from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:13-CV-00266-R)
Lee, Assistant Federal Public Defender, Office of the Federal
Public Defender for the District of Colorado, Denver,
Colorado (Virginia L. Grady, Federal Public Defender, Office
of the Federal Public Defender for the District of Colorado,
Denver, Colorado, and Mark Henricksen, Henricksen &
Henricksen, Oklahoma City, Oklahoma, with him on the briefs),
appearing for Appellant.
Caroline E.J. Hunt, Assistant Attorney General (Mike Hunter,
Attorney General of Oklahoma and Jennifer J. Dickson,
Assistant Attorney General, with her on the brief), Office of
the Attorney General for the State of Oklahoma, Oklahoma
City, Oklahoma, appearing for Appellee.
BRISCOE, PHILLIPS, and MORITZ, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
Ronson Bush is an Oklahoma state prisoner who pleaded guilty
to first-degree murder and was sentenced to death. After
exhausting his state court remedies by way of a direct appeal
and an application for state post-conviction relief, Bush
filed a federal petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. The district court denied
Bush's petition, and also denied him a certificate of
appealability (COA). Bush appealed and we subsequently
granted him a COA with respect to five issues.
first of those issues, Bush asserts that the state trial
court violated his due process rights by allowing the
prosecution to make an offer of proof from a jailhouse
informant regarding incriminating statements allegedly made
by Bush. We conclude, however, that Bush has failed to
identify any clearly established federal law applicable to
this claim, and thus he is not entitled to federal habeas
relief under the standards of review outlined in §
second issue, Bush argues that the admission of improper
victim impact testimony, including requests by the
victim's family members for the death penalty, violated
his rights under the Eighth and Fourteenth Amendments. We
agree with Bush that the admission of this testimony amounted
to constitutional error, but we conclude, after considering
all of the evidence that was presented at his sentencing
hearing, that the error did not have a substantial and
injurious effect or influence in determining the sentence
that was imposed by the state trial court.
third issue, Bush argues that his trial counsel was
ineffective for failing to object to the admission of the
unconstitutional victim impact testimony. Having concluded
that Bush was not prejudiced by the admission of this
testimony, we in turn conclude that Bush was not prejudiced
by his trial counsel's failure to object to the
fourth issue, Bush argues that his direct appeal counsel was
ineffective for failing to argue that trial counsel was
ineffective for failing to challenge the constitutionality of
an Oklahoma statute that bars capital defendants who plead
guilty from being sentenced by a jury. The state appellate
court rejected this issue on the merits, and we conclude that
its decision was neither contrary to, nor an unreasonable
application of, clearly established federal law.
final issue, Bush argues that he is entitled to federal
habeas relief on the basis of cumulative error. We conclude,
however, that Bush has failed to establish actual prejudice
resulting from the constitutional errors he has identified.
exercising jurisdiction pursuant to 28 U.S.C. § 1291, we
affirm the district court's denial of federal habeas
underlying facts of Bush's crime
Oklahoma Court of Criminal Appeals (OCCA) summarized the
relevant underlying facts of Bush's case in addressing
his direct appeal:
On the evening of December 22, 2008, while at Billy
Harrington's home, Ronson Bush shot Harrington six times
with Harrington's .357 caliber revolver. Harrington made
it to the front yard of the home, where he collapsed. Bush
then tied Harrington to the back of his pickup and dragged
him into a field near the house.
By all accounts, Harrington and Bush had been best friends
for a number of years. Harrington did what he could to aid
Bush who dealt with addictions, paranoia, and other related
mental illnesses. Harrington's final attempts to assist
Bush came just days before the shooting. On December 18,
Harrington attempted to take Bush to Griffin Memorial
Hospital in Norman, Oklahoma but Bush was exceedingly drunk,
and the two men fought during the trip. Harrington left Bush
in a parking lot in Norman, and drove on to Tulsa for work.
Bush hitched a ride back to Harrington's trailer. When
Harrington arrived home that evening, accompanied by Jimmy
Barrington, they found Bush passed out on the couch with
Harrington's firearms purposefully placed around the
After calling the sheriff's office to send someone to the
house, Harrington again agreed to take Bush back to Griffin
Memorial Hospital, where Bush voluntarily admitted himself
for treatment. Bush, however, on December 22, checked himself
out of the hospital, called Harrington for a ride, and
returned to Harrington's home. Bush drank vodka from a
pint bottle purchased in Blanchard on the way home. Once
home, both men shot guns off the porch and played with
Harrington's dog. Harrington also gave Bush a haircut.
