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Harris v. Sharp

United States Court of Appeals, Tenth Circuit

October 28, 2019

JIMMY DEAN HARRIS, Petitioner-Appellant,
v.
TOMMY SHARP, Interim Warden, Oklahoma State Penitentiary, [*] Respondent-Appellee.

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:08-CV-00375-F)

          Jack Fisher, Fisher Law Office, Edmond, Oklahoma, and Emma V. Rolls, Assistant Federal Public Defender, Oklahoma City, Oklahoma, on behalf of the Petitioner-Appellant.

          Jennifer L. Crabb, Assistant Attorney General (Mike Hunter, Attorney General of Oklahoma, with her on the briefs), Oklahoma City, Oklahoma, on behalf of the Respondent-Appellee.

          Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.

          BACHARACH, CIRCUIT JUDGE.

         TABLE OF CONTENTS

         Background ................................................................................... 2

         The Standard of Review ................................................................. 3

         Appellate Arguments Covered in an Existing Certificate of Appealability .............................................. 5

         I. Ineffective Assistance of Counsel ........................................... 5

         A. The Strickland Standard ................................................ 6

         B. Failure to Seek a Pretrial Hearing on Intellectual Disability as a Bar to Execution .................................... 7

         1. The Standard of Review ........................................ 9

         2. Deficiency Prong .................................................. 13

         3. Prejudice Prong .................................................... 18

         (a) Unreasonable Determination of Fact .............. 19

         (b) The Need for an Evidentiary Hearing ............. 26

         (c) Conclusion ................................................... 36

         C. Failure to Adequately Present Mitigation Evidence .......... 37

         1. The Legal Standard and the Standard of Review ...... 38

         2. Intellectual Impairment as a Mitigating Factor ........ 38

         (a) Evidence of an Intellectual Impairment .......... 39

         (b) Mitigation Evidence Involving an Intellectual Disability .................................................... 41

         (c) Mitigation Evidence Involving Borderline Intellectual Functioning ................................ 45

         i. The OCCA's Reliance on Both Prongs (Deficient Performance and Prejudice) .. 45

         ii. Deficient Performance .......................... 46

         iii. Prejudice ............................................. 50

         (d) Mitigation Evidence Involving Mental Illness ......................................................... 52

         i. Mental Health Evidence in the 2005 Retrial ........................................ 53

         ii. Other Existing Evidence of Mr. Harris's Mental Illness ...................................... 54

         iii. Claim of Ineffective Assistance of Counsel ............................................... 55

         a. Deficiency Prong ......................... 56

         (i) Unreasonable Factual Determinations ................... 56

         (ii) Unreasonable Application of Supreme Court Precedents ... 58

         b. Prejudice .................................... 59

         II. Jury Instructions and Closing Arguments as to Mitigation Evidence ............................................................... 63

         A. The Standard of Review ................................................. 64

         B. The Jury Instruction ...................................................... 66

         C. The Prosecutors' Closing Arguments .............................. 67

         1. Applicability of 28 U.S.C. § 2254(d) ...................... 69

         2. Unreasonable Determination of Fact ....................... 70

         3. Unreasonable Application of Supreme Court Precedent ............................................................. 74

         III. Victim-Impact Testimony ....................................................... 81

         A. The Constitutional Limit on Victim-Impact Testimony ..... 81

         B. The Victim-Impact Testimony and the Issue of Harmlessness ................................................................ 82

         C. Structural or Harmless Error .......................................... 83

         D. Harmlessness ................................................................ 85

         IV. Cumulative Error ................................................................... 89

         Motion to Expand the Certificate of Appealability ............................ 91

         Conclusion .................................................................................... 94

         Mr. Jimmy Dean Harris was convicted of first-degree murder and sentenced to death. He appealed, and the Oklahoma Court of Criminal Appeals (OCCA) reversed his sentence and remanded for a retrial at the penalty phase. After the retrial, the state district court reimposed the death penalty. Mr. Harris appealed and sought post-conviction relief in state court. When these efforts failed, he brought a habeas petition in federal district court. The court denied relief, and Mr. Harris appeals.

         On appeal, Mr. Harris argues in part that his trial counsel was ineffective in failing to seek a pretrial hearing on the existence of an intellectual disability, which would have prevented the death penalty.[1] The federal district court rejected this claim. In our view, the district court should have conducted an evidentiary hearing to decide this claim, so we reverse and remand for further consideration. Given the need to remand on this issue, we also remand for the district court to reconsider the claim of cumulative error. But we affirm the denial of habeas relief on Mr. Harris's other claims.

