Summary:

Following a January 7, 1986 robbery of Tom’s Market on 1000 N.E. 36th Street in Oklahoma City, the suspects stopped at a gas station, and Boyd got out to use a pay phone.

Oklahoma City Officer Richard Riggs, 32, stopped to investigate and ordered Boyd to take his hands out of his pockets. With his hands still concealed in the pockets of his coat, Boyd shot Officer Riggs in the abdomen.

Boyd then placed the gun against the chest of Officer Riggs and fired a second shot, killing him.

A passing motorist testified that he saw the guy on the phone fire at the police officer. Along with his rookie partner, Riggs managed to return fire.

Boyd claimed a hitchhiker took the gun from his knapsack and shot Riggs. He said there was no gunpowder residue on his hands, but prosecutors said Boyd was arrested a day after Riggs was killed and had ample time to wash his hands.

Accomplice Lenora Dunn pled guilty and was sentenced to 40 years in prison.

ClarkProsecutor.org

ProDeathPenalty.com

Ronald Keith Boyd, 42, is to die for the Jan. 7, 1986, shooting death of Oklahoma City police officer Richard Oldham Riggs, 32.

After Boyd and a woman robbed a convenience store in Oklahoma City, they and two other people traveling with them stopped at a service station on Interstate 35 to use a pay telephone.

Boyd was outside the van using the telephone when Riggs and his partner noticed that the van matched the description of the vehicle in the robbery. Riggs was shot after instructing Boyd to remove his hands from his pockets.

After shooting Riggs in the abdomen, Boyd then placed the gun against the officer's chest and fired a second shot. "I promised Richard as I stood over his coffin that I would live to see this day," Riggs' mother, Betty Riggs, said hours before the execution. "I had to keep my promise to Richard and now I can go to the cemetery and I'll tell him."

Death Penalty Institute of Oklahoma

Ronald Boyd - Executed April 27, 2000

Ronald Keith Boyd, 43, was executed by lethal injection at Oklahoma State Penitentiary in McAlester. He was pronounced dead at 12:21am.

Boyd was the fifth man executed by Oklahoma this year, and the 24th man executed by the state since it reinstated capital punishment in 1977. Of the five men executed in Oklahoma this year, four (including Boyd) were black.

Background

On January 8, 1986, Ronald Boyd, 28, was arrested and held without bond after a 19-hour intensive search. Boyd charged with murder and armed robbery. The victim was Oklahoma City Master Patrolman Richard Riggs, 32.

Riggs was shot on January 7, 1986, while investigating the robbery of Tom’s Market on 1000 N.E. 36th. Additional robbery suspects arrested at the shooting scene were identified as Joe Cornelius Jackson, 23; Byron Demetrius Gibbs, 29; and Lenora Dunn aka Benefee, 29. The arrest warrant showed Joe Cornelius Jackson told police that Boyd was the gunman.

A .38-caliber gun was found Thursday, January 10, 1986, in a ravine at Twin Hills Country Club near the shooting site. A piece from the gun’s butt was missing. Macy said that a piece found at the shooting site was consistent with the missing piece.

In the warrant, Detective Bill Citty included information that revealed purported details of the shooting. Citty wrote, "Jackson told me that that earlier in the evening he had participated in the armed robbery of Tom’s Market… with three other persons, one of whom was Ronald Boyd.

Minutes after the robbery, the suspects stopped at a gas station at NE 36 and I-35. Jackson further told me that while Ronald Boyd was on the pay phone at the station, two police officers approached him and motioned for Boyd to approach the officers.

Jackson told me that he saw Boyd turn towards one of the officers and fire two shots from a handgun he had seen earlier in Boyd’s possession. Jackson saw the officer fall to the ground."

On Friday, January 11, 1986, Authorities decided to file first-degree murder charges against all four people arrested in connection of the killing, although only one is accused of being the gunman.

Boyd’s attorney, Senator E. Melvin Porter questioned whether Boyd could get a fair trial in Oklahoma County. Porter said that it is difficult for a defendant charged with killing a police officer to get a fair trial in any county, particularly if he’s black and the policeman is white.

District Attorney Robert Macy disagreed, "Any person in Oklahoma County can get a fair trial regardless of race, background, financial level or anything else." Boyd was also charged with armed robbery.

The death penalty was sought only in his case. Murder charges against the other three were justified because Riggs was fatally shot during the course of a robbery, according to Macy. He also said that it’s our opinion that the robbery was an ongoing offense.

Before Boyd’s court appearance, he was examined at an Oklahoma City hospital for possible hand injuries. Prosecutors dropped first-degree murder charges against Gibbs because he passed a polygraph test.

The charge against Jackson was dismissed by a judge because of insufficient evidence. However, Special Judge Niles Jackson ruled that Lenora Dunn should face trial in the death of Officer Richard Riggs.

Under a plea bargain, the first-degree murder charge was dropped against Dunn after she pleaded guilty to the armed robbery of Tom’s Market. She also pleaded guilty to a 1984 knife attack and a 1985 larceny. Dunn was sentenced to 40 years in prison.

On September 4, 1986, Boyd was tried for the murder of Richard Riggs. Riggs’ partner Ronnie Gravel testified that he heard two shots after Riggs left the car and asked the man on the phone to take his hands out of his pocket.

A passing motorist testified that he saw the guy on the phone fire at the police officer. Boyd had told a friend the gun, which was in his jacket pocket, "went off." Boyd opted not to testify going against the recommendation of his attorney. Porter later told reporters, "We contend that there has not been any proof that Mr. Boyd maliciously or with malice aforethought murdered Officer Riggs or for that matter committed an armed robbery."

A gun expert, police Sgt. Roy Golightly, said that he was able to determine the sequence of the shots by matching the spent shell casings found with the gun with the bullets removed from Rigg’s body.

Only two shots were fired from the gun because it was stuck by a bullet and stopped working. Injuries to Boyd’s hand were consistent with injuries expected from holding a gun when its grip was shattered. A jury recommended the death penalty for Ronald Keith Boyd.

They jury also found Boyd guilty of robbery and recommended a 50-year prison sentence. In the sentencing stage, prosecutors linked Boyd to four other robberies and one planned heist to support their claim he would be a continuing threat to society. Boyd’s clemency hearing was held March 20. The Oklahoma Pardon and Parole Board denied his appeal for clemency.

Prayer Vigils and Protests - Prayer vigils and protests were held at various locations around the state on Wednesday, April 26. Over 80 people participated in the prayer vigil outside the prison gates.

Oklahoma Coalition to Abolish the Death Penalty

Ronald Boyd (March 6, 1957-April 27, 2000 ) - His Case for Innocence

This is a letter written by Ron Boyd.

Dear Friend, I write today to attempt to explain the events that lead to me being sentenced to death and my current dire circumstances. First, I must say that I never took any part - what-so-ever -in robbing the store, or the shooting of Officer Riggs. Yes, I was there, unfortunately, but not knowing that any of robbing or shooting was going to take place. I have told this same story for years and is why I should not only be spared from my pending execution, but also set free from this injustice. Because so much is at stake, I beg that you read this closely and then listen to your heart.

As I have always said, I was in the van with the people that robbed the grocery store and eventually ended up at the gas station where Officer Riggs was shot. However, when the van arrived at the gas station, I exited the van and was on the pay-phone when the police car pulled to a stop behind the van.

When Officer Riggs got out of his patrol car, he instructed me to drop the phone and walk toward him as he stood beside his patrol car. It was at that time I noticed a sudden movement and heard shots fired. It is at that point the lies begin and the other stories diverge from the truth.

The truth of the matter is, as the shooting began, I saw the second officer running away from the van and his partner. When the second officer reached - what I remember to be - gas pumps, he bent down and hid behind them. At that time, the patrol car was facing east. I believe one of the doors was open and Officer Riggs was sitting on the ground, with his back against the car, between the open door and the rear wheel of the patrol car.

I was no more than 5 to 6 feet from Officer Riggs as he continued to fire his pistol in the direction of the parked van and then appeared to reload his pistol. Obviously, if Officer Riggs had wanted to shoot me - and if I had been the person that fired upon him, he certainly would have - he could have emptied his pistol and filled me full of holes at point-blank range.

However, Officer Riggs consistently aimed his pistol and shot in the direction of the van and never shot at me. It is at this time that the second officer came out from behind his hiding place and began firing wildly, like a cowboy raiding an enemy camp.

As I watched him, he never took aim at any definitive target, but would verify my version and clear me of this heinous crime. If he could bring himself to tell the truth, he would say that he never saw me with a gun. But now, after sticking with his lie for so many years, he cannot tell the truth about that night, because to do so would expose him as a rookie that lost his composure and that, quite possibly, cost his partner his life.

Had the second officer only stood his ground and assisted Officer Riggs with the assailants, Officer Riggs would have probably survived to clear me of the crime. But the facts are clear. Officer Riggs knew who was shooting at him and he shot back, fighting for his life. Being no more than 6 feet away from Officer Riggs, I saw him shoot time after time at the van--not me. The second officer saw nothing, simply because he had turned his back on his partner as he ran away. However, it was upon the second officer's lies that the whole web of lies presented by the state was built. Read my version and then think to yourself, "Could the state's story be true?"

Now you can see from the above, just how the lies began and became compounded upon one another. Now the second round of lies began with the police investigators and prosecutors. The next day I was arrested and taken to the hospital to determine if I had recently fired a gun.

The doctor had me sit up on a table and he applied some type of liquid on my hands and fingers. I could tell by his expression that the test resulted in a negative conclusion. He then repeated the process a second time and turned to the police officers in the examining room with me. "This man has not fired a gun." The detective then instructed the doctor angrily to "just sign right here." One more lie in a never ending series of lies designed to label me as a "cop-killer" and have me sentenced to death.

After being in jail for several months, the state is building their case upon lies, when they make a mistake. One day I was called out of the tank to see Assistant District Attorney Ray Elliot (now a judge). When I arrived at Mr. Elliot's office, he thought I was Joe Cornelious Jackson - a person that was in the van the night Officer Riggs was shot and a 3 or 4 time loser on robbery charges.

He handed me a list of 30 or more questions that he had prepared for Jackson and said if the questions could be answered with lies, Jackson would be set free and the robbery and murder charges would go away. I'm sure that Jackson, when he eventually met with Elliot, agreed to the terms since only a few more lies would and all of his troubles would disappear. You can ask Elliot and Jackson and the others involved if what I've just said is true. I know it happened and what I say is true, but, again, I'm sure they will most likely lie.

Even now, the lies continue. Although I am sure Officer Riggs family wants to know the truth, the Oklahoma City Police Department does not - especially, the second officer that abandoned Officer Riggs on that fateful night. However, going along with a lie is just as bad as saying it yourself. Ask yourself, "Was Officer Riggs better than his partner and the others that investigated the shooting?" "Would he go along with the cover up, fabricate evidence and weave lies into a case to obtain a conviction?"

I don't think so. I'm sure the Riggs' family and other police officers remember the statement made by the District Attorney. Mr. Macy said that I placed the gun barrel against Officer Riggs' chest and then pulled the trigger. First, Doctor Balding stated to the detective at the hospital that I did not fire a gun. Secondly, Officer Riggs was not shot in that manner. As I said earlier, I was no more than 6 feet from him when he was sitting on the ground and being shot and no shot came from near him at all.