Sometime around 7:15 p.m., Harrington was talking on the
phone with his girlfriend who could hear Bush in the
background. Bush took a photograph of Harrington and nothing
seemed amiss; minutes later, however, Bush shot and killed
Bush explained that things started downhill when he mentioned
getting Christmas presents for Stephanie Morgan, an
ex-girlfriend, and her son. Bush said that Harrington told
him that he should forget about Morgan as she was sleeping
with other people. According to Bush, Harrington went on to
say that even he had "fucked" her. Bush said he
then snapped, picked up the .357 revolver, and started
shooting Harrington. Bush kept shooting as Harrington got up,
went to the kitchen, collapsed, then got up and walked
At around 7:44 p.m. Harrington's mother, Kathy
Harrington, tried to call Harrington's cell phone, but
Bush answered. Bush kept putting Mrs. Harrington off,
probably because Harrington was already dead. Mrs. Harrington
called friends who went to the home and discovered
Harrington's body in the field.
Bush, in the mean time [sic], left the trailer in
Harrington's truck, bought some beer, and drove to Ms.
Morgan's home. Bush kicked in the back door and entered
Morgan's unoccupied home. He waited on her to arrive and
drank some alcohol from a commemorative bottle she had stored
in her bedroom.
Morgan arrived home and was unable to turn on the bedroom
lights. She heard Bush say that he heard her come in. Bush
was in the bedroom lying on the bed. Morgan tried to get away
by walking out and getting in her car. Bush, however, got in
the passenger side. Morgan was finally able to let someone
know that Bush was there, get him out of the car, and drive
Authorities arrived at Morgan's home, and Bush was
arrested for violating a protective order Morgan had against
him. Bush, at the time of the arrest, confessed to shooting
Bush v. State, 280 P.3d 337, 342-43 (Okla. Crim.
App. 2012) (Bush I) (paragraph numbers and footnotes
state trial proceedings
OCCA in Bush I also summarized Bush's ensuing
state trial proceedings:
Bush[ ] was charged with first degree murder in violation of
[Okla. Stat. tit. 21, § 701.7(A)], and possession of a
firearm after former conviction of a felony in violation of
[Okla. Stat. tit. 21, § 1283], in Grady County District
Court case number CF-2008-371. The State filed a Bill of
Particulars regarding the punishment for first degree murder,
which alleged three aggravating circumstances: (1) the murder
was especially heinous, atrocious or cruel; (2) there exists
a probability that the defendant would commit criminal acts
of violence such that he would constitute a continuing threat
to society; and (3) the murder was committed by the defendant
while he was serving a sentence of imprisonment on a
conviction for a felony. [Okla. Stat. tit. 21, §
701.12(4), (6), (7)].
Bush proceeded to trial on October 19, 2009, before the
Honorable Richard G. Van Dyck, District Judge. After the
State had presented its second witness, on October 22, Bush
expressed his desire to enter a blind plea. The trial court
conducted a plea hearing and allowed Bush to enter an
Alford plea to first degree murder and a guilty plea
to possession of a firearm after former conviction of a
felony. The next day a non-jury sentencing proceeding
commenced pursuant to [Okla. Stat. tit. 21, §
701.10(B)]. Sometime during the first day of sentencing, Bush
told the trial court that he wanted to withdraw his pleas,
but the trial court denied his motion and advised him to wait
until after being sentenced to move to withdraw the plea. At
the conclusion of sentencing trial Judge Van Dyck found the
existence of all three aggravating circumstances and assessed
punishment at death on the first degree murder; the trial
court assessed a life sentence on the firearm charge.
After being sentenced, and within the requisite ten day
period, Bush filed a motion to withdraw his plea on November
9, 2009 . . . . The trial court held a hearing on the motion
and, at the conclusion of the hearing, denied the motion.
Id. at 341-42 (paragraph numbers and footnote
filed a direct appeal, asserting ten propositions of error.