         Background[2]

         Jimmy Dean Harris and Pam Harris were married for about twenty years. Mr. Harris repaired transmissions, as did Pam, who worked for Mr. Merle Taylor. With the passage of time came marital strain between Mr. Harris and Pam.

         In 1999, Pam obtained a divorce and restraining order, requiring Mr. Harris to move out of their house. He complied, moving his belongings into a storage shed, but he grew distraught-crying, drinking, and taking Valium.

         The next day, Pam returned home and discovered that Mr. Harris had vandalized the house and moved some of her belongings into the storage shed. This incident led Pam to change the locks and to obtain a second restraining order, which required Mr. Harris to stay away from the house.

         Mr. Harris repeatedly asked Pam to allow him to retrieve his tools. After a few days, Mr. Harris went to Pam's workplace and shot at her, Mr. Taylor, and his daughter (Jennifer Taylor). Mr. Taylor died, Pam was wounded, and Jennifer Taylor escaped without injury.

         At a 2001 trial, the jury found Mr. Harris guilty of first-degree murder in the death of Merle Taylor and recommended the death penalty, finding one aggravating circumstance (creation of a substantial risk of death to more than one person).[3] As noted above, the death sentence was vacated by the OCCA in a prior appeal. At the 2005 retrial on the penalty, the prosecution alleged two aggravating factors:

1. Mr. Harris created a substantial risk of death to more than one person.
2. Mr. Harris posed a continuing threat to society.

         The jury found both aggravating factors and again recommended the death penalty. The trial court agreed with the recommendation and resentenced Mr. Harris to the death penalty.

         The Standard of Review

         We engage in de novo review of the federal district court's legal analysis. Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013). In district court, review is deferential when the state appellate court rejects a claim on the merits. After rejection of the claim in state court, the federal district court can reach the merits only if the state appellate court's decision was

. contrary to, or involving an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
. based on an unreasonable determination of the facts given the evidence presented in state court.

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d).

         To determine whether a state-court decision was contrary to, or involved an unreasonable application of, clearly established law, we engage in a two-step process. Budder v. Addison, 851 F.3d 1047, 1051 (10th Cir.), cert. denied, 138 S.Ct. 475 (2017). We first determine the clearly established law by considering Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 379 (2000). We then ask whether the state court's decision was contrary to, or involved an unreasonable application of, that precedent. Id.

         We must defer to the state court's factual findings unless "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 [the] petitioner's claim." Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016) (quoting Byrd v. Workman, 645 F.3d 1159, 1171-72 (10th Cir. 2011)). To overcome the state appellate court's factual findings, the petitioner must show that they are objectively unreasonable. Smith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018).

         If the state's highest court acted unreasonably in applying Supreme Court precedent or finding facts, the district court must decide whether the conviction or sentence violated the Constitution. See Fry v. Pliler, 551 U.S. 112, 119 (2007) (stating that 28 U.S.C. § 2254(d) provides "preconditions] to the grant of habeas relief . . ., not an entitlement to it"); Hancock v. Trammell, 798 F.3d 1002, 1010 (10th Cir. 2015) ("[E]ven when petitioners satisfy the threshold in § 2254(d), they must establish a violation of federal law or the federal constitution.").

         Appellate Arguments Covered in an Existing Certificate of Appealability

         Our court previously granted a certificate of appealability on Mr. Harris's appellate arguments involving ineffective assistance of counsel, an improper jury instruction on mitigation evidence, improper closing arguments about the mitigation evidence, improper victim testimony recommending a particular sentence, and cumulative error. We reverse and remand for further consideration of the claims involving (1) ineffective assistance in the failure to seek a pretrial hearing on an intellectual disability and (2) cumulative error.

         I. Ineffective Assistance of Counsel

         The Sixth Amendment entitles a defendant to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). Invoking this amendment, Mr. Harris argues that his attorney at the 2005 retrial was ineffective for failing to

. seek a pretrial hearing on the existence of an intellectual disability, which would have precluded the death penalty,
. present additional trial evidence for mitigation based on an intellectual disability, and
. present additional mitigation evidence at trial regarding a lesser intellectual impairment or mental illness.

         A. The Strickland Standard

         To address Mr. Harris's arguments, the district court needed to apply the two-part test set out in Strickland v. Washington, 466 U.S. 668 (1984).

         Under the first part of the test, the court was to determine whether Mr. Harris's attorney was deficient. Attorneys are deficient when their mistakes are so serious that they stop functioning as "counsel" for purposes of the Sixth Amendment. Id. at 687. In making this determination, the court ordinarily presumes that counsel's performance is reasonable and might entail a sound strategy. Newmiller v. Raemisch, 877 F.3d 1178, 1196 (10th Cir. 2017). In capital cases, however, courts scrutinize attorney performance particularly closely in the sentencing phase. Littlejohn v. Trammel, 704 F.3d 817, 859 (10th Cir. 2013).