Although I don't exactly know where the shots originated from, I do know where Officer Riggs was aiming and firing, and that was toward the van. If Officer Riggs had, indeed, been shot in the manner described by Mr. Macy, it would be very simple to prove with only one piece of evidence - Officer Riggs' uniform shirt.

However, since the same shirt would prove that Officer Riggs' was not shot that close, the shirt was never introduced into evidence. Ask yourself, "Would Mr. Macy pass-up a chance to waive a police officer's shirt, complete with blood stains, in front of the jury if it would prove his point?" Of course not! The reason the shirt was never introduced, or for that matter given to my lawyer at trial, was because it would prove the shots were fired from some distance and exclude me as the shooter since I was only a few feet away.

Additionally, if Doctor Balding would have testified at trial to what he said at the hospital when the test was performed, I would have been cleared. But, the doctor being a witness for the state, he said what the prosecution wanted him to say.

Mr. Macy used the doctor to give him a gateway to continue to lie to and inflame the jury with the biggest lie of this whole ordeal - Mr. Macy said Officer Riggs shot a gun out of my hand with a .357 Magnum. Any expert, or for that matter, anybody familiar with that type of gun will tell you that such an event would have left me with an extremely wounded hand. It wasn't there the next day when I was at the hospital to have the test ran to determine if I had fired a gun.

However, a police officer testified that, based upon his 15 years of police service, it was his opinion that I merely wiped the wound away that I had supposedly received the night before. Does that sound credible to you? Why would he make such an outlandish remark? The answer is simple - it was the only way he could explain the lack of damage to my hand. It would appear that the state's lies had reached a breaking point, but such a ridiculous reason was ignored by the jury and I was branded a "cop-killer" and sentenced to die.

All of the lies were woven together after my preliminary hearing. After sitting through all of the lies and hearsay stories told, I was about to leave that court-room a free man. There simply was not enough credible evidence to hold me to answer the charge. However, at the very last a witness stumbled into the court-room and said I told him something and Judge Niles didn't even bother to ask him one single question.

He simply rapped down with his gavel and said "bound over for trial." After that, each state witness was given a deal and you know the state doesn't give anything unless they receive something in return. What the state received was those people that were in the van on that night sold their souls for what the state was offering - their freedom.

I hope I have been able to explain just what exactly happened that night Officer Riggs was killed. My time is growing shorter and shorter. Unless somebody opens their heart and decides to tell the truth of the events as they unfolded, it will take another person to help uncover the lies that have held me captive and will ultimately lead to my unjust execution. That is why I have written this letter. Please, if you can at all, help me! You can contact my attorney, David Autry. Thank you for your time and consideration. Sincerely, Ron Boyd.

Oklahoma Executes Cop Killer

Officer Gunned Down in 1986

APBNews.com

April 27, 2000

McALESTER, Okla. (AP) -- A man convicted of killing an Oklahoma City police officer in 1986 was executed by injection early today. Ronald Keith Boyd, 43, was pronounced dead at 12:21 a.m. after receiving a lethal dose of drugs.

Boyd was found guilty in the Jan. 7, 1986, shooting of Oklahoma City police Master Patrolman Richard Oldham Riggs. Riggs, 32, was shot twice as he approached Boyd, who was on a pay phone outside a van at a service station.

Shooting followed robbery

The officer had seen the van, which matched the description of a vehicle used in an armed robbery at a nearby store minutes earlier. Riggs was hit in the chest and abdomen and managed to return fire, along with his rookie partner, who was not injured. Boyd claimed a hitchhiker took the gun from his knapsack and shot Riggs. He said there was no gunpowder residue on his hands.

But prosecutors said Boyd was arrested a day after Riggs was killed and had ample time to wash his hands. They also cited testimony from eyewitnesses and expert witnesses. "I promised Richard as I stood over his coffin that I would live to see this day," Riggs' mother, Betty Riggs, said hours before the execution. "I had to keep my promise to Richard, and now I can go to the cemetery and I'll tell him."

Abolish Archives

April 27, 2000

OKLAHOMA - A man convicted of killing an Oklahoma City police officer in 1986 was executed by injection early Thursday. Ronald Keith Boyd, 43, was pronounced dead at 12:21 a.m. after receiving a lethal dose of drugs.

Boyd was found guilty in the Jan. 7, 1986, shooting of Oklahoma City police Master Patrolman Richard Oldham Riggs. Riggs, 32, was shot twice as he approached Boyd, who was on a pay phone outside a van at a service station.

The officer had seen the van, which matched the description of a vehicle used in an armed robbery at a nearby store minutes earlier. Riggs was hit in the chest and abdomen and managed to return fire, along with his rookie partner, who was not injured.

Boyd claimed a hitchhiker took the gun from his knapsack and shot Riggs. He said there was no gunpowder residue on his hands. But prosecutors said Boyd was arrested a day after Riggs was killed and had ample time to wash his hands. They also cited testimony from eyewitnesses and expert witnesses.

"I promised Richard as I stood over his coffin that I would live to see this day," Riggs' mother, Betty Riggs, said hours before the execution. "I had to keep my promise to Richard and now I can go to the cemetery and I'll tell him."

Boyd becomes the 5th condemned inmate to be put to death this year in Oklahoma and the 24th overall since the state resumed capital punishment in 1990. Boyd also becomes the 30th condemned inmate to be put to death this year in the USA and the 628th overall since America resumed executions on Jan. 17, 1977.

(Sources: Associated Press & Rick Halperin)

Executed in Oklahoma

Convicted Cop Killer Put to Death

ABCNews.com

Associated Press

McALESTER, Okla., April 27 — A man convicted of killing an Oklahoma City police officer in 1986 was executed by injection early this morning. Ronald Keith Boyd, 43, was pronounced dead at 12:21 a.m. after receiving a lethal dose of drugs.

Boyd was found guilty in the Jan. 7, 1986, shooting of Oklahoma City police Master Patrolman Richard Oldham Riggs. Riggs, 32, was shot twice as he approached Boyd, who was on a pay phone outside a van at a service station.

Blamed a Hitchhiker

The officer had seen the van, which matched the description of a vehicle used in an armed robbery at a nearby store minutes earlier. Riggs was hit in the chest and abdomen and managed to return fire, along with his rookie partner, who was not injured.

Boyd claimed a hitchhiker took the gun from his knapsack and shot Riggs. He said there was no gunpowder residue on his hands. But prosecutors said Boyd was arrested a day after Riggs was killed and had ample time to wash his hands.

They also cited testimony from eyewitnesses and expert witnesses. “I promised Richard as I stood over his coffin that I would live to see this day,” Riggs’ mother, Betty Riggs, said hours before the execution. “I had to keep my promise to Richard and now I can go to the cemetery and I’ll tell him.”

Cop Killer Executed this Morning

The Daily Ardmoreite

April 27, 2000

McALESTER (AP) -- Oklahoma City police officers hugged outside the prison gates early this morning at the news of Ronald Keith Boyd's final breath for the 1986 killing of an officer on duty. Boyd, 43, was pronounced dead at 12:21 a.m., shortly after receiving a lethal dose of drugs at the Oklahoma State Penitentiary.

It had been 14 years since Master Patrolman Richard Oldham Riggs was killed while on patrol. ''Fallen officers are still part of the family,'' said Oklahoma City police Lt. Dennis Ross, who was among those who gathered outside the prison.

Minutes before his death, Boyd turned to his family and said he loved them. ''I'm all right. I'm at peace with God. I'm fine,'' he said, looking at them through the glass windows. ''Don't worry about me. I'm OK y'all.'' Boyd gave several big breaths after the drugs began to flow. He took one final exhale as his eyes closed halfway. He was pronounced dead a short time later.

Riggs had been working the night shift when he spotted a van at a northeast Oklahoma City service station that matched the description of one used in an armed robbery earlier that night. Nearby, Boyd was talking on a pay phone. As Riggs approached Boyd, the officer was shot in the chest and the abdomen. Although fatally wounded, Riggs fired back. Boyd was arrested the next day.

Hours before the execution, Betty Riggs held the last picture taken of her son -- in his police uniform, smiling, celebrating his 32nd birthday a week before he was killed. ''I cry every day. Every single day,'' she said, her voice cracking as she held the picture in front of her. ''I promised Richard as I stood over his coffin that I would live to see this day.'' She was listed as a witness to the execution along with Richard Riggs' sister, uncle and three brothers. ''I don't know if there was any officer that was any more loved than Richard Riggs,'' said police Chaplain Jack Poe.

During the night, some officers also gathered at the Oklahoma City Fraternal Order of Police lodge. Boyd had asked for his brother, uncle, two nephews and a cousin to be there during his death.

Two spiritual advisers also were listed, said Attorney General Drew Edmondson. ''My thoughts today are with Officer Riggs' family and with the men and women who work diligently to protect and serve,'' Edmondson said. For his last meal, Boyd requested catfish, French fries, plums and grapes, strawberry shortcake and a cherry Sprite.

He had claimed innocence in the murder during a clemency hearing in March. Boyd said a hitchhiker took a gun from his knapsack and shot Riggs. He also said there was no gunpowder residue on his hands.

Boyd was the fifth inmate executed in Oklahoma this year, and the 24th inmate since the death penalty was re-enacted in 1977 by the Oklahoma Legislature. There are 140 men and three women on death row in the state.

Cynthia Ury of McAlester was among 100 death-penalty opponents who gathered in a circle outside the prison gates, reading the Bible by candle light. ''I just don't think we have the right to take a life,'' said Ury, whose son is a policeman. ''I feel like it diminishes us as a society.''

Boyd v. State, 839 P.2d 1363 (Okl.Cr. 1992) (Direct Appeal).

Ronald Keith Boyd, appellant, was tried by jury and convicted of First Degree Malice Aforethought Murder(Count I), and Robbery With Firearms (Count II) in Oklahoma County District Court, Case No. CRF-86-218, before the Honorable James L. Gullett, District Judge. The jury found three aggravating circumstances and sentenced appellant respectively to death and fifty (50) years imprisonment. We affirm.

Appellant spent the evening of January 7, 1986, with his friends Byron Gibbs, Joe Jackson, and Lenora Denise Dunn. After spending several hours riding around Oklahoma City in a van, appellant asked Gibbs, the driver, to stop at a convenience store called Tom's Market located at 36th and Kelly.

Gibbs complied with the request and Jackson and Dunn got out of the van. Jackson went to use the pay phone and Dunn began talking to appellant about robbing the store. Appellant responded by handing Dunn a revolver. Dunn went into the store and emerged a few moments later carrying the gun and a wad of money.

Dorthy Trimble was the clerk on duty at Tom's Market on January 7, 1986. She testified that at approximately 9:00 p.m. she was robbed by a black female with a gun. After the robbery Ms. Trimble called the police and gave a description of the robber and the van.

After the robbery the group proceeded east on 36th street to Interstate 35 where appellant urged Gibbs to pull into the parking area of a Phillips 66 station so that he could use the pay phone.

Gibbs stopped the van near the pay phones and appellant got out of the van and made a call. Oklahoma City Police Officers Richard Riggs and Craig Gravel responded to the report of the armed robbery at Tom's Market.

The officers were informed that the suspect was a black female who fled the area in a green van. The officers drove on 36th street looking for a van which matched the description.

The officers noticed a green van parked at a Phillips 66 station and pulled their police car behind the van to investigate. Officer Gravel approached the rear of the van and saw that the vehicle was occupied by a female and two males. Officer Riggs walked towards appellant who was talking on the telephone.