On June 19, 2012, the OCCA issued a published opinion
affirming Bush's convictions and sentences for first
degree murder and possession of a firearm after former
conviction of a felony.
filed a petition for writ of certiorari with the United
States Supreme Court. That was denied on March 4, 2013.
Bush v. Oklahoma, 568 U.S. 1216 (2013).
application for state post-conviction relief
January 17, 2012 (while his direct appeal was still pending
before the OCCA), Bush filed an application for state
post-conviction relief asserting nine propositions of error.
Bush also filed an application for evidentiary hearing on the
ineffective assistance of counsel claims asserted in his
application for state post-conviction relief.
OCCA denied Bush's application for state post-conviction
relief and his related motion for evidentiary hearing in an
unpublished opinion issued on October 1, 2012. Bush v.
State, Case No. PCD 2010-399 (Okla. Crim. App. Oct. 1,
2012) (Bush II).
federal habeas proceedings
March 18, 2013, Bush initiated these federal habeas
proceedings by filing a motion for appointment of counsel and
a motion for leave to proceed in forma pauperis. The
magistrate judge assigned to the case granted both motions.
December 2, 2013, Bush's appointed counsel filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 asserting fifteen grounds for relief. Briefing in
the case was completed on July 2, 2014, when Bush filed his
reply brief to respondent's answer.
October 17, 2016, the district court issued a memorandum
opinion denying Bush's petition, entered final judgment
in the case, and also issued an order denying Bush a
certificate of appealability (COA) as to all of the grounds
for relief asserted in his federal habeas petition. Bush
filed a timely notice of appeal.
court subsequently granted Bush a COA on five issues.
in accordance with the COA we issued, asserts five issues in
this appeal: (1) whether the state trial court violated his
due process rights by allowing the prosecution to make an
offer of proof from an inmate named Jackie Nash regarding
statements allegedly made by Bush to Nash; (2) whether the
state trial court violated Bush's constitutional rights
by admitting improper victim impact evidence; (3) ineffective
assistance of trial counsel for failing to object to the
unconstitutional victim impact evidence; (4) ineffective
assistance of appellate counsel for failing to argue that
Bush's trial counsel was ineffective for failing to
challenge the Oklahoma statute that bars capital defendants
who plead guilty from having a jury determine their sentence;
and (5) cumulative error. As discussed in greater detail
below, we conclude that Bush is not entitled to federal
habeas relief on any of these claims.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
requires a state prisoner seeking federal habeas relief first
to 'exhaus[t] the remedies available in the courts of the
State.'" Kernan v. Hinojosa, 136 S.Ct.
1603, 1604 (2016) (per curiam) (quoting 28 U.S.C. §
2254(b)(1)(A)). "If the state courts adjudicate the
prisoner's federal claim 'on the merits,' §
2254(d), then AEDPA mandates deferential, rather than de
novo, review." Id. Specifically, this
court cannot grant relief unless that adjudication:
(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 proceedings.
28 U.S.C. § 2254(d)(1)-(2).
established Federal Law' refers to the Supreme
Court's holdings, not its dicta." Wood v.
Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (citing
Williams v. Taylor, 529 U.S. 362, 412
(2000)). "A state-court decision is only contrary to
clearly established federal law if it 'arrives at a
conclusion opposite to that reached by' the Supreme
Court, or 'decides a case differently' than the Court
on a 'set of materially indistinguishable
facts.'" Id. (quoting Williams,
529 U.S. at 412-13). "But a state court need not cite
the Court's cases or, for that matter, even be aware of
them." Id. "So long as the
state-court's reasoning and result are not contrary to
the Court's specific holdings, § 2254(d)(1)
prohibits [this court] from granting relief."
Id. (citing Early v. Packer, 537 U.S. 3, 9
(2002) (per curiam)).
state court's decision unreasonably applies federal law
if it 'identifies the correct governing legal
principle' from the relevant Supreme Court decisions but
applies those principles in an objectively unreasonable
manner." Id. (quoting Wiggins v.
Smith, 539 U.S. 510, 520 (2003)). "Critically, an
'unreasonable application of federal law is
different from an incorrect application of federal
law.'" Id. (quoting Williams, 529
U.S. at 410). "[A] state court's application of
federal law is only unreasonable if 'all fairminded
jurists would agree the state court decision was
incorrect.'" Id. (quoting Frost v.