         To overcome this presumption, a petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. This inquiry is "highly deferential," and courts should avoid "the distorting effects of hindsight." Id. at 689. Strategic decisions after a "thorough investigation" are afforded even greater deference and are "virtually unchallengeable." Id. At 690. "Even under de novo review, the standard for judging counsel's representation is a most deferential one." Harrington v. Richter, 562 U.S. 86, 105 (2011).

         When a habeas petitioner alleges ineffective assistance of counsel, deference exists both in the underlying constitutional test (Strickland) and the AEDPA's standard for habeas relief, creating a "doubly deferential judicial review." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Under this double deference, we consider "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Ellis v. Raemisch, 872 F.3d 1064, 1084 (10th Cir. 2017) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011) (emphasis in original)).

         The petitioner must show not only a deficiency in the representation but also prejudice. Strickland v. Washington, 466 U.S. 668, 692 (1984). For prejudice, the petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

         B. Failure to Seek a Pretrial Hearing on Intellectual Disability as a Bar to Execution

         Mr. Harris argues that his counsel was ineffective for failing to seek a pretrial hearing on an intellectual disability that would render him ineligible for the death penalty. This argument is based on Atkins v. Virginia, 536 U.S. 304 (2002), where the Supreme Court concluded that the execution of intellectually disabled persons violates the Eighth Amendment's prohibition on cruel-and-unusual punishment. 536 U.S. at 317, 321.[4]

         Despite this conclusion, the Supreme Court allowed states to establish their own standards for an intellectual disability. Id. at 317 n.22. We thus focus on the content of Oklahoma law (when Mr. Harris's retrial took place). At that time, Oklahoma law allowed consideration of an intellectual disability only if the defendant had at least one IQ score under 70. See Murphy v. State, 54 P.3d 556, 567-68 (Okla. Crim. App. 2002), overruled in part on other grounds by Blonner v. State, 127 P.3d 1135, 1139 (Okla. Crim. App. 2006). Upon such a showing, the defendant could then establish an intellectual disability by proving intellectual and adaptive deficits and manifestation before age eighteen. Id.; see p. 31, below.

         Mr. Harris argues that his attorney was ineffective by failing to ask for a pretrial hearing on intellectual disability. To address this argument, we consider and apply the standard of review.

         1. The Standard of Review

         In denying relief on this claim, the OCCA explained that "[Mr.] Harris must [1] show that counsel's performance was so deficient that he did not have counsel as guaranteed by the Sixth Amendment, and that [2] the deficient performance created errors so serious as to deprive him of a fair trial with reliable results." Harris v. State, 164 P.3d 1103, 1114 (Okla. Crim. App. 2007). The OCCA rejected this claim on the ground that Mr. Harris could not establish prejudice. See id. at 1115-16 (concluding that "Harris cannot show he was prejudiced by counsel's failure" because "[w]e cannot conclude there was a reasonable probability that, but for counsel's omission, the results of this resentencing proceeding would have been different").

         The State nevertheless argues that the OCCA implicitly decided the deficiency prong on the merits. The State's argument conflates two of the OCCA's determinations: One involves Mr. Harris's claim that his counsel failed to seek a pretrial hearing on the existence of an intellectual disability; the other determination involves Mr. Harris's claim that his counsel failed to adequately present mitigating evidence at the trial. See Harris v. State, 164 P.3d 1103, 1118 (Okla. Crim. App. 2007). For the second claim (failure to adequately present mitigating evidence at the trial), the OCCA addressed the merits of the deficiency prong. But the OCCA did not address the deficiency prong on the first claim (failure to seek a pretrial hearing on intellectual disability). For this claim, the OCCA expressly rested on the prejudice prong without any mention of the deficiency prong. Harris v. State, 164 P.3d 1103, 1115-16 (Okla. Crim. App. 2007).

         Because the OCCA did not adjudicate the merits of the deficiency prong on this claim, we engage in de novo review of this part of the district court's ruling. See Rompilla v. Beard, 545 U.S. 374, 390 (2005) (reviewing de novo the prejudice prong of an ineffective-assistance claim because the state court had not reached this prong); Smith v. Sharp, 935 F.3d 1064, 1072 (10th Cir. 2019) ("[I]n cases in which a state court addresses only one prong of a multi-prong analysis, the Supreme Court requires that federal habeas courts address the other prongs de novo.").

         But the OCCA did reach the merits of the prejudice prong, rejecting Mr. Harris's arguments. Still, Mr. Harris argues that we should engage in de novo review on this prong because the OCCA did not

. sufficiently consider Dr. Callahan's report or
. permit an evidentiary hearing.

