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
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
TYMKOVICH, Chief Judge, HOLMES, and PHILLIPS, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE.
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
The Crime of Conviction
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").
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.
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.
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
10 p.m., Chacon came home to a dark house. She saw an empty
bottle of tequila 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.
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."
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." 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.
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.
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.
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.
state of Oklahoma put Cuesta-Rodriguez on trial for
first-degree murder, and prosecutors sought the death
The Guilt Phase
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. "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."
end of the trial, the jury found Cuesta-Rodriguez guilty of
murder in the first degree.
The Penalty Phase
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. 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.
jury heard from a psychologist (Dr. James Choca) who
testified "ostensibly" in mitigation. 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. 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." 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.
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.
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
Comments Regarding Jury Instruction
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.
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.
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
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.
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.
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.
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
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.
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.
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.
Comments Regarding Mitigation Evidence
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
Id. at 1284:18-22.
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.
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.
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.
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.
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.
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. 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.").
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.
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.
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).
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
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.
Standard of Review
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).
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).
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).
Procedural Bar Regarding Mitigation Evidence
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").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
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.
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.
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 ...