Pryor, 749 F.3d 1212, 1225 (10th Cir. 2014)).
a state-court decision unreasonably determines the facts if
the state court 'plainly misapprehend[ed] or misstate[d]
the record in making [its] findings, and the misapprehension
goes to a material factual issue that is central to
petitioner's claim.'" Id. (quoting
Byrd v. Workman, 645 F.3d 1159, 1170-72 (10th Cir.
2011)). "But this 'daunting standard' will be
'satisfied in relatively few cases.'"
Id. (quoting Byrd, 645 F.3d at 1172).
One - the prosecution's "offer of proof"
regarding testimony from Jackie Nash
first issue on appeal, Bush argues that his
"constitutional rights were violated when the prosecutor
told the [trial court] about a litany of damaging and
inadmissible statements attributed to [him]" by "a
jail inmate named Jackie Nash." Aplt. Br. at 18.
Although the state trial court ultimately declined to admit
Nash's testimony, it nevertheless asked for and received
an "offer of proof" from the prosecutor regarding
Nash's testimony. Bush argues that the state trial court
never heard other evidence that refuted Nash's testimony
and, most importantly, it would have been impossible for the
state trial court, in fixing Nash's sentence, to ignore
the offer of proof.
Facts relevant to the claim
Friday, October 23, 2009, the first day of the sentencing
proceeding, the prosecutor advised the trial judge and
defense counsel that Jackie Nash, a jailhouse informant, had
come forward with evidence pertinent to the case. Tr. at
1011. Defense counsel "object[ed] to any endorsement of
a witness at this time during the middle of trial."
Id. at 1012. The trial judge stated that he would
resolve the issue the following Monday.
Monday, October 26, 2009, the prosecution attempted to call
Jackie Nash as a witness. Id. at 1309. The defense
"object[ed] to the endorsement of this witness and any
testimony by . . . Nash." Id. at 1310. The
defense noted that both the Oklahoma Constitution and the
Oklahoma Code of Criminal Procedure required that evidence in
aggravation be endorsed and made known to the defendant prior
to trial in order to be admissible. Id. The defense
in turn asserted that they "were first given notice
of" Nash's proposed testimony "on Friday in the
middle of trial," thus giving them "two . . .
weekend days [in] which to prepare" to cross-examine
Nash. Id. The defense argued that Nash should not be
allowed to testify or, in the alternative, that the trial be
continued to give them time to prepare to cross-examine him.
Id. at 1311. The trial judge responded by stating:
"In an abundance of caution . . . the Court is going to
sustain the defendant's motion and not allow the
testimony" of Nash. Id. at 1314. But
immediately thereafter, the trial judge stated to the lead
prosecutor: "you may present an offer of proof."
prosecutor proceeded to state as follows:
Judge, my offer of proof if Mr. Nash was called to testify he
would testify he had conversations with Ronson Bush where
Ronson Bush told him he - he was manipulative, he
deliberately intended to kill Billy Harrington.
He sat around for a week, week and a half and thought about
how he was going to do it. Then he used some methamphetamine
and went to the detox for a few days to get his head straight
so he could get his plan together.
That he planned this. That he waited for Mr. Billy Harrington
to be at his house alone. He held a gun on him. Held him
hostage basically yelling and screaming at him trying to make
him confess to having a sexual relationship with Stephanie
He basically sat over him and taunted him with the gun the
.357 while - while the victim Billy Harrington was sitting in
That at one point he holds the gun to the shoulder of Billy
Harrington in contact wound [sic] pulls the trigger. Shoots
Billy Harrington. And Billy Harrington reaches forward and
puts his hands up and he shoots him again. Which was -
justify and explain - explain the injuries.
That Mr. Harrington got out of the chair and fell down on the
kitchen floor where Mr. Bush shot him again. And the whole
time continuing to taunt him and yell at him.
Mr. Nash, would say that at some point Mr. Harrington went
outside. Mr. Bush told him that he followed him outside and
Billy Harrington was still alive when Ronson Bush tied a rope
on his feet and drug him until he - until he thought maybe he
was dead, his chest was still moving and he drug him
approximately 200 yards.
Mr. Nash would say if - if the Court would allow him - to
call him, Mr. Bush then left and went to Stephanie's.
