Summary:

Riding her bike in apt. complex, 7 yr old went to apt. she used to live in, where defendant now lived, and said she was hungry.

She was choked and beaten, then had her head held in a toilet bowl, then was stabbed repeatedly, then sexually molested. Her body was later taken to nearby dumpster.

Victim is granddaughter of Johnny Cabrera, Chairwoman of Oklahoma Coalition Against Death Penalty.

Medlock pled guilty and did not seek clemency. Psychiatrist testified that Medlock suffers from a split personality.

ClarkProsecutor.org

Oklahoma Attorney General

10-02-2000

W.A. Drew Edmondson, Attorney General - Six Execution Dates Requested, Including Female

Attorney General Drew Edmondson today asked the Oklahoma Court of Criminal Appeals to set execution dates for six death row inmates following a denial of their final appeals earlier Monday by the United States Supreme Court. Included in Edmondson's request was Wanda Jean Allen of Oklahoma County, who would become the first female to be executed since statehood.

Others for whom an execution date was requested were: Floyd Allen Medlock, Canadian County; Phillip Dewitt Smith, Muskogee County; Robert William Clayton, Tulsa County; Dion Athanasius Smallwood, Oklahoma County; and Eddie Leroy Trice, Oklahoma County.

Allen, 41, murdered her roommate, Gloria Jean Leathers, 29, in front of The Village Police Department in northwest Oklahoma City on Dec. 1, 1988. Leathers had driven to the police station following a domestic argument with Allen.

Allen followed her and fired a single gunshot into her abdomen. Allen had previously received a four-year prison sentence for first degree manslaughter in the shooting death of Detra Pettus on June 29, 1981.

Medlock, 29, kidnaped, sexually assaulted and stabbed to death Katherine Ann Busch, 7, on Feb. 19, 1990. Busch's body was found early the next morning in a dumpster behind a shopping center near the Woodoaks Apartments in Yukon, where she lived with her mother.

ProDeathPenalty.com

On the afternoon of February 19, 1990, Medlock was in his apartment watching cartoons on television when he heard someone attempting to open his door.

On opening the door, he found Katherine Anne Busch, a small girl with a bicycle, who walked into his apartment and told him she once lived there.

When Medlock admonished her against barging into his home, Kathy said simply that she was hungry and wanted something to eat.

Medlock gave her potato chips and began to prepare macaroni and cheese. While cooking, he told the police, "this real weird feeling" came over him. Precisely what Medlock did next is unclear but the following is undisputed.

Medlock grabbed Kathy by the arm, she jerked away, he grabbed her again, and she jerked away again. He wrestled with her and covered her mouth when she began to scream, choking her until she passed out.

According to his confession, she regained consciousness, and he dragged her to the bathroom and forced her head into the toilet bowl for approximately ten minutes, during which time she was gasping for breath.

Then, while she was still alive, he stabbed her in the back of the neck with a steak knife and later with a hunting knife until she died, holding her head in the toilet bowl again so that she would not bleed on the floor.

After the bleeding ceased, he placed her in the bathtub, removed her clothes, and attempted to sexually molest her lifeless body. Finally, he wrapped her body in a blanket, placed it in a box, and deposited the box and her bicycle into a dumpster behind a nearby shopping center.

Judy Busch and Johnnie Cabrera remember where they were in 1990 when they learned their 7-year-old granddaughter, Kathy, had been murdered. And they know where they will be inside the towering white concrete walls of the Oklahoma State Penitentiary, where Kathy's killer, Floyd Medlock, is to be executed for the crime.

The 2 grandmothers won't be seated together, though. They won't be there to comfort each other. They probably won't even speak. They are victims of the same violent crime, but they disagree sharply over Medlock's fate - Ms. Cabrera is chairwoman of the Oklahoma Coalition Against the Death Penalty, and Ms. Busch is founder of the Survivors of Homicide Support Group.

Ms. Busch wants Medlock dead; Ms. Cabrera does not. The chasm is so great that the women - who say they were never close even when their children were married - haven't spoken since a 1992 confrontation inside the Oklahoma Capitol, where Ms. Cabrera was speaking against capital punishment and Ms. Busch rebuked her. "We can't sit in the same room," said Ms. Cabrera, who will be seated Tuesday night with Medlock's witnesses, on the opposite side of a glass partition from Ms. Busch. "That's really a shame because she has every right to her opinion and belief. It's not for her to say my opinion and my belief is wrong." "I couldn't tell you today exactly what she said,"

Ms. Busch said, "except that she was speaking against the death penalty and how horrible it is and how her granddaughter was murdered. That just absolutely devastated me that she would do that. "It wasn't a pretty picture. Kathy lived with me for a year and a half [when her parents separated and divorced]. Johnnie never called. Johnnie never came over to see Kathy. I told her, 'You didn't have anything to do with Kathy when she was alive and, by God, I don't want you using her name now that she is dead.'"

For the grandmothers, Kathy's death and Medlock's sentence helped crystallize their thinking on the death penalty. A former stockbroker and longtime single mother, Ms. Busch, 58, said she already knew she supported capital punishment after serving on a jury in 1988 that sentenced two men to death. But Kathy's death steeled her resolve, especially, she said, when she discovered that victims' families often were the last to know anything about the investigation or prosecution.

On the advice of her counselor, Ms. Busch searched for a support group for families of homicide victims. To her surprise, she said, there wasn't one in the Oklahoma City area. So she decided to start her own. Now, she said, her mailing list includes about 500 families affected by murder.

Her group travels to the state prison in McAlester for each execution to hold a vigil for the victims. She also joined the Oklahoma City Police Department in 1993 to serve as its homicide victim liaison. "People who have had the death penalty imposed upon them are the worst of murderers," Ms. Busch said, noting that the law requires "aggravating" circumstances before capital punishment can be applied. "Some people just need to be out of society and need to just not live," she said. "Just because you leave them locked up doesn't mean they won't kill again."

Ms. Cabrera was raised in a law enforcement family in northern Minnesota. Her father was a judge, her brother a police officer. The family's thinking, she said, was black and white: "What's right is right, what's wrong is wrong. If you do the wrong thing, you suffer the consequences. "When it [Kathy's murder] first happened, I was so angry I probably could] have killed him myself," she said. But her Presbyterian upbringing, Ms. Cabrera said, also left her with the conviction that "only God has the right to take a life. He put us here, and he's the only one who can take us away."

At the sentencing trial, Ms. Cabrera said that she could see the pain on the face of Medlock's stepfather. She approached him to say she did not blame him for Kathy's murder. And she became convinced, she said, that the death penalty doesn't really solve anything. "The death Kathy had was horrendous," Ms. Cabrera said. "When we kill him, all he's going to do is go to sleep. I think he should sit in his prison cell the rest of his life and think about what he's done." Ms. Cabrera, a 65-year-old utility claims adjuster, joined the Oklahoma Coalition to Abolish the Death Penalty and is now serving as its chairwoman.

Both grandmothers said they plan to continue their crusades after Medlock's execution - Ms. Busch helping victims' families, Ms. Cabrera fighting to abolish the death penalty. And neither said they expect any fireworks, should their paths cross inside the state penitentiary on Tuesday. "I don't anticipate anything bad happening," Ms. Busch said. "It's not going to be comfortable. But there's nothing she can say that will change my feelings. And I can probably never change her feelings."

Ms. Cabrera expressed sadness over the conflict. "She's still so angry," she said. "The hate is just consuming her. You cannot go on with your life with hate in your life. It will eat you up. There'll never be a closure, because Kathy's not here. Executing him is not going to close this thing. What does it accomplish? All you're doing is making another family suffer grief."

Ms. Busch, though, said she expects Medlock's death to provide "a certain amount of peace. Since March of 1991, I have dealt with the possibility that some court or some judge or someone would overturn this sentence and he would be out," she said. "I anguished over every appeal. It's horrible, waiting to see that decision upheld, because I feel he would do it again if he had that opportunity. "When he's executed Tuesday night, I won't have that worry."

Floyd Allen Medlock

Associated Press

January 16, 2001

OKLAHOMA - A man who fatally stabbed, beat and sexually molested a 7-year-old girl in his apartment was executed by fatal injection Tuesday night. Floyd Allen Medlock, 29, told police police "something clicked" in his mind before he killed Katherine Ann Busch in 1990. Medlock's execution was the 3rd in Oklahoma this month. 5 more scheduled over the next 3 weeks.