Officer Riggs told appellant to get off the phone and walk toward him. When appellant did not respond, Officer Riggs repeated the command. Appellant dropped the receiver and approached Officer Riggs with his hands concealed in his coat pockets. When Officer Riggs instructed appellant to take his hands out of his pockets, appellant, with his hands still concealed in the pockets of his coat, shot the Officer.

The bullet struck Officer Riggs in the abdomen. Appellant then placed the gun against the chest of Officer Riggs and fired a second shot.

Appellant then approached the rear of the van where Officer Gravel was standing. Upon seeing appellant, Officer Gravel ran for the protection of the gasoline pumps. Officer Gravel heard several shots fired as he was running.

Simultaneously, the van began to slowly roll out of the parking area with appellant now in front of the van using it for cover. Officer Gravel returned to Officer Riggs and both men shot in the direction of the van.

The van rolled across 36th street and stopped after striking a fence. The three persons in the van were arrested at the scene. Appellant fled the area on foot.

Appellant ran to the house he shared with Fred Tubbs. Appellant fled from the house when a police helicopter and patrol cars arrived. The next morning appellant went to the home of Reginald Walker. Appellant told Walker that he wanted to leave town.

Appellant admitted to Walker that he had shot a police officer, claiming that he had blanked out and the gun went off and he ran.

Additionally, appellant told Walker that he had panicked when the officer approached him because there had been a robbery, he had recently gotten out of jail and that he did not want to be arrested. Appellant was ultimately arrested at Walker's home after police received a tip concerning his location.

BOYD v. STATE
1996 OK CR 12
915 P.2d 922
Case Number: PC-95-551
Decided: 04/09/1996

Ronald Keith BOYD, Appellant, v. STATE of Oklahoma, Appellee
Oklahoma Court of Criminal Appeals

An Appeal from the District Court of Oklahoma County; the Honorable Daniel L. Owens, District Judge.

[915 P.2d 924]

OPINION AFFIRMING DENIAL OF POST-CONVICTION RELIEF

CHAPEL, Vice Presiding Judge:

¶1 Ronald Keith Boyd appeals from an order of the District Court of Oklahoma County denying his application for post-conviction relief in Case No. CRF-86-218. Boyd was convicted by jury of Murder in the First Degree, malice aforethought, 21 O.S.1981, § 701.7(B) (Count I), and Robbery With Firearms, 21 O.S.1981, § 801 (Count II). After finding the aggravating circumstances that Boyd committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution, that he probably would commit criminal acts of violence that would constitute a continuing threat to society, and that the victim was a peace officer killed in performance of official duty, the jury recommended and the Honorable James L. Gullett imposed a sentence of death on Count I and fifty years imprisonment on Count II.

¶2 This Court affirmed Boyd's convictions and sentences,¹ and subsequently denied his petition for rehearing. The United States Supreme Court denied Boyd's petition for writ of certiorari on June 21, 1993² Boyd is now before us on appeal from the Oklahoma County District Court's March 7, 1995, denial of his Application for Post-Conviction Relief

¶3 The Post-Conviction Procedure Act³ outlines procedures for a defendant to challenge a conviction and sentence after resolution of the direct appeal. The Act is not intended to provide a second appeal.⁴ This Court will neither consider an issue raised on direct appeal and therefore barred by res judicata, nor will it consider an issue which has been waived because it could have been raised on direct appeal but was not.⁵ We will not address Boyd's propositions which are barred by common law principles of waiver or res judicata.⁶

¶4 [915 P.2d 925] In Proposition II Boyd argues that appellate counsel was ineffective in 1) failing to raise certain substantive issues on direct appeal; and 2) failing to raise specific instances of ineffective assistance of trial counsel, outlined in Proposition I, on direct appeal. Because this is Boyd's first opportunity to raise the issue of ineffective assistance of appellate counsel, the substantive grounds supporting his claim are not procedurally barred.7

¶5 To prevail on a claim of ineffective assistance of counsel Boyd must show 1) counsel's representation fell below an objective standard of reasonableness and 2) the reasonable probability that, but for counsel's errors, the results of the proceedings would have been different.⁸ Appellate counsel must raise relevant issues for this Court to consider and address, but need not raise every nonfrivolous issue; appellate propositions are adequate if they contain relevant legal arguments supported by pertinent facts and authority.⁹ Boyd must establish that appellate counsel failed to raise issues warranting reversal, modification of sentence, or remand for resentencing.¹⁰ Where a claim of ineffectiveness can be disposed of through lack of prejudice this Court need not determine whether counsel's performance was deficient.¹¹ In reviewing this claim, we apply a strong presumption that Boyd's counsel's conduct fell within the wide range of reasonable professional assistance; we defer to the strategic decisions of trial and appellate counsel and will assess counsels' legal performance as of the time it was given.¹²

¶6 Boyd first argues appellate counsel was ineffective for failing to raise four meritorious claims: 1) issues arising from two State witnesses' expert testimony; 2) issues regarding an instruction on unadjudicated offenses in the second stage of trial; 3) specific comments alleged to be prosecutorial misconduct, as outlined in Proposition IV; and 4) the issue of accomplice instructions.

¶7 Our review of these claims reveals that none of them meet both Strickland requirements. First, the record does not support Boyd's claim that the expert witnesses gave unreliable and misleading evidence. Contrary to his assertion, nothing in the materials before the Court suggests that Officer Golightly's testimony was demonstrably false; also, Dr. Choi's testimony is contained entirely within the trial record and is neither groundless nor misleading. The jury [915 P.2d 926] instruction on unadjudicated offenses, while not found in the Oklahoma Uniform Jury Instructions, did not misstate the law. of the comments cited to support Boyd's claim of prosecutorial misconduct, most are comments on the evidence presented and within the wide latitude afforded for closing argument. One comment was raised and rejected as error on direct appeal.¹³ Of the others, only one was met with objection; that comment was arguably based on evidence presented and not in itself reversible, and review of the other comments shows no plain error. Finally, the issue of accomplice instructions (which is based entirely on the trial record) is without merit. Boyd fails to show how witness Gibbs could have been charged as an accomplice or how he was prejudiced by absence of the instruction as to Gibbs, concentrating his argument on witness Jackson. Jackson was originally charged in this case with felony murder, but the trial court sustained his demurrer to the evidence at preliminary hearing, finding no evidence Jackson participated in the underlying felony. Because Jackson had already been charged with the crime and that charge had been dismissed for insufficient evidence, he could not have been charged as an accomplice at the time of trial. Counsel could not be ineffective for failing to request the instruction.

¶8 Boyd also claims appellate counsel was ineffective for failing to raise ten specific instances of ineffective assistance of trial counsel: 1) failure to adequately cross-examine and impeach Officer Golightly; 2) failure to adequately cross-examine Dr. Choi; 3) failure to use photographs of the crime scene to establish material facts favorable to the defense; 4) failure to adequately cross-examine and impeach Gericke; 5) failure to use available evidence to impeach Jackson's claim he saw Boyd shoot the victim; 6) failure to adequately cross-examine Gibbs; 7) failure to investigate and produce readily available evidence favorable to the defense; 8) failure to introduce Dunn's criminal and substance abuse history; 9) failure to use a crime scene diagram to rebut the State's theory that Boyd shot the victim; 10) failure to offer evidence in the second stage of trial regarding a) an informant's statement; b) evidence Boyd had not been convicted of a violent crime; and c) mitigating evidence.

¶9 A claim of ineffective assistance of counsel based on matters presented to the trial court and included in the record on appeal should be raised on direct appeal, and is waived if not raised at that time.¹⁴ The facts giving rise to Boyd's first (in part), second, sixth, and eighth (in part) claims of error are contained within the appellate record. These claims could have been raised on direct appeal and have been waived.

¶10 Regarding the remaining claims, Boyd argues that trial counsel was ineffective in failing to use information in the State's files and available to him at the time of trial to effectively cross-examine State witnesses or develop facts favorable to the defense. We have carefully considered each of these claims and, without addressing each on the merits, find that they do not raise issues which warrant reversal, modification of sentence, or remand for resentencing. We will not second-guess trial counsel's strategic decisions, which fall within the parameters of reasonable professional competence.¹⁵ Appellate counsel was not ineffective in failing to raise these issues.

¶11 Boyd also claims trial counsel erred in failing to consult a weapons expert to refute the State's claims regarding the gun identified as the murder weapon. Boyd has not shown that, had counsel obtained expert services to rebut the State's claims, there exists a reasonable probability that the result of the trial would have been different.¹⁶ As [915 P.2d 927] trial counsel was not ineffective in failing to consult an expert, appellate counsel cannot have been ineffective in failing to raise the issue.

¶12 In Proposition VI Boyd claims that the use of unadjudicated offenses violated his constitutional rights. Boyd raised on direct appeal, and this Court denied, a similar but unrelated claim of error arising from the use of unadjudicated offenses.¹⁷ If Boyd argues this issue is properly before the Court due to intervening law but cites no intervening binding precedent.¹⁸ Having considered this claim in conjunction with its review of ineffective assistance of appellate counsel, this Court finds appellate counsel was not ineffective for failing to raise the issue. Boyd has not shown sufficient reason why this issue was not raised on direct appeal, therefore it is waived.

¶13 In Proposition VII Boyd claims that the continuing threat aggravating circumstance as interpreted and applied in this case is unconstitutional. This issue was raised and rejected on direct appeal.¹⁹ Again Boyd argues that recent cases constitute an intervening change in the law, but cites no binding precedent to refute our numerous decisions that this aggravating circumstance is constitutional. This claim is barred by res judicata. Boyd also claims in Proposition VII that the evidence was insufficient to support the continuing threat aggravating circumstance. This claim was not raised on direct appeal. We have considered the claim in conjunction with our review of ineffective assistance of appellate counsel, and find appellate counsel was not ineffective for failing to raise the issue. As Boyd has not shown sufficient reason why this issue was not raised on direct appeal, it is waived.

¶14 In Proposition VIII Boyd claims that accumulated error in the foregoing propositions warrants relief. As we have found no error, no accumulated error exists and relief is not warranted.

¶15 We have carefully considered the entire record before us on appeal, including Boyd's application and the District Court's findings of fact and conclusions of law, and find that Boyd is not entitled to relief. The order of the District Court denying post-conviction relief is AFFIRMED.

JOHNSON, P.J., and LANE and STRUBHAR, JJ., concur.
LUMPKIN, J., concurs in result.

*****

Footnotes:

¹ Boyd v. State, 839 P.2d 1363 (Okl.Cr. 1992).

² Boyd v. Oklahoma, 509 U.S. 908, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993).

³ 22 O.S.1991, §§ 1080 et seq.

⁴ Thomas v. State, 888 P.2d 522, 525 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 116 S.Ct. 123, 133 L.Ed.2d 73 (1995); Fox v. State, 880 P.2d 383, 385 (Okl.Cr.), cert. denied, ___ U.S. ___, 115 S.Ct. 1318, 131 L.Ed.2d 199 (1995).

⁵ Stiles v. State, 902 P.2d 1104, 1105 (Okl.Cr. 1995), cert. dismissed, ___ U.S. ___, 116 S.Ct. 1257, 134 L.Ed.2d 206 (1996); Castro v. State, 880 P.2d 387, 388 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1375, 131 L.Ed.2d 229 (1995); Nguyen v. State, 844 P.2d 176, 178 (Okl.Cr. 1992), cert. denied, 509 U.S. 908, 113 S.Ct. 3006, 125 L.Ed.2d 697 (1993); Rojem v. State, 829 P.2d 683, 684 (Okl.Cr.), cert. denied, 506 U.S. 958, 113 S.Ct. 420, 121 L.Ed.2d 343 (1992).