That's when he started getting drunk. That he wasn't
even drunk when he started doing these things to Billy
Harrington. He waited until afterwards to get drunk so he
would have a defence [sic] to this crime of intoxication.
He will testify about how Ronson Bush was confronted with
Stephanie, how she was scared. How he got in the car with
Stephanie. And at one point he got out of the car and then
she left. Which would be extremely consistent with Stephanie
He will also testify Bush bragged about his two previous
escape attempts where he used other inmates to help him in
the cells. This Court's heard some of that evidence.
And then thirdly, he will say during the course of this trial
and leading up to it Ronson Bush was planning a third escape.
That he had manipulated his toilets manipulated his - his
showers. He caused damage to those cells thinking he could
get out behind the toilet behind the shower and dig out of
And if that didn't work he would escape on his way to
Court. He would overpower a jailer, a guard, he would kill
whomever was necessary to get away.
He said his uncle was involved with the mafia, and his uncle
was going to help him escape from here and he would never be
able to see his family again but that he would blame it on
the Mexican Mafia in the city because nobody would suspect
his uncle for helping him escape. That if he had to kill
people to get out of this courtroom and to get out of here
that's what he would do.
He said he showed no remorse. He laughed about killing Billy
Harrington. And that would be my proffer.
Id. at 1314-17.
counsel then stated: "Judge, I - I in an abundance of
caution this is a proffer and you're sitting off of our
judgement [sic] of facts and I would just ask that the Court
please consider it and put it in it's [sic] proper
place." Id. at 1317. The trial judge responded:
"Any argument or statement by counsel is not
The OCCA's disposition of the claim
Proposition IV of his direct appeal brief, Bush argued that
the trial judge's consideration of the offer of proof
prejudiced Bush's rights under the Sixth, Eighth, and
Fourteenth Amendments. Direct Appeal Br. at 46. Specifically,
Bush argued that the "offer of proof was extremely
harmful to [his] case for life" because it "was in
direct contrast to [his] own account of the crime as an
unplanned, unpremeditated reaction to Mr. Harrington's
revelation of an affair with Ms. Morgan, and that the
shooting was something about which he was deeply saddened and
almost ill." Id. at 49. Bush further argued
that, "[a]lthough the trial judge assured defense
counsel that statements by counsel were not evidence, this
offer of proof was far too inflammatory for the trial judge
to disregard." Id. (citation omitted). That was
because, Bush argued, the offer of proof "ma[d]e the
case for a planned, premeditated murder replete with torture
and accounts of [Bush's] morbid delight," as well as
"references to escape attempts and threats by . . . Bush
against jailers and court personnel." Id. at
State, in its response brief, argued that the "issue
[wa]s not preserved for review as it was not contained in the
motion to withdraw the plea." State Direct Appeal Br. at
36-37. In support, the State noted that OCCA Rule 4.2(B)
provided that "'[n]o matter may be raised in the
petition for writ of certiorari unless the same has been
raised in the application to withdraw the plea . . .
.'" Id. at 37 (quoting Okla. Crim. App. R.
4.2(B)). The State also argued, in the alternative, that
"the trial court assured [Bush] the offer of proof was
not evidence" and that Bush "ha[d] completely
failed to demonstrate that despite such assertion, the trial
court relied on the offer of proof when it determined [he]
was a continuing threat to society and that the murder was
especially heinous, atrocious or cruel." Id.
OCCA ultimately denied relief on the claim. In doing so, the
OCCA stated as follows:
In addition to arguments attacking the aggravating
circumstances, Bush also argues that the trial court's
sentencing decision was influenced by improper and
inadmissible evidence. In proposition four, Bush claims that
the trial court considered improper testimony from a
jail-house snitch during the sentencing proceedings. The
trial court sustained Bush's motion to bar the
witness's testimony because no notice was given to Bush
regarding the evidence in aggravation. See [Okla.
Stat. tit. 21, § 701.10]. Regardless, Bush argues, the
trial court allowed the State to give an offer of proof
regarding the expected testimony of informant Jackie Nash. It
is this offer of proof that Bush now argues influenced the
trial court, in part, in sentencing Bush to the penalty of
Bush first argues that the offer of proof was improperly
given because there was no need for the State to preserve the
evidence with an offer of proof, as the State would not be
appealing Bush's sentence. Even if the offer of proof was
improperly given, Bush must overcome the presumption that the
trial court only considered competent and admissible evidence
in reaching its decision. See Long v. State, 2003 OK
CR 14, ¶ 4, 74 P.3d 105, 107.