         Mr. Harris did not raise his first argument (insufficient consideration of the evidence by the OCCA) in district court. Even in habeas cases involving the death penalty, we consider arguments forfeited or waived when they are raised for the first time on appeal. See Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015) (forfeited); Owens v. Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015) (waived).[5]

         Mr. Harris's second argument (the OCCA's denial of an evidentiary hearing) is based on Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (en banc), where we considered the OCCA's denial of an evidentiary hearing and rejection of an ineffective-assistance claim without considering material non-record evidence. In these circumstances, we concluded that the denial did not constitute an adjudication on the merits under § 2254(d). Wilson, 577 F.3d at 1300.

         After we issued this opinion, however, the OCCA clarified its procedures for deciding these claims. Simpson v. State, 230 P.3d 888 (Okla. Crim. App. 2010). Given this clarification, we concluded in Lott v. Trammell that

. Wilson no longer applies and
. any denial of a request for an evidentiary hearing on an ineffective-assistance claim constitutes an adjudication on the merits.

705 F.3d 1167, 1213 (10th Cir. 2013). Mr. Harris's argument is thus foreclosed by Lott.

         Mr. Harris contends that (1) the panel in Lott could not overrule the en banc opinion in Wilson and (2) the OCCA's clarification of the standard came after the OCCA had rejected Mr. Harris's argument. We reject both contentions.

         It is true that a panel typically cannot overrule an earlier precedent. United States v. White, 782 F.3d 1118, 1123 n.2 (10th Cir. 2015). But a panel is not bound by precedents that have been superseded by a change in state law. Wankier v. Crown Equip. Corp., 353 F.3d 862, 867 (10th Cir. 2003). Our interpretation of state law changed when the OCCA clarified the standard for adjudicating a request for an evidentiary hearing. Lott, 705 F.3d at 1213.

         As Mr. Harris points out, the OCCA had rejected his argument before the OCCA clarified the state-law standard. But the same was true in Lott, and we relied there on the OCCA's clarification in deciding that the denial of an evidentiary hearing constituted an adjudication on the merits. Id. This approach makes sense because the OCCA was clarifying what its rules had already been and didn't suddenly start adjudicating the merits when denying evidentiary hearings. Wilson v. Trammell, 706 F.3d 1286, 1311 (10th Cir. 2013) (Gorsuch, J., concurring). Before Lott, we had simply misunderstood Oklahoma law. See id. ("[T]he OCCA has explained that Wilson was mistaken in its understanding of Oklahoma law."). Under Lott, we thus consider the OCCA's denial of an evidentiary hearing on an ineffective-assistance claim as an adjudication on the merits.

         We thus engage in de novo review of the OCCA's ruling on the deficiency prong, but we apply § 2254(d)'s deferential standard of review on the prejudice prong.

         2. Deficiency Prong

         Applying de novo review, we conclude that Mr. Harris's attorney was deficient in failing to request a pretrial hearing to assess an intellectual disability.

         The State argues that defense counsel strategically decided to forgo a pretrial hearing after a thorough investigation. Strategic decisions draw considerable deference when the attorney has thoroughly investigated the law, the facts, and the plausible alternatives. Strickland v. Washington, 466 U.S. 668, 690 (1984). But merely calling something a strategy does not prevent meaningful scrutiny. We must still determine (1) whether an attorney has chosen to forgo a course of action and (2) whether that choice was reasonable under the circumstances. Brecheen v. Reynolds, 41 F.3d 1343, 1369 (10th Cir. 1994).

         In assessing the reasonableness of an attorney's investigation, we engage in close scrutiny during the penalty phase of capital cases. Littlejohn v. Trammell, 704 F.3d 817, 859 (10th Cir. 2013). In these cases, "we refer to the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases." Id. These guidelines require that "[c]ounsel at every stage of the case should take advantage of all appropriate opportunities to argue why death is not suitable punishment for their particular client." ABA Guidelines § 10.11(L). One appropriate opportunity involved a pretrial hearing on the existence of an intellectual disability.[6] State ex rel. Lane v. Bass, 87 P.3d 629, 633 (Okla. Crim. App. 2004), overruled in part on other grounds by Blonner v. State, 127 P.3d 1135, 1139 (Okla. Crim. App. 2006). Had Mr. Harris been found intellectually disabled, he would have been ineligible for the death penalty. Id. at 632.