Police said Katherine Busch spent her last evening alive pedaling her tiny bicycle around the apartment complex where she lived with her mother, Gina Ford. As she rode, police said, she saw Medlock in an apartment where she and her mother used to live, and stopped to talk. He made her macaroni and cheese. About 6 1/2 hours later, police found Busch's nude body -- raped, beaten, stabbed -- in a drugstore garbage bin 3 blocks away.

Medlock turned himself in and later pleaded guilty to 1st-degree murder. At his sentencing, therapists claimed Medlock had a split personality and that his alter ego -- an enraged 12-year-old named Charlie -- was to blame for Katherine Busch's death. Medlock did not request a clemency hearing and filed no emergency appeals to try and stop his execution.

Medlock becomes the 3rd condemned inmate to be put to death in Oklahoma this year, and the 33rd overall since the state resumed capital punishment in 1990. Medlock becomes the 5th condemned inmate to be put to death this year in the USA and the 688th overall since America resumed executions on January 17, 1977.

Floyd Allen Medlock

Abolish Archives

McAlester, Okla., January 16, 2001 - A man who told police that "something clicked" in his mind before he fatally beat, stabbed, and sexually assaulted a 7-year-old girls faced execution Tuesday.

Floyd Allen Medlock, 29, was scheduled to die of a poisonous injection shortly after 9 p.m. Tuesday at the Oklahoma State Penitentiary in McAlester. He pleaded guilty to the February 19, 1990, murder of Katherine Ann Busch at his Yukon apartment.

Medlock's execution will be the third in Oklahoma this month, with 5 more scheduled in the next 3 weeks. Dion Smallwood faces the death chamber Thursday night. Last week, the state was the focus of national attention and a spate of protests over the execution of two-time killer Wanda Jean Allen, the first black woman executed in the United States since 1954.

Medlock's execution is marked by a more private dispute between the grandmothers of his victim, Johnnie Cabrera and Judy Busch, who are on opposite sides of the death penalty issue. Judy Busch is an ardent death penalty advocate who founded a support group for homicide survivors, and plans to watch Medlock's execution with other members of her family who want him dead.

Cabrera is chairwoman of the Oklahoma Coalition to Abolish the Death Penalty and considers execution murder. "We're doing the same thing he (Medlock) did," Cabrera said of his scheduled execution. She plans to watch the execution as a guest of Medlock, with whom she exchanged letters while he was in prison so she could get answers about the crime.

Such actions by Cabrera are offensive to Judy Busch, who hasn't spoken to Cabrera since confronting her at an anti-death penalty rally years ago. "It really appalls me that she fights for this person's life, that did all the horrible things he did to Kathy," Busch said.

Cabrera denies Busch's contention that she harbors sympathy for Medlock. In fact, Cabrera wants Medlock to be forced to live out his life in prison because she considers it a worse fate than a quick, painless death.

While Medlock awaited his death in a cramped holding cell, police said that Katherine Busch spent her last evening alive pedaling her tiny bike around the Woodoaks Apartments where she lived with her mother, Gina Ford.

During Busch's ride, police said that she saw Medlock in an apartment where she and her mother used to live, and stopped to talk. About 6 hours later, police found Busch's nude body -- raped, beaten, stabbed and wrapped in a sheet and blanket -- in a drugstore garage bin three blocks away.

Medlock himself called police to confess to killing the girl and later pleaded guilty to first-degree murder.

At his sentencing, therapists claimed Medlock had a split personality and that his alter ego -- an enraged 12-year-old named Charlie -- was to blame for Busch's death. Cabrera said the state is playing right into Medlock's hands by killing him. "He told me in one letter that he was thankful for what I've done (trying to abolish the death penalty), but he was just thankful it didn't happen in his lifetime," Cabrera said. "I just think he's ready to let go. And the state is going to provide that for him."

(Source: The Oklahoman)

Medlock Executed for the Murder of 7-year-old Girl

Shawnee Online

McALESTER, Okla. (AP) -- A man who made a curious 7-year-old girl macaroni and cheese in his apartment, then fatally stabbed, beat and sexually molested her was executed Tuesday night at the Oklahoma State Penitentiary.

Floyd Allen Medlock, 29, was pronounced dead at 9:20 p.m. after receiving a lethal injection. He confessed and pleaded guilty to the Feb. 19, 1990, murder of Katherine Ann Busch, who lived near Medlock with her mother at a Yukon apartment complex.

Medlock's execution was the third in Oklahoma this month, with five more scheduled over the next three weeks. Last week, the state was the focus of national attention and a spate of protests over the execution of two-time killer Wanda Jean Allen, the first black woman executed in the United States since 1954.

Medlock's execution drew interest from a number of newspapers and television stations, as well as two dozen protesters on both sides of the death penalty issue. In Oklahoma City, about 40 people stood in the sleet outside the Governor's Mansion in protest of the execution and support of a death penalty moratorium.

But Medlock's execution was marked by a more private dispute between the grandmothers of his victim, Johnnie Cabrera and Judy Busch, who have opposite opinions about capital punishment. Judy Busch is an ardent death penalty advocate who founded a support group for homicide survivors.

Cabrera is chairwoman of the Oklahoma Coalition to Abolish the Death Penalty and considers execution murder. Both were at the prison Tuesday night to watch the execution. Busch headed up a group there on Katherine Busch's behalf, while Cabrera was there as a guest of Medlock, saying she was extended no invitation to be a witness for her granddaughter.

Cabrera exchanged letters with Medlock while he was in prison, hoping to get answers about the crime. She said her acceptance of Medlock's invitation was in no way a show of support for the man who murdered her granddaughter, but Judy Busch said she was "completely confused" by Cabrera's actions.

Police said Katherine Busch spent her last evening alive pedaling her tiny bicycle around the Woodoaks Apartments where she lived with her mother, Gina Ford. During Busch's ride, police said she saw Medlock in an apartment where she and her mother used to live, and stopped to talk. About 6 1/2 hours later, police found Busch's nude body -- raped, beaten, stabbed and wrapped in a sheet and blanket -- in a drugstore garbage bin three blocks away.

Arnold Shapiro Productions

MSNBC INVESTIGATES: DEATH ROW DIARY tells the story of Oklahoma death row inmate Floyd Allen Medlock, sentenced to die for the brutal murder of 7-year-old Kathy Busch. Leading up to his execution on January 16, 2001, Medlock kept a video diary, given exclusively by his family to MSNBC INVESTIGATES and Arnold Shapiro Productions.

In these tapes, Medlock discusses his crime, his incarceration, and his impending death. In the wake of his sentencing, Kathy's family is divided: One of her grandmothers has become an activist favoring the death penalty, and the other fights to abolish it – and, remarkably, has developed a friendship with Medlock. We follow both grandmothers as they prepare to witness Medlock's execution - one with the victim's family, and the other as a friend to Medlock.

Girl's Murder Pits Grandmothers Against Each Other

One Wants Killer's Execution; the Other, His Salvation

By Robert Anthony Phillips - APBNews.com

May 12, 2000

OKLAHOMA CITY (APBnews.com) - Lying in a pink coffin beside her favorite teddy bear, the 7-year-old child whose murder made enemies of her grandmothers is buried in Rest Haven cemetery. She has been there for more than a decade.

The tire swing she used to play on has been taken down. Her parents have married others and moved away. She has brothers and sisters she never met. Photographs of her first and last Christmases trigger happy and painful memories. But Katherine Busch's grandmothers remain divided, one praying for her killer to live and the other yearning to watch him die.

"They both had overpowering love for my daughter," said Gina Ford, Katherine's mother. "Sometimes I wish they'd let her lie in peace." Should Floyd Medlock, who murdered an innocent child, live or die? That is the conflict that has made bitter enemies of Katherine's grandmothers, Judy Busch and Johnnie Cabrera.

Busch and Cabrera have become leaders and activists on opposite sides of one of the most emotional conflicts in America: the death penalty issue. They dislike one another, refusing to speak or even be in the same room together. In Oklahoma, they are often referred to simply as "the grandmothers."