⁶ Grounds of error barred by waiver include:

III. The jury received unreliable and misleading evidence that violated Mr. Boyd's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; [This Court considered the claim in conjunction with its review of ineffective assistance of appellate counsel, finding appellate counsel was not ineffective for failing to raise the issue.] IV. Improper comments and arguments of the prosecution deprived Mr. Boyd of a fair trial in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article II §§ 7, 9 and 20 of the Oklahoma Constitution; [Boyd complains of several comments not raised on direct appeal. As he fails to show why these grounds could not have been raised with the other allegations of prosecutorial error in his appellate briefs, this claim has been waived. This Court considered the claim in conjunction with its review of ineffective assistance of appellate counsel, finding appellate counsel was not ineffective for failing to raise the issue.] V. Fundamental and reversible error occurred at trial when the trial court failed to give accomplice corroboration instructions with respect to the testimony of Joe Jackson and Byron Gibbs. [This Court considered this claim in conjunction with its review of ineffective assistance of appellate counsel, finding appellate counsel was not ineffective for failing to raise the issue.]

Ground barred by res judicata:

I. Mr. Boyd was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel in both stages of trial. [Insofar as Boyd's particular arguments were not raised on direct appeal, they are waived. Boyd characterizes a Motion for Remanded Evidentiary Hearing On Ineffective Assistance of Counsel for Supplementation of Record on Appeal, filed during the pendency of the direct appeal, as a Motion to Supplement the Record. It was not. This Court considered the Motion as a motion to remand only, and denied it as the assertions it contained did not warrant an evidentiary hearing. Boyd, 839 P.2d at 1373 n. 4. The allegations of ineffective assistance raised in that motion were not considered by the Court. The State argues that any allegations raised in Boyd's Petition for Rehearing are barred by res judicata. We have previously held that issues properly raised in a Petition for Rehearing differ from issues proper for consideration on post-conviction review. Moore v. State, 889 P.2d 1253, 1257 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995). As this Court has not considered these issues, they are not barred by res judicata. Although the district court determined these issues were barred by res judicata and we have determined some issues were waived, we consider the allegations as they affect Boyd's claim of ineffective assistance of appellate counsel. See Proposition 2 infra. Fowler v. State, 896 P.2d 566, 569 n. 7 (Okl.Cr. 1995).]

⁷ Robedeaux v. State, 908 P.2d 804, 806 (Okl.Cr. 1995); Stiles, 902 P.2d at 1107; Sellers v. State, 889 P.2d 895, 898 (Okl.Cr. 1995).

⁸ Stiles, 902 P.2d at 1107; Fox, 880 P.2d at 386; Strickland v. Washington, 466 U.S. 668, 677-78, 104 S.Ct. 2052, 2059, 80 L.Ed.2d 674 (1984).

⁹ Fowler, 896 P.2d at 569; Hooks v. State, 902 P.2d 1120, 1124 (Okl.Cr. 1995).

¹⁰ Hooks, 902 P.2d at 1124.

¹¹ Stiles, 902 P.2d at 1107; Castro, 880 P.2d at 389; Strickland, 466 U.S. at 696-99, 104 S.Ct. at 2068-70.

¹² Strickland, 466 U.S. at 689-90, 104 S.Ct. at 2065-66; Sellers, 889 P.2d at 898.

¹³ Boyd, 839 P.2d at 1369.

¹⁴ Robedeaux, 908 P.2d at 808; Berget v. State, 907 P.2d 1078, 1082-85 (Okl.Cr. 1995).

¹⁵ Although counsel did not present mitigating evidence, this Court has held that it is not per se ineffective assistance to fail to present mitigating evidence. Stiles, 902 P.2d at 1108; Thomas, 888 P.2d at 526; cf. Wallace v. State, 893 P.2d 504 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S.Ct. 232, 133 L.Ed.2d 160 (1995) (capital defendant may refuse to present mitigating evidence).

¹⁶ Compare Wilhoit v. State, 816 P.2d 545545454 546 (Okl.Cr. 1991) (counsel did not use available forensic odontologist to refute bite-mark evidence).

¹⁷ Boyd, 839 P.2d at 1370 (claim that the continuing threat aggravating circumstance was proven by unadjudicated crimes which were hearsay and unreliable because the State's witness had "sold" his testimony).

¹⁸ Boyd cites as support my dissenting opinion in Paxton v. State, 867 P.2d 1309, 1332 (Okl.Cr. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 227, 130 L.Ed.2d 153 (1994). I have consistently disagreed with the use of unadjudicated offenses to support the continuing threat aggravating circumstance. See, e.g., Cannon v. State, 904 P.2d 89, 106 n. 59 (Okl.Cr. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1272, 134 L.Ed.2d 219 (1996); LaFevers v. State, 897 P.2d 292, 308 n. 40 (Okl.Cr. 1995), cert. denied, ___ U.S. ___, 116 S.Ct. 820, 133 L.Ed.2d 763 (1996); Hooker v. State, 887 P.2d 1351, 1365 n. 43 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 116 S.Ct. 164, 133 L.Ed.2d 106 (1995); Hogan v. State, 877 P.2d 1157, 1167 (Okl.Cr. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1154, 130 L.Ed.2d 1111 (1995); Paxton, 867 P.2d at 1325; see also Rogers v. State, 890 P.2d 959, 976 n. 35 (Okl.Cr.), cert. denied, ___ U.S. ___, 116 S.Ct. 312, 133 L.Ed.2d 215 (1995) (citing my dissents on this issue). The federal district court for the Eastern District of Oklahoma has recently found admission of unadjudicated acts to support the continuing threat aggravating circumstance violates due process and injects arbitrariness into capital sentencing proceedings. Williamson v. Reynolds, 904 F. Supp. 1529 (E.D.Ok. 1995). I concur in today's decision on the basis of stare decisis.

¹⁹ Boyd, 839 P.2d at 1370.

UNITED STATES COURT OF APPEALS
For the Tenth Circuit

No. 98-6309

Ronald Keith Boyd, Petitioner-Appellant
v.
RON WARD, Warden, Oklahoma State Penitentiary, Respondent-Appellee

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. CV-97-525)

Before ANDERSON , TACHA , and KELLY , Circuit Judges.

ANDERSON , Circuit Judge.

Ronald Keith Boyd was convicted and sentenced to death for the murder of Oklahoma City police officer Richard Riggs. He appeals the denial of his habeas petition seeking to overturn that conviction and sentence. We affirm.

BACKGROUND

On the evening of January 7, 1986, Mr. Boyd, Byron Gibbs, Joe Jackson, and Lenora Denise Dunn were in a green van driven by Mr. Gibbs. At Mr. Boyd's request, they stopped at a convenience store called Tom's Market. Mr. Boyd and Mr. Jackson used the pay telephone. Mr. Boyd and Ms. Dunn discussed robbing the store, and Mr. Boyd handed a gun to Ms. Dunn, who used the weapon to rob the store. Mr. Gibbs testified that, after the robbery, Ms. Dunn handed the gun back to Mr. Boyd. After the robbery, the four proceeded to a nearby Phillips 66 gas station, where Mr. Boyd again used a pay telephone.

Oklahoma City Police officers Richard Riggs and Craig Gravel responded to the report of an armed robbery at Tom's Market, and were told the suspect was a black female in a green van. The officers noticed the green van parked at the Phillips 66 station and pulled their police cruiser into the station to investigate. Officer Gravel approached the rear of the van and saw that it was occupied by a female and two males. Officer Riggs walked toward Mr. Boyd, who was outside the van talking on a pay telephone.

Officer Riggs twice asked Mr. Boyd to get off the phone. Mr. Boyd then dropped the receiver and approached Officer Riggs with his hands in his pockets. Officer Gravel testified that he heard Officer Riggs ask Mr. Boyd to remove his hands from his pockets. This request was immediately followed by two shots, which struck Officer Riggs in the abdomen and chest. The shot to the chest was fired from very close range. He died soon thereafter from the gun shot wounds.

A passing motorist, Stephen Gericke, testified that he saw the person talking on the phone shoot Officer Riggs. Mr. Jackson also testified that he saw Mr. Boyd fire shots from his pocket.

Officer Gravel was unable to see the shooting because he was behind the van at the time. He testified that, after the shots were fired, he saw someone standing at the rear of the van. Officer Gravel testified that he ducked and ran toward the gasoline pumps. He heard several shots fired as he was running. The green van began to roll out of the gas station parking area and eventually stopped after striking a fence across the street. Officer Gravel fired at the van as it rolled out of the station; Officer Riggs, although fatally wounded, also fired at the moving van. Officer Gravel called for back-up, other officers arrived and all the occupants of the van, except Mr. Boyd, were arrested at the scene. Ms. Dunn was arrested on the opposite side of the fence into which the van had rolled. Mr. Boyd fled on foot through an adjacent golf course. The next day, a Colt .38 revolver was found at the golf course. The State presented evidence that the bullets which killed Officer Riggs came from that Colt .38. The weapon was damaged in a manner consistent with having been struck by a bullet.

Mr. Boyd was arrested the next day at the home of a friend, Reginald Walker. Mr. Walker testified that, before the police arrived, Mr. Boyd told him:

he had panicked . . . . That . . . Officer Riggs approached him, and he turned around, and he said he just blacked out. Blacked twice. And he just, you know, the gun went off and another shot went off, and he turned and ran. . . . [He panicked because] there had been a robbery and . . . he had just recently gotten out of jail for some problem that he had had. . . . And that he was afraid of being arrested.

Tr. Vol. III at 623. At the time of his arrest, Mr. Boyd had some abrasions on his hands.

After his arrest, Mr. Boyd was interviewed by Detective Bob Horn. He admitted to Detective Horn that he was on the telephone at the Phillips 66 gas station when the officers arrived. He also stated that he saw a hitchhiker reach in his backpack, pull out a gun and fire at Officer Riggs.

Mr. Boyd was charged by information with murder in the first degree by malice aforethought and robbery with firearms. He was convicted of both. In the penalty phase of the trial, the jury found the following three aggravating circumstances: (1) the murder was committed for the purpose of avoiding arrest or prosecution; (2) the existence of a probability that Mr. Boyd would commit acts of violence which would constitute a continuing threat to society; and (3) the victim was a peace officer killed in the performance of his duties. Mr. Boyd was sentenced to death for the murder conviction and fifty years imprisonment for the robbery with firearms. The conviction and sentence were affirmed on direct appeal. Boyd v. State , 839 P.2d 1363 (Okla. Crim. App. 1992), cert. denied , 509 U.S. 908 (1993).

Mr. Boyd then filed an application for post-conviction relief in state court and requested an evidentiary hearing. The state court denied the petition and did not hold an evidentiary hearing. That denial was affirmed on appeal. Boyd v. State , 915 P.2d 922 (Okla. Crim. App.), cert. denied , 519 U.S. 881 (1996). Mr. Boyd then filed the present habeas petition in federal district court. The court denied his request for an evidentiary hearing and denied the petition. The court granted Mr. Boyd a certificate of appealability as to all issues raised in the habeas petition.