         When the 2005 retrial took place, Oklahoma law permitted pretrial evidentiary hearings before a judge on the existence of an intellectual disability. See State ex rel. Lane v. Bass, 87 P.3d 629, 633-35 (Okla. Crim. App. 2004), overruled in part on other grounds by Blonner v. State, 127 P.3d 1135, 1139 (Okla. Crim. App. 2006). If the defendant preferred a jury, he or she could also opt for a jury finding on the existence of an intellectual disability. If the jury found no intellectual disability, the defendant could ask the judge to revisit the issue after the trial. Id. at 635.

         So if the judge or jury found no intellectual disability, the defense would have lost nothing. But if either the judge or jury found an intellectual disability, the death penalty would have vanished as a possibility. Defense counsel thus had a risk-free opportunity to avoid the death penalty. Frazier v. Jenkins, 770 F.3d 485, 501 (6th Cir. 2014)[7]; see Clinkscale v. Carter, 375 F.3d 430, 443 (6th Cir. 2004) (holding that defense counsel was deficient by failing to file a timely notice of an alibi defense when counsel had "everything to gain" and "nothing to lose"); see also Browning v. Baker, 875 F.3d 444, 473 (9th Cir. 2017) ("[T]he obligation to investigate, recognized by Strickland, exists when there is no reason to believe doing so would be fruitless or harmful.").[8]

         Though no downside existed, [9] a pretrial hearing had considerable upside. The evidence of an intellectual disability was ready-made. For example, Mr. Harris had IQ scores under the 70-point threshold necessary for a determination of intellectual disability under Oklahoma law. Murphy v. State, 54 P.3d 556, 567-68 (Okla. Crim. App. 2002), overruled in part on other grounds by Blonner v. State, 127 P.3d 1135, 1139 (Okla. Crim. App. 2006). One expert witness, Dr. Martin Krimsky, had already diagnosed Mr. Harris with a mild intellectual disability. And other evidence of Mr. Harris's difficulties in intellectual and adaptive functioning had already been introduced at a competency hearing and the 2001 trial.

         The State contends that defense counsel did not request a pretrial hearing because he believed that Mr. Harris was not intellectually disabled.[10] For this contention, the State points to the voir dire, where defense counsel conceded that Mr. Harris was not intellectually disabled. We do not know why defense counsel made this concession, [11] and there is nothing to suggest that he had investigated the possibility of an intellectual disability. Before this concession, Dr. Krimsky had already testified that Mr. Harris was intellectually disabled. Even if defense counsel had disagreed with Dr. Krimsky's assessment, the ABA guideline required him to take advantage of every opportunity to argue against a death sentence. One such opportunity existed for a pretrial hearing on an intellectual disability, and the failure to request this hearing fell outside the acceptable range of reasonable performance. See Williamson v. Ward, 110 F.3d 1508, 1517-18 & n.12 (10th Cir. 1997) (concluding that the petitioner's counsel was ineffective in failing to seek a competency hearing given the existing evidence of incompetency and the lack of any strategic advantage).

         Defense counsel had nothing to lose by requesting a pretrial hearing on an intellectual disability. Prevailing would have eliminated the possibility of the death penalty, and losing would have left Mr. Harris precisely where he would be anyway, free to urge acquittal and a life sentence upon a conviction. Given the evidence already developed in the 2001 proceedings, any reasonable defense attorney would have sought a pretrial hearing on the existence of an intellectual disability. By failing to seek a pretrial hearing, Mr. Harris's attorney bypassed a risk-free opportunity to avoid the death penalty. Bypassing this opportunity constituted a deficiency in the representation.

         3. Prejudice Prong

         Because the OCCA adjudicated the prejudice prong on the merits, the federal district court could have reached the merits of the prejudice issue only if Mr. Harris had cleared the hurdle under 28 U.S.C. § 2254(d). See pp. 3-5, above. Section 2254(d) prevents consideration of the merits unless the OCCA's decision on prejudice was (1) contrary to, or an unreasonable application of, clearly established federal law or (2) based on an unreasonable determination of fact in light of the evidence presented in state court. 28 U.S.C. § 2254(d)(1)-(2).

         In our view, the OCCA's decision on prejudice was based on an unreasonable factual determination, so we consider the merits.[12]

         (a) Unreasonable Determination of Fact

         Mr. Harris contends that the OCCA's decision was based on an unreasonable factual determination under 28 U.S.C. § 2254(d)(2). He points to this passage in the OCCA's decision: "All Harris's experts, including the ones who testified at his [2001] trial and competency hearing, considered these scores along with Harris's other characteristics and concluded he was not mentally retarded." Harris v. State, 164 P.3d 1103, 1115 (Okla. Crim. App. 2007). Mr. Harris contends that this passage reflects an unreasonable determination of fact because Dr. Krimsky had assessed an intellectual disability.[13]

         The State argues that Mr. Harris failed to preserve this contention in district court by limiting his argument to Dr. Callahan's affidavit. We disagree.

