing here is different from the argument he
made to the OCCA.
to preservation, "[a] federal appellate court will not
consider an issue not passed upon below." F.D.I.C.
v. Noel, 177 F.3d 911, 915 (10th Cir. 1999) (quoting
Singleton v. Wulff, 428 U.S. 106, 120 (1976)).
"Consequently, when a litigant fails to raise an issue
below in a timely fashion and the court below does not
address the merits of the issue, the litigant has not
preserved the issue for appellate review." Id.
To properly raise an argument below, a litigant must present
the argument "with sufficient clarity and
specificity." Folks v. State Farm Mut. Auto. Ins.
Co., 784 F.3d 730, 741 (10th Cir. 2015). To this point,
"vague, arguable references to a point in the district
court proceedings do not preserve the issue on appeal . . .
because such perfunctory presentation deprives the trial
court of its opportunity to consider and rule on an issue in
any detail." Id. (citation and internal
quotation marks omitted).
this court, Mr. Simpson contends he suffers from dissociative
episodes, and that his PTSD was the result of being shot by
his friend and a lifetime of trauma. The State asserts Mr.
Simpson's claim is unexhausted and unpreserved because he
is presenting an entirely different theory to this court than
the theory he presented to the OCCA and the district court.
The State further asserts Mr. Simpson has improperly
supplemented his argument on appeal by relying on facts
raised in conjunction with his ineffective assistance of
counsel claim. Mr. Simpson disagrees, stating, "his
argument throughout has been that his PTSD, not malice
aforethought, is what caused him to react the way he
did." Aplt. Reply Br. at 3-5. He further contends his
claim is supportable even without the additional facts about
his violent upbringing, and that the evidence of dissociative
episodes is not new because the description of the
phenomenon, if not the name itself, was presented to the
purposes of discussion, we divide Mr. Simpson's argument
into two categories: (1) PTSD evidence and (2) evidence of
dissociative episodes. We conclude that Mr. Simpson properly
preserved and exhausted his PTSD argument, but that he failed
to properly preserve his argument concerning dissociative
direct appeal, Mr. Simpson argued his PTSD was the result of
a single event- his having previously been ambushed and shot
by his friend. Mr. Simpson further claimed his PTSD was
"relevant to the issue of whether he shot with malice
aforethought, or did so out of a sense of exaggerated fear
and terror caused by his PTSD," which was exacerbated by
his consumption of drugs and alcohol on the night of the
murders. Aplt. Br. at 22-23, Simpson I, 230 P.3d 888
(No. D-2007-1055). Thus, Mr. Simpson posited that evidence of
his PTSD would have negated his ability to form the specific
intent necessary to commit first-degree murder. Finally, Mr.
Simpson argued his PTSD was relevant to support his voluntary
Mr. Simpson's position in this court is more refined than
the argument he made to the OCCA, the core of his PTSD claim
is the same. His assertion that the OCCA's decision was
"unreasonable based on [the OCCA and trial court's]
misunderstanding of PTSD" is not a new claim, but rather
an attempt to bolster his consistently-advanced position that
his PTSD diagnosis was relevant as a defense during the guilt
stage of trial. Compare Aplee. Br. at 14-29,
with Simpson I, 230 P.3d at 894- 95. It is true that
Mr. Simpson has presented this court with additional evidence
to support a diagnosis of trauma-related PTSD, but he also
correctly notes that Dr. Massad was aware of enough evidence
before trial to diagnose Mr. Simpson with PTSD and in fact
did so. Thus, Mr. Simpson's claim that the symptoms of
his PTSD-specifically the tendency to overreact-prevented him
from forming the requisite intent to kill has been exhausted.
State also asserts that Mr. Simpson has failed to preserve
this claim on appeal by failing to raise it in the district
court. The district court described Mr. Simpson's PTSD
argument as follows:
In Ground 2, [Mr. Simpson] asserts that he is entitled to
habeas relief because the trial court prevented him from
presenting evidence in the guilt stage that he suffered from
Post Traumatic Stress Disorder (PTSD). [Mr. Simpson] argues
that this evidence was relevant to the issue of intent and
his voluntary intoxication defense, and that because he was
unable to present this evidence, he was denied his
constitutional right to present a complete defense.