In the name of justice and the law, Busch wants Medlock executed and supports the death penalty. In the name of God, Johnnie Cabrera campaigns to abolish the death penalty so that Medlock and others now sitting on death rows across the United States may live.

Busch, Katherine's paternal grandmother, is a leader of the victim's rights movement in Oklahoma and a full-time employee of the Oklahoma City Police Department, where she works with relatives of homicide victims. She has been instrumental in the passage of victim's rights laws in Oklahoma, using Katherine's murder as a lynchpin for her campaign.

Cabrera, the child's maternal grandmother, is the leader of the Oklahoma City chapter of the state Coalition to Abolish the Death Penalty. She frequently stands in front of the governor's mansion in protest when executions take place -- and plans to protest when her grandchild's murderer is executed.

"They both have the same blood that was flowing throughout that little girl," said Gina Ford, who has now remarried and moved to Missouri. "Both can put aside their differences to remember ... if just for one day, and I think everyone can do that." But they probably never will. "When you do the ultimate crime, you pay the ultimate price," Busch said. "You can forgive him, but he still has to pay the price. You know, it's Kathy's place to forgive him." "I feel every time we execute a person, we're going against God's will," Cabrera said. "I don't see that as closure. Seeing someone else die, that's not closure."

Busch, 56, says Cabrera doesn't want Medlock executed because Cabrera did not love the child as much as she did. She accuses Cabrera of using Katherine's murder to further the anti-death penalty cause and once screamed at her during a protest rally. "Someone has to be there for Kathy," Busch said. "She can't be here. ... You know, I took care of Kathy when she was born. I took care of Kathy all of her life, and I still have to be there for Kathy. I'm not a vengeful person. I don't feel vengeance at all. I feel like it's our law. It's what our law says. When you do something really bad, then you have to pay the price."

Cabrera, 63, admits she didn't have a good relationship with her daughter, Gina, as Katherine was growing up and didn't visit her grandchild on a regular basis. Cabrera also said she never liked Gina's husband, Kenneth Busch, and kept away from their home.

It was Busch who took care of Katherine after her parents separated and later divorced. Katherine lived with Busch for more than a year. Looking back, Cabrera said that she might even have been envious of the close relationship Busch had with Katherine. But Cabrera said that she is hurt by Busch's claim that she didn't love the child as much as Busch did.

Cabrera said that after Katherine was murdered, she had to let go of the hate she had for Medlock. Cabrera said that if she didn't, the hate would have consumed her and probably resulted in her committing suicide. "I forgive him for the evil he did," Cabrera said. "But I have not forgotten what he did. I had to do that in order to go on. I could not dwell in and be consumed with the death of Kathy. It's not that I didn't love her -- I love her dearly."

The grandmothers share good memories of Katherine. But they share them separately. Busch stands at a table in a conference room at the Oklahoma City Police Department, where she works in the Homicide Victim Services Unit, spreading out pictures of Katherine.

She knows when and where each one was taken. She smiles as she points to each photograph. "This was Kathy's really first Christmas," Busch said, gently lifting the photograph from the pile. "She was about a year and half old, and that's her little riding doggy she was on. That's her daddy and momma and her aunt. "This was her last birthday. This was at my house, and she's opening her birthday presents just with the family. I think that was a shell necklace. Those were popular back then. She was really happy. "That was Kathy as the little prissy girl," Busch said, looking at a picture of the child in a dress. "She loved pretty dresses, frilly dresses and loved twirling dresses. She loved to pose." There was another photo of Katherine clutching her teddy bear. "That bear is still with her today," Busch said.

Cabrera says she remembers baking cookies with her granddaughter and teaching the child to crochet. She remembers the time she told Katherine not to pick the prize roses growing in her back yard. Katherine disobeyed, picked one and brought it to her grandmother, explaining that God told her to do it.

Why was Katherine murdered? She walked into the apartment of Medlock, who psychiatrists said suffered from a split personality. One side of him was a "teddy bear," the other described as a sadistic, enraged child that told him to kill. On Feb. 19, 1990, Katherine went into his apartment and met her killer. Medlock later explained to police that a voice he called "Charlie" told him to kill Katherine. So Medlock prepared food for Katherine, stabbed her, turned himself in and confessed. He was sentenced to death and awaits execution.

Busch says she can still envision a helpless, terrified child, her head pushed into a toilet by Medlock so he could more easily stick the blade into the back of Katherine's neck. And Cabrera can still see a tire swing in her yard that stood so still, it was painful.

After Katherine's murder, Cabrera's then-husband, who had put in the swing for the child, would sit staring at it. Katherine spent hours swinging back and forth as the family dog ran and dodged underneath the tire. Cabrera said that one day, she saw her husband just staring at that tire swing. He then took it down.

The last time Busch and Cabrera met, Busch screamed at Cabrera for using their granddaughter's name to try to abolish the death penalty. The confrontation occurred here in the halls at the state capital in the early 1990s. Busch came to lobby for the death penalty. Cabrera was there to speak against it. "It just didn't set right with me," Busch said. "Because I knew Johnnie had never been close to Kathy. And I resented her using Kathy now. ... She had never really done anything for her when she was alive. So when she got through, I did go up to her. ... I just told her I didn't like her using Kathy's name. I resented her using Kathy's name. I didn't ever want her to do it again. I said, 'You didn't take care about her. ... You didn't have an active part in her life when she was alive, so don't use her name when she's dead.'" "She came up to me screaming, telling me I was using Kathy's name, and I tried to explain to her that I didn't use her name, and she said that I never loved her," Cabrera recalled. "And that really hurt."

During their children's marriage, Busch and Cabrera had a friendly relationship but were never close. The women recalled going to several social functions together, and Cabrera went to Busch's home for dinner, but that was about it. The women said the only thing they really had in common was Katherine.

Busch said that during Medlock's trial in 1991, she resented seeing Cabrera sit on the side of the courtroom with the Medlock family and also forgiving the killer's father for what his son had done. Cabrera said she sat on the Medlock side of the courtroom because there was no other place to view the testimony.

She also said that she approached Medlock's stepfather after seeing the "pain" in his face and told him that she did not blame him for the murder of her grandchild. "What about the pain that was in our eyes?" said Kenneth Busch. "What about the pain that was in there because of our close bond to Kathy? What drove her to stay on that side? Nobody shunned her away. No one said she was not welcome to sit there. You have a killer who killed one of her own blood."

During the trial, a psychotherapist testified that Medlock had been abused and beaten as a child. "She made friends with Medlock's family, and she sat in the courtroom with his mother part of time. ... That really bothered me," Busch said. "This is a blood relative of Johnnie's," Kenneth Busch said. "This guy grotesquely and brutally took my daughter's life with no regard to her or her family. How can she forgive him?" Church gives Cabrera peace Cabrera said that after the murder she avoided driving on the streets near the Dumpster where Medlock had left Katherine's body. "I don't know what happened, but one day ... I didn't even realize I was near [the Dumpster] and I couldn't look to the left because I saw the Dumpster," Cabrera said. "So I looked to the right, and I saw the Presbyterian church that I used to go to and I knew somebody was trying to tell me something."

Cabrera said that following the murder, she couldn't go to work or even put on makeup. She also had just learned that she had breast cancer. "I just sat there and thought about all the things that could have been," Cabrera said. But when she saw the church, Cabrera said things changed for her. "I went to church, and I talked with the pastor there, and he talked to me for hours," she said. "I was to the point where I wanted to end everything because I had found out I had breast cancer. I just thought everything was just going downhill real fast. And I've now come to accept that breast cancer. "God allowed me to have that breast cancer so I would focus on myself rather than focusing on what happened to Kathy."

Church members told Cabrera that the time would come when she would forgive the man who killed her granddaughter. "My pastor told me I had to let go," Cabrera said. "It was just like a burden was lifted from me. I just knew I had to forgive this man. You can't have that pain in your life. Hate will consume that life."

Busch said her anger at the judicial system led her to become a victim's rights advocate. And the anger began when Katherine was first reported missing. Busch said that Gina Ford called police at about 7 p.m. to say her daughter was missing, but officers in the small Yukon Police Department said they were too busy and didn't have time to immediately search for the child.