In Long, the trial court listened to an audio tape
during a suppression hearing, after which the trial court
suppressed the tape. The trial court went on to conduct a
non-jury trial. The defendant in Long could not
overcome the presumption that the trial court did not
consider improper evidence during the trial. Id.
Here, the evidence proffered was intended to support the
continuing threat aggravating circumstance. The State
indicated that Nash would testify that Bush told him that he
deliberately intended to kill Harrington and had planned it
for several days; he went to detox to get his head straight
before carrying out his plan; he held him hostage trying to
make him confess to having a sexual relationship with Morgan;
he finally shot Harrington in the arm while holding the gun
to Harrington's shoulder; Harrington reached forward and
Bush shot him again.
Bush told him that Harrington went outside and Bush believed
that Harrington was still alive when he dragged him behind
the pickup; Bush said he wasn't drunk, but drank
afterward and intended to use intoxication as a defense;
according to Nash, Bush bragged about his escape attempts; he
planned a third escape by digging around the toilet and
shower, damaging them; he said he intended to escape on his
way to court and kill a guard or whomever necessary in order
to get away. Nash indicated that Bush showed no remorse and
laughed about killing Harrington.
The offer of proof contained evidence otherwise unknown
through other admissible channels. The new evidence included
Bush's account of the events of the killing and the
planning of the killing-in contrast to his claim that the
killing was a spur of the moment killing brought on by
Harrington's boasting of sexual acts with Morgan. The
evidence of the damage to the toilet and shower area was
confirmed as an escape attempt by this offer, and further,
Bush's statement that he intended to flee from court and
kill if necessary to escape were not available from other
Bush claims that this evidence was so prejudicial that it was
impossible for the trial court to ignore. Although the offer
contained powerful evidence, there is little indication that
the trial court utilized this evidence in making a sentencing
decision. As Bush points out, the trial court did cite to the
instances of attempted escape as factoring into the basis for
a finding that the probability existed that Bush would be a
continuing threat to society. Other admissible evidence,
however, provided sufficient evidence that Bush was
attempting to escape from the Grady county jail.
To overcome waiver claims regarding this offer of proof, Bush
claims counsel was ineffective in its ability to preserve
Bush's rights to a proceeding free from outside
influences and prejudices. The ineffective assistance claim
must also fail, because there is no evidence that the trial
court utilized this information in determining the sentence.
As a side note, it is possible that this testimony might have
been admissible as rebuttal evidence, and no discovery notice
would have been required-depending on the reliability of the
jailhouse informant testimony.
Bush I, 280 P.3d at 348-49 (paragraph numbers and
not entirely clear whether the OCCA intended to resolve the
claim on the merits or, instead, to resolve it on the basis
of procedural bar. The OCCA's discussion, in large part,
is devoted to explaining why Bush was not prejudiced by the
alleged error - and thus, the OCCA seems to have resolved the
issue on the merits. But the OCCA's references to
"overcom[ing] waiver" also suggest that it may have
deemed the claim procedurally barred due to Bush's
failure to raise the issue in the trial court.
asserts that Bush "raises several new arguments" in
his appellate brief "that were neither raised to the
OCCA or the district court." Aple. Br. at 19. To begin
with, respondent asserts that Bush, in his direct appeal,
attempted "[t]o show the trial court considered the
offer of proof" by arguing "only that testimony at
trial regarding [his] attempts to escape from jail was
insufficient for the trial court to find [he] attempted to
escape" and "therefore the trial court must have
relied on the Nash offer of proof." Id. at 18.
Respondent in turn asserts that in federal district court,
Bush "attempted to prove the trial court considered the
proffer by arguing two points - (1) [his] efforts to escape,
and, (2) that an investigator observed the trial court's
demeanor change when the offer of proof was read."