Simpson IV, 2016 WL 3029966, at *6. Thus, Mr.
Simpson advanced his PTSD argument before the district court.
Accordingly, we reject the State's failure-to-preserve
argument and determine Mr. Simpson's PTSD argument is
properly before us.
court, Mr. Simpson also attempts to introduce a new defense
related to, but qualitatively different than, the PTSD
defense he raised before the district court. In his argument
to this court, Mr. Simpson contends he "was in the midst
of a PTSD and/or dissociative episode during the crime [,
which] reveals his brain was functioning such that either he
had a reduced capacity to form the specific intent of
first-degree malice aforethought murder, or he was unable to
form the intent at all." Aplt. Br. at 24. To be sure,
Mr. Simpson argued to the district court that his PTSD,
combined with his drug and alcohol abuse, prevented him from
forming the requisite mens rea. See Aplt. Br. at 14,
Simpson IV, 2016 WL 3029966 (No. CIV-11-96-M)
(arguing that PTSD can cause someone to "react out of an
exaggerated sense of fear and terror uncontrolled by
one's will" and "that the level of intoxication
necessary to negate the specific intent of first-degree,
malice aforethought murder is affected by PTSD"). But
nowhere did he suggest, before his argument here, that he
suffered from a dissociative episode at the time of the
murders that rendered him "unable to form the intent at
all." Accordingly, we agree with the State that Mr.
Simpson failed to preserve any claim that he was in a
dissociative state at the time of the murders. We therefore
confine our analysis of this claim to Mr. Simpson's PTSD
now to the merits of Mr. Simpson's assertion that the
trial court violated his constitutional right to present a
complete defense when it excluded evidence that his PTSD made
him hypervigilant and, together with his substance abuse on
the night of the murders, rendered him incapable of forming
the requisite mens rea. See Crane v. Kentucky, 476
U.S. 683, 690 (1986); Washington v. Texas, 388 U.S.
14, 18-19 (1967). Mr. Simpson raises two distinct claims of
error in this regard. First, he contends the trial court
erred by refusing to allow him to present a defense theory
that PTSD negated his ability to form the specific intent
required for first-degree murder. Second, he argues evidence
establishing that he suffered from PTSD was required to
assist the jury in understanding the voluntary intoxication
OCCA rejected both of these arguments on direct appeal,
finding Dr. Massad's testimony irrelevant in both
situations because he "could not testify as to how [Mr.
Simpson's] PTSD could affect his intent at the time of
the crime." Simpson I, 230 P.3d at 895. The
OCCA decided this claim on the merits, thereby triggering
AEDPA deference. According to Mr. Simpson, the OCCA's
decision contradicted and unreasonably applied Supreme Court
Reasonableness of the OCCA's legal determination
Supreme Court has recognized that although criminal
defendants have the right to present a complete defense, they
must still comply with a state's well-established rules
of evidence. See Holmes v. South Carolina, 547 U.S.
319, 326 (2006). Oklahoma law therefore informs our analysis.
PTSD as a stand-alone defense
relevant to Mr. Simpson's first argument-that PTSD
negated specific intent- the trial court correctly noted that
Oklahoma permits diminished capacity evidence only in the
case of an intoxication or insanity defense. Frederick v.
State, 37 P.3d 908, 931 (Okla. Crim. App. 2001). Mr.
Simpson claims Oklahoma's rule is contrary to clearly
established federal law because a diagnosis of PTSD is
relevant in assessing whether the individual formed the
specific intent necessary for first-degree murder. But Mr.