Police started the search several hours later, Busch said. She publicly criticized the police at the time for not starting the search sooner. And after Katherine's body was found in the Dumpster, police and prosecutors didn't tell her details of the child's death, Busch said. "The news media is what told me how my granddaughter died," Busch said. "The police came to us and just [told us] her body had been found. ... But the next morning at 6 a.m. the news had a little girl in Yukon had been beaten, stabbed and raped."

At Medlock's trial, she became angrier when the suspect decided to plead guilty and allow a judge to decide whether he should serve a life sentence or be executed. "I wanted him to go to trial," Busch said. "I wanted 12 Oklahomans to sentence him. It was fine of him to plead guilty, but you know it really angered me that he could dictate how they were going to go."

It was not until the sentencing phase of the trial that Busch said she learned all the details of Katherine's murder. Busch said it was then she decided that, if she ever had the chance, she would work to help other crime victims. "I wanted to know why. I wanted to know how. I wanted to know Kathy's last moments of life, and I didn't know that," she said. "I'm angry that he could make that decision on when and what I heard."

Busch started a support group for homicide survivors, to take care of their emotional needs, and lobbied for legislation that allowed victims to make impact statements in court and to be present for executions. She pushed for the grant that allowed her to establish the Homicide Victim Services Unit in the police department, where Busch and volunteers care for the emotional needs of families whose loved ones have been killed.

Busch also criticized the state for using more than $50,000 in grant money to pay for inmate education. Now the money is used to help educate "law-abiding citizens," Busch said.

And, Busch says, she's done it all to keep the memory of Kathy alive. All that's left Busch, along with her mother and father, and Cabrera are the only family around to visit Katherine in the cemetery now. Katherine's mother and father have married other people, moved out of state and are trying to rebuild their lives. They have other children now and remember an unhappy marriage together.

Medlock sits on death row as state prosecutors move relentlessly through the courts to kill him. Prosecutors say that if he loses all his appeals, Medlock could be executed this year. "He's already been in jail longer than my daughter was alive," Kenneth Busch said.

On a late October day, Busch stands at Katherine's grave. She says that sometimes when she visits, she'll talk to Katherine. She asks Katherine if she is growing, what happened when she left the earth, or she just tells her she misses her.

She remembers the pretty lace dress that she bought for Katherine for her burial. Katherine always liked to twirl and pose in lace dresses while she was alive. Busch also bought lace gloves and a veil for the child to cover up the marks Medlock left on her body in her struggle for life.

Busch said she plans to watch from a window inside Oklahoma State Penitentiary if and when Medlock is executed. It is her right under state law. Busch has other grandchildren, but says she will never love them as much as she loved Katherine. And that was ripped away from her. She can't understand how anyone who loved that child would not want to see Medlock die. "It will complete a chapter of my life," Busch said. "But it's something I have to do for Kathy. "I can't think of any [people] I've dealt with that didn't believe in the death penalty when they've lost someone," Busch said. "And that's why I couldn't understand" why Cabrera was against the death penalty.

On Dec. 2, Cabrera stood outside the governor's mansion waiting for Cornel Cooks to be executed. Cabrera held a banner that said, "Don't Kill for Us." Cooks was executed by lethal injection.

Cooks and another man were convicted of raping and suffocating an 87-year-old woman during a burglary. Police said the woman died a slow, agonizing death as Cooks and another man wrapped gauze around her head. But Cooks should not have died for the crime, Cabrera said. He was a pathetic man who never really had a chance in life, she said. He had an I.Q. of about 75, was abused as a child, suffered head injuries that made him potentially violent, began using drugs at 13 and stole food to feed his brothers, Cabrera said. Cooks was black; the other man who took part in the murder was white and was given a life sentence.

Cabrera said she would feel equally as sad for Medlock if he is executed. She will also stand outside the governor's mansion for him. She also says she plans to meet with Medlock before he is executed, but doesn't know what she'll say to him. She says taking a life is against God's will.

She also worries that innocent people are being sentenced to death. Cabrera says Medlock is not one of the innocent. Yes, he murdered her grandchild. He confessed. But she says she feels sadness for him. "I'll feel the same," she said. "I'm going to feel sad that another life had been taken in the name of justice."

The Monster in Apartment 406

When Kathy Busch Knocked, Voice Told Floyd Medlock to Kill

By Robert Anthony Phillips - APBNews.com

May 12, 2000

YUKON, Okla. Katherine Busch did not know a monster was lurking in apartment 406. His name was Floyd Medlock. Physically and emotionally abused as a child, Medlock, then 19, said he shared his troubled mind with the enraged voice of "Charlie," a dominating presence who demanded that he beat, rape and murder others.

It's not clear exactly what happened that February day in 1990, how 7-year-old Katherine found herself inside Medlock's apartment. Medlock says she jiggled the doorknob and told him she was hungry. He said he fixed her macaroni and cheese as they watched cartoons.

Members of her family doubt the introverted girl would have approached a stranger, even one who lived in her former apartment. They believe Medlock forced her inside. In any case, once Katherine was in the apartment, Medlock says his inner voice took over. "Charlie" was angry, and he wanted Medlock to kill the girl.

Katherine and her mother, Gina, had recently moved from apartment 406 to a two-bedroom place in the complex, known as Woodoaks Apartments, in Yukon, about 10 miles northwest of Oklahoma City.

Katherine was an only child, and her parents had divorced. Kenneth Busch had gone to prison for forgery after stealing a relative's money, and he and his ex-wife have said their seven-year marriage was not a happy one. "I will say I was a horrible husband, but I loved Kathy with all my heart," said Kenneth Busch, who now lives in Arizona. "I tried to provide the best I could. A lot of people point a finger, saying I was bad father because I was in prison." At one time, Katherine had lived with her fraternal grandmother, Judy Busch, for more than a year when her mother went to Texas to look for a job. But after regaining custody of Katherine, Gina Busch settled down with her daughter in Yukon.

Katherine had gone out on the afternoon of Feb. 19, 1990, to ride her pink and white bicycle. Police said that in the past Katherine had sometimes gone off on her own for hours, disappearing and frightening her mother. She would later be found at a nearby pond, where she fed ducks bread, or visiting a school.

But this time, when Katherine did not return by 7 p.m., Gina Busch called police. Officers in the small Yukon police department were too busy and didn't have time to immediately begin a search for the child, said Judy Busch, and they didn't start until several hours later -- something she publicly criticized them for at the time.

When the search did get under way, Detective Maj. Jim McDaniel, who led the investigation, set up a command post near the apartment building.

This time Katherine did not turn up at the duck pond or school, and officers were fanning out around Yukon. The first break came when a deputy officer, searching behind a drug store three blocks from the apartment building, spotted the child's bicycle near a Dumpster.

McDaniel went to the scene and was the first to approach the trash bin. McDaniel, who has since retired, still has vivid memories of that moment, reaching into the Dumpster, seeing the body, reaching out to touch the cold, lifeless arm of the child. "I think of that scene in my mind," McDaniel said. "Three or four of us standing over the body, poking at evidence. Here she is exposed and all. I thought about that."

The slaying was the talk of Yukon. Small towns don't experience many slayings, especially any this brutal. Katherine had been stabbed, beaten and molested, and then tossed away like a piece of trash.

The story was splashed across local newspapers, and the public was fuming over the crime. Medlock, who returned to work the next day, later told McDaniel that he had overheard two fellow workers saying that if the killer was not caught, he would probably kill again.

A fellow restaurant worker also told him that whoever killed the child should be "nailed to a stump." Medlock, who said he was remorseful and feared that he would kill again, then left the restaurant and called police from a telephone booth at a convenience store near the apartment complex.

When the police officers arrived at the store, they found Medlock standing at the side of the building. Medlock told the officers he was the person they were looking for. He was carrying the knife he had used to kill Katherine and he gave it to the police.

McDaniel said he got his first look at Medlock about 45 minutes after he was brought to the police station. Medlock was courteous and chain-smoked cigarettes, McDaniel said. He admitted killing the child.

He detailed everything he had done from the moment Katherine had knocked on his door to dumping her body in the trash bin. "It was almost like I was talking to my son and him telling me something," McDaniel said. "I didn't see any remorse." Medlock also told McDaniel about "Charlie."

In his videotaped confession to the crime, Medlock said he was at home watching cartoons when he heard his doorknob jiggle. He opened the door and found a little girl standing outside. She said she used to live in the apartment, and that she was hungry.

