from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:08-CV-00375-F)
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
TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit
BACHARACH, CIRCUIT JUDGE.
Standard of Review
Arguments Covered in an Existing Certificate of Appealability
Ineffective Assistance of Counsel
Failure to Seek a Pretrial Hearing on Intellectual Disability
as a Bar to Execution .................................... 7
Standard of Review ........................................ 9
Unreasonable Determination of Fact .............. 19
Need for an Evidentiary Hearing ............. 26
Failure to Adequately Present Mitigation Evidence ..........
Legal Standard and the Standard of Review ...... 38
Intellectual Impairment as a Mitigating Factor ........ 38
Evidence of an Intellectual Impairment .......... 39
Mitigation Evidence Involving an Intellectual Disability
Mitigation Evidence Involving Borderline Intellectual
Functioning ................................ 45
OCCA's Reliance on Both Prongs (Deficient Performance and
Prejudice) .. 45
Deficient Performance .......................... 46
Prejudice ............................................. 50
Mitigation Evidence Involving Mental Illness
Mental Health Evidence in the 2005 Retrial
Other Existing Evidence of Mr. Harris's Mental Illness
Claim of Ineffective Assistance of Counsel
Deficiency Prong ......................... 56
Unreasonable Factual Determinations ................... 56
Unreasonable Application of Supreme Court Precedents ... 58
Prejudice .................................... 59
Jury Instructions and Closing Arguments as to Mitigation
Standard of Review
Prosecutors' Closing Arguments
Applicability of 28 U.S.C. § 2254(d)
Unreasonable Determination of Fact ....................... 70
Unreasonable Application of Supreme Court Precedent
Constitutional Limit on Victim-Impact Testimony ..... 81
Victim-Impact Testimony and the Issue of Harmlessness
Structural or Harmless Error
to Expand the Certificate of Appealability
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.
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. 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
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.
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.
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.
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.
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
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.
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.
Standard of Review
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).
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.
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).
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
Arguments Covered in an Existing Certificate of
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
Ineffective Assistance of Counsel
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.
The Strickland Standard
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).
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).
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).
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
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.
Failure to Seek a Pretrial Hearing on Intellectual Disability
as a Bar to Execution
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.
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.
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
The Standard of Review
denying relief on this claim, the OCCA explained that
"[Mr.] Harris must  show that counsel's
performance was so deficient that he did not have counsel as
guaranteed by the Sixth Amendment, and that  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").
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).
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.").
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
. permit an evidentiary hearing.
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)
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
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.
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
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
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
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.
de novo review, we conclude that Mr. Harris's attorney
was deficient in failing to request a pretrial hearing to
assess an intellectual disability.
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).
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
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.
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.
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.
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
no downside existed,  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.
State contends that defense counsel did not request a
pretrial hearing because he believed that Mr. Harris was not
intellectually disabled. 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,  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).
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.
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.
view, the OCCA's decision on prejudice was based on an
unreasonable factual determination, so we consider the
Unreasonable Determination of Fact
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  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
State argues that Mr. Harris failed to preserve this
contention in district court by limiting his argument to Dr.
Callahan's affidavit. We disagree.
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
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
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
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
Id. at 110 (citations omitted).
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.
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
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.
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.
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.
State also denies that the OCCA misunderstood Dr.
Krimsky's opinion. The State points to a footnote where
. 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.
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.
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
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
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." 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
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).
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). 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.
The Need for an Evidentiary Hearing
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
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
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
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.
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
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.
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.
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). 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.
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.
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).
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
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
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
Id.; see p. 8, above.
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.
Harris's evidence on intellectual deficits involves three
1. his history of IQ testing,
2. the testimony of an expert witness, and
3. the affidavit of an expert witness.
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