         To preserve the issue in district court, Mr. Harris needed only to alert the court to the issue and seek a ruling. See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d 1135, 1141 (10th Cir. 2007) ("An issue is preserved for appeal if a party alerts the district court to the issue and seeks a ruling."); United States v. Harrison, 743 F.3d 760, 763 (10th Cir. 2014) (stating that the test for specificity of an objection in district court "is whether the district court was adequately alerted to the issue"). We thus consider whether Mr. Harris's argument in district court encompassed Dr. Krimsky's opinion. The State answers "no;" we answer "yes."

         In district court, Mr. Harris treated Dr. Callahan's opinion as significant new evidence of intellectual disability. But Mr. Harris did not confine his argument to Dr. Callahan's opinion. Mr. Harris's argument on prejudice spanned roughly 32 pages. Within this discussion lay Mr. Harris's challenge to the OCCA's characterization of the expert opinions. Mr. Harris prefaces this discussion by explaining why the OCCA's decision was unreasonable under § 2254(d)(2). See Habeas Pet. at 107 ("Below is a discussion of the three (3) criteria, the impact of Dr. Callahan's report and argument why the OCCA decision was unreasonable under both prongs of §2254 (d)."). In the ensuing section, Mr. Harris extensively discusses all of the prior expert opinions on the existence of an intellectual disability.

         For example, in discussing the criterion of significant sub-average intellectual functioning, Mr. Harris discusses Dr. Callahan's references to IQ tests administered by herself, Dr. Martin Krimsky, and Dr. Nelda Ferguson. Mr. Harris notes that the IQ tests by Dr. Ferguson and Dr. Krimsky would have met the state-law criterion for IQ test results below 70. And Mr. Harris underscores Dr. Krimsky's test results and assessment of mild intellectual disability:

Dr. Krimsky concluded the IQ scores indicated that Mr. Harris was mildly mentally retarded. He did not believe Mr. Harris was malingering or "trying to fool the test." He again confirmed Jimmy Dean Harris "an individual with mental retardation."

Id. at 110 (citations omitted).

         Mr. Harris also discusses the expert opinions by Dr. John Smith, Dr. Wanda Draper, and Dr. Ray Hand. In this discussion, Mr. Harris points out that Dr. Smith confirmed Dr. Krimsky's testing as an indication of intellectual disability. Id. at 112.

         Despite this broad record-based attack on the OCCA's factual determination, the State points to two pages in which Mr. Harris discusses his reliance on Dr. Callahan's opinion. The State's reliance on these two pages disregards the other 30 pages in Mr. Harris's argument as well as the nature of Dr. Callahan's report. In this report, Dr. Callahan relied not only on her own examination and testing but also on the prior testing and diagnoses. For example, Dr. Callahan noted that Dr. Krimsky, Dr. Ferguson, and Dr. Smith had separately diagnosed Mr. Harris as having a mild intellectual disability.

         The State also argues that Mr. Harris was relying solely on Dr. Callahan's opinion. We disagree. Mr. Harris addressed all of the expert witnesses, including both Dr. Krimsky and Dr. Callahan. On appeal, Mr. Harris narrows his focus to Dr. Krimsky. This narrower argument is subsumed by the broader argument that Mr. Harris had presented in district court. The district court was thus alerted to Mr. Harris's appellate argument, which sufficed for preservation. See Joseph A. ex rel. Wolfe v. N.M. Dep't of Hum. Servs., 28 F.3d 1056, 1060 (10th Cir. 1994) (concluding that the appellants had preserved their appellate argument because it had been subsumed by the argument presented in district court); accord PCTV Gold, Inc. v. Speednet, LLC, 508 F.3d 1137, 1144 n.5 (8th Cir. 2007) (concluding that an appellate argument was preserved because it had been encompassed in a more general argument presented in district court). Because Mr. Harris preserved the issue, we consider the merits of his challenge to the reasonableness of the OCCA's factual determination.

         We conclude that the OCCA was clearly mistaken as to Dr. Krimsky. The OCCA concluded that all of the defense experts had opined that Mr. Harris was not intellectually disabled. Harris v. State, 164 P.3d 1103, 1115 (Okla. Crim. App. 2007). But Dr. Krimsky had opined that Mr. Harris was intellectually disabled.

         In our appeal, the State appears to acknowledge expert testimony that Mr. Harris is intellectually disabled: "The only experts who have opined that Petitioner is mentally retarded have relied upon unreliable test results that contradict the experts' experiences with him." Appellee's Resp. Br. at 32-33. In oral argument, the State elaborates on this argument, insisting that the OCCA could reasonably reject Dr. Krimsky's test results because Mr. Harris was psychotic at the time of testing. But this was not the OCCA's rationale. The OCCA reasoned that all defense experts had opined that Mr. Harris was not intellectually disabled, and this was simply not true of Dr. Krimsky. Harris, 164 P.3d at 1115.