Simpson fails to identify a single federal case, let alone a
Supreme Court case, supporting his position. Where there
is no Supreme Court case on point, there is no clearly
established federal law for the purposes of AEDPA. See
Hooks v. Workman (Hooks II), 689 F.3d 1148,
1176 (10th Cir. 2012). And when a defendant "is unable
to find any 'clearly established' Supreme Court
precedent in support of [his] claim[, ] . . . habeas relief
is impossible to obtain." Miller-El v.
Cockrell, 537 U.S. 322, 350 (2003). As such, Mr.
Simpson's claim "fails at the threshold for lack of
clearly established federal law." Hooks II, 689
F.3d at 1176.
PTSD as support for the intoxication defense
Mr. Simpson argues the trial court erred by excluding Dr.
Massad's testimony because it was necessary to assist the
jury in evaluating Mr. Simpson's intoxication defense.
The OCCA held that, because Dr. Massad's testimony was
irrelevant, the trial court did not abuse its discretion in
excluding it. Simpson I, 230 P.3d at 895. This
decision is reasonable under AEDPA unless no fairminded
jurist could agree the evidence was irrelevant. See
Harrington v. Richter, 562 U.S. 86, 102 (2011).
Oklahoma law, evidence is relevant if it "ha[s] any
tendency to make the existence of any fact that is of
consequence to the determination of the action more or less
probable than it would be without the evidence." Okla.
Stat. tit. 12, § 2401. And, "expert opinion
testimony should be admitted only if it will 'assist the
trier of fact to understand the evidence or to determine a
fact in issue.'" Hooks v. State (Hooks
III), 862 P.2d 1273, 1278 (Okla. Crim. App. 1993)
(quoting Okla. Stat. tit.12, § 2702). "When a
defendant raises the defense of voluntary intoxication, an
expert may properly offer his or her opinion on whether the
defendant's actions were intentional."
Coddington v. State, 142 P.3d 437, 450 (Okla. Crim.
App. 2006). Thus, under Coddington, Dr. Massad
"could have properly testified that, in his opinion and
based upon his specialized knowledge, he believed [Mr.
Simpson] would have been unable to form the requisite
deliberate intent of malice aforethought." See
id. But, "[w]here the normal experiences and
qualifications of laymen jurors permit them to draw proper
conclusions from the facts and circumstances, expert
conclusions or opinions are inadmissible." Hooks
III, 862 P.2d at 1279 (quoting Gabus v. Harvey,
678 P.2d 253, 256 (Okla. 1984)). The relevancy of Mr.
Simpson's PTSD diagnosis, therefore, turns on whether Dr.
Massad's testimony would have assisted the jury in
determining whether Mr. Simpson's "intoxication
affected his mental state and prevented him from forming
malice aforethought." See White v. State, 973
P.2d 306, 311 (Okla. Crim. App. 1998). We have further
explained that although, "psychological or psychiatric
evidence that negates the essential element of specific
intent can be admissible[, ] [t]he admission of such evidence
will depend upon whether [it] . . . would negate intent
rather than merely present a dangerously confusing theory of
defense more akin to justification and excuse."
United States v. Brown, 326 F.3d 1143, 1147 (10th
review of Dr. Massad's testimony fails to demonstrate any
meaningful connection between PTSD and intent generally, or
intoxication specifically. Even a generous reading of his
testimony demonstrates only a bare assertion that Mr. Simpson
had PTSD and that PTSD could cause one to be hypervigilant
and to overreact to stimuli. Dr. Massad's testimony
lacked any detail on the impact Mr. Simpson's PTSD had on
his ability to form the intent to kill, and Dr. Massad's
testimony on the interactive effects of PTSD and intoxicants
is similarly lacking. Dr. Massad opined that PTSD could be
affected by drugs and alcohol because they "could lower
one's defenses and increase the likelihood that [the
person] would react or overreact." Trial Tr. vol. 7 at
167. On cross-examination, however, Dr. Massad admitted he
was "not sure about how the brain and alcohol
interact" beyond generally lowering a person's
inhibitions-which occurs regardless of "whether or not
they have PTSD." Id. at 183. This is not the
type of specialized knowledge beyond the "normal
experiences and qualifications of laymen jurors."