On appeal from that denial, Mr. Boyd argues thirteen major issues: (1) trial counsel was ineffective in both the guilt/innocence and penalty phases of his trial; (2) appellate counsel was ineffective; (3) his due process rights were violated by the state's introduction of unreliable and misleading scientific evidence; (4) his due process rights were violated by the court's failure to instruct the jury on the lesser included offenses of second degree murder and first degree manslaughter; (5) his due process rights were violated by prosecutorial misconduct occurring in the guilt/innocence and the penalty phases of the trial; (6) his Eighth and Fourteenth Amendment rights were violated by the court's failure to instruct the jury on the mitigating circumstance that Mr. Boyd had no previous convictions for violent crime; (7) he was denied the right to call certain witnesses in support of his defense; (8) his due process rights were violated by the court's failure to give accomplice corroboration instructions; (9) his Eighth and Fourteenth Amendment rights were violated by the introduction of evidence of unadjudicated acts in the penalty phase of the trial; (10) the "continuing threat" aggravator is unconstitutionally vague and overbroad, in violation of the Eighth and Fourteenth Amendments; (11) the court failed to limit the jury's consideration of the "avoid arrest" aggravator; (12) various jury instructions given in the penalty phase violated the Eighth and Fourteenth Amendments; and (13) he was denied an evidentiary hearing in federal court.

Within those thirteen issues, Mr. Boyd argues many subsidiary issues: more than a dozen specific instances of trial counsel ineffectiveness; numerous instances of appellate counsel ineffectiveness; multiple subsidiary issues with respect to the testimony of various witnesses, including firearms expert Sergeant Golightly and medical examiner Dr. Choi; multiple instances of alleged prosecutorial misconduct; and multiple subsidiary issues with respect to jury instructions in both phases of the trial.

The habeas provisions have been amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under amended 28 U.S.C. § 2254(d), a state prisoner will be entitled to federal habeas corpus relief only if he can establish that a claim adjudicated by the state courts "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," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Further, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). That presumption of correctness is rebuttable only "by clear and convincing evidence." Id.

The parties do not dispute the applicability of these provisions on appeal. The parties also do not attempt to further define these standards of review. We have acknowledged that "the AEDPA increases the deference to be paid by the federal courts to the state court's factual findings and legal determinations." Houchin v. Zavaras , 107 F.3d 1465, 1470 (10th Cir. 1997). We note also that the Supreme Court has granted certiorari in a case involving the interpretation of the AEDPA, which we presume will resolve some of these issues. See Williams v. Taylor , 163 F.3d 860 (4th Cir. 1998), cert. granted , 119 S. Ct. 1355, 67 U.S.L.W. 3608, 3613 (April 5, 1999) (No. 98-8384).

Pending that resolution, for completeness of disposition and for purposes of this case only, without creating any standard for this circuit in other cases, we elect to review Mr. Boyd's contentions on their merits, giving deference to state court decisions where such deference has been accorded in the past. Thus, we defer to state court determinations of state law, see Davis v. Executive Dir. of Dept. of Corr. , 100 F.3d 750, 771 (10th Cir. 1996), and to state factual findings, see 28 U.S.C. § 2254(e)(1); see also Case v. Mondragon , 887 F.2d 1388, 1392-93 (10th Cir. 1989) (interpreting the predecessor to § 2254(e)(1)).

I. Ineffective Assistance of Counsel

Mr. Boyd alleges he was denied his Sixth and Fourteenth Amendment rights to effective assistance of counsel at both stages of his trial. Some of his claims of ineffective assistance of counsel were raised on direct appeal and denied on their merits. Others were first raised in post-conviction proceedings, where the Oklahoma Court of Criminal Appeals examined their merits in the context of a claim of ineffective assistance of appellate counsel. The federal district court addressed their merits.

On direct appeal, Mr. Boyd argued that counsel was ineffective in the guilt/innocence phase by not adequately investigating and preparing for trial, by introducing evidence of Mr. Boyd's other crimes, by failing to attempt to suppress Mr. Boyd's statement to police implicating a hitchhiker, and by failing to request lesser included offense instructions. Mr. Boyd also claimed his counsel was ineffective in the penalty phase by failing to impeach witnesses and failing to present adequate mitigating evidence.

The Oklahoma Court of Criminal Appeals rejected all these claims on the merits, finding (1) counsel's investigation and preparation for trial did not prejudice Mr. Boyd; (2) there was no prejudicial implication of Mr. Boyd's involvement in another crime; (3) the failure to seek suppression of Mr. Boyd's statement was not prejudicial; (4) the failure to seek lesser included offense instructions did not constitute ineffectiveness where the evidence did not warrant such instructions; (5) counsel's manner of impeaching witnesses was tactical; and (6) Mr. Boyd had not shown that his sentence would have been different even if counsel had presented certain mitigating evidence. See Boyd , 839 P.2d at 1373-75.

In post-conviction proceedings, Mr. Boyd argued appellate counsel was ineffective for failing to raise four meritorious claims, as well as for failing to raise ten specific instances of trial counsel ineffectiveness. Mr. Boyd also raised the issue of trial counsel's ineffectiveness directly. The four allegedly meritorious claims Mr. Boyd argued appellate counsel should have raised were "1) issues arising from two State witnesses' expert testimony; 2) issues regarding an instruction on unadjudicated offenses in the second stage of trial; 3) specific comments alleged to be prosecutorial misconduct, . . . and 4) the issue of accomplice instructions." Boyd , 915 P.2d at 925. The court rejected these arguments, concluding that "none of them meet both Strickland requirements." Id.

The ten claimed instances of ineffective trial counsel were: (1) failure to cross-examine and impeach firearms expert Sergeant Golightly adequately; (2) failure to adequately cross-examine medical examiner Dr. Choi; (3) failure to use photographs of the crime scene to establish material facts favorable to Mr. Boyd; (4) failure to adequately cross-examine and impeach Mr. Gericke; (5) failure to use available evidence to impeach Mr. Jackson's claims that he saw Mr. Boyd shoot Officer Riggs; (6) failure to adequately cross-examine Mr. Gibbs; (7) failure to investigate and produce readily available evidence favorable to Mr. Boyd; (8) failure to introduce Ms. Dunn's criminal and substance abuse history; (9) failure to use a crime scene diagram to rebut the State's theory that Mr. Boyd shot Officer Riggs; and (10) failure to offer evidence in the penalty phase regarding an informant's statement, evidence Mr. Boyd had not been convicted of a violent offense, and mitigating evidence. See id. at 926.

The Oklahoma Court of Criminal Appeals held that any new direct challenges to trial counsel's effectiveness were barred either by waiver or by res judicata. See id. at 924 & n.6. The court accordingly considered only whether appellate counsel was ineffective in failing to argue the ten claims. The court concluded that appellate counsel was not ineffective. See id. at 926-27. Mr. Boyd then filed the present petition in federal district court, which also rejected Mr. Boyd's ineffectiveness claims on their merits.   ¹  

A. Ineffective Assistance of Counsel Standards

Claims of ineffective assistance of counsel, whether trial or appellate, are mixed questions of law and fact which are reviewed de novo. See Miller v. Champion , 161 F.3d 1249, 1254 (10th Cir. 1998) (applying AEDPA); Newsted v. Gibson , 158 F.3d 1085, 1090 (10th Cir. 1998), cert. denied , 119 S. Ct. 1509 (1999) (appellate counsel). To establish ineffective assistance of counsel, a petitioner must prove that counsel's performance was constitutionally deficient and that counsel's deficient performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result. See Strickland v. Washington , 466 U.S. 668, 687 (1984).

To prove deficient performance, Mr. Boyd must overcome the presumption that counsel's conduct was constitutionally effective. See Duvall v. Reynolds , 139 F.3d 768, 777 (10th Cir.), cert. denied , 119 S. Ct. 345 (1998). Specifically, he "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland , 466 U.S. at 689 (quotation omitted). For counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong. See Hoxsie v. Kerby , 108 F.3d 1239, 1246 (10th Cir. 1997).

To establish prejudice, Mr. Boyd must show that, but for counsel's errors, there is a reasonable probability that the result of the proceeding would have been different. See Strickland , 466 U.S. at 694 ; see also Newsted , 158 F.3d at 1090. If the alleged ineffective assistance occurred during the guilt/innocence stage, we determine whether there is a reasonable probability the jury would have had reasonable doubt regarding guilt. See Strickland , 466 U.S. at 695 . In assessing prejudice, we look at the totality of the evidence, not just the evidence helpful to Mr. Boyd. See Cooks v. Ward , 165 F.3d 1283, 1293 (10th Cir. 1998).

If the alleged ineffectiveness occurred during the sentencing phase, we consider whether there is a "reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland , 466 U.S. at 695 ; see also Cooks , 165 F.3d at 1296 (requiring court to consider strength of the government's case and the aggravating factors the jury found as well as the mitigating factors that might have been presented).

We "may address the performance and prejudice components in any order, but need not address both if [Mr. Boyd] fails to make a sufficient showing of one." Id. at 1292-93; see also Davis , 100 F.3d at 760 (noting that court can proceed directly to prejudice without addressing performance).

When appellate counsel is alleged to be ineffective, we review with great deference counsel's decision to omit an issue on appeal, see United States v. Cook , 45 F.3d 388, 394 (10th Cir. 1995), and reverse only if counsel fails to argue a "dead-bang winner." See id. at 395 (defining "dead-bang winner" as "an issue which was obvious from the trial record, . . . and one which would have resulted in a reversal on appeal"). The Sixth Amendment does not "require an attorney to raise every nonfrivolous issue on appeal." Id. at 394. Because the alleged deficiencies on appeal relate to trial counsel's conduct, we review the claims of ineffective assistance of appellate counsel on their merits, along with the claims of ineffective assistance of trial counsel.

B. Alleged Ineffectiveness in Guilt/Innocence Stage

Mr. Boyd has alleged numerous instances of trial counsel ineffectiveness in the guilt/innocence phase of the trial. He claims trial counsel was ineffective in (1) not adequately investigating and preparing for trial; (2) introducing evidence of other crimes; (3) failing to attempt to suppress Mr. Boyd's statement to police that a hitchhiker shot Officer Riggs; (4) failing to adequately cross-examine and/or impeach various witnesses, including Sergeant Golightly, Dr. Choi, Mr. Gericke, Mr. Jackson and Mr. Walker; (5) failing to develop and use other evidence he believes was favorable to him and/or would undermine the State's theory of the case; (6) failing to introduce Ms. Dunn's criminal and substance abuse history; and (7) failing to request lesser included offense instructions and accomplice instructions.

As we have stated, the Oklahoma Court of Criminal Appeals rejected most of these claims on their merits (at least indirectly, under the rubric of effective assistance of appellate counsel), finding that Mr. Boyd failed to establish ineffectiveness and/or prejudice under Strickland . After carefully reviewing the record in this case, we agree that Mr. Boyd has failed to establish deficient performance and prejudice, as required by Strickland . Under any view of the AEDPA standards, we conclude that the state court's determinations on ineffective assistance of counsel were neither contrary to, nor involved an unreasonable application of, clearly established federal law, nor were they "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. Trial Tactics and Strategy

We note that "counsel's duty to investigate all reasonable lines of defense is strictly observed in capital cases." Nguyen v. Reynolds , 131 F.3d 1340, 1347 (10th Cir. 1997), cert. denied , 119 S. Ct. 128 (1998). However, those accused of crimes, even capital crimes, are entitled only to a reasonable and adequate defense, not the defense which, in hindsight, they believe would have been the best. Many of Mr. Boyd's claims of ineffectiveness involve challenges to trial strategy and tactics (how best to cross-examine and/or attempt to impeach witnesses, what evidence to introduce, what defense theory will be most plausible).