         The State also denies that the OCCA misunderstood Dr. Krimsky's opinion. The State points to a footnote where the OCCA

. noted that one expert had believed that he "had" to say that Mr. Harris's test scores indicated an intellectual disability but
. added that it "was not his conclusion" after examining Mr. Harris.

Id. at 1115 n.55.

         The State's argument misstates the testimony. Dr. Krimsky testified that he had administered two IQ tests: (1) the Slossen Intelligence Test Revised ("SIT") and (2) the Wechsler Adult Intelligence Scale, Revised ("WAIS-R"). Mr. Harris scored a 66 on the SIT and a 68 on the WAIS-R, and Dr. Krimsky regarded these scores as proof of mild intellectual disability.

         He explained that "[t]here was an ambiguity comparing the result of the first test [the SIT] . . . and [Mr. Harris's] occupation of having been involved in repair of auto transmissions." 2001 Comp. Hearing, vol. 1, at 63. But Dr. Krimsky noted that the second test [the WAIS-R] was "much more comprehensive" with "a high validity in relation to occupational and socioeconomic status." Id. at 64. Dr. Krimsky ultimately considered both sets of results to be consistent and accurate.

         Dr. Krimsky also testified that Mr. Harris's mechanical skills could have been acquired by someone who was mildly intellectually disabled, pointing out that Mr. Harris had spent "a long period of time . . . observing his father and other people fix transmissions." Id. at 65. Given this lengthy period of observation, Dr. Krimsky opined that Mr. Harris's low IQ was consistent with his skill in fixing transmissions.

         Dr. Krimsky thus testified that Mr. Harris's skills did not undermine the assessment of mild intellectual disability. In fact, Dr. Krimsky corrected an attorney who had referred to Mr. Harris as "borderline," with Dr. Krimsky repeating his characterization of Mr. Harris as having "mild mental retardation."[14] Id. The OCCA thus made an unreasonable factual finding that all of Mr. Harris's experts had opined that he was not intellectually disabled. Dr. Krimsky was one of Mr. Harris's experts, and he specifically opined that Mr. Harris was intellectually disabled.

         The State also argues that even if the OCCA's factual determination had been unreasonable, this factual determination had not formed the basis for the OCCA's decision. As the State points out, it is not enough for Mr. Harris to show an unreasonable factual determination; the state court's decision must have also been "based on" the unreasonable factual determination. Byrd v. Workman, 645 F.3d 1159, 1172 (10th Cir. 2011).

         In our view, however, the OCCA did indeed base its decision on the unreasonable factual determination. The OCCA explained that it had found no prejudice:

Nothing in this record shows that, had counsel made [a request for a pretrial hearing], evidence would have shown by a preponderance of the evidence that Harris was mentally retarded. There is a great deal of evidence in the record to show otherwise, including the opinion of several experts who testified that Harris was not mentally retarded. We cannot conclude that there was a reasonable probability that, but for counsel's omissions, the results of this resentencing proceeding would have been different.

Harris v. State, 164 P.3d 1103, 1116 (Okla. Crim. App. 2007) (emphasis added).[15] By highlighting the expert opinions rejecting an intellectual disability, the OCCA suggested that this was the critical evidence on prejudice. The OCCU thus based its decision on its perception of the various expert opinions, including its mistaken perception of Dr. Krimsky's opinion.

         (b) The Need for an Evidentiary Hearing

         We thus must tackle the prejudice prong in the first instance. Magnan v. Trammell, 719 F.3d 1159, 1175 (10th Cir. 2013). To do so, we must consider the evidence of intellectual disability.

         Mr. Harris contends that a pretrial hearing could have led to a finding of intellectual disability, pointing to his history of IQ testing, Dr. Callahan's report, expert testimony, and evidence of difficulties in adaptive functioning. In response, the State focuses on Mr. Harris's older IQ tests, the testimony of other experts, and Mr. Harris's employment history.

         The issue of prejudice turns on whether a reasonable factfinder could find an intellectual disability. With this issue hotly disputed and the lack of a factual finding, the district court could not grant habeas relief. See Littlejohn v. Trammell, 704 F.3d 817, 856 (10th Cir. 2013) (stating that even though counsel's conduct may have been prejudicial, the court could not grant habeas relief "[a]t this juncture" because the persuasiveness of particular expert testimony was disputed and the claim was "highly fact-bound").