See Hooks III, 862 P.2d at 1279. And without more,
this testimony falls within the "justification and
excuse" evidence cautioned against in Brown,
326 F.3d at 1147.
a fairminded jurist could agree that Dr. Massad's
testimony was irrelevant, the OCCA's decision was
Simpson next alleges the prosecutors violated their
constitutional responsibility under Brady v.
Maryland to disclose all evidence favorable to the
defense. Specifically, he contends the prosecution suppressed
impeachment evidence against a State sentencing-stage
witness, Roy Collins.
addressing this claim, we begin with a discussion of what
Brady requires. We then provide additional
background relevant to the OCCA's decision, concluding
that the OCCA did not resolve this claim on the merits.
Instead, the OCCA held that Mr. Simpson waived his
Brady claim by not bringing it on direct appeal or
in his first state post-conviction application. We next
consider whether Mr. Simpson can overcome that state
procedural bar and conclude he cannot. As a result, we affirm
the district court's denial of relief on this claim.
Finally, we consider Mr. Simpson's request for discovery
and an evidentiary hearing before the district court and we
deny relief on that request, as well.
Elements of a Brady Claim
recognized three essential elements of a Brady
claim: (1) the prosecutor suppressed the evidence; (2) the
suppressed evidence was favorable to the accused, either
because it is exculpatory or because it is impeaching; and
(3) prejudice ensued because the suppressed evidence was
material. See Scott v. Mullin, 303 F.3d 1222, 1230
(10th Cir. 2002); see also Banks v. Dretke, 540 U.S.
668, 691 (2004) ("Banks
(Dretke)") (quoting Strickler v.
Greene, 527 U.S. 263, 281-82 (1999)). Evidence is
suppressed for Brady purposes if the prosecution
fails to disclose favorable exculpatory or impeachment
evidence known either by it or the police, "irrespective
of the good faith or bad faith of the
prosecution." Wearry v. Cain, 136 S.Ct. 1002,
1006-07 & 1007 n.8 (2016). "Favorable evidence
'is material if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different.'"
Douglas v. Workman, 560 F.3d 1156, 1173 (10th Cir.
2009) (quoting Kyles v. Whitley, 514 U.S. 419, 433
Mr. Simpson claims the State suppressed three pieces of
evidence (collectively, the "Collins Evidence"):
(1) a video-taped interview with Roy Collins from January 5,
2006, which reveals Mr. Collins's Hoover Crips gang
affiliation and calls into question the veracity of his
testimony concerning Mr. Simpson's jailhouse statements
by revealing that Mr. Collins made nearly identical jailhouse
statements about Jason Whitecrow, a defendant in an unrelated
(2) Mr. Collins's complete arrest, conviction, and
incarceration records that reveal an additional four
convictions to which Mr. Collins did not testify at trial;
(3) statements reflecting Mr. Collins's expectation of
prosecutorial assistance in exchange for his testimony.
to Mr. Simpson, the Collins Evidence was materially favorable
Brady evidence that could have cast doubt on the
credibility of Mr. Collins's testimony, which, in turn,
was critical to support the Continuing Threat Aggravator.
See Giglio v. United States, 405 U.S. 150, 154
(1972); Douglas, 560 F.3d at 1172-73. If Mr. Simpson
can make this showing, "the prosecution's failure to
disclose [the Collins Evidence] was harmful as a matter of
law [and] 'there is no need for further harmless-error
review.'" See Banks v. Reynolds, 54 F.3d
1508, 1522 (10th Cir. 1995) ("Banks
(Reynolds)") (citation omitted) (quoting
Kyles, 514 U.S. at 435); see also Douglas,
560 F.3d at 1173.
Simpson did not present his Brady claim to the OCCA
until his second application for post-conviction relief. The
OCCA held the claim was procedurally barred because the
misconduct happened at trial, the legal basis for the claim
was available on direct appeal and on the first
post-conviction application, and "the factual basis for
the claim was available and could have been ascertained
through the exercise of reasonable diligence."
