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Cuesta-Rodriguez v. Carpenter

United States Court of Appeals, Tenth Circuit

February 22, 2019

CARLOS CUESTA-RODRIGUEZ, Petitioner - Appellant,
v.
MIKE CARPENTER, Warden, Oklahoma State Penitentiary, Respondent - Appellee.

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

          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 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 tequila[1] with a note beside it. The note, written on the back of an envelope, read, "fuck 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 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]

         II. The Trial[4]

         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.

         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 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 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.

         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 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 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, 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 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 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 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 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.

         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 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 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).

         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 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) ("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 ...


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