Id. at 18-19. Respondent notes that Bush now
"claims the OCCA's holding was an unreasonable
application of several different Supreme Court cases that he
failed to either present to the OCCA or to the district
court." Id. at 19. "Likewise,"
respondent asserts, "he raises several new arguments
that were neither raised to the OCCA or the district court,
in an effort to show . . . the trial court relied on the Nash
proffer." Id. Ultimately, respondent argues
that Bush "is limited to the arguments and facts he
presented to the OCCA." Id.
agree with respondent. The only arguments that Bush made
before the OCCA were that the offer of proof was improper
under Oklahoma law (i.e., "there was no discernible need
for the prosecutor to make an offer in order to preserve the
error"), the "offer of proof was far too
inflammatory for the trial judge to disregard," and the
trial judge ultimately relied on the offer of proof in
finding that the trial judge found that Bush "had
'attempted and/or conspired to escape from the Grady
County Jail.'" Direct Appeal Br. at 48-49, 52. As
for the last of these arguments, Bush argued that "[b]y
making this finding, the trial judge had to have relied on
the . . . Nash offer of proof, because, otherwise, there was
no evidence demonstrating that . . . Bush was the person who
tampered with the shower and toilet" in his jail
cell. Id. at 52. At no point did Bush
argue before the OCCA, as he does now in this federal habeas
appeal, that (1) the trial judge allowed the offer of proof
because "he wanted to hear" Nash's allegations,
(2) "direct evidence indicates that the [trial] judge
was emotionally affected by the allegations," (3)
"Nash's statements demonstrably affected later
testimony that the judge heard from the victim's family,
who were present through the trial and would have heard the
'offer of proof, '" or (4) "just a few
weeks after the sentencing, the prosecutor submitted a letter
for use in . . . Nash's federal criminal
proceedings" that stated "that 'Nash's
cooperation and information was [sic] very valuable in the
Bush prosecution.'" Aplt. Br. at 25-28.
the new arguments that Bush now asserts in his federal habeas
appeal are unexhausted and, in turn, procedurally barred. The
OCCA has long and consistently held that "issues that
were not raised previously on direct appeal, but which could
have been raised, are waived for [purposes of] further
[state] review." Logan v. State, 293 P.3d 969,
973 (Okla. Crim. App. 2013). Thus, were Bush to return to
Oklahoma state court and present these new arguments in a
successive application for post-conviction relief, those
arguments would be deemed waived by the OCCA. All of which
means that those new arguments are procedurally barred for
purposes of these federal habeas proceedings. See
Williams v. Trammell, 782 F.3d 1184, 1212 (10th Cir.
2015) ("[A] habeas petition is procedurally defaulted if
the petitioner failed to exhaust state remedies and the court
to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now
find the claims procedurally barred." (quotation marks
Clearly established federal law applicable to the claim
concedes that "[n]o Supreme Court case specifically
addresses prejudicial 'offers of proof, '" but
he asserts that "[s]everal lines of Supreme Court
precedent establish general standards that support relief
here." Aplt. Br. at 21. To begin with, Bush points to
Supreme Court precedent addressing state-sponsored courtroom
practices that may be "so inherently prejudicial that
[they] deprive a defendant of a fair trial." Carey
v. Musladin, 549 U.S. 70, 76 (2006) (concluding that
buttons displaying the victim's image worn by the
victim's family during respondent's trial did not
deny respondent his right to a fair trial). The two main
examples are Estelle v. Williams, 425 U.S. 501, 502
(1976), where the defendant "appeared at trial in
clothes that were distinctly marked as prison issue,"
and Holbrook v. Flynn, 475 U.S. 560 (1986), where
the State seated four uniformed state troopers in the row of
spectators' seats immediately behind the defendant during
trial. The Court held in both cases that government-sponsored
practices of these types can, depending on the circumstances,
be so inherently prejudicial that they deprive a defendant of
a fair trial. Secondly, Bush points to Greer v.