Even assuming that Mr. Boyd established deficient performance, we conclude he has shown no prejudice under Strickland -no reasonable probability that, had counsel not committed the errors he now claims were committed, the outcome of the case would have been different. Bearing in mind that, in evaluating prejudice, we look at the "totality of the evidence," Cooks , 165 F.3d at 1293, we find no reasonable probability that the jury would have reached a different verdict.

The record in this case is "replete with evidence of [Mr. Boyd's] guilt," id. , including eyewitness testimony by Mr. Jackson and Mr. Gericke, as well as Mr. Boyd's admission to Mr. Walker, all indicating that Mr. Boyd did the shooting. Further, the murder weapon was found along the path of Mr. Boyd's flight from the murder scene. While his counsel clearly could have more vigorously attempted to undermine the State's theory of the case, there was no reasonable probability of success, given the strength and amount of evidence presented by the State.   ²  

We therefore conclude that Mr. Boyd has failed to establish both deficient performance and prejudice with respect to his trial counsel's representation. We likewise conclude that appellate counsel was not constitutionally ineffective in failing to argue trial counsel's ineffectiveness.

2. Lesser Included Offense Instructions

Mr. Boyd also alleges ineffectiveness in counsel's failure to request instructions on the lesser included offenses of second degree murder or first degree manslaughter. The Oklahoma Court of Criminal Appeals held there was no ineffectiveness in the failure to seek lesser included offense instructions where the evidence did not warrant such instructions under Oklahoma law. Under 28 U.S.C. § 2254(e)(1), we must afford a presumption of correctness to any factual findings underlying the conclusion that the evidence was insufficient to justify lesser included offenses instructions. See Houchin , 107 F.3d at 1469-70; Williamson v. Ward , 110 F.3d 1508, 1513 & n.7 (10th Cir. 1997).

To the extent Mr. Boyd argues the state court erroneously interpreted and applied state law, that does not warrant habeas relief, see Estelle v. McGuire , 502 U.S. 62, 67 (1991), absent a determination that the state law violation rendered the trial fundamentally unfair. See Tyler v. Nelson , 163 F.3d 1222, 1227 (10th Cir. 1999). We perceive no such fundamental unfairness.

To the extent he argues there was a violation of Beck v. Alabama , 447 U.S. 625 (1980), we reject his argument. In Beck , the Supreme Court held that a capital defendant was entitled to have the trial court instruct the jury on a lesser included, noncapital offense, if the evidence would support such an instruction. Such a requirement avoids presenting the jury with an all-or-nothing choice of either convicting the defendant of the capital crime, for which the only sentence is death, or setting the defendant free.

We have held that Beck does not require an instruction on a lesser included, noncapital offense, where the jury does not face an all-or- nothing choice, such as in Oklahoma where, despite a guilty verdict on a capital offense, the sentencer still has the option of imposing a sentence less than death at the sentencing proceeding. See United States v. McVeigh , 153 F.3d 1166, 1197 (10th Cir. 1998) (distinguishing Beck from situation where jury convicting defendant of capital crime could still reject death sentence during sentencing proceeding), cert. denied , 119 S. Ct. 1148 (1999) (citing Hopkins v. Reeves , 118 S. Ct. 1895, 1902 (1998) (distinguishing Beck from case where three-judge panel that determined sentence, after capital conviction, could sentence defendant to life imprisonment rather than death)).   ³  

We have also, however, applied Beck even where there is a later opportunity to sentence to life imprisonment rather than death and inquired whether the instruction sought is in fact a lesser included offense of the capital crime and whether there is evidence to support the lesser included offense. Assuming, arguendo , Beck applies to this case, it provides Mr. Boyd no relief.

Mr. Boyd argues his counsel should have sought a lesser included offense instruction on second degree "depraved mind" murder and on first degree manslaughter. Oklahoma defines second degree "depraved mind" murder as a homicide "perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect death of any particular individual." Okla. Stat. Ann. tit. 21, § 701.8(1). Subsequent to Mr. Boyd's conviction, the Oklahoma Court of Criminal Appeals held that second degree "depraved mind" murder is not, under Oklahoma law, a lesser included offense of first degree malice murder. See Willingham v. State , 947 P.2d 1074, 1081-82 (Okla. Crim. App. 1997), cert. denied , 118 S. Ct. 2329 (1998).

At the time of his trial, however, courts treated second degree "depraved mind" murder as a lesser included offense of first degree malice murder. See id. at 1081 (noting that 1976 statutory revision resulted in second degree "depraved mind" murder no longer being lesser included offense of first degree malice murder, but that Oklahoma case law "[a]pparently . . . failed to recognize this change in the statutes").

Oklahoma defines first degree manslaughter, in relevant part, as a homicide "perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon." Okla. Stat. Ann. tit. 21, § 711(2). It is a lesser included offense of first degree murder. See Lewis v. State , 970 P.2d 1158, 1165-66 (Okla. Crim. App. 1999).

Mr. Boyd principally relies upon the testimony of Mr. Walker, who recounted Mr. Boyd's statement admitting shooting Officer Riggs but stating that he (Mr. Boyd) had "blacked out" during the shooting, to support his argument that there was evidence supporting lesser included instructions on both second degree "depraved mind" murder and first degree manslaughter. The state court found that the evidence did not support the giving of those instructions. That conclusion is not "an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(2). Any subsidiary factual findings are presumptively correct. 28 U.S.C. § 2254(e)(1); see Case , 887 F.2d at 1392-93. We defer to any subsidiary interpretations of state law. See Davis , 100 F.3d at 771. Because the evidence did not support the giving of those lesser included instructions, counsel was not ineffective in failing to request them.

3. Accomplice Instructions

Finally, Mr. Boyd argues trial counsel was ineffective in failing to request an instruction that, under Oklahoma law, Mr. Jackson was an accomplice whose testimony required independent corroboration. The Oklahoma Court of Criminal Appeals rejected this argument in post- conviction proceedings, holding that, while Mr. Jackson had been originally charged with felony murder in this case, the charge had been dismissed for insufficient evidence, so "he could not have been charged as an accomplice at the time of the trial." Boyd , 915 P.2d at 926. A claimed violation of state law does not warrant habeas relief, unless it deprived Mr. Boyd of a fundamentally fair trial. See Maes v. Thomas , 46 F.3d 979, 983-85 (10th Cir. 1995). We perceive no such fundamental unfairness in this case.   ⁴   Appellate counsel was not ineffective in not arguing this issue either.

In sum, we conclude that neither trial counsel nor appellate counsel rendered constitutionally ineffective assistance in connection with the guilt/innocence phase of the trial, or any issues arising therefrom.

C. Alleged Ineffectiveness in Penalty Phase

Mr. Boyd argues his counsel was ineffective in the penalty phase of the trial because he (1) failed to impeach witnesses; (2) failed to present mitigating evidence; (3) failed to offer evidence regarding an informant's statement; and (4) failed to offer evidence that Mr. Boyd had not been convicted of a violent crime. He also argues appellate counsel was ineffective in failing to argue issues concerning an instruction about unadjudicated offenses which was given in the penalty phase. Arguments one and three relate to trial tactics. The Oklahoma court rejected these claims, finding that counsel's conduct involved strategic or tactical decisions made within the parameters of reasonable professional competence. We agree.

Mr. Boyd's counsel presented no mitigating evidence in the penalty phase. Mr. Boyd argues his counsel should have introduced affidavits of persons who knew him as a youth in Tennessee who would have testified regarding his good character had they been contacted by counsel. Mr. Boyd also argues his counsel should have introduced evidence that he had not been convicted of a violent crime.

Failure to present mitigating evidence is not per se ineffective assistance of counsel. See Brecheen v. Reynolds , 41 F.3d 1343, 1368 (10th Cir. 1994). However, it can constitute ineffectiveness if the failure was not due to a tactical decision. See Newsted , 158 F.3d at 1100. Even if we assume the failure to present mitigating evidence in the form of testimony from childhood acquaintances and family members is deficient performance, we perceive no prejudice from that failure in this case. In assessing prejudice in the penalty phase, we bear in mind the available mitigating evidence presented and the strength of the State's case and the aggravating factors the jury actually found. See id.

Here, aside from the childhood testimonials, Mr. Boyd identifies little other available mitigating evidence, and the overall case against Mr. Boyd was strong. The prosecution presented substantial aggravating evidence, including the facts of the crime itself (Mr. Boyd's murder of a police officer to try to avoid prosecution for a robbery), as well as his unadjudicated robberies and plans to rob, and his threatened firearms assault on Oklahoma City Police Officer Schoenberger.   ⁵  

By contrast, the character evidence Mr. Boyd argues should have been presented was remote in time. There is no reasonable probability that the jury would have found it sufficiently persuasive to offset the substantial aggravating evidence presented. Similarly, we discern no prejudice in counsel's failure to introduce evidence that Mr. Boyd had no previous convictions for violent offenses.

Although Mr. Boyd's counsel did not specifically present evidence to that effect, his examination of Detective Horn and Officer Schoenberger made it clear that Mr. Boyd had not in fact been charged with any violent offenses. The prosecution did present evidence of unadjudicated offenses, however, so the jury could easily infer that, had Mr. Boyd been convicted of a prior violent offense, the prosecution would have presented evidence to that effect. Thus, the jury got the substance of the evidence Mr. Boyd wished presented to it-i.e., that he had not been convicted of any violent offenses.

Mr. Boyd also argues his counsel was ineffective in failing to object to an instruction given in the penalty phase of the trial "which permitted the jury to consider the mere allegation that Mr. Boyd had committed unadjudicated offenses without giving the prosecution any burden of proof," Appellant's Br. at 37. He further argues appellate counsel was ineffective in failing to raise this issue on appeal.

The Oklahoma Court of Criminal Appeals held that this instruction "did not misstate the law." Boyd , 915 P.2d at 925-26. We have held that the admission of evidence of unadjudicated crimes in a sentencing proceeding does not violate due process. See Hatch v. Oklahoma , 58 F.3d 1447, 1465 (10th Cir. 1995).   ⁶   We therefore perceive no prejudice from counsel's failure to object to the instruction, nor from appellate counsel's failure to argue this issue on appeal.

In sum, we conclude that neither trial nor appellate counsel rendered constitutionally ineffective assistance in connection with the penalty phase of the trial, or any issues arising therefrom.

II. Admission of False or Misleading Expert Testimony

Mr. Boyd challenges the introduction of the testimony of police ballistics expert, Sergeant Golightly, and the medical examiner, Dr. Choi, claiming that their testimony was false or misleading. Because Mr. Boyd raised this issue for the first time in his state post- conviction proceeding, the Oklahoma Court of Criminal Appeals considered the merits of this claim only in determining that defense counsel was not ineffective in failing to raise the claim on direct appeal. See Boyd , 915 P.2d at 924 n.6, 925. The state court determined that "nothing in the materials before the Court suggests that Officer Golightly's testimony was demonstrably false," and that Dr. Choi's testimony was "neither groundless nor misleading." See id. at 925. We presume that factual finding is correct. See 28 U.S.C. § 2254(e)(1); see also Case , 887 F.2d at 1393.