Simpson III, slip op. at 4 (citing Okla. Stat. tit.
22, § 1089(D)). Specifically, the OCCA ruled Mr.
Simpson's Brady claim had been waived.
Independent and adequate procedural bar
the doctrine of procedural default, "[c]laims that are
defaulted in state court on adequate and independent state
procedural grounds will not be considered by a habeas court .
. . ." Fairchild II, 579 F.3d at 1141
(quotation marks omitted); see also Martinez v.
Ryan, 566 U.S. 1, 9 (2012) ("[A] federal court will
not review the merits of claims, including constitutional
claims, that a state court declined to hear because the
prisoner failed to abide by a state procedural rule.").
"To be adequate, the [state] procedural ground must be
strictly or regularly followed and applied evenhandedly to
all similar claims." Thacker, 678 F.3d at 835
(internal quotation marks omitted). We have previously
determined that Oklahoma's procedural default rule in
title 22, section 1089(D) of the Oklahoma Statutes meets this
requirement. See, e.g., id. at 835-36.
turn, a state procedural rule is independent "if it
relies on state law, rather than federal law, as the basis
for decision." Banks v. Workman, 692 F.3d 1133,
1145 (10th Cir. 2012) (quotation marks omitted)). Here, the
OCCA relied only on its state procedural rule, §
1089(D), to conclude that Mr. Simpson's Brady
claim was waived. Thus, "we must recognize the
OCCA's waiver ruling and treat the claim as procedurally
barred for purposes of federal habeas review."
Thacker, 678 F.3d at 836. Consequently, Mr.
Simpson's Brady claim is precluded from federal
habeas review unless he can overcome the default.
Legal background on cause and prejudice
prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation
of federal law." Martinez, 566 U.S. at 10;
see also Fairchild II, 579 F.3d at
1141. To establish "cause," a
petitioner must show that "some objective factor
external to the defense impeded [his] efforts to comply with
the State's procedural rule." Scott, 303
F.3d at 1228 (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986)). Such objective factors include "a
showing that the factual or legal basis for a claim was not
reasonably available to counsel, or that some interference by
officials made compliance impracticable." Id.
(quoting Murray, 477 U.S. at 488). A petitioner must
also show "'actual prejudice' resulting from the
errors of which he complains." United States v.
Frady, 456 U.S. 152, 168 (1982); see also
Thacker, 678 F.3d at 835. Because "cause and
prejudice parallel two of the three components of the alleged
Brady violation itself," Strickler,
527 U.S. at 282, if Mr. Simpson can successfully demonstrate
cause and prejudice, he will have also succeeded in
establishing his Brady claim, see Banks
(Dretke), 540 U.S. at 691; see also Scott,
303 F.3d at 1230 ("[W]e conclude that the . . .
statements constitute Brady evidence that the
prosecution had a duty to disclose to [petitioner]. Therefore
[petitioner] has also established prejudice to overcome his
procedural default."). We therefore address the
Brady and procedural bar factors together.
Simpson must establish both cause and prejudice to overcome
the state procedural bar, and we must reject his
Brady claim if he fails to show either requirement.
See McCleskey v. Zant, 499 U.S. 467, 502 (1991)
("As [petitioner] lacks cause for failing to raise the
Massiah claim in the first federal petition, we need
not consider whether he would be prejudiced by his inability
to raise the alleged Massiah violation at this late
date." (citing Murray, 477 U.S. at 494));
see also Coleman v. Thompson, 501 U.S. 722, 757
(1991) (holding petitioner's claim barred by state
procedural default where petitioner could not establish
cause, without considering prejudice); Romano v.
Gibson, 239 F.3d 1156, 1171-72 (10th Cir. 2001)
(assuming the State suppressed Brady evidence but
denying relief because the evidence was not material).
exercise our discretion to proceed directly to the
prejudice/materiality question. Ultimately, we deny Mr.
Simpson relief on his Brady claim because, even
assuming he could show ...