Miller, 483 U.S. 756 (1987), in which the Supreme Court
"recognized that prosecutorial misconduct may so infect
the trial with unfairness as to make the resulting conviction
a denial of due process," and that, "[t]o
constitute a due process violation, the prosecutorial
misconduct must be of sufficient significance to result in
the denial of the defendant's right to a fair
trial." Id. at 765 (quotations and brackets
omitted). Third, Bush points to the Supreme Court's
recognition in Romano v. Oklahoma, 512 U.S. 1, 12
(1994), that the "admission of evidence" might
"so infect the sentencing proceeding with unfairness
as to render the jury's imposition of the death penalty a
denial of due process." Lastly, Bush points to
Parker v. Dugger, 498 U.S. 308, 321 (1991), in which
the Supreme Court recognized (as it had before) that
"[t]he Constitution prohibits the arbitrary or
irrational imposition of the death penalty." Together,
Bush argues, "[t]hese cases establish that the due
process clause prohibits fundamental unfairness and that the
Eighth Amendment forbids arbitrariness in death penalty
proceedings." Aplt. Br. at 22.
threshold question we must address is whether Bush has
identified a rule of law that was "clearly
established" by the Supreme Court at the time the OCCA
resolved his direct appeal. See House v. Hatch, 527
F.3d 1010, 1018 (10th Cir. 2008) (holding that, in light of
Musladin, a court must first determine whether the
petitioner seeks to apply a rule of law that was clearly
established by the Supreme Court at the time his or her
conviction became final). In House, this court held
that "Musladin instructed that Supreme Court
holdings-the exclusive touchstone for clearly established
federal law- must be construed narrowly and consist only of
something akin to on-point holdings." Id. at
1015. In other words, "in the post-Musladin
analysis, clearly established law consists of Supreme Court
holdings in cases where the facts are at least
closely-related or similar to the case sub
judice." Id. at 1016.
presents a problem for Bush. None of the Supreme Court cases
he has cited in his appellate brief involved facts remotely
similar to the facts at issue in his case, i.e., a trial
judge who selected and imposed a death sentence after
considering an offer of proof of inadmissible aggravating
evidence. Indeed, none of the cases he has cited separately
involved either the consideration of an offer of proof of
inadmissible evidence in any context, or a capital case.
Thus, at best, the cases cited by Bush stand for very broad
principles of due process. In light of Musladin and
House, however, that is not sufficient to constitute
clearly established federal law for purposes of §
2254(d). And, under House, "[t]he absence of
clearly established federal law is dispositive under §
2254(d)(1)." 527 F.3d at 1018.
Two - admission of victim impact testimony
second issue on appeal, Bush argues that the admission of
victim impact testimony at his sentencing hearing violated
his rights under the Eighth and Fourteenth
Amendments. More specifically, Bush argues that this
testimony violated his constitutional rights because it
included "family members' characterizations of the
crime, opinions about [him], and desire for the death
penalty." Aplt. Br. at 34.
Facts relevant to this claim
September 14, 2009, the prosecution filed a pleading with the
state trial court entitled "State's Notice and
Disclosure of Victim Impact Statements." State Court
ROA, Vol. 2 at 213. Attached to that pleading were the
written victim impact statements from eight of the
victim's family members.
victim's parents, Kathleen and David Harrington, stated
in their joint victim impact statement: "Billy died at
the hands of his enemy, although he called him friend. Billy
endured pain and agony; was dragged as if he were trash and
left to freeze in the frigid dark of night."
Id. at 218. They also stated, with regard to the
punishment of Bush: "In the death of our Billy we are
making a plea to the court requesting the maximum sentencing;
the most severe punishment by law. We are requesting death
for Ronson Kyle Bush. The request is not made for the desire
of vengeance but we all firmly believe that Ronson is a
threat and will continue to be a threat to our family and the
community in general." Id. at 219 (emphasis
Harrington Latorre, the victim's sister, wrote in her
statement that "Ronson Bush deserves the most severe
punishment allowed by Oklahoma law. He deserves the death
penalty." Id. at 221.
Montgomery, the victim's grandmother, offered the
following recommendation regarding punishment:
With premeditation, systematically with cruelty and
maliciousness Billy was murdered, shot multiple times and
obtained numerous wounds, burns, and trauma to his entire
body and precious face. He was dragged and disposed of like
so much garbage. Bush without thought of friend or his family
inflicted pain and death upon our sweet Billy. I plead with
the court to sentence Ronson Bush with the maximum sentence
possible; I request the death penalty.
Id. at 222.
Harrington, the victim's then-eleven-year-old daughter,
provided a handwritten statement that included the following
recommendation regarding sentencing: "Today my plea to
the court is to consider the cruelty and abuse that my Daddy
suffered because of Ronson, [sic] is to ...