We have already rejected Mr. Boyd's claim that his counsel was ineffective in failing to adequately cross-examine and/or impeach these expert witnesses. We now also conclude that the state court's determination that the testimony was neither false nor misleading is presumptively correct, and Mr. Boyd has not rebutted that presumption.

III. Failure to Instruct on Lesser Included Offenses

In addition to arguing that counsel was ineffective in failing to seek lesser included offense instructions and to argue this issue on appeal, Mr. Boyd also argues that the trial court should have sua sponte given such instructions. As indicated in our discussion rejecting this issue as an ineffectiveness claim, the Oklahoma Court of Criminal Appeals addressed the merits of this issue and determined there was insufficient evidence in the record to support giving the particular instructions. We afford a presumption of correctness to that factual determination, 28 U.S.C. § 2254(e)(1).   ⁷  

IV. Prosecutorial Misconduct

Mr. Boyd argues that the prosecutor engaged in the following misconduct in the guilt/innocence and/or the penalty phases of the trial: (1) endorsing the misleading evidence of Sergeant Golightly and Dr. Choi; (2) arguing that Mr. Boyd "executed" Officer Riggs; (3) arguing Mr. Boyd was trying to kill Officer Gravel; (4) inciting societal alarm, engaging in name calling and urging that the death penalty must be imposed due to victim sympathy; (5) telling the jury it must have courage to convict and to impose the death penalty; (6) diminishing the jury's responsibility for determining punishment by invoking the police investigation and the prosecutor's decision-making authority; and (7) injecting speculative other crimes evidence by arguing that Mr. Boyd was going to use the robbery proceeds to buy cocaine.

On direct criminal appeal, the Oklahoma Court of Criminal Appeals determined that the prosecution's guilt/innocence phase closing argument that Mr. Boyd attempted to kill Officer Gravel was a reasonable inference to be drawn from the evidence and thus a reasonable argument relative to the evidence. See Boyd , 839 P.2d at 1368. With respect to the alleged penalty phase prosecutorial misconduct, the court determined that most of the challenged comments were reasonable based on the evidence. See id. at 1368-69. Further, the court determined that no comments led the jury to believe that responsibility for the death sentence rested elsewhere. See id. at 1369. The federal district court determined that none of the prosecutor's comments either individually or in combination changed the outcome of the proceedings or denied due process.

A prosecutor's improper comment or argument will require reversal of a state conviction only where the remarks sufficiently infect the trial so as to make it fundamentally unfair and, therefore, a denial of due process. See Donnelly v. DeChristoforo , 416 U.S. 637, 643 , 645 (1974); see also Darden v. Wainwright , 477 U.S. 168, 181 (1986). Inquiry into the fundamental fairness of a trial can be made only after examining the entire proceedings. See Donnelly , 416 U.S. at 643 .

A review of the entire proceedings convinces us that the state court correctly resolved the merits of this issue. None of the comments, even if improper, were significant enough to influence the jury's decision. In light of the strong evidence of guilt and the weight of the aggravating circumstances, there is no reasonable probability that the outcome would have been different without the alleged misconduct.   ⁸  

V. Failure to Instruct That Mr. Boyd had Never Been Convicted of Violent Crime

In addition to arguing that counsel was ineffective in failing to seek an instruction that Mr. Boyd had never been convicted of a violent crime and to argue the issue on appeal, Mr. Boyd also argues the failure to give that instruction violated his Eighth and Fourteenth Amendment rights. On direct appeal, the Oklahoma Court of Criminal Appeals rejected this argument, finding that "there was no evidence to support the requested instruction," Boyd , 839 P.2d at 1369, and noting that the jury was instructed to consider any mitigating evidence. The federal district court agreed.

The Supreme Court has held that the Eighth Amendment does not require each mitigating circumstance to be set forth in a jury instruction. See Buchanan v. Angelone , 118 S. Ct. 757, 761, 763 (1998). So long as the jury is not prevented from considering any mitigating evidence, there is no particular manner in which such evidence must be presented to the jury. Here, the jury was instructed that it could consider any mitigating evidence.

As we discussed supra in connection with the ineffectiveness claim, the substance of the information Mr. Boyd wished the jury to hear-that he had never been convicted of a violent crime-was before the jury. Thus, even if the state court erred when it concluded, on direct appeal, that "no evidence" supported the giving of the instruction at issue, such error does not warrant habeas relief. There is no reasonable likelihood that the jury applied the mitigating evidence instructions such that the jury was prevented from considering any constitutionally relevant evidence. See Boyde v. California , 494 U.S. 370, 380 (1990).

VI. Denial of Defense Witnesses

Mr. Boyd argues that the trial court constitutionally erred when it precluded him from calling the prosecuting attorneys as witnesses during the penalty phase, to have them testify that Mr. Boyd had never been charged with any of the unadjudicated offenses attributed to him. Mr. Boyd argues that the trial court's refusal to permit defense counsel to call those prosecutors deprived him of both his right to compulsory process and his right to present evidence in mitigation of a death sentence. The Oklahoma Court of Criminal Appeals determined that Mr. Boyd had failed to establish that it was necessary to have the prosecuting attorneys testify. See Boyd , 839 P.2d at 1369-70. The federal district court agreed, noting that defense counsel could have presented the same evidence in a number of different ways and that he did succeed in putting it on through Detective Horn.

Clearly established Supreme Court precedent holds that a defendant's right to due process and compulsory process includes the right to present witnesses in his defense. See Washington v. Texas , 388 U.S. 14, 18-19 (1967); see also Richmond v. Embry , 122 F.3d 866, 871-72 (10th Cir. 1997) (citing Supreme Court authority), cert. denied , 118 S. Ct. 1065 (1998). Mr. Boyd must show, however, that the preclusion of a defense witness resulted in a fundamentally unfair trial, see Richmond , 122 F.3d at 872 (citing Supreme Court authority), an inquiry that turns on the "materiality of the excluded evidence to the presentation of the defense." Id. "Evidence is material if its suppression might have affected the trial's outcome." Id.

Defense counsel was able to elicit, through Detective Horn, the uncontested fact that Mr. Boyd had never been charged with any crime resulting from the unadjudicated offenses. Thus, the alleged suppression of testimony by the prosecuting attorneys on the matter had no effect on the trial's outcome.

In addition, clearly established Supreme Court precedent requires that a capital sentencer "`not be precluded from considering, as a mitigating factor , any aspect of a defendant's character or record, and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.'" Eddings v. Oklahoma , 455 U.S. 104, 110 (1982) (quoting Lockett v. Ohio , 438 U.S. 586 (1978)). "As long as the mitigating evidence is within `the effective reach of the sentencer,' the requirements of the Eighth Amendment are satisfied." Johnson v. Texas , 509 U.S. 350, 368 (1993) (quoting Graham v. Collins , 506 U.S. 461, 475-76 (1993)). Because Mr. Boyd was able to present evidence to the jury indicating that he had not been charged in connection with the unadjudicated offenses attributed to him during the penalty phase, he is entitled to no habeas relief on this ground.

VII. Accomplice Testimony

Mr. Boyd argues that the trial court erred in failing to instruct the jury, sua sponte, on the need for corroboration of Mr. Jackson's testimony, as required under Oklahoma law for accomplice testimony. See Okla. Stat. Ann. tit. 22, § 742. In state post-conviction proceedings, in the context of denying Mr. Boyd's claim that his appellate attorney was ineffective for failing to raise this argument on direct appeal, the Oklahoma Court of Criminal Appeals held that Mr. Boyd was not entitled to this instruction under Oklahoma law because Mr. Jackson was not an accomplice. See Boyd , 915 P.2d at 925-26. The federal district court agreed.

Oklahoma requires that the testimony of an accomplice be corroborated in at least one material fact. See Moore v. Reynolds , 153 F.3d 1086, 1106 (10th Cir. 1998). The federal constitution, however, "does not prohibit convictions based primarily on accomplice testimony." Scrivner v. Tansy , 68 F.3d 1234, 1239 (10th Cir. 1995). Although federal habeas relief is unavailable for state law errors, see, e.g. , id. at 1238, an error of state law might rise to the level of a constitutional violation required for habeas relief if it resulted in a fundamentally unfair trial. See, e.g. , Tyler v. Nelson , 163 F.3d 1222, 1227 (10th Cir. 1999) (reviewing state trial court's refusal to give requested jury instruction).

No such error occurred here. The Oklahoma state court held no state law violation occurred, and we defer to that determination. See Davis , 100 F.3d at 771. Even were there a state law violation, no fundamental unfairness resulted. Defense counsel was able to challenge Mr. Jackson's testimony in a number of ways, to get Mr. Jackson to admit he had lied at one point to the police, see Tr. Vol. III at 673, to point out that Mr. Jackson was testifying pursuant to an agreement with the State to have unrelated charges dropped, and to get Mr. Jackson to admit that he was "looking out for [his] own neck," id. at 683, that prosecutors had told Mr. Jackson that "they wanted to dump this whole thing on" Mr. Boyd, id. at 700, that the reason he was testifying was to help himself, and that he would have lied to do so, see id. at 697-98.

VIII. Unadjudicated Offenses

Mr. Boyd argues his Eighth and Fourteenth Amendment rights were violated by the introduction of his unadjudicated offenses in the penalty phase. He acknowledges that our decision in Hatch v. Oklahoma , 58 F.3d 1447 (10th Cir. 1995) forecloses this argument.

IX. "Continuing Threat" Aggravator

Mr. Boyd argues the "continuing threat" aggravator is unconstitutionally vague and overbroad as interpreted and applied by the Oklahoma courts. He also argues, assuming its validity, that there was insufficient evidence supporting it.

Mr. Boyd acknowledges that our decision in Nguyen v. Reynolds , 131 F.3d 1340 (10th Cir. 1997) forecloses the argument that the aggravator as applied in Oklahoma is unconstitutional. See Castro v. Ward , 138 F.3d 810 (10th Cir.) (following Nguyen ), cert. denied , 119 S. Ct. 422 (1998); Sellers v. Ward , 135 F.3d 1333 (10th Cir.) (same), cert. denied , 119 S. Ct. 557 (1998). The evidence supporting the "continuing threat" aggravator was evidence of unadjudicated offenses, including several armed robberies. Because we have held that such offenses may support the finding of the "continuing threat" aggravator, see Hatch , 58 F.3d at 1465, we hold that there was sufficient evidence supporting that aggravating circumstance.

X. Failure to Limit Application of "Avoid Arrest" Aggravator

Mr. Boyd argues that the trial court erred in not, sua sponte, instructing the jury to limit its consideration of Oklahoma's aggravating circumstance applicable when a murder is committed in the defendant's attempt to avoid lawful arrest or prosecution. The Oklahoma Court of Criminal Appeals held that, because the words of the statute defining this aggravator, with which the trial court instructed the jury, were "specific" and "readily understandable," there was no need for any further limiting instruction. Boyd , 839 P.2d at 1371. The federal district court agreed, and further determined that failure to give a limiting instruction did not render the trial fundamentally unfair.

A constitutionally valid aggravating circumstance may not describe circumstances existing with each and every murder, and also may not be unconstitutionally vague. See, e.g. , Tuilaepa v. California , 512 U.S. 967, 972 (1994); see also, e.g. , Ross v. Ward , 165 F.3d 793, 800 (10th Cir. 1999). An aggravating circumstance will not be unconstitutionally vague if there is a common sense core of meaning that juries can grasp. See Tuilaepa , 512 U.S. at 973 .