He invited her in and prepared macaroni and cheese, serving it to Katherine with potato chips. But Katherine was only in the apartment five to 10 minutes when Medlock's other personality, Charlie, surfaced with all the hate and abuse he had suffered throughout his life.

A psychotherapist testified at Medlock's trial that Charlie was an alternate personality, a 12-year-old boy who was the product of Medlock being sexually and emotionally abused as a child.

There was testimony that Medlock was locked in a closet as a child by his mother and frequently shut in the basement by a baby sitter. He told of being beaten with a garden hose by his stepfather. He had attempted suicide at least twice.

Once, when he was 10, he tried to kill himself with a shotgun, but after loading the weapon and pulling the trigger the cartridges did not fire. He also attempted to slash his wrists as a teenager. Later, a psychiatrist placed Medlock under hypnosis and interviewed Charlie.

In recounting the murder, Charlie kept referring to Katherine as "him" or, in several cases, as "Norm." Norm is the name of Medlock's stepfather, authorities said, who he claimed had abused him.

Medlock later said that when Charlie took over it was almost as if he were watching himself on television. And he recounted the crime as one would describe a scene from a show.

After fixing the meal and sitting down on the sofa to watch cartoons, Medlock -- on Charlie's orders -- suddenly grabbed Katherine and dragged her into the bedroom, where he began to choke and punch her. She cried out -- "OK! OK! OK!" -- as he overpowered her and pulled her into the bathroom.

He then shoved her head into the toilet bowl, trying to drown her. She struggled for her life, pulling her head out, gasping for breath.

It was then that Medlock grabbed a steak knife and attacked the girl, stabbing her in the back of the neck and in the eye before breaking the weapon in his rage. It is not known if Katherine was still alive, but Medlock took no chances.

He said he then went to his bedroom, where he kept a hunting knife under a pillow, and brought it to the bathroom. There he pushed the child's head down and rammed the blade into the back of her neck.

After killing the child, Medlock said, he washed her body in the bathtub. He also said he attempted to molest the child's lifeless body.

When he finally placed the body in a large television box, Medlock said, the inner voice of Charlie was satisfied and left him alone. Later that night, Medlock took the box and Katherine's bicycle to a nearby Dumpster. He tossed the child in the trash and left the bicycle on the side.

At the trial, it became evident that this was not an isolated event for Medlock. The monster that killed Katherine had come out before, only he had been unable to carry through with his plans.

One day in November 1987 while living in Nevada, Medlock told police in his taped confession that he had dressed in a Ninja costume -- which he said gave him a feeling of power -- and sought out a neighbor's 10-year-old daughter.

If she had been home, he told police, he would have raped her. But when he could not find the girl inside the house, he spread gasoline and set the building on fire.

Medlock also talked of having lived in his sister's house in Fresno, Calif., and of being afraid he was going to injure her two daughters. In a taped statement, Medlock said he left because Charlie kept telling him to rape or kill the girls. Medlock said he moved out because of those feelings.

Ten months later, Katherine came to his door. "He thought of her as an abandoned child, like him, and by killing her he was putting her out of her misery," said Stephen Jones, Medlock's lawyer. A psychiatrist later said that Medlock wasn't really killing Katherine but a stepfather who had abused him.

For McDaniel, no psychological explanation could explain such a horrible act. "It was just unfortunate that she knocked on the wrong door," he said. With the taped confession and proliferation of evidence pointing to his guilt, Medlock pleaded guilty and allowed Canadian County Judge Edward Cunningham to decide whether he should live or die. Cunningham sentenced Medlock to death. The judge did not return repeated calls for comment.

Medlock has now been on death row at Oklahoma State Penitentiary since March 28, 1991. Only five other death row inmates have been there longer. Medlock did not respond to a letter requesting an interview.

The murder has had a profound effect on all who knew Katherine, even 10 years later. "It was horrible because I know how she was," said Judy Busch, Katherine's paternal grandmother. "To get a splinter out of her finger, it took two people. She was a wiry little kind of spitfire, you know. ... She was very active and didn't tolerate pain well. ... To hear those details ... to think of him hitting her in the bedroom, dragging her into the bathroom and holding her head ... in the toilet." Judy Busch continues to fight for Medlock's execution, while Johnnie Cabrera -- Katherine's maternal grandmother -- forgives the murderer and prays that he lives.

Both of Katherine's parents have moved on. Her mother, now Gina Ford, has remarried and moved to Missouri. Ford now has an 8-year-old son, Matthew. She said that when the boy was about 2, she walked past his room and heard him talking to someone. "OK, OK, Kathy," she heard Matthew say. "You're so silly." Ford said she froze.

She had never told Matthew about his sister or what happened to her. "I asked him one day if he remembered talking to a girl named Kathy," Ford said. "My son said he did. I asked him if she was here, and he said that she's sleeping in heaven." Do you know who she is? Gina Ford asked her son. "She's my friend," Matthew told his mother. "My sister."

In life, Katherine liked Barbie dolls and once watched a movie, The Velveteen Rabbit, 28 times in a row. She last slept on Mickey Mouse bed sheets. In death, she lies in a pink casket. She is buried with her favorite teddy bear, placed there by Judy Busch.

Cabrera placed a tea leaf corsage on her dress. Katherine is buried in Rest Haven Cemetery in Oklahoma City. A simple flat marker on her grave states that she was born July 15, 1982, and died Feb. 19, 1990. On the marker it reads: "Daddy's Little Girl is Now Playing in God's Garden."

"Kathy was always daddy's little girl," said Kenneth Busch, who has now been married five times. "In her eyes daddy could do no wrong. Daddy could fix anything. During the attack, I'm sure she cried out to daddy, and he couldn't be there. But her father came and took her home. "The only thing I have to live for is knowing that God stepped in and this child will never be suffering again."

United States Court of Appeals
For the Tenth Circuit

FLOYD ALLEN MEDLOCK, Petitioner - Appellant,
v.
RON WARD; DREW EDMONDSON, Attorney General of the State of Oklahoma, Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. D.C. No. 96-CV-2035-C

Before KELLY, BRISCOE and LUCERO, Circuit Judges.

PER CURIAM

Floyd Allen Medlock, a prisoner challenging a death sentence in Oklahoma, sought habeas review in federal district court of his state conviction and sentence, pursuant to 28 U.S.C. 2254. Medlock brings numerous claims before us after the denial of his petition and the issuance of a certificate of appealability by the district court.

His claims are duplicative, and we reduce them to three: the district court erred in concluding the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to Medlock's habeas petition; the district court should have granted habeas relief based on the state trial court's unconstitutional use of aggravating and mitigating circumstances; and the district court should have found Medlock was denied effective assistance of counsel in violation of the Sixth Amendment.

We exercise appellate jurisdiction pursuant to 28 U.S.C. 1291 & 2253 and conclude that, because AEDPA applies and Medlock fails to meet its threshold for granting a writ of habeas corpus, and because his ineffective assistance of counsel claim is procedurally barred, the district court was correct in its denial of his petition. See 28 U.S.C. 2254(d).

I

* The district court adopted, as do we, the following undisputed facts from the decision of the Oklahoma Court of Criminal Appeals, Medlock v. State, 887 P.2d 1333, 1337-38 (Okla. Crim. App. 1994).

On the afternoon of February 19, 1990, Medlock was in his apartment watching cartoons on television when he heard someone attempting to open his door. See id. at 1337. On opening the door, he found Katherine Ann Busch, a small girl with a bicycle, who walked into his apartment and told him she once lived there. See id.

When Medlock admonished her against barging into his home, Kathy said simply that she was hungry and wanted something to eat. See id. Medlock gave her potato chips and began to prepare macaroni and cheese. See id. While cooking, he told the police, "this real weird feeling" came over him. Id. at 1338.

Precisely what Medlock did next is unclear, see id., but the following is undisputed. Medlock grabbed Kathy by the arm, she jerked away, he grabbed her again, and she jerked away again. See id. He wrestled with her and covered her mouth when she began to scream, choking her until she passed out. See id.

According to his confession, she regained consciousness, and he dragged her to the bathroom and forced her head into the toilet bowl for approximately ten minutes, during which time she was gasping for breath. See id. Then, while she was still alive, he stabbed her in the back of the neck with a steak knife and later with a hunting knife until she died, holding her head in the toilet bowl again so that she would not bleed on the floor. See id.