         Nor could the district court deny habeas relief, for no factfinder has considered Mr. Harris's evidence of intellectual disability based on the Oklahoma test that applied during Mr. Harris's retrial. Without a factual finding based on the applicable test, a court could not properly assess the extent of the prejudice.

         To decide the issue of prejudice, the district court needed to assess the likelihood that defense counsel could have proven the existence of an intellectual disability. Like us, the district court had only a cold record containing conflicting evidence on Mr. Harris's intellectual status. Dr. Krimsky assessed an intellectual disability; Dr. Callahan assessed borderline intellectual functioning; and Dr. Draper considered Mr. Harris to be intellectually impaired but not intellectually disabled.[16]

         No court has had the opportunity to hear these experts testify and apply the Oklahoma test on intellectual disability. If these experts had testified in a pretrial hearing focused on that test, which experts would have swayed the factfinder? To provide at least a meaningful prediction, a court must at least hear the conflicting evidence, apply Oklahoma's test for an intellectual disability, and determine which expert witnesses to believe. See Smith v. Sharp, 935 F.3d 1064, 1077 (10th Cir. 2019) (stating that "Atkins clearly establishes that intellectual disability must be assessed, at least in part, under the existing clinical definitions applied through expert testimony" and recognizing "the centrality of expert testimony to our review of Atkins verdicts"). No court has engaged in this scrutiny, so any court would need an evidentiary hearing to predict the outcome of a pretrial hearing on an intellectual disability.

         We addressed a similar situation in Littlejohn v. Trammell, 704 F.3d 817 (10th Cir. 2013). There we concluded that the availability of habeas relief turned on a disputed factual issue that prevented a meaningful decision based on the cold record alone. Littlejohn, 704 F.3d at 856. We directed the district court to conduct an evidentiary hearing on the issue of prejudice. Id. Here we have the same need for an evidentiary hearing.

         An evidentiary hearing is ordinarily unavailable when the petitioner failed to diligently develop the factual bases of the claim in state court. Williams v. Taylor, 529 U.S. 420, 432 (2000).[17] Here, however, Mr. Harris diligently tried to develop the factual foundations of his claim when he was in state court. For example, he argued that his trial counsel had failed to seek a pretrial hearing on intellectual disability. With this argument, Mr. Harris requested an evidentiary hearing and supported the request with Dr. Callahan's affidavit. The OCCA denied this request.

         Mr. Harris did all that he could to develop the factual foundation for a showing of prejudice. By denying the opportunity for an evidentiary hearing, the OCCA left us with only a cold record and no factual findings for the innately fact-intensive issue of prejudice.

         Because Mr. Harris was diligent, we consider whether Mr. Harris's proof of allegations would entitle him to habeas relief. See Hammon v. Ward, 466 F.3d 919, 927 (10th Cir. 2006). That inquiry turns on the issue of prejudice. Defense counsel's deficient performance would be prejudicial if a pretrial hearing would create a reasonable probability of a lesser sentence. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

         Mr. Harris argues that if his trial attorney had requested a pretrial hearing, the trial court would have granted the request and found Mr. Harris intellectually disabled, rendering him ineligible for execution. We thus gauge the likelihood that the state court would have found an intellectual disability.

         As noted, the Supreme Court has prohibited the execution of intellectually disabled individuals, but allowed the states to define the term "intellectual disability." Atkins v. Virginia, 536 U.S. 304, 317 (2002). When Mr. Harris appealed his conviction, Oklahoma law required a defendant to show at least one IQ score under 70. Murphy v. State, 54 P.3d 556, 567-68 (Okla. Crim. App. 2002), overruled in part on other grounds by Blonner v. State, 127 P.3d 1135, 1139 (Okla. Crim. App. 2006). If the defendant produced at least one score under 70, he or she would need to satisfy three elements:

1. The person "functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others."
2. The disability "manifested itself before the age of eighteen."
3. The disability "is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication; self-care; social/interpersonal skills; home living; self-direction; academics; health and safety; use of community resources; and work."

Id.; see p. 8, above.

         Mr. Harris's counsel could have satisfied the threshold requirement for at least one IQ score below 70. And the State does not challenge the second element (manifestation before the age of eighteen). The dispute exists on the first and third elements, which address Mr. Harris's intellectual and adaptive deficits.

         Mr. Harris's evidence on intellectual deficits involves three categories:

1. his history of IQ testing,
2. the testimony of an expert witness, and
3. the affidavit of an expert witness.

         First, Mr. Harris's IQ testing began in his childhood. Two childhood IQ tests yielded scores of 87 and 83. After the murder, new IQ tests yielded scores of 63, 66, 68, and 75. And after Mr. Harris's retrial, Dr. Jennifer Callahan ...


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