The trial court's instructing the jury according to the statutory language, that this aggravating circumstance exists if the defendant committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution, meets this constitutional standard. Cf. Davis , 100 F.3d at 769-70 (upholding a similar aggravating circumstance in Colorado, where defendant committed murder to prevent victim of a contemporaneously or recently perpetrated offense, itself not inherent or necessarily incident to murder, from becoming witness to antecedent crime).

Mr. Boyd argues that, although the jury was instructed to find this aggravating circumstance if the evidence established that he committed the murder to avoid arrest, the Oklahoma Court of Criminal Appeals, when it reviews the finding of this aggravator, further narrows its application to only those murders where the defendant seeks to avoid arrest "for an underlying, contemporaneous felony." Appellant's Opening Br. at 66 (citing Barnett v. State , 853 P.2d 226 (Okla. Crim. App. 1993)).

Thus, Mr. Boyd argues the trial court should have limited the jury's consideration of this aggravator to inquire only whether Mr. Boyd was seeking to avoid arrest for the armed robbery immediately preceding the murder, not the earlier unadjudicated armed robberies he had apparently committed during the several months preceding the murder. He asserts that the aggravator was therefore applied too broadly.

Mr. Boyd misinterprets Oklahoma law, including Barnett . Oklahoma cases specifically require only that the predicate crime for this aggravator be separate and distinct from, rather than significantly contributing to, the murder. See Barnett , 853 P.2d at 233-34; see also Delozier v. State , No. F 96-764, 1998 WL 917032 at *7 (Okla. Crim. App. Dec. 31, 1998). The focus is on the defendant's intent, whether proved by the defendant's own statement or through circumstantial evidence.

In this case, there is no reasonable likelihood that the jury interpreted the instruction in an unconstitutional manner. To the extent Mr. Boyd argues that the trial court committed some error of state law, he can obtain no habeas relief absent a showing that the error rendered the trial fundamentally unfair. We perceive no such unfairness here.

XI. Penalty Phase Jury Instructions

Mr. Boyd argues that errors in the penalty stage jury instructions denied his Eighth and Fourteenth Amendment rights in three ways: (1) the instructions as a whole improperly implied that unanimous agreement was necessary before mitigating evidence could be taken into account; (2) the instructions improperly permitted the jury to ignore mitigating evidence; and (3) instructions seven and nine improperly permitted the jury to weigh the totality of the aggravating circumstances against each mitigating circumstance rather than requiring the jury to weigh the aggregate mitigating factors against each aggravating circumstance.

On direct appeal, the Oklahoma Court of Criminal Appeals held that there was no substantial possibility that a rational juror could have construed the instructions in an improper way. The federal district court agreed. "[O]ur standard for determining whether jury instructions violate the [c]onstitution is `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.'" Duvall , 139 F.3d at 791 (quoting Boyde v. California , 494 U.S. 370, 380 (1990)); accord Davis , 100 F.3d at 775.

With respect to Mr. Boyd's argument that the instructions improperly implied that mitigating circumstances had to be found unanimously, we rejected a virtually identical challenge to virtually identical instructions in Duvall and Castro . Those decisions foreclose Mr. Boyd's arguments here.

Mr. Boyd also argues that instruction number eight permitted the jury to choose to ignore mitigating evidence. Instruction number eight provided as follows:

Mitigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case.

O.R. 132 (No. 8). We reject Mr. Boyd's argument. The use of the word "may" does not alone compel the conclusion that the jury was empowered to ignore mitigating evidence. See Pickens v. State , 850 P.2d 328, 339 (Okla. Crim. App. 1993) (rejecting argument that this instruction permitted jury to disregard mitigating evidence). Moreover, instruction number nine told the jury it "shall" consider certain minimum mitigating circumstances and "may" consider any additional mitigating circumstances. O.R. 133 (No. 9). There is no reasonable likelihood that the jury applied the instructions in such a way that it was prevented from considering mitigating evidence. See Johnson , 509 U.S. at 367 ; cf. Boyde , 494 U.S. at 383 -84 (instruction to jury to consider all evidence received was sufficient such that reasonable jurors would not have ignored mitigating evidence).

Finally, Mr. Boyd argues that instructions seven and nine permitted the jury to weigh the aggravating circumstances against each mitigating circumstance, thus authorizing the death penalty even if the mitigating circumstances as a whole outweighed the aggravating circumstances. Instructions seven and nine provided as follows:

If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, unless you also unanimously find that any such aggravating circumstance or circumstances outweigh the finding of one or more mitigating circumstances, the death penalty shall not be imposed.

O.R. 131 (No. 7).

You are instructed that mitigating circumstances are not specifically enumerated in the Statutes of this State but the law of this State sets up certain minimum mitigating circumstances you shall follow as guidelines in determining which sentence you impose in this case. You shall consider any or all of these minimum mitigating circumstances which you find apply to the facts and circumstances of this case. You are not limited in your consideration to these minimum mitigating circumstances. You may consider any additional mitigating circumstance, if any, you find from the evidence in this case. What are and what are not additional mitigating circumstances are for you the jury to determine.

Evidence has been offered as to the following mitigating circumstances:

1. The Defendant did not plan to kill the deceased.

Whether these circumstances existed and what degree and weight you are to place on them must be decided by you.

Id. at 133 (No. 9).

Mr. Boyd makes no specific argument about instruction number nine. He argues instruction number seven does "not by itself constitute a federal constitutional error," Appellant's Opening Br. at 69, but that it is contrary to Oklahoma law, citing Okla. Stat. Ann. tit. 21, § 701.11. Section 701.11 provides that the death penalty shall not be imposed "if it is found that any such aggravating circumstance is outweighed by the finding of one or more mitigating circumstances." Id. The language of the instruction is neither contrary to Oklahoma law nor constitutionally infirm.   ⁹  

XII. Denial of Evidentiary Hearing

We apply the AEDPA provisions regarding the grant of an evidentiary hearing in federal district court. Under Miller v. Champion , 161 F.3d 1249 (10th Cir. 1998), the restriction on an evidentiary hearing contained in 2254(e)(2) does not apply because Mr. Boyd "diligently sought to develop the factual basis underlying his habeas petition, but a state court prevented him from doing so." Id. at 1253.   ¹⁰   He is therefore "entitled to receive an evidentiary hearing so long as his allegations, if true and if not contravened by the existing factual record, would entitle him to habeas relief." Id.

Applying that test, an evidentiary hearing is not warranted. Mr. Boyd's request for further fact finding is general. He fails to indicate what specific facts he would prove through a hearing. Cf. Stouffer v. Reynolds , 168 F.3d 1155, 1168 (10th Cir. 1999) (district court erred in failing to hold evidentiary hearing to assess ineffective assistance of counsel claims where the petitioner alleged specific, particular facts which if proved would entitle him to relief).

CONCLUSION

We have carefully reviewed the record in this case and each of Mr. Boyd's arguments. We have further carefully reviewed any state court determinations on the merits of Mr. Boyd's claims. We conclude that, under any view of the AEDPA standards, the state court's decisions are not "contrary to, or involve[] an unreasonable application of, clearly established Federal law," nor have they "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d). We therefore AFFIRM the district court's decision denying Mr. Boyd's petition for a writ of habeas corpus.

*****

FOOTNOTES

  [1]  

The State recognizes, with respect to ineffectiveness claims, we held in English v. Cody , 146 F.3d 1257 (10th Cir. 1998), that the Oklahoma procedural bar rule requiring that all ineffective assistance of trial counsel claims be raised on direct appeal or forfeited applies "in those limited cases meeting the following two conditions: trial and appellate counsel differ; and the ineffectiveness claim can be resolved upon the trial record alone." Id. at 1264. We further held that "[a]ll other ineffectiveness claims are procedurally barred only if Oklahoma's special appellate remand rule for ineffectiveness claims is adequately and evenhandedly applied," id. , a question which we did not attempt to definitively answer in English . The first part of the English two-part test for limiting the application of Oklahoma's procedural bar rules is satisfied in this case because trial and appellate counsel differed. The State asserts that "some" of Mr. Boyd's claims of ineffective assistance not raised on direct appeal can be resolved on the trial record alone, and therefore can be procedurally barred.

Because (1) it is unclear whether certain of Mr. Boyd's ineffectiveness claims can be resolved on the trial record alone, (2) it is unclear whether Oklahoma's special remand rule is adequately and evenhandedly applied, and (3) ineffective assistance of appellate counsel could excuse any procedural default, we decline to view any of his claims as procedurally barred.

  [2]  

Further, our review of the record reveals that trial counsel did in fact vigorously cross-examine Mr. Gericke and Mr. Jackson. Additionally, trial counsel's closing argument indicates that, for example, the decision to admit Mr. Jackson's statement that Mr. Boyd may have been trying to arrange a cocaine deal at the time of the shooting (which Mr. Boyd now argues was highly prejudicial and indicative of counsel's ineffectiveness) was tactical. See Tr. Vol. V at 868.

  [3]  

The Supreme Court in Hopkins observed that the option to sentence at a later time to something less than death was not the "crucial distinction" between Hopkins , finding no constitutional violation, and Beck , finding a constitutional violation. The crucial distinction "is the distinction between a State's prohibiting instructions on offenses that state law recognizes as lesser included, and a State's refusing to instruct on offenses that state law does not recognize as lesser included." Hopkins , 118 S. Ct. at 1902 n.7. The former is unconstitutional, while the latter is not.

  [4]  

Moreover, the jury heard Mr. Jackson testify that he had been in the van with Mr. Boyd just prior to the shooting, as well as that Mr. Jackson was testifying pursuant to an agreement with the district attorney's office which included the proviso that Mr. Jackson would not be prosecuted for his involvement in the robbery and shooting of Officer Riggs. Thus, to the extent an accomplice instruction would have caused the jury to evaluate critically Mr. Jackson's testimony, the jury already had ample reason to evaluate his testimony with a healthy dose of suspicion.

  [5]  

Mr. Jackson testified that Mr. Boyd told him of four armed robberies he had committed and of his plans to commit another armed robbery. Officer Schoenberger testified that he had earlier stopped Mr. Boyd on two occasions. The first time, Officer Schoenberger stopped Mr. Boyd in a car following a report of a burglary in which shots had been fired. He found a loaded pistol near Mr. Boyd's hand. The second time, the officer also stopped Mr. Boyd in a car following a report of an armed robbery. He testified that Mr. Boyd was armed and that, while Officer Schoenberger searched Mr. Boyd, Mr. Boyd "went for [a] gun," and then "took off running." Tr. Vol. V at 940.

  [6]  

Additionally, the jury was instructed that it had to find the existence of any aggravating circumstance beyond a reasonable doubt, and the unadjudicated offenses were offered as proof of one such circumstance (the continuing threat aggravator). If the jury found that aggravating circumstance proven beyond a reasonable doubt, it must have found those unadjudicated offenses were proven beyond a reasonable doubt. We presume the jury followed the instructions.

  [7]  

As we indicated in our discussion of this issue as an ineffectiveness claim, there is a genuine question as to whether the Beck analysis upon which this argument relies even is applicable to this case. Assuming arguendo that it does apply, we reject it on its merits.

  [8]  

Mr. Boyd also argues, albeit with little separate analysis, that appellate counsel was ineffective in failing to argue this issue on appeal. Given our disposition of the merits of this issue, we perceive no ineffectiveness.

  [9]  

Mr. Boyd recognizes that we have rejected other challenges to this particular instruction in Duvall , 139 F.3d at 790- 91.

  [10]