After the bleeding ceased, he placed her in the bathtub, removed her clothes, and attempted to sexually molest her lifeless body.1 See id. Finally, he wrapped her body in a blanket, placed it in a box, and deposited the box and her bicycle into a dumpster behind a nearby shopping center. See id.

The police found Kathy's body in the dumpster early the next morning. See id. at 1337. Later that day, Medlock called the police to confess to the murder before he was a suspect. See id. He explained that he feared harming others in the future. See id. at 1349. He told the police that the incident seemed dream-like and that he had trouble remembering it. See id. at 1338. When asked what caused him to do what he did, he answered that he had been hearing voices in his head since the age of twelve. See id.

In February 1990, Medlock was charged with the first-degree malice murder of Kathy Busch in Oklahoma state district court, to which he entered a plea of not guilty by reason of insanity. Accompanying the indictment, the State filed a Special Bill of Particulars alleging two aggravating circumstances: the murder was "especially heinous, atrocious, or cruel," and there was a probability that Medlock would commit criminal acts of violence such that he would remain a "continuing threat to society." Okla. Stat. tit. 21, 701.12.

The case was set for jury trial, but before the jury was empaneled, Medlock entered a "blind" plea of guilty, not having reached an agreement with the State on the punishment it would recommend. Following a hearing, the court accepted the plea. See Medlock v. State, 887 P.2d at 1338-39.

At the subsequent sentencing hearing, Medlock presented mitigation evidence, including that of expert witnesses--a licensed clinical social worker, a professor of psychology at Oklahoma City University, and a retired clinical psychologist specializing in multiple personality disorder ("MPD"). See id. at 1340. Those experts testified that Medlock suffered from MPD with atypical features, explaining that his second personality was a violent twelve-year-old named "Charley" who had been in control of Medlock at the time of the murder. See id. at 1340-41.

Appellant's experts added that MPD is treatable and Medlock's prognosis was good if he received therapy. See id. In rebuttal the State called its own expert witness, a clinical psychologist, who raised the possibility that Medlock was malingering and questioned his credibility. See id. The State's psychologist also opined that Medlock demonstrated a pattern of increasingly anti-social behavior. See id.

After the close of the sentencing hearing, but before the court entered its sentence, Medlock filed a motion to withdraw his plea. The court denied the motion and, upon finding that the aggravating circumstances outweighed the mitigating circumstances, imposed the death penalty. See id. at 1341-45.

On direct appeal the Oklahoma Court of Criminal Appeals affirmed Medlock's conviction and sentence. See Medlock v. State, 887 P.2d 1333, reh'g denied, 889 P.2d 344 (Okla. Crim. App. 1995), cert. denied sub nom. Medlock v. Oklahoma, 516 U.S. 918 (1995). In September of 1996 Medlock filed an application for state post-conviction relief, which the Oklahoma Court of Criminal Appeals denied as well. See Medlock v. State, 927 P.2d 1069 (Okla. Crim. App. 1996), overruled on other grounds by Walker v. State, 933 P.2d 327, 334 n.6 (Okla. Crim. App. 1997).

The following June, Medlock filed a timely petition for a writ of habeas corpus in United States District Court for the Western District of Oklahoma, the denial of which, as noted, is the subject of this appeal.

II

As a threshold matter, our Circuit has already settled the question of AEDPA's applicability to this case. We have stated that "AEDPA applies to [a petitioner's] case because he filed his 2254 petition after April 24, 1996, the effective date of the Act." Braun v. Ward, 190 F.3d 1181, 1184 (10th Cir. 1999) (citing Hooks v. Ward, 184 F.3d 1206, 1213 (10th Cir. 1999)). AEDPA thus applies to Medlock's June 1997 petition.

Because the Oklahoma state courts have addressed on its merits Medlock's claim of unconstitutional use of aggravating and mitigating circumstances, we review the state courts' rulings under the AEDPA standard enunciated in 28 U.S.C. 2254.

Under that section, a federal court is precluded from granting habeas relief on any claim adjudicated on the merits by the state court, unless the state proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. 2254(d)(1), 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," 28 U.S.C. 2254(d)(2). All factual findings of the state court are presumed correct unless the petitioner can rebut this presumption by clear and convincing evidence. 28 U.S.C. 2254(e)(1).

III

We examine first Medlock's various challenges to the use of aggravating and mitigating circumstances by the Oklahoma trial court and Court of Criminal Appeals and afterwards his claim of ineffective assistance of trial counsel.

* With regard to the facial constitutionality of the aggravators used by the trial court, Medlock's challenges to Oklahoma's "heinous, atrocious, or cruel" and "continuing threat" aggravators are meritless. To be acceptable under the Eighth Amendment, the aggravating circumstance must furnish a sentencer with a principled means of guiding its discretion. See Maynard v. Cartwright, 486 U.S. 356, 361-64 (1988). Our Circuit has repeatedly upheld the facial constitutionality of these aggravators as "narrowed" by the State of Oklahoma, and we are bound by that body of precedent. See, e.g., Nguyen v. Reynolds, 131 F.3d 1340, 1352-54 (10th Cir. 1997); Hatch v. State, 58 F.3d 1447, 1468-69 (10th Cir. 1995).

B

With respect to the evidence used to prove the aggravators, Medlock contends that the Oklahoma court unconstitutionally relied on duplicative and cumulative sentencing factors. We disagree. "[D]ouble counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally." United States v. McCullah, 76 F.3d 1087, 1111 (10th Cir. 1996).2

Contrary to Medlock's contention, these aggravating circumstances are not duplicative. In Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir. 1998) (quoting McCullah, 76 F.3d at 1087, 1111-12), cert. denied, (1999) (U.S. Oct. 4, 1999) (No. 98-9420), we explained that, to overlap impermissibly, one aggravating circumstance must "'necessarily subsume'" another. It is not impermissible for "certain evidence [to be] relevant to both aggravators." Id. Thus, Medlock is incorrect that use of evidence of his criminal record to find both the "continuing threat to society" and "heinous, atrocious, or cruel" aggravating circumstances renders those aggravators duplicative. Cf. McCullah, 76 F.3d at 1111-12.

The aggravators do not "necessarily subsume" one another under McCullah: The "continuing threat" aggravator goes to Medlock's future dangerousness, while the "heinous, atrocious, or cruel" aggravator goes to the nature of Medlock's crime. The former involves future conduct; the latter involves the nature of the act for which Medlock was convicted. Under these circumstances the elements of one aggravator do not necessarily subsume those of the other.

C

As support for the aggravating circumstance of "continuing threat to society," the Oklahoma district court relied on Medlock's statement to the police that he feared hurting someone in the future. Medlock argues that the court's reliance on this potentially mitigating evidence rendered the aggravating circumstance unconstitutional by violating the requirement "that the sentencer in capital cases must be permitted to consider any relevant mitigating factor." Eddings v. Oklahoma, 455 U.S. 104, 112 (1982)

On direct appeal, the Oklahoma Court of Criminal Appeals held that "Medlock's statement that he feared he would hurt someone in the future should not have been relied upon to find continuing threat." Medlock v. State, 887 P.2d at 1349. Rather, it held the statement "demonstrates Medlock's willingness and ability to remove himself from society to minimize his threat to society" and thereby was not permissible support for the aggravator. Id. The court nonetheless sustained the finding of the aggravator based on evidence of the callousness of Medlock's crime and his prior convictions for arson and burglary. See id.

It is well established that "the fundamental respect for humanity underlying the Eighth Amendment . . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Eddings, 455 U.S. at 112 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)) (internal quotations omitted); see Lockett v. Ohio, 438 U.S. 586 (1973).

The Lockett principle prohibits a state from excluding from the sentencer's consideration, and prohibits the sentencer itself from refusing to consider, "any relevant mitigating evidence." Eddings, 455 U.S. at 114.

The sentencing court in Medlock's case did not indicate that it was excluding from consideration the mitigating effect of Medlock's expressed desire to minimize his threat to society, which would have contravened Lockett and Eddings. The fact that the court may have relied on his statement as aggravating evidence does not necessarily render its sentence constitutionally invalid. See Johnson v. Texas, 509 U.S. 350, 368 (1993) (holding that "the fact that a juror might view [particular evidence] as aggravating, as opposed to mitigating, does not mean that the rule of Lockett is violated" (citing Graham v. Collins, 506 U.S. 461, 475-76 (1993))); see also Penry v. Lynaugh, 492 U.S. 302, 324 (1989) (recognizing that mitigating evidence can function as a "two-edged sword" during sentencing, in effect operating as both mitigating and aggravating evidence); Eddings, 455 U.S. at 114-115 ("The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence.").

While the Oklahoma Court of Criminal Appeals found this evidence improper for supporting the continuing threat aggravator, the court nevertheless upheld the sentencing court's finding of that aggravator. Contrary to Medlock's assertion, the Court of Criminal Appeals was under no obligation, as a matter of constitutional law, to reweigh the aggravating and mitigating factors.3 The sentencer's finding of the continuing threat aggravating circumstance was upheld by the Oklahoma Court of Criminal Appeals; that court simply disapproved of one proffered reason for the finding, which in itself does not violate Lockett. See Johnson, 509 U.S. at 368.4

Apart from his facial challenge to the continuing threat aggravator and his claim that consideration of mitigating evidence in support of the aggravator violated Lockett, Medlock does not otherwise challenge on appeal the sufficiency of the evidence to support the district court's finding of the continuing threat aggravator.

D

Medlock challenges the "heinous, atrocious, or cruel" aggravator not only facially but also as applied. He argues that the State presented insufficient evidence that Medlock's conduct fell within Oklahoma's "narrowed," and therefore constitutional, construction of the aggravator.

In Maynard v. Cartwright, 486 U.S. 356, 363-64 (1988), the Supreme Court determined that Oklahoma's "especially heinous, atrocious, or cruel" aggravator was vague and overbroad unless construed sufficiently narrowly. Oklahoma has since adopted a constitutional narrowing construction of the aggravator, which provides that the victim's murder--to be deemed "especially heinous, atrocious, or cruel"--must have been "preceded by torture or serious physical abuse." Turrentine v. State, 965 P.2d 955, 976-77 (Okla. Crim. App. 1998); see also Hatch, 58 F.3d at 1468-69 (holding the narrowing construction to be constitutional).

Torture includes "the infliction of either great physical anguish or extreme mental cruelty." Turrentine, 965 P.2d at 976 (citing Berget v. State, 824 P.2d 364, 373 (Okla. Crim. App. 1991)). With respect to the physical anguish branch of the Oklahoma test, "[a]bsent evidence of conscious physical suffering by the victim prior to death, the required torture or serious physical abuse standard is not met." Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App. 1995) (quoting Battenfield v. State, 816 P.2d 555, 565 (Okla. Crim. App. 1991)) (internal quotations omitted).

We have held that the "heinous, atrocious, or cruel" aggravating circumstance as narrowed by the Oklahoma courts after Maynard to require torture or serious physical abuse characterized by conscious suffering can provide a principled narrowing of the class of those eligible for death. See, e.g., Hatch, 58 F.3d at 1468-69.5 Medlock fails to demonstrate that Oklahoma has applied its narrowing construction in an unconstitutional manner.

Medlock argues that the evidence--even examined in the light most favorable to the prosecution--is insufficient to support the narrowed "heinous, atrocious, or cruel" aggravator because evidence regarding conscious suffering by the victim is absent. See Turrentine, 965 P.2d at 976-77 (finding inconsistent evidence failed to support the aggravator because it was unclear whether the victims experienced conscious suffering). Whether we treat this challenge as a legal determination under 28 U.S.C. 2254(d)(1), or one of fact under 28 U.S.C. 2254(d)(2), the result is the same. See Moore v. Gibson, 195 F.3d 1152, 1177 (10th Cir. 1999).6

Medlock fails to demonstrate that a rational factfinder could not conclude that his crime, occurring in several gruesome phases, involved torture or serious physical abuse characterized by conscious suffering. The evidence, including Medlock's confessions, suggests that he repeatedly grabbed his victim by the arm, wrestled with her, struck her in the face, threw her onto his bed, and covered her mouth when she began screaming. See Medlock v. State, 887 P.2d at 1338, 1348.

He choked her until she temporarily passed out, then dragged her to the toilet and stuck her head into the bowl while she was conscious and gasping for air, keeping her there for ten minutes until she passed out again. See id. at 1338. When he noticed she was still breathing and alive, he used a steak knife to stab her in the back of the neck and, when that knife bent, took a hunting knife and stabbed her in the back of the neck again until she died. See id.

This body of evidence is sufficient to fall within the narrowed scope of the "especially heinous, atrocious, or cruel" aggravator. Taking the facts together, we conclude it was neither "an unreasonable determination of the facts in light of the evidence presented" nor an "unreasonable application of clearly established federal law" for the sentencer to conclude that conscious suffering was present. We also recognize 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). In light of the foregoing, we conclude there was sufficient evidence of conscious suffering to preserve the constitutionality of the Oklahoma court's application of the "heinous, atrocious, or cruel" aggravating circumstance.7

V

Medlock sought to raise an ineffective assistance of counsel claim in his federal habeas petition, the basis of which was not raised in his application for state post-conviction relief. The federal district court alluded to the possibility that Medlock's ineffective assistance of counsel claim may have been procedurally barred. But the court chose not to decide the question of procedural bar, instead denying Medlock's petition on the merits, pursuant to 28 U.S.C. 2254(b)(2), which states that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."

The district court thus acted pursuant to statute when it chose to deny Medlock's ineffective assistance claim on the merits. However, we elect instead to deny his claim due to procedural bar, with regard to which Medlock has not shown cause for failing to exhaust his state remedies.

In general, petitioners must exhaust available state court remedies before seeking federal habeas relief. See 28 U.S.C. 2254(b)(1); Smallwood v. Gibson, 191 F.3d 1257, 1267 (10th Cir. 1999). In the present case, Medlock "has not . . . raised before the state courts any of the bases upon which his current ineffective assistance of counsel claim[] rel[ies]." Smallwood, 191 F.3d at 1267. Therefore, he has failed to exhaust his ineffective assistance claim.

In Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991), the Supreme Court held that if "the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred," petitioner's claims are procedurally defaulted for purposes of federal habeas corpus relief. Oklahoma deems waived claims that were not raised in an initial application for post-conviction relief in a death penalty case. See Okla. Stat. tit. 22, 1086, 1089(D)(2).

Medlock did not raise his present ineffective assistance claim, involving the failure of his counsel to investigate and present at sentencing his family's history of mental illness, in his application for state post-conviction relief, and therefore it is barred under Oklahoma law. See Smallwood, 191 F.3d at 1269.

We may not consider issues raised in a habeas petition "that have been defaulted in state court on an independent and adequate procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice." English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citing Coleman, 501 U.S. at 749-50; Steele v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993)).8

Despite the especially vigilant scrutiny we apply in examining procedural bars to ineffective assistance claims, we have held that Oklahoma's procedural bar to claims not raised on initial post-conviction review is independent and adequate. See Moore v. Reynolds, 153 F.3d 1086, 1097 (10th Cir. 1998), cert. denied, 119 S.Ct. 1266 (1999). Thus, Medlock's claim is defaulted unless he can show cause and prejudice or a fundamental miscarriage of justice. See English, 146 F.3d at 1259.

With regard to "cause" for his procedural default, Medlock was represented by different counsel on direct appeal and on application for post-conviction relief than at trial and sentencing. We can discern no reason for his failure to raise in state proceedings the grounds for his claim of ineffective assistance of trial counsel, and he provided no insight into that failure in his briefs or during oral argument.

Because Medlock furnishes no explanation for his failure to raise his ineffective assistance claim in the state courts, he has not shown the requisite "cause" for overcoming his procedural default. See Coleman, 501 U.S. at 750. Neither has he met the high threshold required to show a "fundamental miscarriage of justice." Demarest v. Price, 130 F.3d 922, 941 (10th Cir.1997) (stating that to meet the "fundamental miscarriage of justice" standard, the petitioner must supplement his habeas claim with a colorable showing of factual innocence).

Even if his ineffective assistance claim were not procedurally barred, under the facts of this case Medlock would not be entitled to an evidentiary hearing on that claim. If a habeas petitioner fails to develop the factual basis of his habeas claim in state court, he is not entitled to a federal evidentiary hearing unless he initially shows that the claim relies on a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" or "a factual predicate that could not have been previously discovered through the exercise of due diligence," 28 U.S.C. 2254(e)(2)(A)(i) and (ii), or else demonstrates by clear and convincing evidence that "but for constitutional error, no reasonable factfinder" would have found him guilty, 28 U.S.C. 2254(e)(2)(B). Medlock has made no such showing here. Therefore, he is not entitled to an evidentiary hearing on his ineffective assistance of counsel claim.

VI

Because Medlock has not set forth a claim that his sentence is unconstitutional sufficient to warrant federal habeas relief under AEDPA, and because his ineffective assistance of counsel claim is procedurally barred, we AFFIRM the district court's denial of his habeas petition.

*****

Notes:

Although we have indicated we are relating undisputed facts, there was dispute in the evidence regarding whether the victim was in fact dead when Medlock attempted to molest her.

As previously stated, the AEDPA requires our application of Supreme Court precedent in determining whether the state court proceeding violated clearly established federal law. See 28 U.S.C. 2254(d)(1). We assume then, for purposes of argument only, that Medlock can rely upon a circuit court case such as McCullah.

The Oklahoma Court of Criminal Appeals did conduct a mandatory review of Medlock's death sentence, pursuant to Okla. Stat. tit. 21, 701.13(C). See Medlock v. State, 887 P.2d at 1351. This review does not represent a full reweighing of aggravating and mitigating factors.

Medlock cites Clemons v. Mississippi, 494 U.S. 738 (1990), for the proposition that the state appeals court was constitutionally required to reweigh the aggravating and mitigating circumstances after finding the sentencing court improperly relied on Medlock's statement to support the continuing threat aggravating circumstance. His reliance on Clemons is misplaced. That case stands for the proposition that a death sentence imposed based on a constitutionally invalid aggravating circumstance is unconstitutional absent either "reweighing of the aggravating and mitigating evidence" or "harmless error review" by the appellate court. Id. at 741. Unlike in Clemons, the application of the continuing threat aggravating circumstance in this case has never been invalidated. Neither the Supreme Court, nor any decision of which we are aware, has held that a state court's rejection of one of several grounds for finding an aggravating circumstance at the same time as it otherwise upholds the finding of that circumstance, would trigger the reweighing or harmless error review contemplated by Clemons.

Although the Supreme Court has suggested that the condition of torture or serious physical abuse characterized by conscious suffering is not the only permissible narrowing construction for this aggravating circumstance, see Maynard, 486 U.S. at 365, we are faced with no alternative narrowing construction today.

Whether Section 2254(d)(1) or 2254(d)(2) applies to our review of the sufficiency of the evidence to support an aggravator is unsettled in our Circuit because we have applied both in the past, sometimes analyzing the sufficiency of the evidence as a factual question and sometimes as a legal question. See Moore v. Gibson, 195 F.3d 1152, 1176-77 (10th Cir. 1999).

Medlock argues that the Oklahoma district court improperly relied on evidence concerning the condition of the victim's underwear during the sentencing phase of the trial to support the existence of the "heinous, atrocious, or cruel" aggravating circumstance. Even if the court improperly admitted that evidence, however, the remaining body of evidence was in itself so overwhelming that the allegedly erroneous admission constituted, at most, harmless error.

We consider a state's ground for procedural bar to be adequate only if it is "'strictly or regularly followed' and applied 'evenhandedly to all similar claims.'" Duvall v. Reynolds, 139 F.3d 768, 797 (10th Cir. 1998) (quoting Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)), cert. denied, 119 S.Ct. 345.

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LUCERO, Circuit Judge, concurring.

I join the majority opinion. I am in agreement that the victim in the present case, Kathy Busch, experienced conscious suffering sufficient to meet the "torture or serious physical abuse" standard required to prove the "heinous, atrocious, or cruel" aggravating circumstance, particularly under the deferential AEDPA standard we apply when reviewing the Oklahoma sentencer's findings of fact. I write separately, however, to note that, in order to conduct a proper analysis of the sentencer's application of the "heinous, atrocious, or cruel" aggravator, I think it essential to set forth the Oklahoma test for conscious suffering we have found to satisfy the requirements of the Eighth Amendment. Thus, to evaluate whether the "heinous, atrocious, or cruel" aggravating circumstance was properly applied, we must examine the state court's findings as to the duration of conscious suffering on the part of the victim.

Under the Eighth Amendment, applying the narrowing construction of the aggravating circumstance in a manner that permitted Oklahoma courts to find "torture or serious physical abuse" based merely on the brief period of conscious suffering necessarily present in virtually all murders would fail to narrow the sentencer's discretion as required by Godfrey v. Georgia, 446 U.S. 420 (1990), and Maynard v. Cartwright, 486 U.S. 356 (1988), leaving the sentencer "with the kind of open-ended discretion which was held invalid in Furman v. Georgia, 408 U.S. 238 (1972)." Maynard, 486 U.S. at 361-62. In interpreting the limiting construction we approved in Hatch v. State, 58 F.3d 1447, 1468-69 (10th Cir. 1995), the Oklahoma Court of Criminal Appeals ("OCCA") has identified two kinds of cases in which "torture or serious physical abuse" is present: those characterized by the infliction of "great physical anguish" and those characterized by the infliction of "extreme mental cruelty". Cheney v. State, 909 P.2d 74, 80 (Okla. Crim. App. 1995). In the mental cruelty context, the OCCA has emphasized that the torture required for finding the "heinous, atrocious, or cruel" aggravator "must produce mental anguish in addition to that which of necessity accompanies the underlying killing." Turrentine v. State, 965 P.2d 955, 976 (Okla. Crim. App. 1998) (quoting Berget v. State, 824 P.2d 364, 373 (Okla. Crim. App. 1991)). As the majority notes "[w]ith respect to the physical anguish branch of the Oklahoma test, '[a]bsent evidence of conscious physical suffering by the victim prior to death, the required torture or serious physical abuse standard is not met.' Cheney, 909 P.2d at 80 (quoting Battenfield v. State, 816 P.2d 555, 565 (Okla. Crim. App. 1991)) (internal quotations omitted)." (Maj. Op. at 12-13.)

There must be conscious suffering of more than the brief duration necessarily accompanying virtually all murders. See Turrentine, 965 P.2d at 976; see also Brown v. State, 753 P.2d 908, 913 (Okla. Crim. App. 1988) (refusing to find the aggravator where it could not be ruled out that the victim might have "only survived a few minutes at most" after being attacked) (internal quotation omitted).1 Were this not so, the narrowing construction would not have the discretion-limiting effect required by Godfrey and Maynard.

The Eighth Amendment therefore requires us to determine whether the state sentencer's finding of the "heinous, atrocious, or cruel" aggravator represents the application of a permissible narrowing construction: one requiring evidence of torture or serious physical abuse characterized by conscious suffering on the part of the victim.

Absent such evidence, application of the aggravator either would "result[] in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. 2254(d)(2), or, if sufficiency of the evidence is treated as a legal question, would "result[] in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. 2254(d)(1). See Moore v. Gibson, 195 F.3d 1152, 1176-1177 (10th Cir. 1999).2

In either case, we review whether the sentencer properly found sufficient evidence of torture or serious physical abuse under the deferential "'rational factfinder' standard established in Jackson v. Virginia, 443 U.S. 307 (1979)" by asking "whether, 'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the [aggravating circumstance] beyond a reasonable doubt.'" Moore, 195 F.3d at 1176 (quoting Jackson, 443 U.S. at 319) (internal quotations and further citations omitted).

Whether we apply 28 U.S.C. 2254(d)(1) or (d)(2), I am in agreement that a rational factfinder could conclude that Medlock's crime involved torture or serious physical abuse characterized by a meaningful period of conscious suffering. The aggravating circumstance thus was properly applied in this case.

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Notes:

1

2

As the majority correctly notes, "[w]hether Section 2254(d)(1) or 2254(d)(2) applies to our review of the sufficiency of the evidence to support an aggravator is unsettled in our Circuit because we have applied both in the past, sometimes analyzing the sufficiency of the evidence as a factual question and sometimes as a legal question. See Moore v. Gibson, 195 F.3d at 1176-77." (Maj. Op. at 1321 n.6.)